Marsden v Amalgamated Television Services Pty Limited

[1999] NSWSC 348

CITATION:

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 348 revised - 31/08/99

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20223 of 1995; 20592 of 1996

HEARING DATE(S):

15-16 April 1999

JUDGMENT DATE:

16 April 1999

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	I Barker Q.C. G Reynolds S.C. R G McHugh (Plaintiff) W H Nicholas Q.C. J S Wheelhouse (Defendant)
SOLICITORS:	Phillips Fox (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	T1016 - access to documents found by Court of Appeal not to be privileged - other bases for refusal of access
CASES CITED:	Waind & Hill
DECISION:	See paragraph 15

DLJT: 33
(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

FRIDAY 16 APRIL 1999

JOHN MARSDEN
(Plaintiff)

v

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

JUDGMENT (T1016 - access to documents found by Court of Appeal not to be privileged - other bases for refusal of access)
1 HIS HONOUR: By reason of the consequences of what I am about to say, consequences which, facing reality, are first appellate and, second, the general conduct of the trial, I am constrained as best I can to be brief but succinct.
2 On 15 April the Court of Appeal made orders granting inspection (see paragraph 42 of its judgment).
3 It did so having granted leave limited to a " single issue " (see line 2 of judgment of the President 13 April 1999), which I take to be whether or not there should be inspection.
4 That their Honours ordered that there should be inspection seems to me to follow from their Honours holding me to have been in error on the question of privilege.
5 Two other matters were argued before me but not decided by me. Public interest immunity and the “ Waind & Hill” discretion, hereinafter referred to as the undecided issues.
6 In the Court of Appeal, on the interlocutory appeal from me:
(a) Directions were given on 6 April 1999 as to the filing of Notices of Contention by the respondent/plaintiff as to "any basis for with holding inspection in the event that the appeal were to succeed". (President's judgment 13 April 1999 paragraph 1).
(b) No notice of contention was filed at any time, either upon the grant of leave, or on the filing of an Amended Notice of Appeal by the appellant/defendant, which on its face for the first time specified the relief sought and constituted by the order in fact made, namely inspection .
7 It thus seems clear to me: first, I did not decide the other two issues; second, the Court of Appeal did not decide the other two issues; third, the other two issues were not raised for argument in the Court of Appeal by the filing of Notices of Contention.
8 I have been referred to passages in the transcript of the proceedings in the Court of Appeal on 13 April which I will not rehearse.
9 I have read the judgment of 15 April and the judgment of the President on 13th.
10 As to the former, I do not understand the " reasons " referred to in paragraph 41 of the judgment of Giles JA to include the disposition, in any final way, on this interlocutory appeal of the two undecided issues.
11 I refer to the penultimate paragraph of the President's judgment of 13 April, on page 2. In so far as I am able, in the circumstances, to understand, with the greatest respect, what his Honour is there saying, I do not understand the " issues " raised leading to the consequences to which his Honour referred, to have been any way dispositive of the undecided issues.
12 I refer to the first paragraph on page 3 of the President's judgment, and state that I do not understand his Honour's reference to the " issues " there as having been " properly agitated ", to have been disposed of and decided by that court.
13 Nor do I understand matters not being the subject of contention on an interlocutory appeal constitutes an impediment to consideration by me, in so far as those matters are constituted by the undecided issues, of those issues.
14 Thus, in the end, I do not understand the basis of the disposition leading to what unquestionably is a clear order for inspection made by the Court of Appeal precludes me from further considering the undecided issues, they being neither res judicata nor subject of the issue of estoppel.
15 Accordingly, I grant leave to the plaintiff to make further submissions in respect of the undecided issues.
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Last Modified: 06/30/2000