New South Wales Supreme Court CITATION : Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 690 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20223 of 1995; 20592 of 1996 HEARING DATE(S) : 17 July 2000 JUDGMENT DATE : 17 July 2000 JOHN MARSDEN (Plaintiff) PARTIES : v AMALGAMATED TELEVISION SERVICES PTY LIMITED (Defendant) JUDGMENT OF : Levine J at 1 M R Hall (Plaintiff) COUNSEL : W H Nicholas Q.C. R Stitt Q.C. J S Wheelhouse (Defendant) Phillips Fox (Plaintiff) SOLICITORS : Mallesons Stephen Jaques (Defendant) CATCHWORDS : On admissibility of documents tendered by plaintiff - qualified privilege - T8348 DECISION : See paragraph 14 DLJT: 196 (Ex Tempore - Revised) [2000] NSWSC 690 THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST No. 20223 of 1995 No. 20592 of 1996 JUSTICE DAVID LEVINE MONDAY 17 JULY 2000 JOHN MARSDEN (Plaintiff) v AMALGAMATED TELEVISION SERVICES PTY LIMITED ACN 000 145 246 (Defendant) JUDGMENT (On admissibility of documents tendered by plaintiff - qualified privilege - T8348) 1 HIS HONOUR: On Friday 14 July the plaintiff tendered a series of documents including interrogatories as relevant to issues raised by the defence of qualified privilege. 2 A file note of Ms Norman's dated 2 April 1996 and the notation on page 6 of the script constitutes the first tender, both those documents being annexed to an affidavit of Ms Munsie sworn on 18 May 2000. 3 It is submitted that this material is relevant to information constituted by advice received by and in the possession of the defendant through its servant or agent, Mr McClellan, in relation to the question of Mr Marsden's being invited to respond to the allegations. 4 In this regard, I have been referred to evidence at transcript 5604, 5614 and 5672, exhibit 140 being the written advice produced on call. 5 It was argued for the defendant that the file note and entry are without context and thus invite speculation. For present purposes, but for the tolerably clear evidentiary references, the material could be described as devoid of context and thus not capable of falling within the test of relevance as is referred to under s 55 of the Evidence Act. However, the material is relevant and thus admissible. What, if anything, it in fact rationally can prove will be a matter ultimately for submissions. 6 The file note, the script and annotation on page 6 will be exhibit GH. 7 The second document is a memorandum from Mr Hall to Mr Saggers dated 17 October 1995. That is after the Today Tonight programme and before the Witness programme. 8 Both Mr Hall and Mr Quail were cross-examined about what I will call the Stals drug allegation tape, exhibit AO. The tendered document, however, was not deployed during the cross-examination of either witness. It appears to be the case that it was not produced until after Mr Hall left the box. 9 A degree of consistency can be seen as available to be found on the evidence as to instructions to Mr Quail covering retention of the tapes. This is a broad area but not unfocused. I will admit the document as exhibit GJ. 10 I will add that, in respect of neither GH nor GJ, I otherwise would not be persuaded to exercise any discretion under section 135. 11 The plaintiff has tendered a series of interrogatories and answers. Objection is taken to some of them. Those in dispute in the first action are, from the answers sworn on 4 January 1999, interrogatories 38 and 39 and 68 and 69, from the answers sworn on 19 February 1999, interrogatory 15, and, in the second action, of those sworn on 19 February 1999, interrogatory 24. 12 I propose to admit as exhibit GK the interrogatories tendered in the first action. They constitute, in my view, additional relevant evidence. Considerations of any superfluity constituted by them may go ultimately to any weight or additional weight they might give to such evidence otherwise received. 13 I am of the same view as to the interrogatories in relation to the second action, except for the question and answer being interrogatory 24 which I decline to admit as irrelevant and probative of nothing. 14 The tendered interrogatories and answers in the first action will be exhibit GK and those in the second will be exhibit GL. *********** 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.