Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1110

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1110 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 27 October 1999 9 November 1999 JUDGMENT DATE : 17 November 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 DECISION : See paragraph 26

DLJT: 56 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

WEDNESDAY 17 NOVEMBER 1999

JOHN MARSDEN (Plaintiff)

v

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

judgment (Application for Inspection of Defendant's Discovered Documents) 1 By a Notice of Motion filed on 27 October 1999 the plaintiff seeks an order that the defendant produce for inspection by the plaintiff documents 15, 16 and 17 in Part 2 of Schedule 1 to the Affidavit of Discovery sworn by Michael Lloyd-Jones on 17 July 1999. 2 In support of the Notice of Motion an affidavit was sworn by Nassir Bechara on 2 November 1999 annexing relevant formal documents. 3 An order is sought under the "old" SCR Pt 23 r 10(1)(d). 4 The documents fall into two categories. The first category is constituted by the diary kept by Mr Quail, an agent of the defendant, up to the date of the telecast of the second program in 1996. Two sample pages of that diary, for 8 February and 29 February 1996 have been tendered and marked Exhibit A on the plaintiff's application. The second category is made up of three volumes of diaries of Mr Quail after the publication complained of. 5 As to the first category certain portions thereof had been masked as "irrelevant". 6 As to the second category, of which I have no sample, a claim for privilege is made in the following terms: "8(a) the documents came into existence and were made after the proceedings were commenced or contemplated for the sole purpose of 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 this action and otherwise to advise the Defendant, or (b) the documents are confidential communications passing between the Defendant, its servants or agents and the Defendant's Solicitors for the sole purpose of obtaining legal advice". 7 It is accepted that the "diaries" are appointment books. They are "relevant" - they have been discovered (that is, included in the list of documents) and contain material that is no more than notations as to appointments, the identity of the person being met and telephone numbers and addresses. 8 As to the first category of documents it is contended for the plaintiff that their "relevance" being unquestioned by reason of the fact that they have been listed in the affidavit, there is an entitlement in the plaintiff to inspect these documents. "Irrelevance" is an insufficient basis for declining such an order. For the defendant it is contended, and it does not appear to be in dispute, that the masked portions of the diary bearing the notation "irrelevant" are private in nature and in effect have absolutely nothing to do with these proceedings. In this regard particular attention was paid to an entry in the diary for 29 February 1996 in the following terms: "Call Deidre re Dinner". At first blush one would think that this is the very type of "private" entry that would be masked by a notation of "irrelevant". Mr Nicholas Q.C. for the defendant informed the Court, and it was not in issue, that the "Deidre" there referred to is Deidre Grusovin who has some "connection" with the subject matter of these proceedings. The disclosure of this entry to my mind reinforces the "integrity" of the Affidavit of Discovery. 9 It is further argued in relation to the first category of documents that the disclosed entries cannot be understood in the absence of the context in which they appear to be written. In relation to the entry for 8 February there are a series of entries "Call Gareth Harvey" followed by "Call …" several times appearing which is masked at its beginning and end in circumstances where it can be inferred that entries of a similar kind have been masked. To understand the basis of the claim for "relevance" of the disclosed entries, it is argued, it is necessary to see the entries masked to determine what criteria were applied in swearing the affidavit to the effect I have mentioned. 10 The masking of material in discovered documents and a notation of irrelevance is a rule of practice. In Telstra Corp v Australis Media Holdings & Ors (unreported, 10 February 1997) McClelland CJ in Eq at 2-3 said: "…a rule of practice which provides, in that sense, a gloss on express requirements imposed by rules or by orders of the court. There is, however, a difference for the purposes of the application of this rule of practice between cases of privilege, on the one hand, and cases of irrelevance on the other. The existence of a recognised privilege confers a positive right to withhold production, whereas exclusion of part of a document on the ground of irrelevance is permitted as a matter of practice, in order to avoid infringement, for no legitimate purpose, of interests of privacy and confidentiality, and thus to avoid injustice. There is a serious risk that too assiduous a masking of documents on the grounds of irrelevance will create gaps affecting the ready comprehensibility of the remaining portions of the document and of the context in which those portions appear. If for this, or any other, reason, masking on the ground of alleged irrelevance would detract from a proper understanding of the meaning and significance of the admittedly relevant parts of the document, then such masking is not justified". 11 His Honour had cited G. E. Capital Corporate Finance Group v Bankers Trust Co & Ors [1995] 1 WLR 172 in which, in my view, the passages in the judgment of Hoffmann LJ at 175G and Leggatt LJ at 176H conform with the principles enunciated by McClelland CJ in Eq. 12 I am not satisfied that the masking of the documents have affected the "ready comprehensibility" of the exposed portions and accept that those in fact masked have been done so in the interests of privacy and confidentiality. 13 Accordingly, no order that the defendant provide inspection of the first category of documents will be made. 14 As to the second category of documents (post-publication diaries) the grounds for the privilege asserted are those that I have extracted from the Affidavit above. No other evidence in support of that claim has been tendered or sought. 15 For the plaintiff, accepting the description of the entries given in Court, it is contended that the documents insofar as they are made up of entries of the kind described are not "confidential communications" or "confidential documents" within Part 3.10 of the Evidence Act 1995 (NSW). 16 A "confidential communication" is defined as a "communication made in such circumstances that, when it was made: (a) the person who made it; or (b) the person to whom it was made; was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law;" 17 A "confidential document" means a "document prepared in such circumstances that, when it was prepared: (a) the person who prepared it; or (b) the person for whom it was prepared; was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law;" (s 117(1)). 18 What is here submitted is that the diary does not contain any "communication" and nothing in any ordinary diary of Mr Quail (as exemplified by Exhibit A) sets out the substance of any "communication" which takes place and which would be a communication in respect of which a claim for privilege could reasonably be made. It is argued that the fact that Mr Quail has recorded the fact that he meets with a particular individual on a particular day, or identifies the address and telephone number of that person, cannot be and is not a privileged "communication": it is simply not a communication at all. A document that merely records the fact of his meeting or a telephone call made or to be made, or whatever else, is not a "confidential document" within the definition in the Evidence Act 1995 (NSW). A "confidential document" is one which records a confidential communication and there is nothing here that constitutes any element of communication at all. There is nothing explicit, or nothing from which anything can be inferred, as to the circumstances which would bring about the application of the definition of communication or information. 19 It is stated for the plaintiff that what is being sought is to ascertain the "pattern of inquiry" that Mr Quail adopted, not the results of those inquiries. The diaries are of course "relevant" because they have been included on the list of discovered documents. 20 I add in relation to both categories of documents, insofar as it would have been and is open to me to inspect the documents themselves to determine the issue, there is a reluctance on the part of the plaintiff that I do so by reason of my lack of acquaintance with all the matters in issue in this litigation. I am not in as good as a position as the plaintiff's camp to determine the question of relevance. There is an equivalent reluctance in the defendant on that basis and also on the basis, put in quite the appropriate way, that I am the trial judge. The latter, in view of the history of this litigation, is a problem that really must be confronted and in my view, is not a serious one at all. 21 For the defendant it is made clear that although the post-publication diaries have been discovered there should be no disclosure of any of the contents of those documents based on two grounds: first, relevance, where the matter has been indicated as irrelevant and second, that the entries contain privileged information in a number of respects: for example, where a telephone number or address is recorded. This is part and parcel, it is said, of a communication which must necessarily have taken place in order to acquire the very information as to the addresses and telephone numbers if that be the information which is recorded in the document which is the diary. 22 It is further said that the material alternatively would constitute information that could properly be regarded as confidential. The fact that address, identities, means of communication or contact at a particular time have been recorded, it is said, is quite plainly a matter of a private kind. These statements were made from the bar table by way of submissions; counsel cannot be criticised in the circumstances for taking that approach. 23 I have difficultly, at present, in placing the submissions for the defendant in context. I have not seen an example to which the submissions can sensibly relate in terms of an "overall picture". 24 For example, it was submitted, that the whole of the content of the diary in particular of which the claim for privilege made is the "work product" of the agent of the client for the purposes to which the solicitor has sworn in his affidavit of discovery. What precisely is meant by a "work product" I do not know: no authority in that respect was cited to me. If it is a "work product" in the sense of being a document produced reflecting the "work" done by Mr Quail consequent upon the institution of proceedings and in preparation therefor, why are there private and irrelevant entries in it? 25 I am presently of the view that the submissions for the plaintiff are forceful; the submissions for the defendant might obtain significance upon my inspection of the diaries. As this argument has been structured I really see no alternative at this point than to direct the defendant to provide to me the relevant volumes for my inspection to determine the substantive issues between the parties in relation to them. 26 Accordingly, the formal orders are: