Marsden v Amalgamated Television Services

[2000] NSWSC 23

CITATION:

Marsden v Amalgamated Television Services [2000] NSWSC 23

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20223 of 1995; 20592 of 1996

HEARING DATE(S):

2 February 2000

JUDGMENT DATE:

2 February 2000

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	I Barker Q.C. M Hall (Plaintiff) R Stitt Q.C. J S Wheelhouse (Defendant)
SOLICITORS:	Phillips Fox (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	On application to preclude access on the basis of witness's privilege to material produced - T3503
DECISION:	See paragraph 17

DLJT: 81
(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

WEDNESDAY 2 FEBRUARY 2000

JOHN MARSDEN
(Plaintiff)

v

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


JUDGMENT (On application to preclude access on the basis of witness’s privilege to material produced - T3503)

1    HIS HONOUR: The application on behalf of the present witness, Mr Leary, was remarkably brief in terms both of evidence and submissions. As it evolved, time was required by me to examine certain documentary material. 2    On 1 February, pursuant to leave granted by me, a subpoena was served upon Duncan & King Investigations to produce to the court the material referred to in the schedule to the subpoena. That was duly complied with by that organisation. Yesterday afternoon Mr Clyne of counsel for the witness, Mr Leary, was directed formally to move the court with supporting evidence for orders precluding access to the material produced on the basis of privilege. 3    Those orders were complied with and the matter was dealt with at 9.30 this morning. Orders are sought on behalf of the witness to preclude all parties from having access to documents prepared by Duncan & King Investigations and produced to the court. In support of the notice of motion filed in court this morning, there was filed and read an affidavit of Ross Ewin Duncan sworn 2 February and one of Diane Fallon, solicitor, sworn 2 February also. 4    Miss Fallon was cross-examined. 5    Exhibit A on the notice of motion was constituted by what I would at this stage describe as a medical report and another bundle of documents being documents in respect of which no claim for privilege is made. Exhibit 1 on the motion is a chronology produced from the subpoenaed material in respect of which no claim for privilege is made. 6    Yesterday during the course of his evidence at T3466.15, Mr Leary was cross-examined as to his having had prepared a chronology by an inquiry agent called Mr Duncan. After being questioned in respect of that chronology, it was admitted into evidence at T3469.51, as plaintiff's exhibit Q. That chronology in terms of observable format is not dissimilar to Exhibit 1 on the notice of motion, which has been described as a later chronology. 7    It is important to note that during the course of Mr Leary giving evidence yesterday, Mr Clyne of counsel was at the bar table. Exhibit Q was admitted without objection by the defendant, and no objection or leave to make an objection was taken or sought at the time either of the cross-examination of Mr Leary on the preparation of that chronology, or on its tender. Material indicative of a source for Exhibit Q is contained in a notation on the exhibit which reads "Produced by New South Wales police service - referred to in R.S. 93/7/3." 8    In her evidence today, Miss Fallon first made it clear when she was asked a few questions by Mr Stitt, that she had not served or caused to be served exhibit Q on the solicitors for the defendant, Mallesons. In cross-examination by Mr Barker, Miss Fallon made it clear, first, that her firm did not provide the chronology to the police, and she acknowledged, second, that they may well have got it from Mr Leary, but she was not aware of it. She acknowledged that her client would obviously have waived the privilege in it. 9    Evidence was given by her of her understanding that the subpoenaed material contained documents to support the entries in the chronologies. I put that in the plural as my conclusion from her evidence in the light of the content of Exhibit 1, noting, however, that she was questioned in relation to exhibit Q. It was her understanding that exhibit Q was prepared from the documents and from information from Mr Leary. 10    Thus did it evolve, in the end, that the plaintiff's position was not one that in any real sense disputed that the subject documents otherwise might well be characterised as privileged, either as client legal privilege or litigation privilege, but rather that there had been a waiver which embraced the source material to which I have referred. 11    The context of the assertion of the privilege is the institution of proceedings by Mr Leary against this State of New South Wales, presumably founded on causes of action reflecting a grievance in him as to what he asserts to have befallen him whilst a ward of the State. 12    The argument for the applicant on the motion to preclude inspection was founded upon that which was ultimately, I take it, to be conceded by the plaintiff, the respondent to the motion, that the material otherwise was clearly privileged. 13    What I would describe as rhetorical suggestions of a floodgate nature, that litigants who were wards of the State would be prejudiced by any order of the kind sought to be precluded, I do not find to be persuasive. The real issue is whether or not there has been a waiver of the material as submitted by Mr Barker. 14    Time has been taken by me in coming to my conclusion by reason of the view I formed that there had been a waiver, and thus I had to isolate from the several bundles of material the source material. In the circumstances where if it cannot at least be inferred, then it is expressly available on the evidence of Miss Fallon, the witness provided the police with the documents; second, in the circumstances in which that document was deployed yesterday in the presence of the witness's legal adviser and tendered in evidence, and further production of yet another copy of the same document, the conclusion that there has not been a waiver is not available. 15    I propose to grant access to the parties to the documents, except a group of three bundles which I have extracted, which, on their face, to me, could not on any rational basis be identified as source documents. Those bundles will be marked for identification. The first bundle the first document of which is headed "Duncan and King", and is in the form of an action record will be marked MFI 1. The second bundle of documents will be marked MFI 2, and otherwise identified as having been removed by me from Duncan & King file number 96103 part 1. The third bundle of documents will be marked MFI 3 and noted as having been removed by me from Duncan & King file number 96103 part 2. Those three bundles will be placed in the envelope which will be itself marked MFI 4 and retained by the court until further order. 16    The following observations further are to be made: save for clearing up a factual matter in the course of Miss Fallon's evidence to which I already referred, the defendant's position on the motion was neutral; second, that the waiver embraces the sources is reinforced by the consideration of the content of both exhibit Q and Exhibit 1, which specifically refer to them and quote from them. The documents that I have permitted to be inspected are documents in respect of which, upon inspection, I have formed the view constitute that source material. 17    The parties, therefore, will have access to exhibits 1 and A on the application, what I will describe as the remaining parts of Duncan & King files 96103 part 1 and 96103 part 2; a blue folder headed "Duncan & King Investigations Computer Records"; a bundle of documents, the first one of which is headed "Prince Henry Hospital"; and, for what they appear to be, an envelope containing certain photographic negatives.

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Last Modified: 09/25/2000