Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1155

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1155 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 26 November 1999 JUDGMENT DATE : 26 November 1999

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

P Donohoe Q.C. M Hall (Plaintiff) COUNSEL : R Stitt Q.C. W H Nicholas Q.C. J S Wheelhouse (Defendant) Marsdens (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Claim for privilege - Evidence Act 1995 (NSW) ss 122(6), 126, 135 - T2588 ACTS CITED : Evidence Act 1995 (NSW) DECISION : See paragraph 18

DLJT: 59 (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 NOVEMBER 1999

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (Claim for privilege - Evidence Act 1995 (NSW) ss 122(6), 126, 135 - T2588)

1 HIS HONOUR: The present problem for resolution is not without some complexity. 2 On 10 November 1998, a claim for "privilege" was made in respect of copies of what are now marked as confidential exhibits A and B, being respectively confidential exhibit RWP1 and RWP2 to the affidavit of Richard William Potter, sworn 26 November this year. The claim for privilege asserted on 10 November last year has not hitherto been tested. 3 Confidential exhibits A and B are described in Mr Potter's affidavit as follows: as to A, (being RWP1), it is described as a "true copy of a seven paged unsigned draft report from Dr Dent dated 18 May 1998". RWP1, exhibit A, coincides with that description, save for there being nothing on its face to indicate that it is a draft. 4 RWP2 is described "as a true copy of a letter dated 29 May, with the enclosure which was caused to be sent to Dr Dent on or about that date". The description of the true copy of a letter cannot be impugned. The enclosure, on its face, appears to be identical in its content to RWP1, and I stress the word "content", except that it bears a signature. It is the signature of Dr Dent. 5 RWP1 is an unsigned report. The second part of RWP2 appears to be a signed report, the contents of which are identical to RWP 1. 6 There is another feature of the second part of RWP2 in it, and it is that it contains annotations, as I will describe them. 7 Yesterday there was admitted into evidence what is now exhibit F. The first component is the report dated 18 May 1998 from Dr Dent to Marsdens Attorneys at Campbelltown, (admitted save for certain paragraphs on page 4). I should state that the copy I have of that report which forms part of exhibit F is unsigned. Whether anything turns on that I do not know. 8 The tender was attended by what might be described as a "fuss", and I do not use that in any disparaging sense; it is a word that occurs to me. 9 What happened apparently was that the documents initially tendered, insofar as they included the report of 18 May 1998 and were handed to Mr Stitt Q.C. for the defendant, contained a report of 18 May 1998 that had not been served. That problem was resolved at that time by the unserved report of that date being replaced by the served report of the same date, by it being notified that in relation to the other and longer unserved report, a claim for privilege would be made, and by Mr Stitt agreeing not to cross-examine Dr Dent in relation to the unserved seven page report at least until such time as the privilege claim was resolved. 10 Cross-examination duly proceeded today, during the course of which Dr Dent was asked questions as to his state of knowledge in May of 1998 in relation to certain proceedings said to have been instituted by a litigant against Mr Marsden claiming damages for sexual assault. The question as originally framed was disallowed because of its generality as to time. In its final form it was focused, as I have indicated. 11 What then happened is of critical importance. 12 Dr Dent consulted a document, now marked for identification 21, presently on the witness box, before giving what I understood to be an affirmative answer. Thereupon there crystallised the occasion for the determination of the claim for privilege in relation to confidential exhibits A and B. Before I proceed I should add that the evidence on the application includes an affidavit of Mr Bechara sworn today, and confidential exhibit C (NB 1), which is described as the seven page draft report of Dr Dent bearing date 18 May 1998, and which is signed by Dr Dent. If Mr Bechara's evidence sworn to in his affidavit and the exhibit has any relevance, it is really to a subsidiary question as to whether there has been a waiver of any privilege, absent any other circumstance that would permit access to MFI 21. 13 I am of the view that confidential exhibits A and B are privileged, taking into account the definitions in s 117 of the Evidence Act. I am of the view that insofar as the division of the Evidence Act which provides the attribution of privilege to those documents is concerned, by reason of s 122 (6) the adducing of evidence of MFI 21 has not been prevented and that is by reason of the use made of it in the witness box by Dr Dent. 14 In relation to s 122(6), it speaks in terms of using a document to try and revive the witness's memory. That appeared to me to be clearly what happened. Whether the fact that the attempt, or the trying, was successful, to me does not seem to me to be too much to the point. He attempted to do so. He used the document and gave his testimony. That situation, in my view, on reading s 122(6), is different from the circumstances referred to in s 32 which commences with a proscribing by the Act of a witness using a document to revive memory in the course of giving evidence. Thus a stage has been reached where I am of the view that s 122(6) operates to permit the adducing of the evidence. 15 Submissions were also made in relation to s 126B dealing with professional confidential relationship privilege founded upon the relationship of doctor and patient, to put it shortly. Section 126 B provides that the court may direct that evidence not be adduced in a proceeding if the court finds the adducing of it would disclose a protected confidence or the contents of a document recording a protected confidence (sub-paragraphs (1)(a) and (b)). I decline to give any such direction under s 126B, the reasons being as provided for by section 126 B subsection 4 (a) and (b): the probative value of the evidence in the proceedings, and the importance of the evidence in the proceedings. The evidence relates to a critical component of the plaintiff's claim for damages. That component of the claim for damages, shortly stated, is the allegation of the suffering of psychiatric illness by reason of the publication of the programs which the jury has found to have defamed Mr Marsden. The issue of course is whether the illness was suffered and what caused it if it was and is being suffered. A critical component of the determination of such matters is what has hitherto been referred to as "stressors". 16 Another relevant component of the examination of that issue is of course the general one of the admission into evidence of the opinion of an expert and its being tested as to its internal integrity, if I might put it that way, and it being tested in relation to that upon which the opinion is based. I have elucidated, I trust, those reasons for not giving a direction under s 126 B because they would be the factors upon which I would rely, in any event, if I was called upon to exercise my discretion under s 135, which I would exercise in favour of such evidentiary deployment as may take place in relation to MFI 21. 17 Finally, in submissions, reference was made to s 126 of the Evidence Act. Section 126 would operate to allow a document, other than MFI 21 to be used to enable a proper understanding of MFI 21. What has happened is the operation of s 122(6) has not prevented the adducing of evidence, so that s 126 really, in my view, has no application. Once it is available pursuant to s 122(6), MFI 21 of course can be used in whatever way, for example, to elucidate, if necessary, exhibit 7. 18 This ruling relates only, at this stage, to MFI 21. It has been the only document within the ambit of the privilege claim to which any ruling effectively can relate. Accordingly, in relation to MFI 21 I rule that no claim for privilege is available to prevent its being adduced into evidence or otherwise being the subject of cross-examination. ***********