Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 133

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 133 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 2 March 1999 JUDGMENT DATE : 2 March 1999

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

R G McHugh (Plaintiff) COUNSEL : J S Wheelhouse R Titterton (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jacques (Defendant) CATCHWORDS : On Defendant's Notice of Motion (26.2.1999) to set aside four Notices to Produce served by Plaintiff DECISION : See paragraph 47

- 16 - DLJT: 18 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

TUESDAY 2 MARCH 1999

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (On Defendant's Notice of Motion (26.2.1999) to set aside four Notices to Produce served by Plaintiff) 1 Four Notices to Produce are the subject of consideration. 2 The first (NP1), dated 22 February 1999, is concerned with what I will describe as the confidentiality of the identity of defendant's witnesses (NP1 - confidentiality). 3 The second Notice to Produce (NP2), dated 23 February 1999, is concerned in general terms with what I will describe as "adjournment" (NP2 - adjournment). 4 The third Notice to Produce (NP3), dated 24 February 1999, is concerned with what I will describe as "witness statements" (NP3 - witness statements). 5 The fourth Notice to Produce (NP4), dated 23 February 1999, is concerned with what I will in short hand describe as "subpoena to police" (NP4 - subpoena to police). The Procedural Context 6 It is submitted by the plaintiff that NP2, NP3 and NP4 have been served in connection with an application by the defendant to amend the particulars of its Defence. This application is the subject of a Notice of Motion filed on 18 February 1999. NP1 (confidentiality) relates to what was described in the course of submissions as an application to the effect that someone will make with respect to the order I made on 20 November 1998 (DLJ: 6). To this I shall return. The Legal Principles 7 In the course of submissions for the defendant, Mr Wheelhouse referred me to the classic statements of principle in the judgment of Jordan CJ in the Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573-4. I will not repeat them. I was also referred to the decision of the Court of Appeal in National Employer's Mutual General Association Limited v Waind & Hill (1978) 1 NSWLR 372 and the judgment of Moffitt P at 381-2 and 383B-C, 384C. With respect to the use in a Notice to Produce of an expression such as "relating to" I was referred to the decision of Waddell J in Spencer Motors Pty Limited v LNC Industries Limited (1982) 2 NSWLR 921 at 929F, 930D. Also cited was the decision of Powell J (as he then was) in Botany Bay Instrumentation & Control Pty Limited & Anor v Stuart & Anor (1984) 3 NSWLR 98 and Trade Practices Commission v Arnotts Limited & Anors (1989) 88 ALR 90, Beaumont J at 103.20. 8 Bearing in mind the principles set out in the above decisions and particularly the first three, I turn to the respective Notices to Produce. 9 I shall deal with NP2 (adjournment). This was described as a "dragnet" Notice to Produce which in its first paragraph calls for the production of "all documents" (which is defined) "recording any part of the substance of any communication between the solicitors and counsel for the defendant". Pausing there, it was submitted that this immediately pointed to the production of documents that would be the subject of a claim for legal professional privilege. The fact that documents that may be produced under a Notice to Produce would be the subject of such a claim merely points to an issue to be separately dealt with upon production rather than as a basis for setting aside the Notice to Produce. 10 The extract just cited from the first paragraph is rather cumbersome in its language but Mr McHugh for the plaintiff was at pains to point out that it was to be seen to focus upon a part of a communication between the parties referred to and the substance of that part so as to obviate the recipient of the Notice declining to produce a communication which may contain matters that are not "caught" by the Notice to Produce itself (or possibly would be the subject of a subsequent claim for privilege). 11 The Notice requires documents of the kind referred to "relating to" either of: "(a) any application by either party (whether made or contemplated) to be made on or after 8 February 1999 that these proceeding be adjourned. (b) The possibility that these proceedings might be adjourned on or after 8 February 1999". 12 The second paragraph of the Notice to Produce calls for all documents "relating to": "(a) any application by either party (whether made or contemplated) to be made on or after 8 February 1999 that these proceedings be adjourned. (b) The possibility that these proceedings might be adjourned on or after 8 February 1999". 13 No point was taken in relation to paragraph 2 as to the ambiguity of the reference "to either party" in sub-paragraph (a). 14 The purpose of the issue of this Notice was made clear for the plaintiff: it is to elicit documents for the purposes of the defendant's application to amend with a view to establishing that the applications to amend are being made with the objective of having the proceedings adjourned, that is to thwart the hearing of the plaintiff's actions. 15 The foundation outlined for the plaintiff is an extraordinary one. Upon expedition being granted for the hearing of these actions (5 May 1998, DLJ: 2) there has been one substantive application for an adjournment, namely on 23 October 1998 (DLJ: 5) and that was for a three day adjournment during the trial. There had been informal discussions as to the fixing of the hearing to commence at the beginning of term with a view to deferring that which was the subject of the ruling on 18 September 1998 (DLJ: 4). There has, of course, been no application for an adjournment of the hearing, save for the three day adjournment to which I have referred. The matter was fixed for directions in the week commencing 1 February 1999 with a view to the actual hearing commencing on 8 February 1999 (in a triumph of case and hearing management a jury was empanelled on 22 February 1999 and answered the questions left to it on 25 February 1999). 16 It has been stated by the defendant through its counsel that it is not the intention of the defendant, by seeking to amend its Defence, deliberately to prevent the hearing of the action or delay its commencement. "Delay" may be a consideration in the determination of whether or not leave to amend will be granted (although even this is in issue - see my judgment of 10 February 1999 DLJT: 5 paragraphs 11 and 12). 17 Merely because a Notice to Produce can be described as "wide" in its terms (if its terms can be understood), that does not necessarily bring it about that the Notice to Produce is set aside. It has to be oppressive to the point of being an abuse of process of the Court. There is certainly ambiguity, in my view, in this Notice to Produce as to "either party": if it refers to solicitors and counsel as the two parties encompassed by that phrase, that is one thing, if refers to the plaintiff and the defendant that is certainly another. Furthermore, upon 8 February having been fixed for hearing in the latter part of 1998, the plaintiff would be entitled to more particularity in terms of time frame in respect of the contemplation of an actual application for an adjournment of that date or the "possibility" thereof. However, the foundation of relevance being the "motive" in the defendant asserted on behalf of the plaintiff in response to the defendant's motion to set aside the Notice to Produce, in the absence of any material that would support such a position on the part of the plaintiff compels, in my view, the setting aside of this Notice, to which the description "dragnet" otherwise is appropriate. 18 As to NP3 (witness statements), my understanding of the position is that the persons referred to in the Notice have made statements to the police to which the plaintiff has had access by reason of access being granted to documents produced on subpoena by the police and also by reason of the production by the defendant to the plaintiff of a folder of such statements accompanying an affidavit recently filed by the solicitor for the defendant. 19 It is contended for the defendant that this Notice to Produce is a "pre-emptive strike" in the sense that it can be made the term of any grant of leave to amend the case the defendant proposes to litigate in justification of the found imputations or contextual imputations that proofs of evidence be provided. 20 It is argued for the defendant that the plaintiff has failed to specify with precision, or to address with precision, the persons to whom any of the statements were made and in any event, seeks to cut across the process for later determination namely, whether or not leave should be granted and any terms that would apply to such grant of leave. 21 Any question of privilege can be dealt with upon production of any documents held. I am not persuaded that this Notice to Produce is defective in form and will order compliance with it save for the production by the defendant of police statements already provided by the defendant to the plaintiff or known to have been provided by the police service in answer to the subpoena. I add that any claim for privilege must be supported by appropriate evidence. 22 I turn to NP4 (police subpoena). This is an extraordinary Notice to Produce delivered in circumstances described by the plaintiff where apparently there had some "turn around" by the police in relation to claims for public interest immunity on the one hand, and full compliance with the subpoena dated 18 January 1999 issued by the defendant, on the other, and an assertion made that the police service has taken a less than impartial view as between the plaintiff and the defendant, in some way, by complying with the order of the Court constituted by the subpoena. 23 It is relevant to the overall question of amendment of the Defence and the matter of delay and it is put that any claim for privilege in respect of any document "caught" by the Notice to Produce can be dealt with by an application supported by evidence. 24 The question whether or not this particular Notice to Produce be set aside was clouded rather than clarified by other matters not the least of which is a Notice of Motion which has been filed by the plaintiff to set aside the subpoena itself. This Notice of Motion has yet to be dealt with. The present situation, however, is that this subpoena was issued, served and complied with and both parties have had access to the documents produced by the police service without any objection by that service. Further, an affidavit has been filed in support of the defendant's application to amend by Mr Ian Angus (19 February 1999) sworn on 18 February 1999 to which there is annexed some correspondence between the solicitors for the defendant and the Police Service. This affidavit has not formally been read in the defendant's application to amend proceedings. I indicated to the parties however, that upon the affidavit being filed in Court and the accompanying documents being handed to me and in anticipation of it being read and the application for amendment proceeding I had "perused" it but not the accompanying documents, being police statements. 25 Further, response to the objection to the Notice to Produce by the defendant founded in considerations of oppression general discovery and "fishing", for the plaintiff it was argued, as to the last mentioned, that by reason of certain statements made before Hulme J on 24 February there were indications of a "fish in the pond". 26 Apparently, in the course of the proceedings before Hulme J Mr Wheelhouse of counsel for the defendant said (T5 line 15-22): "The form of the subpoena came as a consequence, partly, of discussions between the defendant's solicitors and the New South Wales Police, in the face of a position taken by the police in respect of an earlier subpoena; namely, that it was too wide for the police to deal with and, on the basis that a narrower form of subpoena be issued that the police could deal with, there would be a response. That is evidentiary material I may, on instructions, wish to put before the Court in relation to the results of the subpoena". 27 This, I gather, is seized upon by the plaintiff as pointing to communications between the defendant and the Police Service. This it clearly does, to some extent, as well as pointing to an earlier subpoena in respect of which, as I understand it, the Police Service made a claim for public interest immunity. 28 In response to the suggestion encapsulated in that part of the Notice to Produce requiring the production of documents relating to "informal production by the Police to the defendant of any documents identifying any alleged victims of criminal sexual conduct by the plaintiff" and the suggestion of partiality, the defendant sought to tender a series of documents (which included some annexures to Mr Angus' affidavit referred to), which tender was rejected by me (see DLJT: 17 1 March 1999). 29 The Notice to Produce annexes a copy of the subpoena addressed to the Police and issued on 18 January and which has been answered. In its first paragraph the Notice requires any document, and using the infelicitous expression, in my view, "recording any part of the substance of any communication" between the defendant, its servant and agents, and the Police Service relating to (i) the subpoena. 30 The Notice then goes on to require similar material in relation to any subpoena issued or contemplated, informal production and any disclosure by the Police to the defendant of the identities of any alleged victims of criminal sexual conduct by the plaintiff. 31 The second paragraph of the Notice deals with documents simply relating to the police subpoena (as opposed to communications between the defendant and the police); the third paragraph deals with all documents relating to (shortly stated), any decision by the defendant to request the issue of a subpoena to the Police and the time of any such request to issue a subpoena to the police was considered; the fourth paragraph, calls for the production of communications between the solicitors and counsel for the defendant relating to whether any decision would be made to request the issue of any subpoena to the Police and when such subpoena would be issued. 32 The subpoena to the Police as in the form attached to the Notice to Produce is in itself an extraordinarily wide document. It is one, however, which did not apparently trouble the Police Service. It has been answered. 33 It is to be noted that the subpoena to the Police requires the production of documents to the Court in relation to investigations carried out during the period "1990 to date". 34 The defendant defamed the plaintiff (as the jury found), in 1995 and 1996. The Notice to Produce is in itself not limited in terms of time otherwise than by reference to the issue of the subpoena on 18 January and can be construed as covering a period of time by incorporation of that subpoena which includes a period of four years before the institution of the present proceedings. 35 It is clear that the defendant does not have to go through any judgment making process in relation to the issue to which the Police subpoena itself relates; it is clearly related to (in any sensible understanding of that expression) the application to amend the Defence of justification. Be that as it may, on reading the Notice to Produce as a whole it seems clear to me that, as a whole, it has the vice of being a call for general discovery. On the other hand, it is clear, especially from the statements made in open Court before Hulme J, that there were communications between the defendant and the Police Service constituted by "discussions" as to "at least" the "width" of the subpoena. In my view, this eliminates any question of "fishing" in that regard and permits, even within the defendant's camp, the identification of a class of communication of a discrete nature. This class of documents, in my view, is incorporated in paragraph 1(a)(b) relating to (i) the Police subpoena. Looking at it another way, if that component of the Notice to Produce is isolated the balance does constitute, in my view, a request for general discovery. 36 Accordingly, I will require production of documents in accordance with 1(a)(b)(i) of the NP4. 37 I return to NP1 which is not connected with the application to amend the Defence but to the question of confidentiality. 38 In the course of submissions in support of the Notice to Produce said words were said to the effect that at some stage there would be an application by one side or the other in relation to this issue. 39 The history of the "confidentiality" issue can be summarised thus: by a Notice of Motion filed on 19 December 1996 the plaintiff sought an order that the eighth order I made in a judgment dated 17 December 1996 be set aside. That order was in the following terms: "By consent in matters 20223/95 and 20592/96 the names of, or any material which may reasonably identify any persons referred to in the defendant's pleadings as D1, D2, D3, D4, D5, D6, D7, D8, D9 and D10 are not to be published to any person other than the plaintiff through his counsel Mr G O'L Reynolds or his solicitor Mr A F Crawford or Mr R Potter". 40 On 20 November 1998 (DLJ: 6) I made orders on the motion of the defendant. The principle order, in the end, made after hearing of argument was order 3: "until further order I direct that the names of D1, D2, D3, D5 and D6 not be published in open Court". That order is still on foot and has been extended, at least de facto, to the identity of further witnesses the defendant says it proposes to call in support of its plea of justification as it presently stands or as it hopes to have it amended. 41 In the course of the series of interlocutory applications that have been made since 1 February 1999 I have indicated to the parties the desirability, of there being on the Court record a formal process in relation to each such application namely, a Notice of Motion setting out precisely the orders each party seeks in respect of whatever subject matter is of concern. This generally has been complied with. 42 There is presently on foot no application by one side or the other in relation to confidentiality. A presently available view is that presumably the defendant will require some order as to confidentiality and the plaintiff will oppose any such order. But the order made by me on 20 November 1998 still stands, "until further order" and no one has sought any such "further order". This issue is inchoate. NP1 relates to no current proceedings and on that basis I will set it aside. 43 The question of confidentiality as I have called it will have to be decided and sooner rather than later. 44 Whichever party seeks to have this matter resolved will have to move the Court accordingly. I can see that considerations may be different in relation to particular witnesses. Equally can I see that there may be an argument available on a general basis that no such order should be made in civil proceedings of this kind. But until such an application is discretely made, the present NP1 is irrelevant. 45 I note in passing that the Notice NP1 refers to "confidentiality orders" or "undertakings"; "pseudonym orders" or "undertakings"; "the question whether or not the names … should be mentioned in Court …"; "the concealment of the identity of …"; "the hearing of either of these proceedings in camera". The source of these various categories is uncertain: the pseudonym, for example, D6, was allocated in order to preserve the confidentiality of the identity of that person. All the concepts one would have thought were arguably synonymous. 46 NP1 will set aside. 47 Accordingly, the formal orders are: 1. Notice to Produce (NP1) dated 22 February 1999 is set aside. 2. Notice to Produce (NP2) dated 23 February 1999 is set aside. 3. As to Notice to Produce (NP3) dated 24 February 1999 the defendant is to comply therewith save for the production of statements to the police of the persons named in NP3 and which statements have either been delivered by the defendant to the plaintiff or inspected by the plaintiff upon production to the Court by the New South Wales Police Service. 4. As to Notice to Produce (NP4) dated 23 February 1999 the defendant is to comply with paragraph 1(a)(b)(i) only. The balance of the Notice to Produce is set aside.