Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 262

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 262 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 26 March 1999 JUDGMENT DATE : 26 March 1999

JOHN MARSDEN (Plaintiff)

PARTIES : v

AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J

I Barker Q.C. G Reynolds S.C. R McHugh COUNSEL : (Plaintiff)

W H Nicholas Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jacques (Defendant) CATCHWORDS : On claim for legal professional privilege in respect of documents produced by Dr Dent - see T164 DECISION : See paragraph 9

DLJT: 29 (Ex Tempore - Revised) THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

FRIDAY 26 MARCH 1999

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On claim for legal professional privilege in respect of documents produced by Dr Dent - see T614) 1 HIS HONOUR: The plaintiff, by Notice of Motion filed in court today, applies to the Court for orders in relation to the inspection of material produced by Dr Malcolm Dent in answer to a subpoena for production issued by the defendant on 23 March 1999. Some of the material produced by Dr Dent has been the subject of access to and inspection by the defendant. 2 The plaintiff has claimed privilege in respect to material contained in a folder RWP 1, being a confidential exhibit to the affidavit of Richard Williams Potter, sworn 25 March 1999. 3 The circumstances giving rise to the issue of the subpoena, briefly, can be summarised as follows; the plaintiff has made it abundantly clear that in the event of the defendant otherwise being entitled to amend its case on justification, it should, nonetheless be precluded from doing so by reason of the severe psychiatric condition of the plaintiff being subject to substantial damage by reason of what is said to be the inevitable delay in the trial of his action that would flow if leave be granted to the defendant, as a substantial adjournment would be needed for the plaintiff to prepare his case in respect of the additional material. 4 The present position is that Dr Dent is to give evidence on Tuesday of next week on that component of the plaintiff's position in the defendant's application and, as I understand it, notice of the case on that issue, to be constituted by the evidence of Dr Dent, is comprised in the report dated 1 March 1999. Also as I understand it, two other reports, one dated 18 May 1998 and one dated 8 September 1998, could be the subject of testimony. 5 Also, as I understand it, reports have been served by the defendant from Dr White, particularly on November 1998, and as I understand it Dr White will be giving evidence on Tuesday. The ambit of the claim for privilege is described adequately in the affidavit of Mr Potter, and particularly the schedule there to which describes each document in the grey folder constituting confidential exhibit RWB 1, together with assertions of facts supporting the claim for privilege in relation to the enumerated documents. 6 I have inspected the material in the folder in the light of what is asserted by Mr Potter in the schedule to his affidavit and have come to the view that the bulk of it is presently protected by legal professional privilege. I should make it clear that that view will continue until any development on Tuesday, or otherwise, makes further consideration of that question desirable or necessary. 7 However, with respect to the report dated 1 March 1998 I am satisfied that there is material in the grey folder to which it cannot be said any privilege further attaches and by going through the documents by reference to their numbers I will indicate those to which the defendant should now have access and the form, where necessary, in which access should be granted. 8 The last page of document 1 so much of it is as is constituted by handwritten notes; document 3B in the edited form already produced to the defendant; the first page of document 6, and only so much of it as is constituted by the handwritten notes there on, if practical, generation of that document in that form will be enough; and document 8 to which the defendant is also entitled access. 9 I rule accordingly. **********