Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 267

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 267 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 29 March 1999 JUDGMENT DATE : 29 March 1999

JOHN MARSDEN (Plaintiff)

v PARTIES : AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant)

NEW SOUTH WALES POLICE SERVICE (On Subpoena) JUDGMENT OF : Levine J

G Reynolds S.C. R G McHugh (Plaintiff)

COUNSEL : W H Nicholas Q.C. R Titterton (Defendant)

W G Muddle (New South Wales Police Service) Phillips Fox (Plaintiff)

SOLICITORS : Mallesons Stephen Jacques (Defendant)

Crown Solicitors Office (New South Wales Police Service) CATCHWORDS : On application by Commissioner of Police to adjourn cross-examination of Messrs Angus, Bell and Woodhouse ACTS CITED : Evidence Act 1995 (NSW) DECISION : See paragraph 12

DLJT: 30 (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

MONDAY 29 MARCH 1999

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) Judgment (On application by Commissioner of Police to adjourn cross-examination of Messrs Angus, Bell and Woodhouse) 1 HIS HONOUR: It was during Thursday 25 March that there arose during the cross-examination of Mr Howard Charles Bell, the Senior Legal Officer of the Police Service of this State, the matter of s 125 of the Evidence Act. That matter is dealt with in my ruling and directions of that date (NSWSC 259 DLJT: 28). 2 Consequent upon the matters referred to in that judgment, Mr Muddle of Counsel this morning appears for the Commissioner to seek to have adjourned the cross-examination of Mr Bell essentially to enable his client, the Commissioner, to be properly apprised of the matters referred to in my judgment of 25 March and to be advised in relation to them. 3 The Commissioner being a person exercising an undoubted right to claim privilege in relation to documents sought from him, Mr Muddle appears as a result of the withdrawal of the persons hitherto representing the police in circumstances where their conduct as legal officers and practitioners, vis-a-vis the Commissioner, and in the context of any dealings, to use that term in a neutral way, between the Commissioner and the defendant, have been called into question. I am of the view that that is a perfectly understandable, acceptable and necessary development. 4 Counsel for the plaintiff and for the defendant, each for their client, resists the application made by the Commissioner, for the plaintiff on the basis that time will be available to the Commissioner in any event over today and tomorrow, by reason of the continuation today of the cross-examination of Mr Angus and the cross-examination of Mr Woodhouse. In any event a question is raised by the plaintiff as to the standing of the Commissioner to participate in the cross-examination in any way of those two persons. I do not understand the plaintiff to be making the same complaint in relation to the Commissioner's standing with respect to Mr Bell. 5 The defendant, consistent with an anxiety on the part of both sides that the defendant's application to amend be dealt with, also presses for the continuation of the cross-examination of Mr Angus and the institution of the cross-examination of Mr Woodhouse, but additionally seeks to preclude the plaintiff in the course of those cross-examinations from pursuing the s 125 line, if I might so shortly describe it. 6 The defendant cannot be said to have been taken by surprise by the connection of the cross-examination of Mr Angus as it has hitherto developed with matters generally in issue in an application of its kind. The defendant certainly cannot be surprised by the plaintiff having moved to set aside the defendant's subpoena to the Commissioner. The element of surprise is constituted by the s 125 component with which I dealt on 25 March. That component however is fundamental to the plaintiff's application, so it seems, to have set aside the subpoena and hence as I gather the pursuit of it to the point reached when Mr Bell's cross-examination was suspended. 7 Much reliance is placed upon the fact that written submissions of the plaintiff were delivered some time ago, submissions covering the plaintiff's opposition to the defendant's substantive motion to amend and purporting to cover also the plaintiff's claim to have set aside the subpoena to the Commissioner - that is the 8th factor on page 15 of those submissions. 8 Mr Muddle rightly has characterised that which is inherent in the s 125 matter as raising matters of the utmost gravity. I don't see how they could be characterised differently. They are as grave in relation to the Commissioner and his then legal advisers as they are apparently important to the plaintiff in opposing the defendant's amendment and in having set aside the defendant's subpoena to the Commissioner. 9 With respect to the s 125 component, I gather that particulars have been provided to the Commissioner in accordance with the direction I gave on 25 March. A question has arisen as between the Commissioner and the plaintiff as to their adequacy and that question must be resolved. 10 First, I reject the contention for the defendant that the cross-examination of whomsoever today was to be cross-examined by the plaintiff should be constrained by the elimination of the s 125 component. Second, as is apparent, if what counsel for both the plaintiff and the defendant have said today, the "area" susceptible to s 125 considerations will of necessity arise during the cross-examination of Mr Angus and no doubt unquestionably arise in the cross-examination of Mr Woodhouse. 11 Whilst the Commissioner can make arrangements to observe those cross-examinations, that, at this point of time, would be of little or no utility to the preparation by the Commissioner of his position in relation to pursuit of the s 125 issue via Mr Bell. Notwithstanding protestations of notice as between the plaintiff and the defendant, I have no hesitation in describing the intrusion of the s 125 component as explosive, the fall-out from which detonation clearly involving the Commissioner. 12 I propose to accede to the Commissioner's application to this extent today. I will make arrangements through my Associate that whomsoever is instructing Mr Muddle is to be provided with the transcript of the evidence given by Mr Angus to date and the revised judgment handed down on 25 March. I will entertain no further application in relation to any component of this litigation between now and 2pm. On the assumption that within one hour that material will be made available to those instructing Mr Muddle. He can consider it and inform the Court at 2pm further as to his position in the light of it. The Court will have business tomorrow with which it can proceed, that business being constituted, as I understand it, by certain medical evidence. But I propose to immediately adjourn this matter to 2pm and Mr Muddle's instructing solicitors can make immediate contact with my Associate with respect to the timing of the provision of the material in the interim. **********