New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 181 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 8 March 1999 JUDGMENT DATE : 8 March 1999 JOHN MARSDEN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J R G McHugh (Plaintiff) COUNSEL : W H Nicholas Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jacques (Defendant) CATCHWORDS : On application by the plaintiff to read as evidence, part of the affidavit of Lola Ann Scott ACTS CITED : Evidence Act 1995 Supreme Court Rules DECISION : See paragraph 12 DLJT: 22 (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 8 MARCH 1999 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On application by the plaintiff to read as evidence, part of the affidavit of Lola Ann Scott) 1 HIS HONOUR: I am presently dealing with a motion on behalf of the plaintiff to preclude the defendant from having access to, essentially, three bodies of material: material produced by the plaintiff; material produced by the police; and what I will call the 29 January 1999 material. 2 Evidence, both on affidavit and orally, has been given in support of the motion and a question has arisen as to the admissibility of certain parts of an affidavit sworn by Lola Ann Scott on 3 March 1999. 3 The deponent to that affidavit is the Assistant Deputy Commissioner of Police. The affidavit was filed on 3 March 1999 in court, leave having been granted to Mr Singleton, of the State Crown Solicitor's Office who is representing the Commissioner of Police. The Commissioner had been served with a subpoena issued on 26 February 1999 at the request of the defendant. The Commissioner is asserting that material the subject of that subpoena relating to the interview of 29 January 1999, that is material in the possession of the police, should not be produced as it is protected by public interest immunity. The affidavit of Ms Scott was filed in the proceedings to determine that issue. 4 To revert to the substantive motion by the plaintiff to preclude inspection by the defendant, it is to be noted, as was made clear this morning, that in relation to the 29 January 1999 interview, privilege is claimed in respect of the three exhibits attached to the affidavit of Mr Lee sworn 2 March 1999 and filed for the plaintiff; those exhibits being tapes, transcript and notes made by Mr Lee in relation to the events of 29 January 1999. 5 No claim for privilege is made on behalf of the plaintiff in respect to the police material of the events of that date, which material is subject of the discrete application for public interest immunity. The plaintiff, however, contends that in addition to what I will describe as Mr Lee's material being protected by privilege, it is protected by the application of a doctrine in the nature of public interest immunity and would be capable of being excluded under s 130(4)(c) of the Evidence Act. 6 Whilst Ms Scott's affidavit has been filed in the particular action, that is as part of the Court's file, I do not find it to have been filed by the defendant in response to the plaintiff's motion to preclude inspection. Nor, on any reasonable basis, can it be said that it was filed by the Commissioner in connection with the plaintiff's motion. 7 Reliance is placed by the plaintiff on some statements in the judgment of Brinsden J in The Barristers Board of Western Australia v Tranter Corporation Pty Ltd (1976) WAR 65 at 67 where his Honour says: "Evidence may be lead by either party by affidavit in support of its respective case. If evidence is so led by affidavit then the deponents must submit themselves to cross-examination by reason of an order having been made under O 36 r 2(3). Evidence is lead by affidavit, not be merely filing the affidavit, but by reading it to the Court. An affidavit which has been placed on the file does not become part of the proceedings until it is opened to the Court (see Manson v Ponninghaus [1911] VLR 239). A party is entitled to read to the Court an affidavit filed on behalf of another party (see Re Margetson & Jones [1897] 2 Ch 314)". 8 The affidavit of Ms Scott does not strike me as being an affidavit filed on behalf of another party, either to the action or to the plaintiff's motion. It is filed in respect of the independent and discrete proceedings relating to the claim for public interest immunity by the Commissioner for Police, in respect of which it can be said that there are really ex facie two parties, the subpoenaing party, the defendant, and the recipient of the subpoena, the Commissioner of Police. 9 Insofar as SCR Pt 36 r 7 makes provision for a party, with the leave of the Court, but saving all just exceptions, being able to read evidence or an affidavit filed in other proceedings, there might be some initial attraction in saying that Ms Scott's affidavit is an affidavit filed in "other" proceedings, namely that as between the Commissioner for Police and the defendant, as part of the action brought by Mr Marsden against Channel 7. But in that respect I am not persuaded that the foundation for relevance, leaving aside any other matter, has been laid in that that to which the deponent is deposing is a consequence of her having turned her mind to the material in Mr Lee's possession in relation to 29 January, as distinct from turning her mind to material in the Commissioner for Police's possession in relation to 29 January. One must not lose sight of Mr Lee's material being the subject of the plaintiff's application. 10 Thus for two reasons I am disposed to exclude the material. The first is the party point, as it has been described. Second, no basis has been laid under SCR Pt 36 r 7. 11 A third point is this: that notwithstanding the characterisation by counsel for the plaintiff of the second leg of the plaintiff's motion as being in the nature of a public interest immunity claim, I do not see how that characterisation can relieve the plaintiff of the obligation, if the affidavit was otherwise admissible, of having the deponent available for cross-examination. Any rules restricting cross-examination of deponents in public interest immunity claims, in my view, should carefully be confined to claims for public interest immunity made by such persons as the Commissioner for Police in response to a subpoena served upon that person. 12 I decline to permit there to be read as evidence, any of the affidavit of Lola Ann Scott sworn 3 March 1999. ********** 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.