Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 141

New South Wales Supreme Court

CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 141 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 8 March 2000 JUDGMENT DATE : 8 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)

W H Nicholas Q.C. COUNSEL : R Stitt Q.C. J S Wheelhouse (Defendant)

J Gibson (Dylan McKimmie - On Subpoena) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On "McKimmie" documents on subpoena - claim for privilege - T4596 DECISION : See paragraph 4 - 6

DLJT: 110 (Ex Tempore - Revised) [2000] NSWSC 141

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

JUSTICE DAVID LEVINE

WEDNESDAY 8 MARCH 2000

JOHN MARSDEN (Plaintiff)

v

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

JUDGMENT (On " McKimmie" documents on subpoena - claim for privilege - T4596) 1 HIS HONOUR: A subpoena issued by the defendant, dated 3 March 2000 was served on the Brisbane firm of solicitors Carew & McKimmie. Documents have been produced to the court and a claim made that all are protected by advice and legal service privilege. 2 An affidavit was sworn on 5 March by Dylan Christopher McKimmie and Miss Gibson of counsel appeared to submit that the breadth of the subpoena and the question of legitimate forensic purpose also should be considered in addition to the privilege claimed. There has been an express assertion of privilege by one client of Mr McKimmie. As to another person indicated as not to be playing any part in these proceedings before me, he is mentioned but in passing in a document, but has not instructed Mr McKimmie to waive privilege. 3 I have considered the material produced in the three envelopes. The documents in respect of which inspection will be precluded fall within categories of documents recording legal advice given and associated documents and confidential communications in regard both to the provision of legal advice and legal services. 4 The subpoena is not too wide at all, in my view. It is clear in the identification of the documents and classes of the documents and limited in time. As the trial judge in these proceedings I am satisfied that the material to which access will be available is not affected by adverse considerations of legitimate forensic purpose. 5 I propose to return to Miss Gibson the photocopies of all of the documents produced. The documents in sealed envelopes C and D, the contents of which will not be available for inspection and so much of the contents of sealed envelope A that are precluded from inspection are also returned, the larger envelope contains the documents available for inspection in the first instance by the defendant. 6 Reference was made yesterday to SCR Pt 37 r 9 of the concerned with the power of the Court to order payment of reasonable expenses of the party under subpoena. At this stage I will reserve any such question of costs arising under that rule. ***********