Marsden v Amalgamated Television Services Pty Limited

[2000] NSWSC 549

CITATION:

Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 549

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20223 of 1995; 20592 of 1996

HEARING DATE(S):

15 June 2000

JUDGMENT DATE:

19 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) R Stitt Q.C. J S Wheelhouse (Defendant)
SOLICITORS:	Phillips Fox (Plaintiff) Mallesons Stephen Jaques (Defendant)
CATCHWORDS:	Application for access - subpoena to Police Service - cassette tapes & transcripts - Telecommunications (Interception) Act 1979 (Cth.) - Telecommunications (Interception) Act 1987 (NSW) - application refused
LEGISLATION CITED:	Telecommunications (Interception) Act 1979 (Cth.) Telecommunications (Interception) Act 1987 (NSW)
CASES CITED:	Chonka v Palmer (Commissioner of Australian Federal Police) [1999] FCA 763 John Fairfax Publications Limited v Doe (1994) 37 NSWLR 81 Kizon v Palmer & Ors (No.2) (1998) 82 FCR 310 Waind v Hill & National Employers Mutual General Association Limited (1978) 1 NSWLR 372
DECISION:	Access denied - see paragraph 19

DLJT: 175
(Ex Tempore - Revised)
[2000] NSWSC 549

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

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

MONDAY 19 JUNE 2000

JOHN MARSDEN
(Plaintiff)

v

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

JUDGMENT (Application for access - subpoena to Police Service - cassette tapes & transcripts - Telecommunications (Interception) Act 1979 (Cth.) - Telecommunications (Interception) Act 1987 (NSW) - application refused)

1    On 14 June 2000 a subpoena to the Proper Officer of the NSW Police Service was issued and served pursuant to leave granted by me. 2    The subpoena required production of:

“1. Copies of any cassette, tape or other recording of any telephone conversations between John Marsden and;
(a) Mark Bailey and/or;
(b) Keith Rainey.
2. Copies of any transcript of any conversation referred to in paragraph 1 above”.

3    At 10am on Thursday 15 June 2000 Ms Plater appeared for the subpoenaed party to produce “a bundle of documents”. She explained to the Court that cassette tapes had been received in her office and would be delivered to the Court later in the day. A second matter was that one of the transcripts produced bore an incorrect date; it had been amended by hand. A corrected copy would also be delivered with the tapes. 4    I raised Ms Plater the question as to whether the delivered material was the product of telephone intercepts under the Telecommunications (Interception) Act 1979 (Cth.) and what I understood to be the comparatively more stringent requirements of that Act in terms of the material being amenable to production on subpoena issued by anyone. 5    The transcript, I was informed, was retained under the Commonwealth Act and the State Act of 1987. 6    Mr Wheelhouse, junior counsel for the defendant, applied for access. 7    A copy of the subpoena was shown to Mr Barker who objected to access being granted, submitting that the material should not be listened to by anyone until some basis for its existence was established. Further, other matters aside, the conversations may well be entirely privileged. 8    At 2pm on 15 June 2000 Ms Plater produced a copy of the tapes sought under the subpoena and also a copy of the transcript with the corrected date. She confirmed to the Court that the intercepts were obtained under the Commonwealth Act and stated “so it appears that whilst the Police were compelled to produce this material under subpoena, there are only limited exceptions under that Commonwealth Act under which the information can be further disclosed or communicated or used in evidence in proceedings. The Police do not wish to make any submissions on that point”. 9    I have not myself inspected any of the material produced. 10    Some context is provided by the knowledge that Messrs Rainey and Bailey are to be prosecuted for a charge relating to an attempt to pervert the course of justice. The “Police brief” in that matter has been the subject of subpoenas and Notices to Produce. It is apparent that the material the subject of the subpoena is not contained in that Police brief. Certainly, so far as I can understand it, the material obtained by way of subpoena etcetera in relation to the “Police brief” discloses nothing about the existence of any such telephone intercepts as are sought to be captured by the subpoena and the attitude of the Police Service in producing the material without any objection or claim for public interest immunity would seem to reinforce this. 11    The argument as to whether or not there should be access was conducted expeditiously on 15 June 2000. 12    The position of the plaintiff as argued by Mr Hall of counsel was that any use of the material was precluded by the structure of the Commonwealth Act. Reliance was placed on the terms of s 63 of that legislation and the approach taken to it by the Full Federal Court in Kizon v Palmer & Ors (No. 2) (1998) 82 FCR 310. Whilst the Court there was dealing with an appeal from a decision at first instance setting aside a subpoena, it was argued that in the end the considerations which led the Court to dismiss the appeal are applicable here. As I understand the judgment, ultimately, the contention that neither the appellant nor his legal advisers in that case would be able to make any use of the designated warrant information or give such information in evidence in the proceedings, was accepted and founded the Court’s decision (see 322B-C and 325B-C). 13 For the defendant it was argued by following the rather difficult progress through the legislation from s 7 (which proscribes the interception of telecommunications) through to s 63 (which proscribes the dealing in intercepted information or designated warrant information), to s 74 (giving information in evidence in exempt proceedings), one arrives at s 5B which defines exempt proceedings. Reliance was placed on s 5B(f) which identifies an exempt proceedings as “any other proceeding (not being a proceeding by way of a prosecution for an offence) insofar as it relates to alleged misbehaviour or alleged improper conduct, of an officer of the Commonwealth or of a State…” 14    It is contended that Mr Marsden by reason of his being “an officer of the Supreme Court of NSW,” by reason of his being a solicitor of this Court, falls within that sub-paragraph. No rational interpretation of the structure of the Commonwealth legislation, in my view, would permit such a construction. These proceedings before me are constituted by an action for damages for defamation in which defamatory imputations have been found by the jury disparaging of the plaintiff’s conduct and which the defendant is seeking to justify. Section 5B does not, on my reading of it, refer to such proceedings in any sense which are no more than ordinary “civil” proceedings for damages. 15    The status of the plaintiff goes no way in approaching that of the Police officer whom Burchett J was concerned in Chonka v Palmer(Commissioner of Australian Federal Police) [1999] FCA 763. 16 It was also contended for the defendant that the considerations raised in submission by the plaintiff are at this stage irrelevant. All with which I am concerned at present is a question of “access” which should be granted as a matter of course being the “second” step referred to by Moffitt P in Waind v Hill & National Employers Mutual General Association Limited (1978) 1 NSWLR 372. 17 The peculiar circumstances attending the production of material obtained under the Commonwealth legislation and the policy considerations founding that legislation (see John Fairfax Publications Limited v Doe (1994) 37 NSWLR 81, especially per Kirby P), persuade me that an available course is that akin to that adopted by the Full Federal Court in Kizon. 18    I am not persuaded that any legitimate use can be made of the material now identified, helpfully, by the Police Service as being the product of telephone interceptions under the Commonwealth legislation can be made in these proceedings. 19    Access is denied to both parties. The material produced by Ms Plater will be marked for identification 229 and, until further order, kept with the Court papers.

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Last Modified: 09/26/2000