Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1299

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1299 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 14 December 1999 JUDGMENT DATE : 14 December 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. J S Wheelhouse (Defendant) Marsdens (Plaintiff)

SOLICITORS : Mallesons Stephen Jaques (Defendant)

Corrs Chambers Westgarth (Applicant) CATCHWORDS : On application by Corrs Chambers Westgarth for costs - T3282 DECISION : See paragraph 17 & 18

- 5 - DLJT: 69 (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

TUESDAY 14 DECEMBER 1999

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (On application by Corrs Chambers Westgarth for costs - T3282) 1 HIS HONOUR: On 16 April 1999 Mallesons Stephen Jaques, the solicitors for the defendant in the action, served a subpoena on the managing partner of Corrs Chambers Westgarth, then identified as the plaintiff's solicitors in relation to certain criminal investigations, calling for the production of certain material. 2 On 7 May 1999 I delivered a judgment, NSWSC 428, after hearing an application for orders to preclude production by the subpoenaed party and inspection by the defendant of the documents referred to in the subpoena. Corrs was the successful party. 3 On 17 August 1999 the Court of Appeal, in a four paragraph judgment, dismissed the defendants motion seeking leave to appeal the orders I had made on 7 May 1999. 4 By Notice of Motion filed on 13 May 1999 Corrs seeks orders in relation to its costs in relation to the subpoena served upon it and the disposition of its application by my judgment of 7 May, to put it in general terms. 5 The foundation of the motion is SCR Pt 37 r 9. In support of that Notice of Motion, two affidavits of Mr Lee have been filed, one sworn 13 May and one sworn 31 May this year. 6 The preliminary question has arisen as to whether the court should entertain the Notice of Motion, it being contended by the respondent/defendant: 7 One, that the applicant has never provided to the respondent an assessment of the costs that it seeks. 8 Two, the decision of the Court of Appeal points to circumstances which may arise for the question of any inspection to be revisited at least upon the conclusion of the defense case on truth. 9 Three, by reference to a concurrent application to which the applicant, Corrs, is not a party, it might well turn out, in any event, that the documents the subject of Corrs' original application, to put it shortly, should have been discovered by the plaintiff and, thus, the defendant has been put in the embarrassing position of having to have had issued the Corrs subpoena in the first instance for the production of discoverable documents, thereby, it is said, entitling the defendant, as against Corrs, to its costs of the application dismissed by me on 7 May 1999. 10 Historically the fact of the matter can be summarised: the subpoena was issued; Corrs moved the court for relief in relation to it; it succeeded; the respondent, the defendant in the action, moved the Court of Appeal for appellate intervention and failed. 11 Insofar as I have had regard to evidentiary material in Mr Lee's two affidavits, and Exhibit A, correspondence between Corrs and Mallesons, it does appear that Corrs was prepared to defer, until the disposition by the Court of Appeal of the proceedings before it, seeking the relief in the present Notice of Motion. 12 Certainly up until this morning it seems to be the case that the respondent to the motion has not indicated, first, that it does not dispute some entitlement in Corrs, which I understand to be an entitlement under Pt 37 r 9 and, second, it has never hitherto, conformable with what I said to be the position of the defendant, invited Corrs to provide an assessment. 13 All that I am determining at the moment is whether or not I should entertain the hearing in a substantive way of the motion filed by Corrs in May. 14 The historical matters to which I have referred would conclusively finalise the matter in Corrs' favour and, in fact, they do. 15 I add simply that I presently have difficulty in understanding how what might happen in the future as between the plaintiff and the defendant in relation to the propriety of the plaintiff's discovery, could affect any rights in Corrs that may be found to have existed at least as at 7 May 1999 or 17 August 1999. 16 The correspondence between the defendant's solicitors and the applicants has, as I have said, not reflected, at the very least, the degree of concession made this morning. On the contrary, it has reflected, and this is a preliminary view, the adoption of a stance to ignore, from the moment the subpoena was issued, the raising by Corrs of the question of its costs. 17 I propose to hear the Notice of Motion, a conclusion to which I have come with some facility on the material to which I have referred. The effect of that conclusion, however, namely the actual hearing, seems to me not to be a matter that can be dealt with facility, because of the demands on this court of matters which must be recognised as having more immediate criticality in terms of the closure of the plaintiff's case and the resolution of any question of discovery and inspection. 18 Having said that, I invite Mr Lee and Mr Wheelhouse to assist me in determining when and how this motion can be dealt with. ***********