Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1172

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1172 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 18 November 1999 JUDGMENT DATE : 1 December 1999

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

M Hall (Plaintiff) COUNSEL : W H Nicholas Q.C. (Defendant) Marsdens (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Application for inspection of defendant's discovered documents - the post-publication Quail diaries DECISION : See paragraph 9

DLJT: 63 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

WEDNESDAY 1 DECEMBER 1999

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant)

JUDGMENT (Application for inspection of defendant's discovered documents - the post-publication Quail diaries) 1 In my judgment [1999] NSWSC 1110; DLJT: 56 of 17 November 1999 I dealt with the "first category" of documents being the "pre-publication" diaries of Mr Quail. 2 Further to paragraph 25 of my judgment I have now inspected the three diaries. 3 At the outset it can be stated the diaries are in the form of appointment books. Further, insofar as there has been masked entries in those diaries, I accept that those entries are personal, private and irrelevant and need not be the subject of inspection by the plaintiff. The fact that the documents constituted by the diaries contain such entries, of course, indicates that those documents are essentially private documents of Mr Quail and as "documents" it cannot be said that they came into existence or were made after the proceedings were commenced for the purposes set out in paragraph 8 of the affidavit of discovery. That paragraph is set out in paragraph 6 of my earlier judgment and sub-paragraph (a) asserts privilege founded upon a "sole purpose" of the documents coming into existence as the obtaining for and furnishing to the defendant's solicitors "evidence and information" as to the evidence which will be obtained and otherwise for the use of the solicitors to enable them to conduct the action, and "otherwise to advise the defendant". Viewing the documents as a whole as Mr Quail's private diaries, that description is not apt. 4 The focus therefore is to be upon the "exposed" entries. In a memorandum provided to me by the solicitors for the defendant setting out various dates from the 1996, 1997 and 1998 diaries it is said that the entries which have been masked (if any), contain Mr Quail's personal material relating to his business or private affairs. This I accept. The entries which remain unmasked relate, it is said, "to inquiries made on behalf of the defendant for the purposes of proceedings". 5 The unmasked material fairly can be described as containing entries which on their face are "irrelevant", "private" and names including that of Mr Angus solicitor for the defendant, "Deidre" and other "names" with, from time to time, a reference to "lunch" and a location, or a telephone number. Otherwise the exposed material, certainly as far as I am concerned, on its face, is to a great extent incomprehensible. 6 In paragraph 18 of my earlier judgment I set out the submissions for the plaintiff and in paragraphs 21 and 22 those for the defendant. I am persuaded by the submissions for the plaintiff. The mere entry does not, in my view, constitute a communication nor does the document "the diary" constitute a confidential document on the material available to me. Insofar as it was contended for the defendant that the entries would constitute "information" that could properly be regarded as "confidential", I find difficulty in accepting that submission. The information, if it be information at all, is constituted by the physical entry on the relevant page; that in all the circumstances is not sufficient to make it "confidential". In any event, "confidential" information is directed to the substance of the contents of a "confidential" document which I do not find these diaries each to be or to the content of a "communication" which I do not find any entry to be. 7 The plaintiff is entitled to inspect the documents falling into the second category. That may well be best effected by photocopies being produced omitting the masked portions. 8 It was indicated for the defendant that in the event of the plaintiff succeeding, it would wish to argue that inspection should not be permitted on discretionary grounds. The formal orders will reflect that situation. 9 The formal orders are: