Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 202

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 202 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 21 March 2000 JUDGMENT DATE : 21 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 : R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On defendant's claim for privilege - Notice to Produce - - Notice of Motion filed 14 March 2000 re pseudonym order CASES CITED : Mann v Carnell (1999) 74 ALJR 378 Waind v Hill (1978) 1 NSWLR 372 DECISION : See paragraph 19-21

DLJT: 124 (Ex Tempore - Revised) [2000] NSWSC 202

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

JUSTICE DAVID LEVINE

TUESDAY 21 MARCH 2000

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (On defendant's claim for privilege - Notice to Produce - Notice of Motion filed 14 March 2000 re pseudonym order)

1 HIS HONOUR: By notice of motion filed in court on 14 March 2000, the defendant seeks certain orders relating to the provision of a pseudonym for a proposed witness, Mr Olive. 2 Earlier rulings on, or relating to, the subject matter were delivered on 12 November 1999 (NSWSC 1099: DLJT 51) and 16 December 1999 (NSWSC 1309: DLJT 79). Three rulings were given on 14 March 2000 (NSWSC 160: DLJT 114; NSWSC 167: DLJT 115; and NSWSC 168: DLJT 116). 3 The appeal from the decision of 16 December 1999, I am informed, is not proceeding. 4 The hearing of the notice of motion itself has been adjourned, pending the decision of the Court of Appeal to be handed down, as I understand it, tomorrow morning, on an appeal from my refusal to order a pseudonym in respect of another proposed defence witness. 5 In support of the notice of motion an affidavit was sworn on 14 March 2000 by Mr Price, Solicitor, from Mallesons. It is on information and belief in respect of which I ruled on 14 March 2000 (NSWSC 167: DLJT 115). 6 Consequent upon the filing of the notice of motion by the defendant, the plaintiff's solicitors delivered a notice to produce requiring: "1. All statements by Shane Olive to the Defendant, its solicitors, employees and/or agents concerning the matters referred to in paragraphs 2, 3, 4, 5 and 6 of the affidavit of David Charles Price sworn 14 March 2000. 2. All letters, memoranda, notes and documents received by the defendant, its solicitors, employees and/or agents from Shane Olive or his legal advisers concerning the matters referred to in paragraphs 2, 3, 4, 5 and 6 of the affidavit of David Charles Price sworn 14 March 2000. 3. All notes and records of conversations between Shane Olive or his legal advisers on the one hand, and the Defendant, its solicitors, employees and/or agents on the other hand, concerning the matters referred to in paragraphs 2, 3, 4, 5 and 6 of the affidavit of David Charles Price sworn 14 March 2000. 4. All statements, letters, memoranda, notes and documents received or made by David Charles Price dealing with material which caused him to come to the respective beliefs referred to in paragraphs 2, 3, 4, 5 and 6 of his affidavit sworn 14 March 2000. 5. All statements, letters, memoranda, notes and documents received by David Charles Price which caused him to come to the respective beliefs referred to in paragraphs 2, 3, 4, 5 and 6 of his affidavit sworn 14 March 2000. 6. All files, diaries, notes, memoranda, documents, e-mails and letters concerning dealings and contact between Shane Olive and the Defendant, its employees, agents and/or legal advisers from 1 July 1999 to date". 7 The call made on the notice to produce was answered by Mr Stitt Q.C. yesterday, as follows (T4862.16): "The Notice to Produce is dated 15 March 2000: paragraph (1), nothing produced; paragraph (2) is produced, an affidavit of Brendan Duchen of 14 December 1999. Can I produce that? (Produced.) Paragraph (3), a claim for privilege is made which I will deal in a moment. Paragraphs (3) and (4) seem to us to be identical and one is subsumed in the other. And could I deal with (4) and (5) in this way, your Honour? In relation to statements, letters et cetera received, there was nothing received; and in relation to statements et cetera made, a claim for privilege is made in respect to those; and in respect of paragraph (6) a claim for privilege is made in respect of those. So that paragraphs (3), (6), and (4) and (5) in the way in which I indicated a claim for privilege is made". 8 In support of the claim for privilege an affidavit was sworn by Mr Price on 20 March 2000. Mr Price swears that the ground for the claim of privilege is that each of the documents in the envelope exhibited to the affidavit, DCP1, is a confidential document prepared for the dominant purpose of the defendant being provided with professional legal services. 9 For the plaintiff it is submitted that the contents of Mr Price's affidavit of 14 March 2000 point clearly to any privilege claimed as having been waived in respect of the matters called for in the notice to produce, which go to the information Mr Price received and the belief he held in regard thereto. 10 The very nature of the application being made is such that the information had to be disclosed by Mr Price and disclosed in circumstances where confidentiality could not reasonably apply to it, given the purpose for which it was provided, namely the application embodied in the orders sought in the notice of motion. 11 At page 4872, line 30, Mr Stitt effectively conceded that a document, being a record by Mr Price of the information provided to him on 29 February 2000, could be considered to have been waived insofar as any privilege attached to it. 12 I am persuaded by the plaintiff's submissions as to waiver, having had regard to paragraphs 25 and 28 to 35 in the report of the judgment of the High Court in Mann v Carnell (1999) 74 ALJR 378. 13 Mr Price, in paragraphs 2 and 4 of his first affidavit, has sworn on oath that on 29 February 2000 he was informed, by Mr Olive and believed, as to the matters therein referred to. To the extent that there is material recording the information on 29 February 2000 as sworn to by Mr Price, I hold privilege to be waived and will permit inspection of the one document. 14 In paragraph 5 of Mr Price's affidavit reference is made by him to him "further" being informed of a matter referred to in that paragraph. It does not state when he was "further" informed. Part of one document which bears a date 27 February 2000 records the information set out in paragraph 5 and, to that extent, that document, otherwise edited, will be available for inspection. 15 I am in no position to order inspection of anything in relation to the matters sworn to by Mr Price in paragraph 6 of his affidavit. 16 A submission was advanced for the defendant that the plaintiff has no standing to oppose the notice of motion or be heard on any matter such as the present ancillary to it. Mr Stitt said that the decision of the Court of Appeal in Waind v Hill (1978) 1 NSWLR 372 is authority for that proposition. The submission was not amplified, nor was I taken to any part of the learned President's judgment to assist in the consideration of that proposition advanced for the first time yesterday in the context of this notice of motion and, as a matter of history, in the context of any notice of motion in respect of pseudonym applications with which I have dealt. 17 I reject the submission. The motion is an inter parties one. The plaintiff, by reason of the public vindication he seeks in the face of the evidence to be given by a person seeking anonymity, has a direct interest in the motion's resolution. 18 In the event of the motion proceeding, Mr Price may be cross-examined. In that event, it may be that a basis for a further application for further consideration of the claim for privilege or the question of waiver will be laid. 19 In the meantime, the plaintiff has leave to inspect the two documents to which I have referred, the earliest in point of time having been edited by me. 20 Photocopies of the two documents which will be available for inspection will be marked MFI 126. 21 The envelope, DCP1, will be returned to the defendant, and I direct that it be kept in tact. ***********