New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 529 revised - 15/06/2000 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 13 June 2000 JUDGMENT DATE : 13 June 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 : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On claim for privilege - Dr Dent material - T7102-7104 DECISION : See paragraph 21 DLJT: 173 (Ex Tempore - Revised) [2000] NSWSC 529 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE TUESDAY 13 JUNE 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On claim for privilege - Dr Dent material - T7102-7104) 1 HIS HONOUR: In relation to the two documents in respect of which privilege is claimed, they are communications bearing date 22 May and 23 May 2000. The two documents to which I refer have been produced by the plaintiff in answer to a call by the defendant in relation to what I would describe as Dr Dent material. 2 It is contended for the plaintiff that each of the two documents is self-evidently privileged. This clearly is so being, on their face, communications between the plaintiff and all his legal advisers in the defamation action, confidential in their nature and obviously for the dominant purpose of the provision of legal services in these proceedings. Access to the defendant is declined. They will be marked for identification 223 and returned to the plaintiff. MFI #223 TWO COMMUNICATIONS BEARING DATES 22/5/00 AND 23/5/00. 3 STITT: Your Honour, could I just make a couple of submissions - I perhaps should have done so before you finished your ruling but the submission is that documents which, as your Honour has said, prima facie are privileged have been waived. The privilege has been waived and I can give your Honour the transcript references. 4 HIS HONOUR: Yes. 5 STITT: The starting point is 6790, 6791, 6792 where the plaintiff there sets out what he says is the sequence of events and it starts at 6790, line 50, where the sequence of Dr Dent's report of 18 May of seven pages is put. The amendment asked for by Mr Potter to remove references. Mr Potter prepared a draft report. So the whole of the allegations are there set out and then over the page, line 5, it deals with the November letter and then the plaintiff gives his evidence about it and that starts at line 25 on 6791, "I took with me everything I could find", line 35. 6 Then over the page, line 15, page 6792, again this is the plaintiff in chief, "He made a report and some days later learned counsel Guy Reynolds had a conversation with him. He abused me", line 25. "Did you go back to Dr Dent? A. Yes, I did. I said to him", et cetera. "He said, 'No'. I said, 'Can you write me a short letter'", et cetera. 7 If your Honour goes to 6887, it starts where that part of the transcript was put to the plaintiff. Over the page, 6888, line 30, again the plaintiff gives evidence about talking to him before the report became available. Then at 6889, he says he doesn't know whether that is the correct sequence, at line 30. 8 Then at page 6890, line 10, giving evidence about the lengthy discussion with Guy Reynolds. Line 20, further evidence about that. Then he says he saw the report, he read it, could not answer whether he read it in detail and then at 6891, line 50, he had a brief discussion with Richard Potter about the report and he said he certainly discussed that report with Guy Reynolds, line 55. "Is that the report which contained statements? A. Could have been", 6892, line 5. 9 Then at 6893, he says he did discuss with Mr Potter the possibility of making amendments to the draft report, line 10, 6893. 10 Your Honour, I think then at 6894, again he is talking about Guy Reynolds, line 25, the short letter. Line 35, November letter. Then over the page, 6895, again there is evidence about his conversation with Dr Dent. He says, "Guy Reynolds has gone troppo", line 40, that is. "Could I have a short letter to give to Guy", line 45. 11 Then over at page 6896, at the top of the page: "I wrote a letter to Mr Potter saying that he should talk to Dr Dent about the report, send him a copy of the report. I'm not the solicitor on the record." "Q. What you were talking about to Mr Potter was the fact that the report was in a form that was not acceptable to you? A. There is nothing there that I am embarrassed about, nothing there that I got uptight about. Didn't cause me any stress. Q. Did you discuss with Mr Potter the question of whether witness statements were discoverable? A. I have some recollection at some time being told that anything I gave anyone would be discoverable." 12 Then at line 50, "Was there a conversation about statements being discoverable?". He says he didn't have any recollection. Then he said he saw the seven page report in his office, 6897. Then at line 20, he agrees that the first report of Dr Dent was in the form of seven pages, then it was amended to five pages. "I agree" - agreed there is now a five page report - and he conceded that his recollection may be faulty at line 35. Conceded that he could be six months out, line 50. 13 Your Honour, that evidence, when combined with his evidence-in-chief, removes, in our submission, any prima facie privilege. The plaintiff has put forward a version. He has put forward a sequence and he has put it in the context that he is denying the defendant's case and the evidence of Dr Dent. Having put that forward and having put forward the circumstances under which he discussed the report with Richard Potter, with his counsel Guy Reynolds, it is the situation that, in our submission, amounts to the classic waiver. It is the Ampolex decision of Rolfe J where he held that if there was revelation of material that bore upon the question of a relevant issue, and particularly a state of mind, that the privilege was waived. 14 Your Honour, I have not seen the privileged material obviously but what your Honour has said in relation to the date of it seems to be specifically and precisely directed to the dates of these events. The report is dated 18 May. The conversations with Mr Potter, conversations with-- 15 HIS HONOUR: This is May 2000, Mr Stitt, these communications, this year. 16 STITT: I am sorry. I thought it was May-- 17 HIS HONOUR: No, May 2000. 18 STITT: In any event, your Honour, the submission is that all of that evidence amounts to a waiver and that we should have access to it. 19 HIS HONOUR: Unless there is something you want to say, Mr Barker? 20 BARKER: No, your Honour. 21 HIS HONOUR: I note the submissions from Mr Stitt by reference to the evidence. The difficulty is that he has not had access and I have and I have ruled on it and I will say nothing further. 22 STITT: As your Honour pleases. *********** Last Modified: 09/26/2000 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.