New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 65 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 18 February 2000 JUDGMENT DATE : 18 February 2000 JOHN MARSDEN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J M Hall (Plaintiff) COUNSEL : R Stitt Q.C. (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : Admissibility - interlocutory application - claim for privilege - evidence on information and belief - not probative of any issue relevant to application - rejected - T4095 DECISION : See paragraph 12 DLJT: 91 (Ex Tempore - Revised) THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE FRIDAY 18 FEBRUARY 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (Admissibility - interlocutory application - claim for privilege - evidence on information and belief - not probative of any issue relevant to application - rejected - T4095) 1 HIS HONOUR: On Thursday, 10 February (T3784.50), a call was made by Mr Stitt in the following terms: "STITT: Your Honour, before we resume with Mr Maynard, I am instructed that on last Friday, 4 February, when this court was not sitting, the plaintiff, Mr Marsden, went to the Metropolitan Reception & Remand Centre, Silverwater, and spoke to one of our witnesses, Stephen Elomari. I call for all documents shown to Stephen Elomari by the plaintiff and all documents signed by Stephen Elomari on Friday, 4 February 2000; those documents being shown to him at the Metropolitan Reception & Remand Centre, Silverwater. I also call for all documents recording the payment of money in the period from Thursday, 3 February 2000 to Monday 7 February 2000, inclusive, by or on behalf of the plaintiff to any person to secure the release on bail of Stephen Elomari. We have given details to my learned friend about that call being made." 2 Mr Barker, at T3785, indicated that as to the second part of that call (which I take to refer to the bail matter), nothing was produced. He pointed however to the existence of a document indicating, that whatever that document was, it would be subject to a claim for privilege. 3 In support of the proposed claim for privilege, an affidavit was sworn by Mr Potter on 14 February. On 17 February, clearly as a result of Mr Potter's affidavit, a notice to produce was served by the defendant calling for the production of material referred to in Mr Potter's affidavit. 4 Mr Potter's affidavit of 14 February has been filed in court today. Objection has been taken to paragraphs 2 to 7 by reason of the material deposed to in those paragraphs being on information and belief. It is said that the material in those paragraphs relates to important aspects of the trial, could be and, therefore, should be the subject of direct testimony and that that direct evidence is available from the plaintiff personally. 5 In so far as I am dealing with an application either to set aside the notice to produce or to preclude the inspection of documents the subject of the call, it could hardly be described otherwise than interlocutory application. In those circumstances, as a general rule, evidence on information and belief is receivable. 6 In this litigation, the fact of the matter is clearly that the plaintiff personally, to my best recollection, has never sworn an affidavit in support of any interlocutory or other application. It would be ingenuous to say that I could think of no reason why that situation has applied; it reflects the reality of the dynamics of this case. 7 As Mr Hall remarked, it may well be possible to level similar comments towards the defendant's camp in relation to Mr Quail. I do not propose to descend to making invidious comparisons at this point as to how the parties have gone about conducting interlocutory proceedings. 8 One thing is clear, however, as Mr Hall pointed out, that a consistent approach has been adopted in dealing with these matters which has brought about paragraphs of the kind here objected to have virtually routinely being admitted. In the end, what they prove would be something else; whether they will be subject to cross-examination remains to be seen. 9 Assuming, however, for the moment that I follow the routine and rule consistently with prior rulings that the paragraphs would be admitted, a more fundamental consideration is to whether, on any rational basis, they are relevant to an issue sought to be determined in the application itself. 10 About that, I have presently the gravest of reservations because the material recites merely a certain course of events and contains no express evidentiary information that lends itself to coming to a conclusion or is capable of lending itself to a conclusion that whatever the document or other material is, it would attract privilege. 11 Again, assuming that I admit paragraphs 2 to 7, I am invited to draw an inference. An inference must be rational and available. The objected to material founds no basis for a rational inference-drawing process, but only speculation. Whilst I would reject the basis of objection firstly announced for the defendant, I propose to reject paragraphs 2 to 7 as at least irrelevant and as incapable of establishing any matter; at least irrelevant, but if I be wrong in that, I would exercise my discretion under section 135(c) of the Evidence Act to exclude it as material calculated, in the sense of likely, to have the clear effect of causing or resulting in undue waste of time. 12 I reject paragraphs 2 to 7 of the affidavit. *********** 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.