CITATION: Amalgamated Television Services v Marsden [1999] NSWCA 313 FILE NUMBER(S): CA 40399/99 HEARING DATE(S): 17 August 1999 JUDGMENT DATE:
31 August 1999PARTIES :
Amalgamated Television Services Pty Ltd
v
John MarsdenJUDGMENT OF: Mason P at 1; Meagher JA at 42; Handley JA at 43
LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S) : CLD 20223/95
CLD 20592/96LOWER COURT JUDICIAL OFFICER: Levine J
COUNSEL: A: JS Wheelhouse; RC Titterton
R: G O'L Reynolds SC; RG McHughSOLICITORS: A: Mallesons Stephen Jaques, Sydney
R: Phillips Fox, SydneyCATCHWORDS: Interlocutory appeal - Trial judge's order restricting inspection set aside by Court of Appeal - Inspection permitted - Present application to trial judge to restrict inspection - Whether open to trial judge to displace Court of Appeal's order by reference to matters which could have been, but were not, argued in the Court of Appeal - Role of notice of contention ACTS CITED: Supreme Court Rules
Supreme Court Act 1970CASES CITED: Waind v Hill and National Employers' Mutual General Association Ltd [1978] 1 NSWLR 372
David Syme & Co Ltd v Lloyd (1985) 1 NSWLR 416
Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126
Re Wakim; Ex parte McNally (1999) 73 ALJR 839
Owners of Ship "Shin Kobe Maru" v Empire Shipping Co In (1994) 120 ALR 12
Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (24 November 1992, Court of Appeal, unreported)
University of Wollongong v Metwally No 2 (1985) 59 ALJR 481
Brimaud v Honeysett Instant Print Pty Ltd (19 September 1988, McLelland J, unreported)
Home Office v Harmn [1983] 1 AC 280DECISION: Appeal upheld with costs
THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL1 MASON P: Leave to appeal was granted at the conclusion of argument which the parties agreed would stand as submissions on the appeal. 2 A defamation action is pending in the Common Law Division. Interlocutory matters are being vigorously contested. Details are set out in this Court’s decision in Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 97. 3 In aid of an extended application to amend its particulars of justification, the appellant issued a subpoena and a notice to produce to the respondent and a subpoena to the NSW Police Service. Documents were produced to the Registry and a Deputy Registrar made an order for general inspection (cf Supreme Court Rules Pt 37 r10). But, before the appellant’s representatives could inspect the documents, the respondent filed a notice of motion seeking to restrict the inspection of specified documents to the respondent and his legal advisers. 4 Inspection was opposed on the grounds of client legal privilege and public interest immunity. The argument also touched upon the unfairness to the respondent that would flow from allowing the appellant early access to proofs of the respondent’s…
CA 40399/99
CLD 20223/95
CLD 20592/96
MASON P
MEAGHER JA
HANDLEY JA
Tuesday, 31 August 1999
AMALGAMATED TELEVISION
SERVICES PTY LTD v John MARSDEN
JUDGMENT
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Details
- Case
- [1999] NSWCA 313
- Decision Date
CaseChat Overview and Summary
Amalgamated Television Services Pty Ltd (ATS) sought to restrict the inspection of certain documents by the respondent, Mr Marsden, in proceedings before the Supreme Court of New South Wales. An earlier interlocutory appeal to the Court of Appeal had permitted such inspection, setting aside a prior order of the trial judge that had restricted it. ATS now applied to the trial judge to impose new restrictions on inspection, based on matters that could have been, but were not, argued in the Court of Appeal.
The central legal issue before the trial judge was whether it was open to him to displace the Court of Appeal's order permitting inspection by reference to arguments that were available but not advanced on the prior appeal. This also raised the question of the role of a notice of contention in such circumstances.
The trial judge determined that it was not open to him to revisit the decision of the Court of Appeal, particularly by reference to arguments that could have been raised but were not. His Honour held that the Court of Appeal's order was binding and that he lacked the power to make a further order restricting inspection on the basis of matters that were not argued before the appellate court. The trial judge considered that to do so would undermine the authority of the Court of Appeal and the finality of its decisions.
The appeal was upheld with costs.
The central legal issue before the trial judge was whether it was open to him to displace the Court of Appeal's order permitting inspection by reference to arguments that were available but not advanced on the prior appeal. This also raised the question of the role of a notice of contention in such circumstances.
The trial judge determined that it was not open to him to revisit the decision of the Court of Appeal, particularly by reference to arguments that could have been raised but were not. His Honour held that the Court of Appeal's order was binding and that he lacked the power to make a further order restricting inspection on the basis of matters that were not argued before the appellate court. The trial judge considered that to do so would undermine the authority of the Court of Appeal and the finality of its decisions.
The appeal was upheld with costs.
Orders
Orders of the court
Appeal upheld with costs
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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