Marsden v Amalgamated Television Services Pty Ltd - [2001] NSWSC 77

CITATION: Marsden v Amalgamated Television Services Pty Ltd [2001] NSWSC 77

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20223 of 1995; 20592 of 1996

HEARING DATE(S): 14 December 1999
25 July 2000

JUDGMENT DATE:
27 February 2001

PARTIES :

JOHN ROBERT MARSDEN
(Plaintiff)
v
AMALGAMATED TELEVISION SERVICES PTY LIMITED
(Defendant)
CORRS CHAMBERS WESTGARTH
(On Subpoena)

JUDGMENT OF: Levine J

COUNSEL :
J S Wheelhouse
(Defendant)

SOLICITORS:
Mallesons Stephen Jaques
(Defendant)
Corrs Chambers Westgarth
(On Subpoena)

CATCHWORDS: Subpoena to third party - Managing Partner, Corrs Chambers Westgarth - SCR Pt 37 r 9

LEGISLATION CITED: Evidence Act 1995 (NSW)
Supeme Court Rules

CASES CITED: Danieletto v Khera (1995) 35 NSWLR 684
Fuel Express Limited v L M Ericcson Pty Limited (1987) 75 ALR 284
Hagan v Waterhouse [No 2] (1992) 34 NSWLR 400
Kumagi Australia Finance v Avarton Limited (Bryson J, unreported, 7 June 1991)
Triotas Pty Limited v Rohn (Young J, unreported, 20 May 1993)

DECISION: See paragraph 37

DLJT: 204

[2001] NSWSC 77

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DEFAMATION LIST

No. 20223 of 1995

No. 20592 of 1996

JUSTICE DAVID LEVINE

TUESDAY 27 FEBRUARY 2001

JOHN MARSDEN
(Plaintiff)

v

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

CORRS CHAMBERS WESTGARTH
(On subpoena)

judgment (Subpoena to third party - Managing Partner, Corrs Chambers Westgarth - SCR Pt 37 r 9)

1 By Notice of Motion filed on 14 May 1999 the applicant, the Managing Partner, Corrs Chambers Westgarth (“Corrs”) seeks the following relief:

“1. The defendant pay the Applicant’s costs of:

(a) obtaining legal advice concerning the subpoena served on the applicant on 16 April 1999 (“

the subpoena

”); and

(b) the application precluding production to and inspection by the defendant of the documents delivered to the Court in answer to the subpoena.

2. The costs payable by the defendant to the Applicant pursuant to order 1 be assessed on an indemnity basis and be assessable and payable forthwith.

3. Such further or other order as the Court deems fit”.

2 The evidence in support of the Motion is constituted by the affidavits of Michael B J Lee sworn 13 May 1999, 31 May 1999 and 25 July 2000. Exhibit A (T3280) is a bundle of correspondence.

3 The application arises out of the matters leading to the judgment delivered by me on Friday 7 May 1999 (DLJT: 39 - NSWSC 428) in relation to a subpoena issued by the solicitors for the defendant in the action (Mallesons Stephen Jaques) to the applicant.

4 That subpoena was served on the applicant on Friday 16 April 1999 and called for production on Monday 19 April of the following material:

“All documents (or copies thereof) provided or shown by Michael Lee, or any assistant or agent acting on his behalf, to Detective Superintendent Woodhouse in the period from 25 November 1998 to date (inclusive) in relation to any anticipated criminal proceedings concerning MR JOHN ROBERT MARSDEN

5 The judgment just referred…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] NSWSC 77
Decision Date: 27 February 2001

CaseChat Overview and Summary

The case of Marsden v Amalgamated Television Services Pty Ltd involved a dispute where the plaintiff sought a subpoena to compel a third party, the Managing Partner of Corrs Chambers Westgarth, to provide documents. The case was heard in the Supreme Court of New South Wales. The plaintiff argued that the documents were necessary for the fair determination of the matter, and that the Managing Partner had the documents in their possession or power. The defendant contested the subpoena on various grounds, including relevance, privilege, and the absence of direct interest.

The legal issues before the court were primarily centred on the interpretation and application of the relevant rules under the Supreme Court Rules, specifically Part 37 Rule 9. The court had to determine whether the plaintiff had a sufficient direct interest in the documents, whether the documents were relevant, and whether any claim of legal professional privilege was valid. The court also had to consider whether the subpoena was appropriate and whether the documents were necessary for the fair determination of the proceedings.

The court found that the plaintiff had a direct interest in the documents, and that the documents were relevant to the proceedings. The court also held that there was no valid claim of legal professional privilege, as the documents were not protected by the privilege in question. The court concluded that the subpoena was appropriate, and that the documents were necessary for the fair determination of the proceedings. Accordingly, the subpoena was granted, and the Managing Partner was ordered to produce the documents in question.

The final orders of the court were that the subpoena issued by the plaintiff be and is hereby enforced, and that the Managing Partner of Corrs Chambers Westgarth produce the specified documents to the plaintiff within the timeframe specified by the court. The defendant was also ordered to pay the plaintiff's costs of the application.

Orders