New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 215 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 15 March 1999 JUDGMENT DATE : 15 March 1999 JOHN MARSDEN (Plaintiff) v PARTIES : AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) NEW SOUTH WALES POLICE SERVICE (Under Subpoena) JUDGMENT OF : Levine J R G McHugh (Plaintiff) COUNSEL : P Singleton (Crown Solicitors Office) (New South Wales Police Service) Phillips Fox (Plaintiff) SOLICITORS : Crown Solicitors Office (New South Wales Police Service) CATCHWORDS : Application by NSW Police to have set aside subpoena to produce documents issued by plaintiff DECISION : See paragraph 14 DLJT: 23 (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 15 MARCH 1999 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Application by NSW Police to have set aside subpoena to produce documents issued by plaintiff) 1 HIS HONOUR: In connection with its application for leave to amend in respect of its defence of justification the defendant on 3 March 1999 filed an affidavit of Detective Superintendent Michael Woodhouse. The affidavit was sworn on 2 March. On 3 March 1999 the plaintiff served upon the New South Wales Police Service a subpoena for the production of documents, the schedule to which subpoena is in the following terms: "1. All documents recording the 'initial attitude' of Detective Superintendent Woodhouse to which he deposes in his affidavit sworn 2 March 1997 in these proceedings ('the affidavit') 'that the majority of the documents sought in the subpoena [issued on 18 January 1999 at the request of the defendant in these proceedings] were protected from production by public interest immunity'. 2. All documents recording the substance of anything said at the meeting ('the meeting') on 27 January 1999 attended by Detective Superintendent Woodhouse, Detective Senior Constable Halcro, Howard Bell, James Howard, Detective Superintendent Inkster and Detective Sergeant Rudolph to which Detective Superintendent Woodhouse deposes at paragraph 23 of the affidavit. 3. All documents relating to the meeting. 4. All documents recording the agreement deposed to at paragraph 25 of the affidavit. 5. All documents relating to the agreement deposed to at paragraph 25 of the affidavit. 6. All documents recording the agreement deposed to at paragraph 26 of the affidavit. 7. All documents relating to the agreement deposed to at paragraph 26 of the affidavit. 8. All documents recording the agreement deposed to at paragraph 27 of the affidavit. 9. All documents relating to the agreement deposed to at paragraph 27 of the affidavit. 10. All documents recording the agreement deposed to at paragraph 31 of the affidavit. 11. All documents relating to the agreement deposed to at paragraph 31 of the affidavit. 12. Copies of all documents relating to John Marsden provided by Detective Superintendent Woodhouse or any member of Strike Force Cori to the Director of Public Prosecutions or any member of his office in the period 1 January 1999 to date. 13. All documents recording the substance of any communication relating to John Marsden between (a) Detective Superintendent Woodhouse or any member of Strike Force Cori; and (b) the Director of Public Prosecutions or any member of his office in the period 1 January 1999 to date". 2 According to the written submissions provided in connection with the current application, the width of the call on that subpoena has been narrowed as follows: "(a) Paragraphs 2, 4, 6, 8, 10 and 12 are pressed in their present form. (b) The call on paragraphs 1, 3, 5, 7, 9, 11, and 13 is limited to those documents created by, or at the request or direction of Messrs Woodhouse, Halcro, Bell, Howard, Inkster, Rudolph, Cunningham or Panich". 3 The Commissioner of Police, by Notice of Motion filed in the Court today, seeks to have the subpoena set aside. I have had the benefit of oral and written submissions from Mr Singleton for the Commissioner and Mr McHugh for the plaintiff. 4 Shortly stated it is contended for the Commissioner that the subpoena is an abuse of process because there is no legitimate forensic purpose for production of the documents sought, because there are no concrete grounds for believing that the documentation sought will actually assist the plaintiff's case. 5 Indeed it is submitted that some of the documentation is not "conceivably" relevant to the proceedings and because, in part ,the subpoena is oppressive in the sense that it impermissibly requires the Commissioner to form judgments about what is caught by the subpoena, or alternatively impermissibly requires the Commissioner to make enquiries before the subpoena can be answered. 6 That in summary form is the contention for the Commissioner founded upon an analysis of varies authorities, principally R v Saleam (1989) 16 NSWLR 14; The Principal Registrar of the Supreme Court v Tastan (1994) 75 ACR 498, The Attorney General for New South Wales v Stewart (1994) 34 NSWLR 67, Carroll v The Attorney General for New South Wales (1993) 60 ACR 162, and Waind v Hill and National Employers Mutual General Association Limited (1978) 1 NSWLR 372. 7 For the plaintiff, principally in reliance upon Waind v Hill, an authority said not to have been questioned since its delivery in 1978 by the Court of Appeal, it is submitted that at what is described as the first stage, namely production, a subpoena may be set aside as an abuse of process of the Court on the ground of irrelevance only when the subpoena seeks documents which have no conceivable relation to the proceedings (see Waind at 382F). No more, it is submitted, is required at the first stage to found the legitimate forensic purpose for production of the documents to court. 8 The areas of relevance within the context of the plaintiff's submissions are stated as follows: that one of the central issues in the defendant's application to amend concerns the circumstances in which the police came to produce to the Court the statements which are contained in an exhibit being IRA1 to the affidavit of Mr Ian Angus sworn on 18 February 1999 and filed in support of the defendant's amendment application. Those are the statements of most of the persons who are alleged to be complainants or victims particularised in a document described as the Defendant's Consolidated Particulars Of Truth which will be a focal point in the resolution of the defendant's application. 9 At the hearing of the defendant's amendment application the plaintiff proposes to seek to challenge and explore the version of events given by Mr Woodhouse in his affidavit. I add that Mr Woodhouse's affidavit in full has not yet been read in the defendant's application, though part of it has been read in another application. 10 Another area of relevance is said to be whether there is any ongoing investigation of the plaintiff being conducted by the Police Service. That itself, that is the question of whether there is such an investigation, is stated to be an important component of the plaintiff's contentions that the statements in the exhibit to Mr Angus' affidavit should never have been produced by the police. 11 The areas of relevance outlined relate to factors both of substance and as to discretion which in my view will attend the resolution of the defendant's application. It being presently impossible to catalogue those factors, it easily can be anticipated that the material, the subject of the subpoena, will touch upon such questions as how and when the defendant came into the possession of information upon which it proposes to base its amended case, the matter of "when" itself not being irrelevant to the position of the plaintiff in meeting any such amended defence of justification. 12 In the course of oral and written submissions it has been indicated that the plaintiff will submit that the police should have taken the same approach to the defendant's subpoena served upon the Police Service, the subpoena being dated 18 January 1999, as the police took in respect of the subpoena issued by the plaintiff to the Police Service in October 1998. 13 Insofar as that may be perceived as suggesting impropriety, bias or lack of partiality on the part of the police in dealing with Orders issued by this Court, I am concerned neither with whether that perception is well founded, nor with any process of resolving such an allegation, if it is made, or if it is to be made. 14 I am persuaded that the areas of relevance to which I have referred found the subpoena. I propose, following the approach advocated for the plaintiff as appropriate arising from Waind v Hill (compare Hall v Nationwide News, Levine J, unreported, 18 September 1998) to decline to set aside the subpoena. ********** Last Modified: DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.