Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 261

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 261 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 24 March 1999 JUDGMENT DATE : 24 March 1999

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

I Barker Q.C. G Reynolds S.C. R McHugh COUNSEL : (Plaintiff)

W H Nicholas Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jacques (Defendant) CATCHWORDS : On claim for privilege on document produced in answer to NP6 DECISION : See paragraphs 6, 7 & 8

DLJT: 27 (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

WEDNESDAY 24 MARCH 1999

JOHN MARSDEN (Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On claim for privilege on document produced in answer to NP6 ) 1 HIS HONOUR: On 26 February 1999 Mr Ian Robert Angus swore an affidavit which was filed in court on 22 March 1999. On 18 March 1999 a Notice to Produce, identified as NP6, was delivered by the solicitors for the plaintiff to the solicitors for the defendant. A call was made upon that Notice to Produce on 22 March and was stood over to 23 March. The defendant's response to that call was set out at lines 25 to 45 at page 481 of the transcript. 2 A document has been produced in answer to the Notice. The position in relation to the document produced is that on its face (1) it is a photocopy, (2) it is clear, and it is acknowledged to be the case, that other parts of the same physical document have been obliterated to produce the produced photocopy. 3 In respect of the obliterated parts of the document, the photocopy produced bears the endorsement: " Remainder of document marked '- irrelevant' ". If that was the basis upon which it was sought to preclude inspection by the plaintiff of the document, the defendant would be in difficulty. The question of relevance in the absence of any other claim by way of privilege would only arise upon the deployment as evidence of the document if ever that took place. It is a claim for privilege that the defendant makes to protect the balance of the document. 4 For the plaintiff it is contended that a claim for privilege having initially been made and waived to the extent that the photocopy has been produced, the question arises, and I will say either at common law or under s 126 of the Evidence Act as to whether or not there are circumstances requiring the production of the balance on any basis of fairness at common law or in terms of s 126 of the Evidence Act " to enable a proper understanding of the document." 5 For this purpose I have inspected the original of the whole document and a transcription of it to make it legible prepared in court this morning. I have been referred to Justice Sackville's decision in Towney v Minister for Land and Water Conservation (1977) 76 FCR 401, particularly his Honour's observations in respect of s 126 at page 414B to E and to the decision of Justice Lehane in Hammer and Others v Sunman and Another (unreported) 2 October 1998. I take into account each of their Honour's observations in relation to the particular of application with which he was concerned. 6 The conclusion to which I have come, having read the balance of the document in respect of which privilege is claimed, and I find properly claimed, is that there is no necessity for the proper understanding of the communication or document constituted by the first part, or no unfairness arising from the non-disclosure of the second and thus will decline to require the defendant to produce anything more than as produced. 7 I come to this view the more so when when I consider in context that which has been produced in relation to the affidavit and the Notice to Produce and the response to a call made yesterday, and to the transcript reference I have already referred. 8 The photocopy produced in exhibited form will be MFI 5. The original and transcription will both be MFI 6. **********