Marsden v Amalgamated Television Services Pty Limited

[2000] NSWSC 79

NEW SOUTH WALES SUPREME COURT

CITATION:     Marsden v Amalgamated Television Services Pty Limited [2000]  NSWSC 79

CURRENT JURISDICTION:           Common Law

FILE NUMBER(S):   20223 of 1995; 20592 of 1996

HEARING DATE{S):           21 February 2000

JUDGMENT DATE:            21/02/2000

PARTIES:
JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:      Levine J     

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S):       Not Applicable

LOWER COURT JUDICIAL OFFICER:     Not Applicable

COUNSEL:
I Barker Q.C.
M R Hall
(Plaintiff)

R Stitt Q.C.
J S Wheelhouse
(Defendant)

SOLICITORS:
Phillips Fox
(Plaintiff)

Mallesons Stephen Jaques
(Defendant)

CATCHWORDS:
On application by defendant for confidentiality order as to agreement between Mr Elomari and the defendant - T4156

ACTS CITED:

DECISION:
See paragraph 10

JUDGMENT:

DLJT:  98
(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

MONDAY 21 FEBRUARY 2000

JOHN MARSDEN
(Plaintiff)

v

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

JUDGMENT (On application by defendant for confidentiality order as to agreement between Mr Elomari and the defendant - T4156)

1. HIS HONOUR:  In this action today’s proceedings were conducted in camera.

2. Proceedings were conducted in camera so that there could be, in an uninhibited way, explored the question of whether or not certain evidence should be given in camera or in public.  Obviously, if the question arises as to whether evidence is to be given in camera or in public, the object of the exercise might well be defeated if the agitation of that question was, in the first instance, in public.

3. The subject matter of what evidence should or should not have been given in public was disposed of by a ruling I made before the Court was opened (NSWSC 70:  DLJT: 96).  The nature of the ruling was such that the ruling could have been given in open court. That ruling and all rulings within the confines of the closed court and the applications there being dealt with, and what took place in closed court, will now be in the public domain, except for one aspect to which I have elliptically referred, with which the parties are acquainted, and in respect of which the transcript, until something else eventuates, will remain as transcript of proceedings in camera.

4. In the course of the proceedings in camera this morning reference was made to documents that are now exhibit 42 in the action.  That document has been tendered by the defendant in the course of public evidence given by Mr Elomari and is a document tendered as to an agreement between Mr Elomari, with the aid of the solicitor, Mr Corry, who has been referred to in evidence, and the defendant.

5. The papers constituting what has been described as an agreement are made up of an affidavit of Mr Corry, a communication with the Police Department, and a letter from the defendant's solicitors to Mr Corry.

6. The one aspect that excited the concern of the defendant as to the confidentiality of the exhibit was the very matter on which I ruled that evidence could be given in open court (NSWSC 78:  DLJT: 97).  Up until this time, restrictions have been placed upon the dissemination beyond the parties to the litigation of the document, restrictions imposed at a time when that document was being used for the purposes of resolving the matters dealt with in camera.  The document has now been tendered in open court and, unless there is some  very special reason, should not attract any confidentiality.

7. Consequent upon the ruling I made, Mr Elomari will be cross-examined in public on all relevant matters, one of which is and will be unquestionably exhibit 42.

8. Exhibit 42, as I have said, is the document reflecting a contract or agreement between Mr Elomari and the defendant, in respect of which Mr Elomari, according to the public evidence, had Mr Corry as his legal adviser.

9. It was argued that the ruling I made in relation to the subject matter of public evidence, apart from exhibit 42, could stand logically with some imprimatur of confidentiality being attached to exhibit 42.  They are, one fairly can conclude, connected.  As the witness will be cross-examined on exhibit 42 in open court, but more particularly and perhaps critically because I simply cannot see anything in exhibit 42 that would attract confidentiality, that, is to be kept secret from public dissemination, I cannot accede to the defendant's request.

10. It is an exhibit.  It is part of the evidence before this Court.  The contents will, no doubt, speak for themselves and will be the subject, as I have said, of cross-examination.  As Mr Stitt has said, no doubt in the Commercial Division hardly a day passes where confidentiality is not ordered in respect to documents that might contain trade secrets, documents in relation to, for example, public corporations, the exposure of which might have undue, improper or possibly unlawful effects on the public operation of such corporations.  This material is no more than evidence of an arrangement between the defendant and the witness that attracts none of those considerations.  It is an exhibit in the same category as every other exhibit in this case.  I decline to make any order of confidentiality attendant to it.

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LAST UPDATED:    29/02/2000