Marsden v Amalgamated Television Services Pty Limited

[1999] NSWSC 1254

CITATION:

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1254

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20223 of 1995; 20592 of 1996

HEARING DATE(S):

6, 13 & 15 December 1999

JUDGMENT DATE:

17 December 1999

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	M Hall (Plaintiff) J S Wheelhouse (Defendant)
SOLICITORS:	Marsdens (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	Defendant's applications re Plaintiff's List of Documents
DECISION:	See paragraph 24

DLJT: 80

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

FRIDAY 17 DECEMBER 1999

JOHN MARSDEN
(Plaintiff)

v

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


Judgment (Defendant’s applications re Plaintiff’s List of Documents)

1 On 4 November 1999 I delivered a judgment on the defendant’s Notice of Motion for further discovery: ([1999] NSWSC 1081: DLJT: 50). On 17 November 1999 the plaintiff delivered a List of Document pursuant to the orders I made. 2 It is a long document which purports to categorise the Discovery in accordance with the categories and classes of documents to which I referred in my orders. At this point it can be mentioned that the plaintiff has marked ‘*’ in Part 1 of Schedule 1 documents that he “does not produce for inspection”. In the same Part 1 of Schedule 1 are documents marked ‘**’ in respect of which a claim for client legal privilege is made, the documents relating to the files and ledger cards of former clients of the plaintiff’s firm. 3    Documents are enumerated in Part 2 of Schedule 1 in respect of which litigation privilege and confidential communication privilege is asserted. 4    The defendant makes what in reality are several applications. The first is an application for inspection of those documents marked ‘*’. It makes a fresh application for particular discovery in relation to documents identified in three categories: documents provided by the plaintiff to Inspector Woodhouse in November 1998; documents provided to Inspector Woodhouse on 8 March and 22 March 1999; documents that now are MFI 22 in the trial being documents in respect of which privilege was held to have been waived during the cross-examination of Dr Dent. An application for particular discovery is also made with respect to the plaintiff’s diaries in the light of the evidence contained in Exhibits D, E and F in the Discovery Application, a memorandum of the plaintiff in relation to Shane Olive. 5    The circumstances of the argument relating to the defendant’s applications could at best be described as intolerable in that counsel were obliged to conduct the matter over three separate days, interrupted by other applications in relation to other aspects of the proceedings. Submissions concluded on 15 December but the Court’s attention to them could not be paid however until after the conclusion of further interlocutory applications on Thursday 16 December. 6    For the defendant it is submitted that given the purpose of discovery being that all documentary material of the other party is to be discovered so that it can consider its effect on its own case and its opponents case and decide how to carry on the proceedings, and to put before the Court in due course all relevant documentary evidence, documents in respect of which no claim for privilege is made, which came into existence prior to the litigation, which are “relevant” by reason of their being discovered, cannot be precluded from inspection on discretionary grounds unless not to do so would permit an abuse of process or where disclosure would involve “trade secrets” or cognate matters: Church of Scientology of California v Department of Health & Social Security(1979) 1 WLR 723; Kimberley Mineral Holdings Limited (In Liq.) & Anor v McEwan (1980) 1 NSWLR 210. The situation is to be distinguished from that which founded the exercise of my discretion in what is known as the “Corrs Subpoena” judgment ([1999] NSWSC 428: DLJT: 39 - 7 May 1999) in relation to subpoenaed documents. Those documents were precluded from inspection on a discretionary basis by reason of their purpose being to attack the credit of the defendant’s witnesses and to be deployed in defence of the justification case. The discretion exercised pursuant to Waind v Hill (1978) 1 NSWLR 372 is not available in the circumstances I have outlined. I agree with the submission that nothing said by Clarke J in Marcus v Provincial Insurance Co. Limited (unreported, 11 May 1983) in the circumstances with which his Honour was there concerned, nor anything said by Santow J in Broadwater Taxation & Investment Services Pty Limited v Hendriks (unreported, 9 September 1993), derogates from the fundamental position advanced for the defendant. I have had regard to the submissions of Mr Hall that there is no limitation in respect of the time of the creation of the documents nor a restriction to the “abuse of process / trade secrets” bases, however I am not by them persuaded. 7    Thus, to put it shortly, the Waind v Hill discretion exercised in the Corrs Subpoena judgment is not available for exercise here, and in any event, I do not accept the proposition that the “compilation” of the group of documents including, pre-litigation documents, said to be for the forensic purpose of attacking the defendant’s witness, merely by reason of that fact, that is, the compilation of such documents, provides a basis for non-inspection. For example, in relation to the photographs, the plaintiff in his list has “selectively” identified documents within the various categories which he is prepared in fact to have the defendant inspect. 8    Order 1 of the orders set out below reflects the application of the view I have formed. 9    With respect to the documents ‘**’, it is the plaintiff’s position that he will abide the order of the Court in relation to the files in respect of which it is merely asserted that they were former client files. I propose to order that those documents, including the ledger cards be made available for inspection. As to the latter, there is authority in support of the proposition that privilege does not attach to such material; Re Packer (1984) 15 ATR 651; Allen Allen & Hemsley v Deputy Commissioner of Taxation (1989) 89 ATC 4294.

Motor vehicles

10    A great deal of time was spent on the agitation of the adequacy of the plaintiff’s discovery under this heading . In my judgment of 4 November 1999 I dealt with the specific category (category 1) in paragraphs 15, 16, 17 and 18. The relevant order is in general terms in paragraph 64. The plaintiff in the List of Documents, in Schedule 1 Part I refers to “documents produced by the Roads and Traffic Authority of New South Wales under a subpoena for production in these proceedings”. In Schedule 2 which relates to documents the plaintiff has had but are not known in his possession, custody or power, there is enumerated “3. Registration documents for vehicles owned by the plaintiff”. 11    Exhibit C in the proceedings is an extract from a Record of Interview of Mr Chown. It really does no more than indicate that Mr Chown had knowledge of the plaintiff’s ownership of some Mercedes Benz vehicles (which does not, thus far, appear to be in issue). I do not need material such as Exhibit C. 12    It may now be the situation, I do not know, that the plaintiff without reference to the RTA documents is simply unable to remember one way or the other which cars he owned and when, which cars were provided to him by his law firm or the Law Society (as per my earlier judgment). What is clear is that the statement in Schedule 2 is in sufficient compliance with the order I have made. The plaintiff will be directed, in Order 3, to comply with the previous order and the Rules of Court.

Home Building Plans

13    I do not propose to require anything further of the plaintiff in relation to documents 6 and 7 in Schedule 1 Part 2 under the heading “Category (2) - (The plaintiff’s house)”. I accept that such documents even though sourced from the Council may have undergone attention that warrants the application of the claim for privilege.

The Plaintiff’s Diaries

14    Exhibit F indicates that as at 9 July 1999 the plaintiff was still in possession of relevant diaries. This involves what I have above described as in effect a new application for particular discovery. There are good grounds for it. It was indicated for the plaintiff that instructions may clarify the situation. Exhibit F, as I have said, indicates the present existence of diaries from the past, and Exhibits D and E being examples of diaries in fact produced point to the existence of the “other diaries”. The plaintiff will be directed to give proper discovery in the light of the material in Exhibits D, E and F: see Order 4. Again, as I stressed in my earlier judgment, the plaintiff is required to give discovery of these documents. If he proposes to make any claim for privilege he is free so to do.

The “Robert Cussons” Document

15    This document is document (h) in paragraph 23 (statutory declarations) of annexure 1 to my judgment of 4 November 1999, annexure 1 being the Schedule appended to the Notice of Motion that led to that judgment. There is, to my mind, some uncertainty as to the status of this document (whatever it is). On instructions, Mr Hall (T3372.20) indicated that the document has never been given to the Police and that privilege has not been waived. The impression I gain is that in some way it was listed in error somewhere else giving rise to its inclusion in the subpoena schedule and thus my judgment. It is referred to as document 100 “Statutory declaration of Robert Cussons dated 11 February 1998” in category 23 - statutory declarations, page 33 of the plaintiff’s List of Documents in respect of which a claim for privilege is made, the document being in Part 2 of Schedule 1. It is desirable that the confusion in relation to this document (that is how I see it) should be cleared up. In Order 5 the plaintiff will be directed to give discovery of this document again or more than one, if there be more than one, and to identify the grounds of privilege claimed. It is hoped thereby that any question of waiver, at least, will thereby be answered.

D16 (John Maynard) Documents - Woodhouse “ November 1998 ” Documents, MFI 22

16    Exhibit B in the proceedings on the Motion is an index of the documents in MFI 22 being the documents in respect of which privilege was waived during the course of the cross-examination of Dr Dent. This is the first relevant set of documents. 17    Exhibit A on the Motion is another set of documents being what I will call the “Woodhouse November 1998”, the second set of documents. 18    The third set of documents are the documents protected by my discretionary ruling in the Corrs Subpoena judgment relating to what I will describe as Woodhouse documents of February/March 1999. 19    The fundamental position as I understand it is this: whilst there is a list of documents available in relation to the first and second set of documents there is none available as to the third. The plaintiff, in my view, should not be required to list those third set of documents because by so doing the purposes of the exercise of my discretion could well be defeated. 20    The difficulty is, and it is an understandable one, whether there is included within the third set of documents protected by the exercise of my discretion, documents “not protected” by reason of the waiver of privilege in MFI 22 documents or by reason of the Court of Appeal’s decision in relation to the second set of documents. The statement “No documents” in relation to John Maynard (D16) on page 13 of the List of Documents simply cannot be correct. 21    It has been argued on this occasion as it was on the last that it would at the very least be a matter of convenience if all categories of documents were listed in details. I am not persuaded, in all the circumstances of this case and certainly at this point of a trial, that “mere convenience” is a basis for ordering the plaintiff to list those documents. Two of the three lists are known. 22    I agree with the proposition which can be articulated to the effect that the plaintiff should not be able to hide behind the benefit of the discretionary order in his favour to preclude the revelation of the identity of documents which hitherto have not been listed but which in fact have been afforded no protection by reason of either their becoming part of MFI 22 or by the operation of the judgment of the Court of Appeal. In other words, the plaintiff should be required to give discovery of any documents within the third category (the “protected documents”) which are the same as documents in MFI 22 or the first category of documents. The protection afforded by my discretionary ruling would not be compromised by taking that step and I propose, in Order 6, to require it. 23    The predominance of success on the Motion favours the defendant and the plaintiff will be ordered to pay the defendant’s costs. 24    The formal orders are:

1. The plaintiff is to produce for inspection to the defendant by no later than 4pm on 7 January 2000 documents: 2, 4, 5, 10, 16, 17, 19, 20, 22, 23, 34-57, 60, 61, 66-73, 77-83, 85-88, 90-98, 104-115, 119-121, 123, 124, 127, 128, 131, 137-146, 148, 150-153, 170 and 175.

2. The plaintiff is to produce for inspection by the defendant within the time specified in Order 1 documents 176, 221 and 225.

3. The plaintiff is, within the time specified in Order 1, to comply with the applicable SCR PT 23 r 6(5) and (6) to give discovery in accordance with paragraphs 15, 16, 17and 18 of my judgment of 4 November 1999 NSWSC 1081.

4. The plaintiff is, within the time specified in Order 1, to give particular discovery of personal diaries, pocket diaries, court diaries and electronic diaries.

5. The plaintiff is, within the time specified in Order 1, to give particular discovery of statutory declarations of Robert Cussons whether dated 11 February 1998 or otherwise.

6. The plaintiff is to give particular discovery within the time specified in Order 1, by reference to individually described documents, of any document or documents included within the documents the subject of my ruling ( Corrs subpoena 7 May 1999: NSWSC 428: DLJT: 39 ) and which is or are included in either or both of the documents comprising MFI 22 in the trial and the documents comprising Exhibit A on this Motion (copy indices herewith).

7. The exhibits on the Motion are returned.

8. The plaintiff to pay the defendant’s costs.

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Last Modified: 09/13/2000