Marsden v Amalgamated Television Services Pty Limited

[2000] NSWSC 235

CITATION:

Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 235

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 20223 of 1995; 20592 of 1996

HEARING DATE(S):

27 March 2000

JUDGMENT DATE:

27 March 2000

PARTIES :

JOHN MARSDEN
(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

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 defendant's Notice of Motion of 14 March 2000 for use of a pseudonym and on waiver of privilege: T4993
LEGISLATION CITED:	Evidence Act 1995 (NSW)
CASES CITED:	Ampolex Ltd v Perpetual Trustee Co. (Canberra) Ltd (1996) 40 NSWLR 12 Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 511 Brimaud v Honeysett Instant Print (McClelland J, unreported, 19 September 1988) Chanel Limited v Woolworths Co. (1981) 1 WLR 485 Re May (1885) 2 CH D 516 Towney v The Minister for Land & Water Conservation (NSW) (1997) 76 FCR 401 Telstra Corporation Ltd v BT Australasia Pty Limited (1998) 85 FCR 152 Witness v Marsden & Anor [2000] NSWCA 52
DECISION:	See paragraph 79-81

DLJT: 128
(CAV- Oral - Revised)
[2000] NSWSC 235

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

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

MONDAY 27 MARCH 2000

JOHN MARSDEN
(Plaintiff)

v

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

judgment (On defendant's Notice of Motion of 14 March 2000 for use of a pseudonym and on waiver of privilege: T4993)

1    HIS HONOUR: By a Notice of Motion filed in court on 14 March the defendant seeks orders as to a pseudonym for a proposed truth witness. That witness, for the purposes of dealing with the motion, has been referred to as D18. 2    An affidavit of David Charles Price, a solicitor with Mallesons Stephen Jaques, for the defendant, sworn on 14 March 2000 was filed and read over objection (see my ruling of that date (NSWSC 167: DLJT: 115)). 3    The plaintiff delivered a Notice to Produce and the claim for privilege thereby provoked was determined on 21 March 2000 (NSWSC 202: : DLJT: 124). 4    Exhibit 1 in the current matter is made up of the documents in respect of which I granted inspection to the plaintiff (see paragraphs 9 to 15 of my judgment of 21 March 2000). 5    Mr Barker has commenced his cross-examination of Mr Price. Paragraph 2 of Mr Price's affidavit of 14 March 2000 has been the subject of attention. It is in the following terms:

"On 29 February 2000, I was informed by D18, and believe, that:

(a) since August 1999 he has assisted the New South Wales Police Service with the investigations that the NSW Police Service is conducting into the activities of Keith Rainey and Mark Bailey in relation to D18 ;

(b) the assistance he gave to the NSW Police Service involved him wearing a listening device for the purpose of recording conversations with Messrs Rainey and Bailey and with a solicitor, Mr Warren Ball;
(c) the NSW Service subsequently laid charges against Messrs Rainey and Bailey;
(d) he fears there is a substantial risk to his personal safety if his name is published as a witness giving evidence in these proceedings because it is likely that the fact that he wore a listening device and has acted as a police informer will emerge."

6    From the cross-examination to date of Mr Price, the following has emerged: 7    As to exhibit 1 (formerly MFI 126), it was described by Mr Price in the following terms (T4952.45):

"Q. Is that the information given to you by D18?

A. That information in that note was given to me by D18, yes."

8    Mr Price agreed that in the first application relating to pseudonyms he had sworn in his affidavit of 29 October 1999 that D18 had given reasons as follows:

"I have a life outside of this case. All this stuff is in the past. I don't want people at work knowing about it." (T 4953.5)

9    Mr Price said that his affidavit set out the reasons given by D18 "at that time", acknowledging that that was two months after D18 had given assistance to the police in the manner set out in the most recent affidavit. 10    Mr Price said that he referred D18 to Miss Duchen, Solicitor, for the purpose of her assisting D18 in the second application in December 1999, the unsuccessful outcome of which was the subject of an appeal now abandoned.** 11    Upon reading Miss Duchen's affidavit in support of that application, an affidavit also apparently relied upon in the present motion (see paragraph 3 of the current affidavit), he only discussed it in terms of alteration or addition with Mr Angus of Mallesons, and no change was made. 12    He agreed that in neither of the earlier applications was there a hint that D18 entertained any fear of public disclosure of his name because of D18's assistance to the police. 13    Whilst agreeing that in the current affidavit he swore to being informed by D18 on 29 February 2000 that he had assisted the police in the way described in the affidavit, Mr Price denied that he was intending to convey that that was the first time he knew of that assistance. It turns out that Mr Price knew in or about August 1999 of D18's assistance to the police. 14    When asked why he did not say so in his affidavit, Mr Price paused for some moments before uttering an answer that can only be taken as a considered one (T 4955.10):

"Q. Why did you not say so in your affidavit?
A. I did not consider it a matter that needed to be noted."

Thereafter the cross-examination continued (T4955.12):

"Q. The affidavit is intended, deliberately, to convey that you came about this information from D18 on the 29th of last month, isn't it?
A. No, it is not.

Q. Can you suggest any way in which the ordinary reader would deduce from it that you have known the same thing since August 1999?
A. I don't wish to be smart, Mr Barker, but I don't think it is a document intended for ordinary readers. I was specifically preparing an affidavit that said that that was the information that I was given on that day.

Q. Let us substitute his Honour for ordinary readers. Can you suggest in any way that he would deduce from this that you had known of the fact of the assistance since August 1999?
A. No.

Q. Why did you not say so in the affidavit?
A. I did not believe that it was a matter that needed to be noted when I prepared the affidavit.

Q. What is the purpose of the affidavit?
A. The affidavit is to put the information before the Court that D18 carried a wire for the purposes of assisting police investigations.

Q. Did you not think that it would have been relevant to also say that you had known that fact since August 1999?
A. I can see that it is relevant."

15    The acknowledgment of purpose and relevance is noteworthy. 16    The witness believed it was correct that he knew that D18 had told Mr Greg Quail that there had been a conversation between D18 and Keith Rainey on 29 July 1999. Mr Price agreed that Mr Quail had told him of that conversation. It was around about 30 July 1999 that Mr Price conferred with Mr Wheelhouse and D18; that is, before D18 was wired. Mr Price was only able to say that it was "likely" that he organised, thereafter, a meeting involving himself, Mr Quail, D18 and Detective Superintendent Inkster on 3 August 1999. D18's being wired was, at that meeting, discussed as a possibility. By the end of August 1999 Mr Price believed he knew about the fact of the wiring. 17    Mr Price was then asked (T 4956):

"Q. Did you make a note anywhere of Mr Quail's communication with you on 29 July 1999?
A. I think I did.

Q. Where is it?",

whereupon Mr Stitt objected.

18    That note was produced to the Court at my direction and was marked MFI 133. The basis of the objection to the pursuit of the cross-examination was that that document was privileged and embraced by my ruling of 21 March 2000. 19    Before turning to the submissions made with some intensity on behalf of both sides, it is desirable to note some matters of history. They were referred to by counsel and, in one particular respect, heavily relied upon by Mr Stitt for the defendant. 20    The first application in relation to pseudonyms, which was, I held, an application by the plaintiff, was dealt with in my judgment of 12 November 1999 (NSWSC 1099: DLJT: 51). 21    Mr Price swore an affidavit, as I have said, in support of the defendant's position in that application and swore as to a conversation with D18 on 20 October 1999 (in paragraph 11) as follows:

"On Wednesday, 20 October 1999, at approximately 2.10pm, I had a conversation with the person who is referred to in these proceedings as D18, in words to the following effect:

DCP (Mr Price): "Orders were made earlier in the year that prevent you being named in Court. Marsden is applying to the Court for those orders to be changed. Do you want us to seek to have the orders continued?

D18: Definitely.

DCP: Why is that?

D18: I have a life outside of this case. All this stuff is in the past. I don't want people at work knowing all about it."

I omit some immaterial parts.


"DCP: Have you told people about this matter?

D18: Apart from you and the other lawyers for Channel 7 the only other people I've spoken to about this are the police and they tracked me down. I don't talk about this stuff to anyone."

22    It can be observed that as at 20 October 1999 Mr Price in fact knew that D18 had spoken to the police. He has agreed in evidence before me that it was likely that he had organised the meeting with Detective Superintendent Inkster on 3 August 1999. 23    Further, in the course of submissions, Mr Stitt stated that reporting the matter to the police, that is the alleged approach, was the responsible thing for the defendant to have done (see T 4970.50). 24    The second application for a pseudonym specifically for D18 was dealt with in my judgment on 16 December 1999 (NSWSC 1309: DLJT: 79). 25    Mr Price had referred D18 to Miss Duchen, who swore an affidavit on 14 December 1999, to which, as I have said, Mr Price refers in his current affidavit. That application was originally dealt with in closed court (Mr Marsden appearing in person). 26    The purpose for that step being taken at that time, in the light of the structure of the current application, is not compromised in terms of that purpose by my referring to paragraph 3 of Miss Duchen's affidavit:

"D18 did not volunteer to come forward and give evidence in this matter but was tracked down by the police, namely Detective Senior Sergeant Peter Panich of the Child Protection Enforcement Agency after being named by a former associate known to D18 as Gavin, who he later discovered was Mr Iain Finberg."

27    This material, to some extent, coincides with what Mr Price said as to D18 being tracked down by the police. 28    The first and second applications concerning the allocation of a pseudonym for D18 failed then on what I shall describe, for shorthand convenience only, as the embarrassment/preference point. 29    The next thing that happened is that on 25 January this year the defendant particularised its case on admissions by conduct. In respect to D18, the particulars are those on pages 6 and 7 of that document:

“ D18
The plaintiff:
(A) instructed or directed; or
(B) knew of and acquiesced in; or
(C) facilitated:
(1) The approaches made to D18 by Keith Rainey and Mark Bailey in June, July and August 1999 in which Mr Rainey offered D18 $20,000 to retract the allegations and statements that D18 had made concerning the plaintiff.
(2) D18 being taken to Warren F Ball, solicitor, for the purpose of preparing a statement retracting the allegations made by D18 against the plaintiff.
(3) The plaintiff wrote to Mr Ball and falsely informed Mr Ball hat D18 wished to retract the allegations that he had made against the plaintiff.
(4) The plaintiff requested that Mr Ball take a statement from D18 and then prepare a letter to Mallesons Stephen Jaques stating that D18 was no longer prepared to talk to any one from on or behalf of Channel 7. The plaintiff had no basis for requesting that Mr Ball prepared such a letter”.

30    This historical step is of some significance to the defendant's position. 31    The defendant's motion is presently being heard. As I have said, the first Notice to Produce arising from it has been dealt with on 21 March 2000. 32    The second Notice to Produce was served by the plaintiff on 20 March 2000 and on 23 March 2000, at about 12.45pm, was answered by Mr Stitt announcing that nothing was produced. That second Notice to Produce was in the following terms:

“1. All correspondence, memoranda, notes, e-mails and documents being, or referring to, communications between the defendant’s legal advisers and Gregory Quail about meetings or proposed meetings during July 1999 and August 19999 between D18 and officers of the New South Wales police service.
2. All correspondence, memoranda, notes, e-mails and documents being, or referring to, communications between Gregory Quail and D18 about meetings or proposed meetings during July 1999 and August 1999 between D18 and officers of the New South Wales police service”.

33    The hearing of the motion has progressed to that point in the cross-examination of Mr Price which gives rise to the present issue. There has thus been conducted an inquiry in the nature of a voir dire in which there has been admitted exhibit 1, previously MFI 126, being the notes of the conversation in respect of which inspection was granted. Exhibit 2 is made up of two listening device warrants issued by other Judges of the Court and the relevant statutory returns. These documents have been admitted on the limited basis of being evidence of the fact of the use of the listening devices on 12 and 15 August 1999. 34    For the plaintiff it was submitted that the claim for privilege is not now sustainable, not only in respect of MFI 133 but in respect of any relevant communication and document, and inspection should be permitted of all of them. 35    The context is the very nature of the substantive relief sought in the Notice of Motion, namely the provision to D18 of that pseudonym to protect him, by reason of what is asserted to be, on information and belief, fears he holds for his safety as a result of his having been of assistance to the police since August 1999, particularly by the wearing of listening devices pursuant to warrants. 36    It conforms with what was implicit in Mr Stitt's submissions that what is to be examined here on this motion is the evidence on information and belief; that is, Mr Price's affidavit as to (a) the existence of any fears held by the witness; (b) the genuineness of those fears; (c) the existence of objective reasonable grounds for them; and (d) it must be the case that the ends of justice would be defeated by the denial of the pseudonym. (cf. paragraph 114 of the judgment of Heydon JA in Witness v Marsden & Anor [2000] NSWCA 52. 37 The purpose of the affidavit, it is conceded by Mr Price, was to put information before the Court that D18 had carried a wire to assist the police, and Mr Price has admitted that it was relevant that that fact was known since August 1999. 38 A matter to be examined in the context to which I have referred in paragraph 36 must be recognised as the duration of the existence of any fear based upon the activities of the witness deposed to on information and belief by Mr Price. 39 The evidence thus far indicates that contrary to the clear import of paragraph 2 of Mr Price's affidavit, there has been knowledge in the defendant, in an agent of the defendant, of the conversations between the witness and Mr Rainey and Mr Bailey, and the defendant participated in an interview with the police that led to the very matters in August 1999 said to give rise to the fears, namely the wiring of the witness. 40 It was submitted that pursuant to s 122 (1) of the Evidence Act 1995 (NSW) there has been, in effect, disclosure of relevant communications, by the affidavit of Mr Price, in exhibit 1 on this current application and, in the evidence exposed thus far in cross-examination, and thus that which the defendant seeks to maintain is not maintainable. In this regard I was referred to the decision of the full Federal Court in Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 and, particularly, the judgment of Branson and Lehane JJ at 164E to 168E. 41 It was further submitted that in the light of what was disclosed in Mr Price's cross-examination, the substance of evidence has knowingly and voluntarily been disclosed (see s 122 (2) of the Evidence Act), in which regard I was referred to the decision of Rolfe J in Ampolex Ltd v Perpetual Trustee Co. (Canberra) Ltd (1996) 40 NSWLR 12 at 18E and 20 to 21E-A, substituting "communication" for "advice", the latter being that with which his Honour was concerned. 42    It was contended for the plaintiff that there has been a deliberate attempt to mislead the Court for a forensic advantage. That is constituted by the swearing by Mr Price of paragraph 2 of his affidavit of the matters there deposed to, the clear impression being given that the information came to him only as at 29 February 2000, whereas what has been exposed is his prior knowledge of those matters. 43    It is said that that is sufficient conduct to come within the meaning of “fraud” or “abuse of power” for the purposes of s 125 of the Evidence Act, or abuse of power. In this regard reference was made to the decision of the High Court in Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 511 per Gibbs CJ at 513 and 515. 44 It was further contended that s 126 of the Evidence Act could be called in aid, in that it is reasonably necessary to enable a proper understanding of the communication referred to in paragraph 2 of Mr Price's current affidavit and exhibit 1, the contemporaneous notes, to have recourse to all the other communications or documents, in which context I was assisted by reference to the judgment of Sackville J in Towney v the Minister for Land and Water Conservation (NSW) (1997) 76 FCR 401 at 413-4. 45    For the defendant it was submitted that the plaintiff's approach to this matter was based upon a complete misunderstanding and misconstruction of the essential structure of the motion and the basis for the relief sought. The application presently being made, it was submitted, is based upon fears sworn to by Mr Price, as held by D18, as at 29 February 2000. 46    The chronology, it was submitted, is important. In approximately July 1999 the defendant was informed that an attempt had been made to suborn D18. That attempt was reported to police "in an appropriate and responsible response", to quote Mr Stitt's words (T4970.55). The police then started an investigation, it is said, presumably based, amongst other things, upon information provided by D18. That investigation continued and involved D18's cooperation by the employment of listening devices. This led, Mr Stitt stated, to Messrs Rainey and Bailey being charged on 21 October 1999 with criminal charges of attempting to pervert the course of justice by interfering with D18 and suggesting that he should withdraw his allegations against Mr Marsden. 47    It is contended for the defendant that up to that point of time none of the issues in the defamation action was such as to make relevant any of those matters affecting D18 vis-a-vis the police and Messrs Bailey and Rainey, Mr Price and the defendant, or its solicitors. In fact, the defendant's position in connection with those matters was protected by that privilege which I, in fact, found. 48    It was submitted that it was not relevant, either in the October or the December applications relating to pseudonym orders, that these matters had occurred, or that these events involving D18 had taken place. Privilege still attached to the relevant communications, it was said. No adverse inference or finding could be made against the defendant by asserting privilege in relation to matters said to be irrelevant in relation to any issue in this litigation. That is a proposition with which I am not in disagreement. 49    What then happened, according to the defendant's position, was the delivery of the particulars of admissions by conduct. It was then that the factual matters were crystallised into an issue in these defamation proceedings. It was stated that it was then that D18's involvement with the two persons and with the police, and the continuing investigation, all became in issue before this Court. 50    Prior to that, and this is an important component of the defendant's submission, D18 could not have given evidence of those matters because it was not relevant. Upon it becoming relevant, he could give evidence upon those matters, and thus the application was made in February, a month after the delivery of the particulars of admissions by conduct for the pseudonym order. 51    It was submitted that it would have been perfectly clear to all that there was no basis for any apprehension in the mind of D18 if no evidence about his role could possibly have been led in these defamation proceedings. This pointed to an acknowledgment in the defendant of the state of mind of D18 at least now being relevant. 52    It was stated, succinctly, that if he could not have given evidence about his dealings with the police, there could have been no reasonable basis for the fear; it was irrelevant to the issues in the defamation action. 53    Thus, it was acknowledged by the defendant that Mr Price's affidavit did two things. First, it put before the Court precisely and accurately, it is said, facts which were relevant after 25 January 2000, when the issues in the defamation action changed, and which were relevant as at February when the application was made; namely, that since August 1999 D18 assisted the police. He was the subject of an attempt to suborn. He gave assistance in the continuing investigation, and it is said "presumably" provided information as well to the police. 54    It is said that the affidavit deals with the fact that the police have now laid criminal charges. What the affidavit says is that Mr Price was informed and believed on 29 February 2000 by D18 that the police had subsequently laid charges against Messrs Rainey and Bailey. The affidavit does not depose to Mr Price being informed by D18 and holding the belief, as to when those charges were in fact laid. 55    The second thing, it was insistently stated by the defendant, is that Mr Price's affidavit was carefully drawn to preserve that privilege which the plaintiff now seeks to have found to have been waived. This is now a new application, being made in the context of issues which are now greatly widened. Up until 25 January 2000, the conduct of D18, Messrs Rainey and Bailey, and anyone else, including the plaintiff, was not part of the defendant's case. Thus it is that not only is there no room to make the allegation that there has been a deliberate misleading of the Court amounting to “fraud” or “abuse of power”, which should not, (that is the mere making of the allegations), move the Court to form a view favourable to the plaintiff (see Gibbs CJ in Kearney at 516), but also the chronology of events makes everything quite clear and innocent and, thus, there are no circumstances for holding there to have been a waiver of privilege in respect of the documents inspection of which the plaintiff now seeks. 56 I add that the plaintiff also submitted that in the light of the evidence thus far given by Mr Price in cross-examination, and the disclosure of the existence of knowledge in him prior to August 1999, the position is that there is, now, evidence that there was available that same material now sought to be relied upon in this substantive motion. It is, in effect, the third of its kind and should, for that reason, be dismissed. The first two applications were made at a time when the knowledge was in the possession of the defendant, so it is said, and the multiplicity of interlocutory applications of this kind is something countenanced neither by principle nor policy (Re May (1885) 2 Ch D 516 at 520.8-521; Chanel Limited v Woolworths Co. (1981) 1 WLR 485 at 492-3; Brimaud v Honeysett Instant Print (McClelland J, unreported, 19 September 1988). 57    I am not persuaded that I can presently determine that component of the plaintiff's position. As I understand it, it is submitted that it is the plaintiff's purpose to ensure that the adducing of evidence is not compromised by an unwarranted or unavailable assertion of privilege by the defendant contrary to the principles and policy underlying the existence of the privilege. 58    The position has been reached at this stage of the hearing of the motion where I can state the following: I was misled by the affidavit of Mr Price, by the structure and language in paragraph 2, which could only, on any fair and reasonable reading, lead to the conclusion that the deponent was saying that it was on 29 February 2000 that he received, for the first time, the information there set out. 59    The misleading nature of that to which Mr Price has deposed is exposed by his own evidence that the defendant knew of these matters from August 1999. 60    That the affidavit was calculated to be misleading, in the sense of likely to be misleading, is, to a great extent, reinforced by the very factors upon which the defendant relies to support the approach taken as represented by the affidavit. 61    As I have said, it is asserted that the irrelevance of the matters to the defamation proceedings until 25 January 2000 provided a basis for the non exposure in either of the earlier applications in relation to pseudonyms of the matters referred to in Mr Price's affidavit. There was no reasonable or rational basis upon which D18 could have held any fear because the subject matter of his fear, namely the assistance to the police, it is said, was irrelevant. 62    That asserted basis is ingenuous. D18 may well have been subject to cross-examination on credit on the very product of his assistance, the tapes, irrespective of some particularised case the defendant chose to make on 25 January 2000. 63    That is as fragile a basis as it was imprudent to adopt it. It was naive not only in the more distant past, namely August 1999, not to anticipate the possibility of cross-examination on the subject, but certainly from 21 October 1999, when charges were laid in relation to the very conduct in respect of which D18 assisted the police. That should have alerted the defendant, by reason of the public nature of the laying of the charges, to the fact that D18's role could be the subject of cross-examination in these proceedings, even absent the particulars of the admissions by conduct case. 64    The mechanism of both the pseudonym and a closed court could have been available to protect the interests of D18 as an informant to give evidence in these proceedings. 65    The second basis acknowledged for the defendant was that the affidavit was deliberately crafted to protect privileged material. The deliberate crafting, as it turned out, led to a false picture being presented to the Court. It was not the case, as at 29 February, that Mr Price was informed of the matters to which he deposed. He knew of them beforehand. It is clearly open to note, of course, that the defendant and Mr Price, in the light of his affidavit in the first application in relation to pseudonyms, were also then aware of the matters. 66    The point now is, of course, that, notwithstanding the protestations for the defendant that that which the defendant has argued has hitherto been irrelevant, the position is reached where it is now acutely relevant. It is relevant to the state of mind of D18, to the defendant's knowledge, to the defendant's knowledge of D18's knowledge, to the duration of the fear, to matters going to the existence of the fear, its quality, and to reasonable bases for it. 67    The defendant has been seeking to protect the interests of D18 as a witness in defence of its interests in this litigation. 68    The issues I have identified for the determination of the defendant's motion involve the state of mind of that person for whom, because it seeks his testimony, the defendant seeks the law's protection. That person has not given evidence. Mr Price has, but on information and belief. That which the defendant sought artificially to limit in terms of relevance to as and from 25 January 2000, is relevant. It is relevant in terms of the whole history, going back to July and August 1999. 69    I previously held (21 March 2000, NSWSC 202: DLJT: 124 para 17) that the plaintiff is a proper party to proceedings of this kind and the plaintiff should be able to test, and the Court should have available to it, all relevant evidence on the issues leading to the determination of the motion. 70    The untenable postulate as to irrelevance and the artificial device to protect privilege asserted in respect of the very substance of the material upon which the defendant seeks to rely to protect D18 has led to the Court being misled. It has resulted from what I view to be an unnecessary preoccupation with the defendant's forensic interests, almost to the exclusion of the interests of the person sought to be protected, namely D18, in terms of the history of his state of mind, and has led to an inappropriate lack of candour, a waste of time and possibly, although it is too early to determine, a futile expenditure of resources. 71    I add that the belief of the deponent, Mr Price, is not, in the light of his evidence before me, capable of being circumscribed by the date 29 February 2000, when he knew of those matters which, on any view, must play some part in the formation of his belief, those matters being known by him from at least as early as August 1999. 72    Mr Price has previously sworn that the documents in DCP1, which included MFI 133, attracted privilege on the ground that each was a confidential document prepared for the dominant purpose of the defendant being provided with professional legal services (see his affidavit of 20 March 2000 and my ruling of 21 March 2000). 73    At that time I was prepared to uphold that ground of privilege in relation to documents other than MFI 133. That claim cannot be maintained now. The confidentiality asserted cannot be maintained in the light of Mr Price' evidence, because the production of that material for the dominant purpose was to provide the legal service now sought to be rendered by this very application. 74    In paragraph 10 of my judgment of 21 March 2000 I said that the very nature of the application being made is such that the information had to be disclosed by Mr Price and disclosed in circumstances where confidentiality could not reasonably apply to it, given the purpose for which the communications, and the information in them, were provided, namely the application embodied in the orders sought in the Notice of Motion. That situation now applies. 75    I am satisfied further that, as a result of what was stated in submissions by Mr Stitt, in the light of the evidence given by Mr Price, and in the light of that evidence itself, the defendant has knowingly and voluntarily disclosed the substance of evidence of acute relevance to the very foundation of the application it is now in the process of making. 76    I am not persuaded that what has hitherto occurred has been fraudulent, in the sense of deceitful, or an abuse of power. That has been merely suggested and it is not appropriate, (as Gibbs CJ remarked in Kearney's case), that the Court should act merely upon a suggestion, in the absence of a finding, which I do not make, that the suggestion has been made out. 77 I am further persuaded that s 126 of the Evidence Act here applies, the communication, reasonably necessary to be properly understood by the disclosure of other documents, being exhibit 1. 78 Thus, confidentiality does not attend the communications. Further s 122 (2) of the Evidence Act brings about waiver, if privilege otherwise exists, and s 126 applies. 79 I have considered again the contents of DCP1. I direct that the plaintiff have access to MFI 133 and to DCP1, except for the originals of two flagged documents, which have been copied to edit out material which, on any view, is unconnected with the issues. 80 The originals of those documents, on which the editing has been made and which is indicated in pencil, will be returned to the defendant. 81 Access will otherwise be granted to DCP1, which includes, now, in the envelope, MFI 133.

** Addendum

82    Mr Nicholas Q.C. has informed me that the appeal against my ruling of 16 December 1999 is being prosecuted. My misapprehension arose from remarks from Counsel. The erroneous statement arising from the apprehension does not affect what I have decided or the reasons therefor.

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Last Modified: 09/25/2000