New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 444 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 22 May 2000 JUDGMENT DATE : 22 May 2000 JOHN MARSDEN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1 I Barker Q.C. M R Hall (Plaintiff) COUNSEL : W H Nicholas Q.C. R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Claim for privilege by defendant in relation to pre-publication advice - T6288 DECISION : See paragraph 7 DLJT: 157 (Ex Tempore - Revised) [2000] NSWSC 444 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE MONDAY 22 MAY 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Claim for privilege by defendant in relation to pre-publication advice - T6288) 1 HIS HONOUR: By notice of motion filed in court on 19 May and supported by an affidavit of Justine Melissa Munsie sworn 18 May, the defendants assert a claim for legal advice privilege, S 118 of the Evidence Act, and litigation privilege, s 119. 2 That which is sought to be excluded from the adducing of evidence is the recording by way of red ink, in pencil and highlighter as annotations, communications in respect of a draft script of the program which became the second matter complained of. 3 It is not disputed by the plaintiff that a recording of communications for the dominant purposes referred to in the two sections attracts privilege. What here is contended is that by the operation of s 124(4) and s 126 of the Evidence Act, privilege effectively and expressly has been waived in light of the evidence given by Messrs McClellan and Manning, and the admission into evidence of Exhibit 140, a written advice by Ms Norman. 4 The plaintiff relies on evidence given by Mr McClellan at T4604.40 and T5652.20, and Mr Manning at T5711 to 5713. The defendant has conceded that so much of the annotations as relate to the subject matter of advice as to approaching the plaintiff and the defences of truth and qualified privilege as has been referred to in evidence, no claim can be maintained, and none is, insofar as the annotation on the bottom of page 6 of the subject document has been exposed. It was contended for the defendant that the other annotations were not the subject of exposure in the same way. 5 Here of course the plaintiff is disadvantaged by reason of the very nature of the application, and the reference that I can make to the material the subject of the claim. I have considered the evidence adduced and the subject of the remaining annotations. Each is - that is the evidence and the remaining annotations - discrete one from the other. I am of the opinion also that nothing has occurred to trigger the operation of s 126. 6 In relation to Annexure A to Ms Munsie's affidavit, the exposure of part of privilege material does not bring it about in the circumstances that the balance of the whole of that material is to be revealed. 7 I make order one in the notice of motion. The original script with annotations will be marked MFI 172 and returned to the defendant. The photocopy of that original in the brown envelope which is sourced in packet 404, will be MFI 173 and also returned to the defendant. *********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.