Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 410

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 410 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 27 April - 4 May 1999 JUDGMENT DATE : 4 May 1999

JOHN MARSDEN (Plaintiff)

v PARTIES : AMALGAMATED TELEVISIONS SERVICES PTY LIMITED (Defendant)

CORRS CHAMBERS WESTGARTH (On Subpoena) JUDGMENT OF : Levine J

R G McHugh (Plaintiff)

W H Nicholas Q.C. COUNSEL : J S Wheelhouse (Defendant)

M Pembroke S.C. (Corrs Chambers Westgarth) Phillips Fox (Plaintiff)

SOLICITORS : Mallesons Stephen Jaques (Defendant)

Corrs Chambers Westgarth (On Subpoena) CATCHWORDS : Evidence available on application re Corrs subpoena DECISION : See paragraph 7

DLJT: 37(b) THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

TUESDAY 4 MAY 1999

JOHN MARSDEN (Plaintiff)

v

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

CORRS CHAMBERS WESTGARTH (On Subpoena)

JUDGMENT (Evidence available on application re Corrs subpoena) 1 On 28 April 1999 (T1427.5) I made an order that such evidence as is relevant in the application by Messrs Corrs Chambers Westgarth with respect to the subpoena served upon it by the defendant would be evidence in the substantive application by the defendant to amend its case on justification. 2 Insofar as a submission was sought to be founded in evidence given by Mr Woodhouse (T982.15-50; T983.1-5; T988) relating to his attitude to the state of the investigation and to meetings with Mr Lee on 8 and 22 March, a dispute arose as to the availability of this evidence for the purposes of any such submission in the Corrs application. 3 The evidence before the Court in respect to the inspection of the documents now marked as Exhibits A, B and C in the application concerning the Corrs subpoena is constituted by Mr Lee's affidavits sworn on 20 and 23 April 1999 (three in number) and his oral evidence given on 28 April. No order was made that evidence in the substantive application be evidence in the application in connection with the Corrs subpoena. 4 Mr Woodhouse (and Mr Potter) gave evidence at a time when the issues of privilege, immunity and confidentiality in relation to Exhibits A, B and C were not before the Court and indeed, Messrs Corrs Chambers Westgarth were not represented. The subpoena the subject of the present application had not even been issued. 5 Mr Woodhouse was cross-examined about continuing investigations which was a question relevant to the issue of public interest immunity on the Amendment Application as distinct from the immunity issue in the present application which is confined to an agreement as to confidentiality. So far as reliance is sought to be placed on evidence by given Mr Potter in the substantive application, he was cross-examined about the extent of investigations which the plaintiff had made and was able to make in relation to D18 to D25, relevant again only to the Amendment Application. 6 As was submitted by Mr McHugh, some care has been taken in respect of which evidence is before the Court in relation to which application. For example, Mr Flynn had to be subpoenaed independently by the defendant on its Amendment Application. Portions of the affidavits read in support of the plaintiff's case on the earlier privilege argument had to be tendered as admissions on the Amendment Application and, as indicated above on 28 April, I made the specific order referred to. 7 No application nor any order was made that the evidence in the Amendment Application be evidence in relation to Exhibits A, B and C on the application concerning the Corrs subpoena. The evidence therefore is confined as I have allowed and thus I confirmed, yesterday, the Order made on 28 April. **********