Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 428

New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 428 revised - 04/08/99 CURRENT JURISDICTION : Common Law FILE NUMBER(S) : 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 27 April - 3 May 1999 JUDGMENT DATE : 7 May 1999

JOHN MARSDEN (Plaintiff)

v PARTIES : AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant)

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

Mr I Barker Q.C. Mr G O'L Reynolds S.C. Mr R G McHugh (Plaintiff)

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

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

SOLICITORS : Mallesons Stephen Jaques (Defendant)

Corrs Chambers Westgarth (On Subpoena) CATCHWORDS : Corrs Chambers Westgarth subpoena ACTS CITED : Evidence Act 1995 (NSW) DECISION : See paragraph 69

DLJT: 39 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996

JUSTICE DAVID LEVINE

FRIDAY 7 MAY 1999

JOHN MARSDEN (Plaintiff)

v

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

CORRS CHAMBERS WESTGARTH (On Subpoena) JUDGMENT (Corrs Chambers Westgarth subpoena) 1 On 16 April 1999 the defendant's solicitors served a subpoena on the Managing Partner of Corrs Chambers Westgarth (Corrs), Mr Marsden's solicitors in relation to the criminal investigation, calling for the production of the following material: " All documents (or copies thereof) provided or shown by Michael Lee, or any assistant or agent acting on his behalf, to Detective Superintendent Woodhouse in the period from 25 November 1998 to date (inclusive) in relation to any anticipated criminal proceedings concerning MR JOHN ROBERT MARSDEN". 2 The historical origin of the defendant's subpoena is non-contentious: Detective Superintendent Woodhouse has given evidence in the still to be resolved Amendment Application to the effect that he had further meetings with Mr Lee (of Corrs) solicitor for Mr Marsden in March 1999. 3 Mr Pembroke S.C. appeared for Corrs Chambers Westgarth to move the Court for orders precluding production to and inspection by the defendant of documents delivered to the Court by Mr Lee in answer to the subpoena. 4 I understand that a Notice to Produce in similar terms was served by the solicitors for the defendant upon Messrs Phillips Fox, solicitors for the Mr Marsden in the defamation proceedings (T1377.35; 1381.2-28), hence Mr McHugh's appearance for the plaintiff in the defamation action in opposition to the production and inspection of the documents. 5 Inspection is opposed upon grounds of legal professional privilege, common interest privilege and public interest immunity. Otherwise, it is sought to have me preclude inspection in the exercise of my discretion. 6 The evidence in support of the Corrs application is constituted by three affidavits sworn by Michael Bryan Joshua Lee, two on 20 April 199 and the third on 23 April 1999, and the oral evidence he gave. 7 Additionally, there was received into evidence three bundles of documents, Exhibits A, B and C being the exhibits referred to as "ML 1", "ML 2" and ML 3" in paragraphs 6, 7 and 8 of the larger of the two affidavits sworn on 20 April 1999. 8 Exhibit A ("ML 1") is described in paragraph 6 of the affidavit as a compendium of some of the documents shown by Mr Lee to Mr Woodhouse at a meeting on 8 March 1999. 9 Exhibit B ("ML 2") are said to being material " believed by Mr Lee to have been shown to Mr Woodhouse on 8 March 1999" . 10 Exhibit C ("ML 3") is material in respect of which, in the affidavit (paragraph 8), Mr Lee swears that, despite his best endeavours, he does not recollect showing to Mr Woodhouse. 11 It appears from the affidavits of 20 April and 23 April that there had been an exchange of correspondence (annexures B and A respectively), between Mr Lee and Mr Woodhouse dated 14 and 15 October respectively, in which it was certainly made clear by Mr Lee that he was in the process of preparing a compendium of documents to deal with, amongst other things, what were said to be inherent weaknesses and falsity of allegations made against Mr Marsden; the motivation for fabricating allegations against Mr Marsden; concerns about methodology used in the course of the investigations against Mr Marsden; and the impossibility of securing a conviction against him. Reference is made on page 4 of annexure B to the desire to maintain client legal privilege in relation to any material provided, and to a willingness to disclose it on the basis of their being a " common interest " in analysing the material. 12 In relation to Exhibit C, contrary to the submissions of Mr Wheelhouse, I am unable to come to a conclusion that more probably than not the material that comprises that Exhibit was disclosed at all to Mr Woodhouse. Its function was to provide a " prompt" to Mr Lee. The mere fact that it was a prompt does not lead rationally to a conclusion that that which was " prompted" by its existence was a revelation of its contents. The contents whatever they might be might have prompted to Mr Lee to make observations in relation to Exhibits A and B. That does not amount to a disclosure, in my view, on the evidence, of Exhibit C. Exhibit C will be excluded from consideration as available for inspection on that basis. 13 As to the material in Exhibits A and B relating to the person who does not have a "D" number, the defendant has abandoned its application for inspection of documents in relation to that material. For that reason, that material will not be considered for disclosure. 14 An interview took place involving Mr Woodhouse, Mr Lee and Mr Marsden on 29 January (as to which see my ruling on 19 March: NSWSC 212 and the decision of the Court of Appeal: NSWCA 97 of 15 April 1999). Mr Lee deposes to discussing providing material to Mr Woodhouse after that interview concerning matters that he, Mr Lee, believed would need clarification and would be of assistance to his client in " refuting " allegations put to him during the interview. Mr Woodhouse wished to receive from Mr Lee any material Mr Lee believed relevant to the allegations discussed. It was shortly after that interview that Mr Lee became aware that the defendant in the defamation proceedings had issued the subpoena the subject of the setting aside application by the plaintiff (running concurrently with the application by the defendant to amend), seeking production of material relating to the ongoing investigation of Mr Marsden by Strike Force Cori. Mr Lee formed the view that any further material he provided to Mr woodhouse might be the subject of a further subpoena by the defendant's solicitors and became concerned to ensure that the provision of any further material occurred in a way which best preserved privilege and confidentiality. 15 This matter was raised with Mr Woodhouse in a telephone conversation in early February particularly in regard to Mr Lee having access to material which would destroy the defendant's witnesses' credit and to his concern that by giving it to Mr Woodhouse unconditionally it would fall into the hands of Channel 7. Mr Lee subsequently spoke to Mr Singleton of the Crown Solicitors to raise again the dilemma which was encapsulated in the expression that he, Mr Lee, did not wish to put his client in a position " where Barker's cross-examination is flagged in advance ". 16 On 25 February Mr Lee had a further conversation with Mr Woodhouse who indicated his anxiety to bring the matter to a conclusion and to finish his report to the DPP. As I understand the evidence it was arranged that Mr Woodhouse would attend the office of Mr Lee on 8 March at 11.00am. 17 Mr Lee attended the meeting with a large number of files and two folders of documents containing copies of Police documents highlighted and annotated by him and other documents provided to him by Mr Marsden for the purpose of providing a response to Mr Woodhouse in relation to anticipated criminal proceedings. At the commencement of the meeting Mr Lee again expressed his concern that the material which he was to make available to Mr Woodhouse being kept in the strictest confidence: it would be very damaging for the conduct of the defamation proceedings if Channel 7 was to be "tipped off " as to cross-examination. Mr Lee invited Mr Woodhouse to look at the material to finalise his report to the DPP. Mr Woodhouse understood the difficulty and appreciated what Mr Lee had said to him. There followed a discussion with Mr Woodhouse in which Mr Lee made a number of observations relating to the Police material. That process involved Mr Lee going through part of the Police documents and pointing out to Mr Woodhouse matters that Mr Lee considered contained errors of fact, inconsistencies and improbabilities. Mr Woodhouse was left to read the material. 18 It was on 18 March that Mr Woodhouse telephoned Mr Lee again saying that he was getting pretty close to finalising his report and would like to come and see Mr Lee and " see some further material" . Upon inquiry Mr Lee apparently identified some categories of documents and again, Mr Lee maintained his position that the material would not be made available in circumstances where they could be obtained on subpoena in the civil proceedings. It is important to note that Mr Lee drew to Mr Woodhouse's attention at this time to some of the material which Mr Woodhouse requested having been obtained on subpoena in the civil proceedings, that he Mr Lee had not read it and could not arrange access unless permission was obtained by Mr Woodhouse from the party to whom the subpoena was addressed. 19 The material that Mr Woodhouse then examined was described as " forensic documentation " compiled by the plaintiff and provided to Mr Lee confidentiality for the " sole purpose " of Mr Lee advising the plaintiff in relation to anticipated criminal proceedings and if so advised, providing it to Mr Woodhouse in confidence. The plaintiff had informed Mr Lee that the material was either created by the plaintiff, third parties at the plaintiff's request or independently created (" unsolicited" ) and subsequently provided to the plaintiff. 20 By the time Mr Lee had provided material to Mr Woodhouse on 8 March, he had seen Police documents which provided particulars of allegations made against Mr Marsden and accordingly, the " comments " that he made to Mr Woodhouse and the material he showed him were directed to the allegations. Mr Lee states that if prior to showing the material to Mr Woodhouse on or after 8 March he had been told that Mr Woodhouse would produce the material to the solicitors for the defendant and that Mr Woodhouse would have communicated any of the content of the material discussed to any persons alleging misconduct by Mr Marsden he would not have provided the material to Mr Woodhouse. 21 The second affidavit of 20 April establishes that a draft of the first affidavit was forwarded for approval to Mr Woodhouse who indicated that he was happy with the affidavit and believed what Mr Lee said was accurate. 22 In the third affidavit, namely that of 23 April 1999, Mr Lee deposes to his belief that Mr Woodhouse and Mr Marsden had precisely the same interest or a 'common interest '" in establishing whether there was sufficient evidence to warrant the laying of charges against Mr Marsden notwithstanding that if charges in fact were laid in the future they would become adversaries. He also believed that Mr Woodhouse had agreed that the only use to which the documents would be put was part of his "consideration (including the obtaining of confidential legal advice from the Director of Public Prosecutions) as to whether charges should be laid " and that the contents of the documents would not be made available to Channel 7 or put to individual complainants unless, of course, at a future date, charges were laid. 23 It was argued for the plaintiff that privilege pursuant to s 118 of the Evidence Act, 1995 (NSW) arose in the first instance because the communications in question as between Mr Marsden and Mr Lee clearly come within sub-paragraph (a) of that section being confidential communications made between the client and a lawyer for the dominant purpose of providing legal advice. This was clearly evidenced by what Mr Lee said in paragraph 24 of his principal affidavit. It was to advise Mr Marsden in relation to " anticipated criminal proceedings " and, if so advised, providing the material to Mr Woodhouse in confidence. No issue of confidentiality arises as between Mr Marsden and Mr Lee. 24 The other basis upon which privilege arises in the first instance is by the application of s 119 which provides that if there is a confidential communication between a lawyer acting for a client and another person for the dominant purpose of the client being provided with professional legal services then the privilege will be found to exist. 25 Contrary to the submissions of Mr Wheelhouse, I am unable to characterise other than the provision of legal services the purpose for which the communication was made between Mr Lee and Mr Woodhouse and that that was a dominant purpose. 26 As Mr Pembroke made clear, the scheme of the sections inevitably brings one back to the meaning of " confidential communication " in s 117. That is, in respect to the loss of legal advice privilege (s 118) it is lost if the substance of the evidence and the disclosure was knowingly and voluntarily made in circumstances that did not amount to the making of a confidential communication. The " litigation privilege " will be lost if the communication was not confidential or was not for the dominant of the purpose being provided with professional legal services in relation to an anticipated proceeding in which the client is or may be a party. 27 There has been a knowing and voluntary disclosure, of that there can be no question. But was it a communication, when it was made, to a person to whom it was made who was under an express or implied obligation not to " disclose its contents " whether or not the obligation arises under law? 28 It is clear on the evidence in relation to the communications particularly on 8 March but not excluding those on 22 March between Mr Lee and Mr Woodhouse that disclosure was anticipated to the Director of Public Prosecutions also, and this is of critical significance, disclosure could be anticipated in the event of criminal proceedings being initiated. It was argued by Mr Pembroke that the definition section which is pivotal makes sense if an " object ' is provided to the verb " to disclose "; otherwise the section can have no effective operation conformable with what still must be regarded as the important policy of the notion of privilege and confidentiality. 29 As to disclosure to the DPP this was for the purpose of legal advice being provided by that officer to Superintendent Woodhouse on the subject of whether or not there was material available that would warrant the prosecution of Mr Marsden. To disclose to the DPP for that purpose would not be a disclosure (it being one expressly agreed upon by Mr Woodhouse and Mr Lee) that would render the otherwise confidential communication not confidential within the terms of the definition. 30 Secondly, it was argued that the anticipated criminal proceedings to which Mr Marsden may be a party was a contingency only, not an actuality at the time of the communication and thus, could play no role in the determination of whether or not the communication was confidential, at the time it was made, to the preserve the privilege notwithstanding the knowing and voluntary disclosure. 31 It was argued that this was a matter not addressed by the Court of Appeal in its judgment of 15 April 1999. Here I must disagree with Mr Pembroke. Taking into account that clearly there was no suggestion that there would be disclosure to complainants and taking into account the fact, if it be relevant, that the documents were provided for Mr Woodhouse's perusal rather than removal - the contents thereby were communicated to him. Even if the communication to the DPP for the stated purpose would not not be a disclosure, there is still left what Mr Pembroke describes as a " contingency" namely, the possible prosecution of Mr Marsden. I do not read anything said by Giles JA in paragraphs 25 to 29 in particular, as affording to the status of the possibility of criminal proceedings being instituted once the DPP had received the report, of a " contingency" irrelevant at the time of the communication between Mr Lee and Mr Woodhouse. Indeed, as I read what his Honour said in those paragraphs it is quite clear that if the contents of the document were disclosed in the course of a prosecution of Mr Marsden the contents were passed into the public domain, was an " actuality" )rather than a contingency) his Honour had in mind in coming to the conclusion that there was in fact a " disclosure ". As his Honour said in paragraph 29 confidentiality was to be measured not by consent to extinguishing privilege or confidentiality or a sense of fairness, but by the words of the definition in s 117(1). His Honour went on to find in the circumstances to some extent factually different from the present (no disclosure to complainants) to hold that the communication was not made under a express or implied obligation not to "disclose the contents of the document " within that expression as used in s 117(1) of the Act. 32 At its highest, or at its most stringent, his Honour's construction of s 117(1) of the Act precludes the characterisation of the potential criminal proceedings as a " contingency irrelevant at the time of the communication " and would, in my view, prevent its exclusion as a disclosure. 33 Mr Pembroke's argument is persuasive and raises some " nice " points, but in the light of what Giles JA said in the earlier judgment there is, in my respectful view, no room for " manoeuvre ". His Honour's construction of s 117(1) permits of no " object " to the verb " disclose ". 34 This basis for precluding inspection fails. 35 It is also contended that the waiver provision of s 122(2) does not apply by the operation of s 122(5) because this was a disclosure to a person with whom the client or party had at the time of the disclosure a " common interest " relating to an anticipated proceeding in an Australian Court. 36 I accept that common interest privilege is not a rigidly defined concept ( Farrow Mortgage Services v Webb (1996) 39 NSWLR 601 at 609B per Sheller JA). I accept also that common interest privilege is not determined by such considerations as to whether the two persons or entities said to have the common interest would retain a "common solicitor " ( Bulk Material (Coal Handling) Services Pty Limited v Coal & Allied Operations Pty Limited (1988) 13 NSWLR 689 per Giles J at 695F). 37 The common interest identified for the plaintiff by Mr Pembroke was the preparation of the report for the determination by the Director of Public Prosecutions as to whether or not criminal proceedings should be instituted against Mr Marsden. I am of the view that this does not properly characterise any " common interest " at all. I am persuaded by Mr Wheelhouse's submissions. Notwithstanding the evidence of Mr Lee honestly and genuinely given as to his belief, the conclusion to be reached is that as far as Mr Marsden was concerned his interest was to ensure that there be included in Mr Woodhouse's report material that would derogate from the DPP concluding that there was an available case against Mr Marsden: that is, a "personal " or " subjective " interest. It cannot be said of Detective Superintendent Woodhouse in the performance of his duty as the investigating officer had any equivalent interest. Indeed, he is " disinterested ", in my view. His job is to provide the report to the Director for the Director's determination. The argument that Mr Woodhouse might have some " personal " interest as an informant in an unsuccessful prosecution on behalf of the State with a consequential costs order as a possibility is ingenuous and I reject it. Shortly stated, the "real " interest of Mr Marsden was to ensure that he was not prosecuted at all. The " interest " of Mr Woodhouse was to lay before the Director the product of his investigation including the input from Mr Marsden (but for that subjective purpose on his part), with a view to the Director making a decision in accordance with his function. In that area I conclude no " common interest " for the purposes of s 122(5)(b) has been established. Section 125 Evidence Act, 1995 (NSW) 38 A submission that client legal privilege has been lost by reason of misconduct pursuant to s 125 must be viewed seriously and should not be made lightly. Relevantly, it is concerned with a communication made by a client or a lawyer (or both) or the party, which was known or ought reasonably to have been known was made in furtherance of a deliberate abuse of power. 39 What we are here concerned with are essentially three categories of material: first, the Police documents delivered by Mr Marsden to Mr Lee in respect of which it could hardly be disputed that there was a communication between Mr Lee and Mr Woodhouse and I find that was about as far as it reasonably can go. On no rational basis could it be held that any use by Mr Lee of documents in fact provided by Mr Woodhouse in a communication to Mr Woodhouse was a " deliberate abuse of power " and made in furtherance thereof. There was no evidence before me on the application in relation to the Corrs subpoena from anyone to suggest that the communications between Mr Lee and Mr Woodhouse in relation to the Police documents themselves produced by Mr Woodhouse in answer to the defendant's subpoenas was otherwise than with the consent of Mr Woodhouse. 40 In relation to the Department of Community Services documents the evidence is quite clear that Mr Lee was quite sensitive to any implied undertaking in relation to those documents produced by DOCS under subpoena. He did not read them and they were not in fact contained in Exhibits A or B. Even if arguably it might be suggested on a prima facie basis that Mr Marsden in some way was " furthering " a deliberate abuse of power by providing copies of the DOCS documents to Mr Lee, the evidence is incapable of supporting a conclusion that anything more than that happened vis-a-vis Mr Woodhouse. Whatever may said against Mr Marsden, Mr Lee's approach to and conduct in relation to this material cannot be criticised. 41 The third category of material is a little more problematical. It is quite clear on the evidence that Mr Marsden gave to Mr Lee an original and a photocopy of files held by Mr Marsden as a solicitor for D22. This material is in fact contained in Exhibit B. In relation to this material Mr Lee did not turn his mind to whether or not Mr Marsden had obtained a waiver of privilege from D22. 42 Mr Lee's evidence is that he simply cannot remember what he did with the material constituted by those two files in relation to Mr Woodhouse. They are however, as I have said, part of Exhibit B which documents, on the probabilities, were the subject of " discussion " with Detective Superintendent Woodhouse(see paragraph 7 of the principal affidavit of 20 April 1999). Mr Lee admits that the documents appear to him to fall within the terms of the subpoena being documents that he showed to Detective Superintendent Woodhouse. 43 I add that the other components of Exhibit B constitute documents relating to D15 and 16 and one is irrelevant relating to a non-D person in respect of which class no access is sought. 44 Mr Lee gave the following evidence at T1291.1-40: "Q. And while you have it there Mr Lee maybe I should, is simply ask you this: that you understood, did you not, that the information in the file provided to you by Mr Marsden concerning D22 was to respond to the allegation in para 11 of that statement? A. 10 and 11, yes. Q. In other words it was to indicate to Mr Woodhouse the unreliability of the information in D22's statement particularly in paragraphs 10 and 11. It would be fair to say that, wouldn't it? A. Yes. Q. And I take it that it was clear to you that the solicitors' file contained the client's, that is to say, D22's instructions to Mr Marsden about the matter in para 11. I am looking at the first couple of lines? A. It was really para 11 was the relevant enquiry. Q. Was it to provide information which would demonstrate or rather indicate material available for the cross-examination of D22, should that occasion arise, to break down his case? A. You mean in an anticipated criminal proceedings? Q. Yes? A. Ultimately yes, but if it was material that I believed if it was included in a report to the Director of Public Prosecutions would result in the DPP saying: this story simply doesn't stand up. Q. And D22's information cannot be relied upon? A. Yes. Q. And to round it off, it was the use of the material in D22's file maintained by his then solicitor Mr Marsden, that Mr Marsden was going to avail himself of in order to attack D22's allegation. That's right isn't it? OBJECTION. (McHUGH) ALLOWED. A. I think that's a fair characterisation, yes". 45 When one considers this evidence even from this one cannot gain the conclusion to the requisite degree of satisfaction that in relation to Mr Woodhouse, Mr Lee in fact put to " use " in furtherance of an abuse of power the material conformably otherwise with what he agreed was Mr Marsden's intention, namely to avail himself of it to attack D22's allegation. 46 I am not persuaded on the evidence that any conduct by the plaintiff or Mr Lee amounts the " furtherance of a deliberate abuse of power ". Nor could I conclude that there was any impropriety on the part of Mr Lee in the light of the evidence he gave as to his recollection. On the contrary, it appears that Mr Lee has been perfectly candid with the Court in including this material in relation to D22 as part of Exhibit B. For the purposes of the operation of the section however, the state of the evidence is such as not to persuade me that there has any conduct that falls within it that would deprive the plaintiff of privilege. 47 I make the clearly available observation that in any event the defendant has the benefit of the knowledge of the fact that Mr Marsden had D22 as a client. This is not irrelevant to any question of prejudice the plaintiff may seek to raise in relation to this particular person as the subject of the Amendment Application. And, of course, in the event of leave being granted nothing will stand in the way of the defendant in having D22 waive any privilege vis-a-vis his instructions to Mr Marsden as his solicitor. Public interest immunity 48 Whilst there is a public interest in effective policing and its requirement of cooperation with the Police of persons under suspicion (s 130(4)(c) and my judgments of 19 March and 1 April 1999), subject to the discretion to allow inspection to which I will shortly come, I am not persuaded as I was not persuaded in respect of the earlier judgment delivered today that a basis for precluding inspection founded upon a public interest immunity claim is now available. I rely upon the reasons stated in my other judgment. It is quite clear in relation to the present application that active investigation my Mr Woodhouse is at an end and his task was merely to prepare his report to the Director of Public Prosecutions for which the plaintiff was desirous of providing material. At that point I am of the view, though not without some reluctance I must confess, the " public interest " in the cooperation of a person in the position of the plaintiff is less. Discretion 49 Mr Marsden has been found by the jury to have been defamed. The defendant is justifying the imputations found by the jury. The imputations allege criminality. 50 The defendant has provided particulars of its present case and its proposed case in respect of which leave to amend is sought. It is to be assumed that the defendant does have a case and does have evidence to call in support of it in relation to its seeking to prove to be true that the plaintiff engaged in the criminal conduct. 51 The gravity of the imputations need hardly be remarked upon. The fact that the defendant proposes to justify them needs hardly to be remarked upon. In simple terms the plaintiff will be facing a " criminal " trial in respect of his conduct in relation to whatever number of complainants there will be, in a " civil " action. 52 The defendant bears the onus of proof and given the nature of the charges it proposes to prove to be true, the standard of proof will require a high level of satisfaction. 53 I am satisfied that the material in question is critical to the defence by the plaintiff of these charges. It goes to the credence of the defendant's case and the credibility of its witnesses. 54 The material cannot be said to be irrelevant to the present or possible issues in the trial. Indeed, it must be acknowledged that the material is relevant. Relevance to issues is one thing, the contamination of the process of adducing evidence on those issues is another. 55 One of the fundamental instruments of the common law trial essential to the uncovering of the truth is the " best available evidence (tested) by the accepted procedures of cross-examination" ( Waind v Hill (1978) 1 NSWLR 372 at 384G). 56 The defendant will no doubt seek to prove its case by one or more of the usual forms of evidence, direct, corroborative, circumstantial. The first category will no doubt be made up of the evidence of the complainants and any " eye-witnesses " whose credibility in such serious criminal matters will be critical. Their evidence should be untainted by any notification in advance of the mechanisms by which their testimony will be tested in cross-examination. 57 Contrary to the submissions for the defendant this is not merely a matter of forensic advantage: I am firmly of the view that any advantage to the defendant by receiving this information in advance will overwhelmingly be outweighed by the impediment its reception will constitute to the purity of the stream of evidence that normally should be given in a case such as this and so serious as this case. 58 The question of inspection is always one in the discretion of the trial judge ( Waind v Hill at 383A-C). The Court of Appeal in that case endorsed the notion that the trial judge as " a judicial discretion to permit the use of the documents in any such way as he considers will aid a proper decision of the issues between the parties, by facilitating the elucidation of the truth in respect of relevant facts" (at 383D). 59 Here there is no question to my mind that the material was confidential and that which actuates the Court's discretion is whether the disclosure of the material to the defendant will clarify or obscure the truth or operate in aid of its elucidation. 60 As I have said, the defendant has particularised the case it proposes to prove; this material will not advance that case, of that I am persuaded. As I have remarked the complainants' allegations are of grave and indeed, sustained criminal conduct by the plaintiff. At the trial the defendant's witnesses will be the vehicle for the discharge by the defendant of its onus of proof and the object of the cross-examination to the usual end and a particularly important one in a case of this nature, of testing that witness's integrity and credibility: it is not a question of "ambush " but of the legitimate use of cross-examination with a view to catching the witness out or surprising the witness. 61 I was referred to the decision of Clarke J (as he then was ), in Markus v Provincial Insurance Co Limited (unreported, 11 May 1983) where at page 2, his Honour referred, on the question of whether he should order production for inspection a certain document, to the defendant's submissions that the interests of justice would not be served by producing the document because it contained material which did not advance the plaintiff's case but " which on the other hand would, if the plaintiffs are not genuine, put the plaintiffs on notice of some allegedly suspicious circumstances and enable them then to tailor or endeavour to tailor their evidence to meet the circumstances" . His Honour came to the view in the context of the case he was considering that the only purpose to be served by letting the plaintiff see the document would be to put them on notice of the allegedly suspicious circumstances (at page 3). The defendant was at pains in the present application to distinguish this case. The principles relied upon by his Honour, in my view, are unaffected by the circumstances in which he was considering the exercise of a discretion to deny inspection of a document being a non-privileged report of a loss assessor retained by the defendant. 62 The same principles I am satisfied were appropriately applied by Santow J in Broadwater Taxation & Investment Services v Hendriks (unreported, 9 September 1993, BC 9302130). His Honour relying upon Markus stated that " in all cases, the fundamental touchstone is what will best serve the course of justice" (at 2). His Honour noted that a " helpful way of testing the matter is to ask whether giving access to the materials would deprive a litigant of a legitimate forensic advantage - legitimacy being always determined by asking how the interests of justice would best be served. The kind of material which typically would fall into this category is typically where one party has taken pains to prepare material to attack the credit of the other party" . His Honour held in that case that he had to exercise the discretion on the basis that the hypothesis that the other party's witnesses " are not genuine" should be accepted at the interlocutory stage. It follows that the test is " whether the material would, if known in advance by the other side - being in this case material designed to test the other side's evidence - enable the other side to tailor or endeavour to tailor their evidence to meet the circumstances" (at 4). 63 It was submitted for the defendant that the context in both Markus and Hendriks were different. Of course they are, every case is different. But it is the peculiar feature of this case where the plaintiff will be in effect in the position of an accused in a criminal trial that acutely gives rise to the consideration of the undoubted discretion which exists. Not only does it give rise to the exercise of the discretion, in my view, it properly founds the exercise of the discretion in favour of precluding inspection of the material. 64 In one respect I am persuaded by the defendant on the question of discretion and that is, in regard to s 135 of the Evidence Act, 1995 (NSW) . In Tollglen Pty Limited & Anor v Pay TV Holdings Pty Limited & Ors (unreported, Hunter J, 3 March 1997, BC 970311) his Honour referred to questions of whether production and inspection of documents in respect of which client legal privilege would otherwise be lost should be denied on the grounds that the Court would refuse to admit evidence of that material in the exercise of the general discretion conferred by s 135. That question his Honour considered would appear to raise considerations of " fairness" analogous with that concept of fairness determinative of the question whether there has been implied or imputed waiver of legal professional privilege as expounded in Attorney General (NT) v Maurice (1986) 161 CLR 475 and in Goldberg v Ng (1995) 185 CLR 83: " the principal difference appearing to lie in the fact that s 135 would apply to a communication or document in respect of which client legal privilege had been lost by voluntary and knowing disclosure within the meaning of s 122(2)" whereas Maurice and Ng were concerned with implied or limited waiver of legal professional privilege. Whilst I accept the propositions advanced particularly by Mr Pembroke on the question of discretion and " fairness ", I am not persuaded that s 135 is operable at all in this context. It is concerned with the admissibility of evidence and " probative value ". That can never be determined otherwise than in an evidentiary context. Indeed, in the whole question of whether or not the material should be inspected the Court is not concerned with " admissibility ". 65 The discretion exercised is that which I would simply describe as the one clearly available on the Waind v Hill basis. 66 The prejudice to the plaintiff by the disclosure of the material cannot be outweighed by any disadvantage to the defendant. The defendant is not disadvantaged, in my view, either in the ultimate action (if ever it is reached) or the application to amend. The defendant has the benefit of knowing that of which it is being deprived and may make use of the fact of its existence, if it chooses so to do, in the amendment application. The defendant is not prejudiced in seeking to challenge any question of the plaintiff's capacity to investigate allegations by being deprived of the material, the nature of which and indeed the persons with whom it is concerned being known to it. It is available for the purposes of submission that the plaintiff has investigated allegations made against him; the non-disclosure does not derogate from any demonstration of the plaintiff's resources to investigate and given, especially in relation to D15 and D16, that the plaintiff is not alleging prejudice, it seems to me irrelevant for the defendant to assert in the present application that to be deprived of the material precludes it from making a submission that the plaintiff has not disclosed the true extent from any investigations into D15 and D16. 67 Moreover, I reject the submission that the material is of direct relevance to the cross-examination of the plaintiff. This is founded on the proposition that the material deals with the allegations "of the plaintiff put to the Police " - that is a proposition that I simply do not understand. It is said further that it deals with the relationship between the plaintiff and D15, D16, D20 and D22. Assuming that it does, it does so in the context of challenging the credibility of the defendant's case as to the relationship between the plaintiff and those persons. It is further contended that the material may deal with the circumstances under which D15 and D16 provided material to the plaintiff: again, in the present context I simply have no idea what that means nor am I able to identify any issue to which it might relate on the amendment application given that the plaintiff is not asserting any prejudice, given that the onus of proof, in any event, is on the defendant and absent any other exposed considerations, whatever the subject matter might be no doubt it is capable of being the subject of evidence from D15 and D16 themselves. 68 Thus, in the end I am persuaded that this is an appropriate case for the exercise of discretion for the reasons I have enunciated and upon the basis to which I have referred to preclude inspection by the documents constituted by Exhibits A, B and C. 69 I uphold the claim on behalf of Messrs Corrs Chambers Westgarth to preclude inspection by the defendant of the material produced in answer to the subpoena the subject of the application and for the sake of further clarity, refuse the defendant access to that material for inspection. **********