Marsden v Amalgamated Television Services Pty Limited

[2000] NSWSC 559

CITATION:

Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 559

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20223 of 1995; 20592 of 1996

HEARING DATE(S):

20 June 2000

JUDGMENT DATE:

20 June 2000

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

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)
SOLICITORS:	Phillips Fox (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	On request by defendant for production to the Court of files containing Listening Devices Act warrants - T7424
LEGISLATION CITED:	Listening Devices Act 1984 Police Integrity Commission Act 1996
CASES CITED:	Kable v The Director of Public Prosecutions New South Wales (1996) 189 CLR 51
DECISION:	See paragraph 25

DLJT: 176
(Ex Tempore - Revised)
[2000] NSWSC 559

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

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

TUESDAY 20 JUNE 2000

JOHN MARSDEN
(Plaintiff)

v

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

JUDGMENT (On request by defendant for production to the Court of files containing Listening Devices Act warrants - T7424)

1    HIS HONOUR: On Friday 16 June at about 2pm, Mr Nicholas Q.C. informed me as to matters arising out of proceedings heard that morning in the Court of Appeal. 2    First, I was informed that the Court of Appeal ordered that the proceedings before it be stood over to a date to be fixed. This is confirmed in the first print of the judgment of Priestley JA, made available yesterday, Monday 19 June. 3    Secondly, I was informed by Mr Nicholas on Friday as follows:

"Their Honours took the view that there may be a number of further steps yet to be taken before the tender question of warrants and/or tapes has been exhausted. Therefore, it is inappropriate at this stage to embark upon a hearing and a determination of what they perceive to be quite a range of matters” (T7338.10).

4    That also certainly can be said to be confirmed by a reading of the transcript of the proceedings in the Court of Appeal. 5    In this context, a request was made on Friday that I either request the executive officer, to whom I will hereafter refer as the Chief Executive Officer, to produce to the Court the files containing the warrants or, alternatively, an application was made to me to direct the Chief Executive Officer to produce those files as though in response to a subpoena. It was subsequently acknowledged, by reference to SCR Pt 37 r 2, that a subpoena or a direction to respond as in answer to a subpoena was not appropriate. (See T7414.25). 6    What I will now take to be a request by the defendant that I direct the Chief Executive Officer to deliver the files, is a request to which I propose to accede. That I have the power or authority to do so was not put in issue by the plaintiff. 7    The circumstances of the request and the nature of the material to which it relates, however, are unusual and explanatory observations are required. The request relates to the subject matter known as "“the Elomari tapes”". 8    A history of my dealing with the subject matter is as follows in terms of rulings and judgments: 28 February 2000 (NSWSC 98: DLJT 103), the occasion when the tapes were first tendered; 1 May 2000 (NSWSC 367: DLJT 138), concerning inter alia s 19 reports under the Listening Devices Act 1984; 23 May 2000 (NSWSC 436: DLJT 159), concerning the admissibility of a certificate under the Police Integrity Commission Act 1996; 25 May 2000 (NSWSC 450: DLJT 161), concerning the admissibility of an amended s 19 notice; 25 May 2000 (NSWSC 405: DLJT 162), dealing with objections to questions asked of the then witness Detective French; further on 25 May 2000 (NSWSC 480: DLJT 163), dealing with the rejection of the purported warrant; a ruling on 26 May 2000 (NSWSC 465: DLJT 164), concerned with the construction of the Listening Devices Act; 8 June 2000 (NSWSC 519: DLJT 171), dealing with the defendant's entitlement to cross-examine the plaintiff as to the content of “the Elomari tapes,” 13 June 2000 (NSWSC 530: DLJT 172) the rulings under SCR Pt 31 r 2. 9    To that list must now be added what I said at T6501 on 26 May, leading to the marking of a letter from Mallesons to the Registrar of the Common Law Division as MFI 192:

"There was delivered to my Chambers within the last three-quarters of an hour a letter from the defendant's solicitors to the Registrar of the Common Law Division of this Court, a copy of which has been provided to senior counsel for the plaintiff. The letter requested that certain files relating to listening device warrants be delivered to me as early as possible this morning. I understand that a copy of the letter has been delivered to the Police Integrity Commission.
I have directed the executive staff of this Court to discontinue their search for the files, and insofar as two were delivered to my Chambers, they have been returned. I will say no more about that at this stage."

10    Further, there is my judgment of 14 June 2000 (NSWSC 538: DLJT 174), refusing the application for the adjournment of the cross-examination of the plaintiff pending the outcome of the proceedings in the Court of Appeal, which proceedings, it has to be acknowledged, are the source of the request I have indicated I propose to grant. 11    Other matters in relation to the trial are, of course, that the defendant has closed its case, during the course of which, in accordance with the onus of proof the defendant bears, it unsuccessfully sought to tender “the Elomari tapes” material. At present, the cross-examination of the plaintiff in his case in reply to the defence case appears to be nearing a conclusion after nine days thus far. I add that arrangements have been made for a secure court tomorrow to hear evidence from a witness in custody. Further, I assume that thereafter there will be other witnesses to be called in the plaintiff's case in reply. 12    As to the proceedings in the Court of Appeal, Mr Nicholas was good enough to provide me with a copy of an Amended Summons for Leave to Appeal. My understanding is that the leave application concerns my judgments of 25 and 26 May, what is described as the order to the Registrar made on 26 May and what I shall describe as the SCR Pt 31 r 2 component of 13 June. None of those matters has been the subject of a grant of leave. None of those matters has thus far been the subject of a judgment or order or direction of the Court of Appeal, save, of course, for the order made on Friday standing the matters over to a date to be fixed. In other words, nothing thus far has emanated from the Court of Appeal in relation to “the Elomari tapes” leave applications that is authoritative or binding upon me as the trial Judge. 13    Further, it is necessary to say that in no way do I understand anything any one of their Honours said as intended to affect or influence my conduct of this case as the trial Judge. 14    I was taken to various parts of the transcript of proceedings before the Court of Appeal by way of backdrop to, or context for, the request with which I am presently dealing. To that extent only is the transcript of assistance and to the extent also that it does appear to confirm the view held by their Honours (expressed, as I understand it, as no more than observations) as to the notion of the "exhaustion" of the tendering process in relation to “the Elomari tapes” material. But nothing, as I have said, can flow from that in any binding way. 15    However, the administrative direction which I am prepared to give does involve material of a peculiar and special nature. The Listening Devices Act is concerned with privacy and with law enforcement. So significant is it in its operation that upon an application being made under that Act for the issue of a warrant, the Solicitor General of this State has the right to be heard. Pursuant to SCR Pt 77 r 71, business under that Act is assigned to Judges of the Common Law Division. Indeed, consequent upon the decision of the High Court in Kable v The Director of Public Prosecutions New South Wales (1996) 189 CLR 51 and the amendments constituted by s 3A of the Listening Devices Act, judges who deal with listening device applications do so as persona designata. Judges of the Common Law Division become experienced in, and sensitive to, the ramifications of the extraordinary power given to them by the Listening Devices Act and the consequences of its exercise. 16    Thus I am aware that the material to be delivered to the Court is of the utmost sensitivity and, indeed, secrecy. It is material, to use the vernacular, “to be handled with kid gloves”. Any application for access to it will have to be attended by formality and with notice to the Police Integrity Commissioner. 17    I can indicate that I do not propose to allow what I anticipate to be a bundle of envelopes to remain in this Courtroom or my Chambers. I will direct that upon their production, they be returned to the Chief Executive Officer for safe-keeping until any application for access, if made, is determined. 18    As far as I am concerned, I will be giving an administrative direction only and thereafter anything that occurs will be dealt with a step at a time and subject to the efficient conduct of this trial as it is presently structured. 19    On Friday, after Mr Nicholas gave me the information to which I referred, Miss Plater announced her appearance for the Police Integrity Commissioner and stated to the Court:

"My instructions are that if you are minded to direct the executive officer to produce the relevant files to the Court, the Police Integrity Commission would have no objection to your Honour and counsel in the proceedings having access to those files. But if there was any proposal that access be granted generally, or the information in the files be disseminated generally, then PIC would have concerns regarding the release of that material and would require notice to put on a public interest immunity claim in respect of the general access being granted to that material” ( T7339.41).

20    I make the following observations. The position reflected in Ms Plater’s her instructions constitutes a change of stance by the Police Integrity Commissioner. Up to that time, the Commissioner had “certified”, on several occasions and in varying ways, pursuant to s 56(4) of the Police Integrity Commission Act 1996, and by reference to the “public interest” as is referred to in that provision, with the effect that I and counsel, as far as warrants were concerned, or purported warrants, only had access to photocopies of edited photocopies presumably of warrants the subject of a subpoena to the New South Wales Police Service. 21    Next, whilst what Miss Plater said on Friday can be characterised as reflecting a change in position on the part of the Police Integrity Commissioner, any question of want of good faith is irrelevant at this point. 22    I add that it does seem to me open to conclude that a possible source for what was announced to be the Police Integrity Commissioner's position as at Friday lies in some remarks of Powell JA recorded at page 11, lines 5 to 10, of the Court of Appeal transcript. Whether that is so as a matter of fact I do not know and nothing turns on it. 23    Finally, whilst Miss Plater no doubt considered it appropriate to inform the Court of her instructions on Friday, the position of the Police Integrity Commissioner is irrelevant to whether or not I give the administrative direction sought by the defendant, and the stated position of the PIC as at Friday has played no part in my deciding to do so. 24    Thus I view the defendant's request simply as no more than to take an administrative step, but I view it being acutely conscious of the nature of the material to which it is directed. 25    Accordingly, I direct the Chief Executive Officer of the Court to deliver to my court at 10am on Thursday 22 June the court files identified as follows; RCNSWPS 308/1995, RCNSWPS 309/1995, RCNSWPS 314/1995, RCNSWPS 315/1995, RCNSWPS 345/1995, RCNSWPS 346/1995, RCNSWPS 89/1996 and RCNSWPS 90/1996.

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Last Modified: 09/26/2000