Marsden v Amalgamated Television Services Pty Limited

[2000] NSWSC 573

CITATION:

Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 573

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20223 of 1995; 20592 of 1996

HEARING DATE(S):

22 June 2000

JUDGMENT DATE:

22 June 2000

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

POLICE INTEGRITY COMMISSION
(On Notice of Motion)

JUDGMENT OF:

Levine J at 1

COUNSEL :

I Barker Q.C.
M R Hall
(Plaintiff)

W H Nicholas Q.C.
R Stitt Q.C.
J S Wheelhouse
(Defendant)

P A Johnson S.C.
(Police Integrity Commission)

SOLICITORS:

Phillips Fox
(Plaintiff)

Mallesons Stephen Jaques
(Defendant)

Crown Solicitor's Office
(Police Integrity Commission)

CATCHWORDS:

On defendant’s application, by way of Notice of Motion, for access to Listening Device Act 1984 warrants - T7615

DECISION:

See paragraph 24

DLJT: 179
(Ex Tempore - Revised)
[2000] NSWSC 573

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

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

THURSDAY 22 JUNE 2000

JOHN MARSDEN
(Plaintiff)

v

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


POLICE INTEGRITY COMMISSION
(On Notice of Motion)

JUDGMENT (On defendant’s application, by way of Notice of Motion, for access to Listening Device Act 1984 warrants - T7615)

1    HIS HONOUR: By Notice of Motion filed in Court by leave today, the defendant seeks to be granted access, (including photocopy access), to the documents listed in paragraph 1 of the Notice of Motion. In shorthand terms, they may be described as eight Listening Device Act 1984 warrants. I do not think I am in error in understanding the defendant's wish to have access only to the warrants. 2 The filing of the Notice of Motion in Court today arose upon compliance by the Chief Executive Officer of this Court (Ms Johnston) this morning (T7598) with directions I gave on 20 June 2000 (NSWSC 559: DLJT 176) for the production by her from the custody of the Court of the files referred to in my judgment of that date. 3 As I have said, it was made clear, both shortly after my judgment of 20 June and on several occasions this morning, in order quite properly to facilitate procedures, that the defendant seeks access only to the warrants. 4 Conformably with what I said in my judgment of 20 June, the application for access had to be attended with formality and thus the filing of the Notice of Motion and service of it on the Chief Executive Officer, the plaintiff and the Police Integrity Commission (see NSWSC 571: DLJT 178). 5 At 2 o'clock, the Police Integrity Commission, by leave, filed a Notice of Motion seeking an order that it be granted leave to inspect the material produced to the Court by the Chief Executive Officer to enable the Commissioner to make what was then described as a claim by way of Public Interest Immunity in respect of the warrants. The purpose of the exercise of inspecting the Court files was to determine whether documents apparently already in the possession of the Police Integrity Commission coincide with the material in the Court files. 6 Leave was granted to Mr Johnson SC for the Commissioner to inspect the files. That inspection disclosed that the files do not contain sealed or signed copies of what might be described as warrants. I accept that the files (which I have not inspected) contain documents in the wording of warrants but which bear no sign of those documents having been issued as warrants by Judges of this Court. It thus appears to me, on the information which does not seem to be in issue that there is nothing in the Court files to which the defendant's application for access can relate. 7 I am informed by Mr Johnson that the Police Integrity Commission, however, has had delivered to Court this afternoon what are described as the original warrants, or warrants bearing the seal and signature of Judges of this Court. The delivery of the originals via the Commissioner to this Court can only be understood as delivery by him of originals from his possession and custody. 8 What has happened is that in anticipation of the material in the Court files in fact coinciding with that in the possession of the Commissioner, informal notice was given of a claim for Public Interest Immunity as to part of the contents of the warrants. Informal notice was constituted by the service of an open affidavit on the parties sworn today by Assistant Commissioner of the Police Integrity Commission, Mr Sage, to which was exhibited edited copies of warrants. There was delivered to me, in the usual way that would attend the determination of a Public Interest Immunity claim, confidential exhibits being made up of a confidential affidavit of Mr Sage and other material. Obviously, the foundation for that exercise, conducted hitherto with informality, disappeared because the Court files contain no warrants issued by Judges of this Court. 9 The first matter that evolves from all of this, as I see it, is that by reason of the operation of s 56(2) of the Police Integrity Commission Act 1996, absent a certificate under s 56(4), I cannot direct the Commissioner or anyone on his behalf to divulge any information that may be contained in the warrants now in Court produced from the custody of the Police Integrity Commissioner. 10 Indeed, historically, the problems that have strewn the path of the defendant during the course of its case have flowed from the fact that from time to time, the Police Integrity Commissioner did issue certificates with the result, as I have said in earlier judgments, that documents made available to the parties and to myself cannot on any view be said to be warrants. 11 In relation, therefore, to the original documents which I acknowledge to be in Court from the custody of the Police Integrity Commissioner, I can make no order vis-a-vis the Commissioner and in favour of anyone else by reason of the operation of s 56. 12 From the information made available the documents in the Court files are not warrants, nor are they copies. 13 For the defendant, I was reminded of the provisions of s 48(1)(b)(i) of the Evidence Act 1995, falling within that part of it dealing with the proof of contents of documents, which provides that a party may adduce evidence of the contents of the document by tendering a document that is or purports to be a copy of the document in question. 14    Sections 48(1)(e)(i) and (ii), by the operation of the Dictionary definition of business records, accepting for present purposes that the Police Integrity Commission is a “business”, also, it was argued, would be an avenue to achieve that which the defendant seeks to achieve. 15 Section 58(1) and (2), under that part of the Evidence Act dealing with “Relevance”, is also relied upon insofar as inferences can be drawn as to authenticity and identity in relation to the question of relevance. 16 Similarly, s 183 of the Evidence Act is relied upon in providing that if a question arises about the application of a provision of the Act itself in relation to a document or a thing, the Court may examine the document or thing and draw any reasonable inferences from it. 17    Departing from the Evidence Act, s 82 of the Supreme Court Act 1970 was pointed to as another mechanism for that which the defendant seeks to achieve. That section of the Act is headed "Informal Proof - Admissions" and provides that a Court may, at any stage of the proceedings, dispense with the rules of evidence for proving any matter not bona fide in dispute; without limiting the generality, dispense with the proof of handwriting, documents, the identity of parties or parcels, or of authority. 18    That such provisions, in the normal course, could be available for dealing with evidentiary matters is clearly correct. Shortly stated, however, there is no material in respect of which they can presently have any operation. First, the Court files contain nothing. Secondly, the Police Integrity Commission Act itself, as it operates in the present circumstances, precludes there being available any material for the purposes for which the defendant wants it. 19    I have, in the course of submissions, which have been most useful, passing to and fro between the three parties presently involved, used the word “grotesquerie” as applying to the situation in which particularly the defendant finds itself. But there are certain matters of indisputable fact which I seem to have to be required to repeat nearly every day that this issue arises. 20    It must be stated: I have ruled on the admissibility of “the Elomari tapes” material. The defendant has sought leave to appeal. The Court of Appeal has stood the leave applications over to a date to be fixed. The defendant has closed its case. 21    The opportunity the defendant seeks is an opportunity for the exercise of which there is no present structure. I am not concerned with admissibility, the defendant, as I have said, has closed its case. 22    I appreciate that an objective sought to be obtained by the defendant is the provision of a foundation for admission into evidence of certain material. The defendant is not in a position to tender evidence for admission and there is no relevant material available to it to do so, even if it were. 23    As I said earlier, it is desirable that I bring to finality the exercise before me as it presently is structured. I will do so by making an order declining access as is sought under the defendant's Notice of Motion. When I do that, I hope that will either generate something effective, or capable of being effective, in my Court which can be dealt with at an appropriate time, or have the result that in another Court steps are taken to bring, what is presently an impasse, to an end. 24    The formal order I make is that I dismiss the defendant's Notice of Motion.

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Last Modified: 09/26/2000