Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 158

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 158 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 13 March 2000 JUDGMENT DATE : 13 March 2000

JOHN MARSDEN (Plaintiff)

PARTIES : v

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

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 : Plaintiff's Notice to Produce documents - T4780 DECISION : See paragraph 9-11

DLJT: 113 (Ex Tempore - Revised) [2000] NSWSC 158

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

JUSTICE DAVID LEVINE

MONDAY 13 MARCH 2000

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (Plaintiff's Notice to Produce documents- T4780)

1 HIS HONOUR: A Notice to Produce was delivered by the solicitors for the plaintiff at some time between 8.45 and 9.45 today, 13 March. 2 This notice to produce was in anticipation of the Court determining an application by the defendant to amend its case on justification, by pleading matters in relation to a Mr Fraser. 3 The notice to produce was delivered after the service by the defendant upon the plaintiff of an affidavit of Ian Robert Angus sworn 18 February 2000, that affidavit being relied upon in support of the amendment application. 4 The notice to produce calls for the production of the following: "1. All statements made by Paul Fraser to the Defendant, its solicitors, counsel, agents and/or employees concerning the plaintiff. 2. All notes of conversations between Paul Fraser and the Defendant's solicitors, counsel, agents and/or employees concerning the Plaintiff. 3. All letters and memoranda from Paul Fraser to the Defendant, its solicitors, counsel, agents, and/or employees concerning the Plaintiff. 4. All memoranda, letters, advices and opinions from Senior Counsel for the Defendant Mallesons Stephen Jaques conveying the advice referred to in paragraphs 5 and 8 respectively of the affidavit of Ian Robert Angus sworn 17 February 2000". 5 In response to the call as to paragraph 1 the defendant has produced a statement of Paul Fraser, constituted by the transcript of an interview which is annexure A to Mr Angus's affidavit of 18 February. 6 In relation to paragraphs 3 and 4 of the notice to produce, nothing is produced. 7 In relation to paragraph 2, one document has been produced but as to the balance, what I will describe as "provision of legal services", privilege has been claimed. In this regard a further affidavit by Mr Angus has been sworn today, to which is annexed material in an envelope marked "IRA1". 8 The ground for the assertion of the privilege is that the documents in "IRA1" were prepared for the dominant purpose of the defendant being provided with professional legal services relating to these proceedings; that is documents were brought into existence for the dominant purpose of Amalgamated Television Services Pty Ltd being provided with professional legal services by Mallesons Stephen Jaques in relation to this action. 9 I have read through the material contained in exhibit "IRA1". Reading the bundle of documents as a whole and, in the circumstances available, the documents individually, no conclusion is available otherwise than that the ground for the privilege has been made out. 10 Inspection will not be made available to the plaintiff. 11 The documents produced under paragraph 2 of the Notice to Produce, the defendant having asserted its claim for privilege, I uphold it, and I return "IRA1". ***********