Marsden v Amalgamated Television Services Pty Limited

[1999] NSWSC 260

CITATION:

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 260

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

20223 of 1995; 20592 of 1996

HEARING DATE(S):

24 March 1999

JUDGMENT DATE:

24 March 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 McHugh (Plaintiff) W H Nicholas Q.C. J S Wheelhouse (Defendant)
SOLICITORS:	Phillips Fox (Plaintiff) Mallesons Stephen Jacques (Defendant)
CATCHWORDS:	On claim for privilege in respect of document produced in answer to NP5
DECISION:	See paragraph 9

DLJT: 26
(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

WEDNESDAY 24 MARCH 1999

JOHN MARSDEN
(Plaintiff)

v

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

JUDGMENT (On claim for privilege on document produced in answer to NP5 )

1 HIS HONOUR: In response to a Notice to Produce dated 19 March 1999 and identified in this application as NP5, the defendant produced in answer to paragraph 5(a) a document which will be MFI 8. The document, like the document with which I was concerned in dealing with MFIs 5 and 6 (in relation to NP6), has clearly the following characteristics: (1) it is a photocopy; (2) there has been obliterated other material from it and (3) it is, to a very great extent, illegible. The last characteristic can be solved.
2 The document in fact produced, namely the photocopy read: “11/11/98 ATN7 - Marsdens 3.45pm x Greg Quail re his earlier call; (2) he picked up D13 at Quakers Hill, met Woodhouse at a coffee bar in Hyde Park ”.
3 Paragraph 5(a) of NP5 requires the production of documents recording or making any note of the identity of the person referred to as " another person " in paragraph 3(c) of Mr Angus' affidavit of 8 February this year.
4 The affidavit of 8 February this year elaborates to some extent upon an earlier affidavit by Mr Angus sworn on 4 February. In the latter affidavit in paragraph 4 there is reference to a telephone conversation between Mr Angus and Mr Quail in which, amongst other things, there is attributed to Mr Quail the following quote: " I picked up D13 and we met with another person at a coffee bar in Hyde Park."
5 In the affidavit of 8 February Mr Angus deposes to the fact that Mr Quail identified to Mr Angus the " other person ". Bearing that in mind and the text of the photocopy produced, it can be seen that the photocopy produced purports to be a document recording a note of the identity of the person referred to as " another person ", the indications being that that person is Mr Woodhouse.
6 The photocopy document produced, which I have indicated will be marked MFI 8, as I have said on its face is edited. The document from which it has been edited will be marked MFI 7 and it will be accompanied by a handwritten transcript of the original of MFI 7. It is in respect of the balance of MFI 7 that a claim for privilege is made by the defendant.
7 The plaintiff has contended, as was contended in relation to NP6, that the balance, shortly stated, is required to give meaning to that which has in fact been disclosed. Again, in the case of NP5 I am not persuaded as to the availability of that contention, particularly in the light of the “ tracking” exercise that leads to the terms of paragraph 5(a) in NP5.
8 The other material on its face clearly is privileged and no basis has been made for that privilege to be lost by reference to any clarification requirement in respect of that which has been disclosed.
9 Accordingly, the application by the defendant to sustain privilege as to the balance of the document produced on call is upheld.
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