Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 266

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 266 FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 30/03/00 JUDGMENT DATE : 6 April 2000

JOHN MARSDEN

PARTIES : v

AMALGAMATED TELEVISION SERVICES PTY LIMITED JUDGMENT OF : Levine J at 1

COUNSEL : J Gibson (Plaintiff) J S Wheelhouse (Defendant) SOLICITORS : Robertson O'Gorman (Plaintiff) Mallesons Stephen Jaques (Defendant) CATCHWORDS : On claim for privilege - O'Gorman subpoena - D20. DECISION : See paragraphs 7, 8 and 9.

DLJT: 132 [2000] NSWSC 266

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

JUSTICE DAVID LEVINE

THURSDAY 6 APRIL 2000

JOHN MARSDEN (Plaintiff)

v

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

Judgment (On claim for privilege - O'Gorman subpoena - D20) 1 On the 23rd of March 2000 the defendant's solicitors delivered a subpoena to Mr Terence O'Gorman, a Brisbane solicitor calling for production of the material set out in the nine categories of documents in the schedule. 2 Ms Gibson of counsel appeared for Mr O'Gorman whose affidavit of the 29th of March claiming privilege was read. 3 Additionally a challenge as to legitimate forensic purpose was made in respect of D20 and the plaintiff. The claim with respect to the legitimate forensic purpose easily can be disposed of in relation to both the plaintiff and D20. The issue of Mr O'Gorman being the plaintiff's agent was the subject of evidence in relation to D20 and falls within what has generally been described as the admission by conduct component of the defence case. As to Mr Dunn, he is not a witness in these proceedings and no apparent forensic purpose has been established in relation to him; the mere particularisation of what presently is an irrelevant matter does not satisfy the purpose. 4 Mr O'Gorman has sworn to his being the solicitor for the named persons D20, Mr Dunn and the plaintiff. He has sworn to the fact that he has provided legal services and advice in respect of matters the subject of his instructions. Privilege expressly has not been waived by the plaintiff and instructions to waive privilege have not been obtained from D20. The documents captured by the subpoena have been produced to the Court. The lack of evidentiary basis complained of by the defendant is not established. 5 I have inspected the contents of the three envelopes referred to in Mr O'Gorman's affidavit and a fourth envelope compiled by and handed up by Ms Gibson. 6 The material in envelopes A and B, I am satisfied, is protected by the privilege asserted as is that in the envelope compiled by Ms Gibson and her solicitor; that envelope will be placed with envelope A. 7 Some of the material in envelope B is not privileged vis a vis D20 and the plaintiff. That material has been extracted and will be available for inspection by the defendant. 8 Envelopes A and B will be marked privileged and not to be opened until further order. 9 I reserve the question of any costs or expenses sought to be ordered to be paid.