Marsden v Amalgamated Television Services Pty Limited

[1999] NSWSC 402

CITATION:

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 402

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20223 of 1995; 20592 of 1996

HEARING DATE(S):

27 - 29 April 1999

JUDGMENT DATE:

29 April 1999

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	Mr G O'L Reynolds S.C. Mr R G McHugh (Plaintiff) Mr H Nicholas Q.C. Mr J S Wheelhouse (Defendant)
SOLICITORS:	Phillips Fox (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	Admissibility of evidence - see T1323 - s 125 Evidence Act, 1995 (NSW)
ACTS CITED:	Evidence Act 1995 (NSW)
DECISION:	See paragraph 6

DLJT: 36
(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

THURSDAY 29 APRIL 1999

JOHN MARSDEN
(Plaintiff)

v

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

JUDGMENT (Admissibility of evidence - see T1323 - s 125 Evidence Act, 1995 (NSW) )

1 HIS HONOUR: Marked for identification 1 is a blank form of a document entitled “ Request for Inspection of Documents Produced Under Subpoena and Undertaking” . It is a document which, when completed by the party seeking access to documents produced to the court on subpoena, contains an undertaking in the following terms: " Except with leave of the Court, I will not, otherwise than for the purpose of these proceedings, divulge, communicate or refer to any person any information obtained in inspection of any document or thing produced by the Court to me or a copy of any document produced and inspected by me unless it is admitted into evidence in the proceedings ." It is not necessary for me to dilate upon the curious wording of that undertaking. What is sought to be tendered is a completed undertaking, (at the delivery of this ruling the documents (the Undertakings) have not been collated), executed by or on behalf of the solicitors for the plaintiff in the defamation proceedings.
2 In relation to documents produced on subpoena by the Police and the Department of Community Services, the tender is said to be relevant to a proposition that the plaintiff's legal privilege in the documents is amenable to be found to have been lost by means of the operation of s 125 of the Evidence Act . The tender of the document, it is said, is probative of the issue of whether or not there was a communication of the content of the documents by the plaintiff in respect of which communication there ought reasonably to have been known that the making of that communication was in furtherance of a deliberate abuse of power.
3 Both for the plaintiff in the defamation action and for Messrs Corrs Chambers Westgarth (the party under subpoena), submissions are made that s 55 of the Evidence Act would preclude a finding that the tender of this undertaking could affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue, namely, what I will, in short form, call the asserted deliberate abuse of power for the purposes of s 125. I am not persuaded by that argument against its admissibility in terms of relevance. I am persuaded, however, that its probative value in relation to the issue of deliberate abuse of power by the plaintiff, or if there remains any question about Mr Potter or Mr Lee, is virtually zero.
4 The evidence from Mr Lee of the circumstances of having possession of documents subpoenaed by the police in the defamation action and any use thereafter made by him, could not, on any rational view of the totality of his evidence, go any where near the establishment, on the balance of probabilities to a very high level of satisfaction, of a deliberate abuse of power. Argument on the tender, on one view, has already resulted in an undue expenditure of time; in fact the whole of the morning session of these proceedings today.
5 This is a clear case, to my mind, given the want of probative value of the document tendered on the issue under s 125 that calls for the discretion under s 135 of the Evidence Act, at least under subparagraph (c), if not the others of that section. The course of the evidence, particularly at T1825, in my view, points to, an indication that there may well have been, at that time in the evidence, been consideration of the existence of this basis for the elimination of the privilege. When the point was reached in the cross-examination of Mr Lee that he had not even turned his mind to the question, there would have become exposed, in my respectful view, very, very weak preliminary grounds for an assertion of a deliberate abuse of power for the purposes of s 125.
6 The plaintiff has not given evidence on these issues. It is an interlocutory matter in which evidence in the usual form has been given; but even taking those factors into account, no groundwork on any reasonable or rational basis has been laid to pursue this s 125 issue and the tender is rejected.
**********

Last Modified: 05/03/1999