Marsden v Amalgamated Television Services Pty Limited

[1999] NSWSC 351

CITATION:

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 351

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20223 of 1995; 20592 of 1996

HEARING DATE(S):

15 April 1999

JUDGMENT DATE:

15 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:	MFI 6 - see T918 - waiver of privilege as to balance of document
DECISION:	See paragraph 6

DLJT: 32
(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 15 APRIL 1999

JOHN MARSDEN
(Plaintiff)

v

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

JUDGMENT (MFI 6 - see T918 - waiver of privilege as to balance of document)

1 HIS HONOUR: On 24 March I made a ruling in respect of the document then marked for identification 6. The conclusion to which I came is set out in paragraph 6 of that judgment, being 1999 NSWSC 261 ( DLJT:27) .
2 Since making that ruling in relation to MFI 6, the cross-examination of Mr Angus has been continued relevantly and acutely so, in relation to the subject matter of a communication/conversation between Mr Bates of the defendant's solicitors and Mr Quayle and “ the list of twelve names” . At page 875 line 46 of the transcript, during the course of cross-examination, a call was made by Mr Barker for production of a file note of Mr Bates outlining his conversation with Mr Quayle on 5 February 1999, it having been acknowledged by the witness that such a note would exist. In response to that call, MFI 6 has been produced and the same argument has been advanced in relation to privileged material as to the balance of the document not hitherto disclosed.
3 To isolate line 46 at page 875 out of the context of the cross-examination leading up to the call, specifically at pages 873 and following, would render the exercise in my mind artificial to the extreme. The subject matter was Mr Bates' communication with Mr Quayle: At 873 line 40 the question was asked of the witness:
“Q. Mr Bates comes along and says he has all these names from Mr Quayle; the day Mr Quayle visited the police he showed you the list and you don’t know what Mr Bates was going to do with it?
A. I know he was going to make follow-up inquiries to try and contact the people.
Q. Why would he do that if he didn’t know the significance of them? They might have been taken from the telephone book?
A. They may have been.
Q. Why was Mr Bates going to make follow-up inquiries?
A. To see whether they could assist us in the case”.
4 That testimony exposed more than the mere fact that there had been a conversation between Mr Bates and Mr Quayle in relation to the " list of twelve” .
5 The subject matter of the follow-up enquiries in my view cannot also be detached from the evidence given by Mr Angus at 886 in relation to the retention by the defendant of a private investigator by the name of Sinclair in respect of some questions in relation to whom I ruled at page 888 line 40.
6 The cross-examination of Mr Angus hitherto has exposed subject matters properly amenable to further cross-examination of the witness in the area of the hitherto exposed part of MFI 6 and adds a compelling reason to come to the view that, first, notwithstanding the witness' assertion to the contrary, any privilege attending the balance has been waived, and/or second, for the purposes of understanding that exposed part of MFI 6 in the context of the now revealed evidence of the witness, the balance of the document should be revealed. The plaintiff will have access to it.
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