Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 71 (12 February 1999)

Last Updated: 18 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 71

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20223 of 1995

20592 of 1996

HEARING DATE{S): 12 February 1999

JUDGDMENT DATE: 12/02/1999

PARTIES:

JOHN MARSDEN

(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED

(Defendant)

JUDGMENT OF: Levine J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:

Mr R McHugh

(Plaintiff)

Mr J S Wheelhouse

Mr R Titterton

(Defendant)

SOLICITORS:

Phillips Fox

(Plaintiff)

Mallesons Stephen Jaques

(Defendant)

CATCHWORDS:

Subpoena to plaintiff to produce documents

Solicitor's files

ACTS CITED:

DECISION:

See paragraphs 24 & 30

JUDGMENT:

- 9 -

DLJT : 7

(Ex Tempore - Revised)

THE SUPREME COURT

OF NEW SOUTH WALES

COMMON LAW DIVISION

DEFAMATION LIST

No. 20223 of 1995

No. 20592 of 1996

JUSTICE DAVID LEVINE

FRIDAY 12 FEBRUARY 1999

JOHN MARSDEN

(Plaintiff)

v

AMALGAMATED TELEVISION SERVICES PTY LIMITED

ACN 000 145 246

(Defendant)

JUDGMENT (Subpoena to plaintiff to produce documents - solicitor's files)

1 HIS HONOUR: On 28 January this year the solicitors for the defendant issued a subpoena directed to the plaintiff, which subpoena it is to be noted is addressed to the plaintiff in his capacity, as I read the first part of the document, as a partner in the firm of Marsdens at the corner of Queen and Dumaresque Street, Campbelltown.

2 The schedule to the subpoena, in its first part, is in the following terms:

"All records, documents, files, correspondence, notes, memoranda, audio tapes, statements, court documents, computer printouts and computer discs relating to instructions received by Marsdens Solicitors in the period 1 July 1973 to 30 June 1988 from or on behalf of the following people."

3 There is then set out six names. Thus far it can be remarked that the material sought in relation to the six names covers fifteen years.

4 For the recipient of the subpoena, the plaintiff, it is contended, first, that it should be set aside as the contents of the schedule expose no conceivable relationship to the subject of the proceedings, and thus amounts to an abuse of the Court's process.

5 Secondly, and linked with the first proposition, is that by the very nature of the wording of the schedule the exercise is what is described as "fishing", one possible explanation for the fishing being advanced being a desire on the part of the defendant to "dredge up" material that might support further allegations in relation to defences, no doubt particularly that of justification.

6 It is next contended that the wording of the schedule on its face indicates that the subpoena is directed to the production of material that is manifestly privileged. Pausing there, as I understand the position in relation to people named in the schedule, all expect (b) and (c) have given instructions to the plaintiff to assert privilege. In relation to (b) and (c) the plaintiff is awaiting advice as to whether those people propose to assert privilege.

7 With respect to the person (d), that person is deceased and a similar situation applies in relation to that person insofar as inquiries are being made as to the existence of anyone who can either require the privilege to be asserted or waive it.

8 In the context of the current application I understand that nothing as yet turns on the matters I have just recited but it is in my view important at this stage that they be recorded.

9 In response to the "no conceivable relationship" submission, the defendant commences with a reference to lines 179-182 of the Amended Schedule A to the Second Further Amended Statement of Claim in action number 20223 of 1995 which is concerned with the first program.

10 That reference is to the defendant's publication of statements made by a Mr Ron Dunbier, a particularly relevant part of which statement is

"through discussions with some of the boys ... and through having worked on files pertaining to those boys who are clients of the practice..."

11 To put that in context, the defendant published a statement by Mr Quail that Mr Dunbier was, at the time of publication John Marsden's former legal partner.

12 In defence of the publication, the defendant contends that the occasion of the publication of the matter giving rise to the defamatory imputations is protected by privilege under s 22 of the Defamation Act, in which regard the reasonableness of the conduct of the defendant in publishing is a critical issue to which is connected the information in the possession of the defendant at the time of the publication, and a belief that the defendant had in relation to that information.

13 So it is argued for the defendant the particular passage in the program in the context of the defence and the components of reasonableness, information and belief to which I have just referred, founds the area of relevance.

14 Further, and here I am in a position where I have to and am content to rely upon information provided from the Bar table as to the discovery process that has hitherto taken place between the parties, that which the defendant published in the first program which was made up of statements made by Mr Dunbier, I gather, is part of a statement made by Mr Dunbier of great length, which statement has been discovered by the defendant. I accept also that that discovered document names all but one of the people referred to in the schedule to the subpoena.

15 A more focused area of relevance in answer to Mr McHugh's first complaint about the subpoena is a particular of justification which is particular 5(4) on page 10 of the Further Amended Defence to the Second Further Amended Statement of Claim which is a specific reference to D6 who is the person (b) named in the schedule to the subpoena.

16 I accept in the light of all that I have just said on the question of relevance that a response has been made to the first proposition advanced by Mr McHugh.

17 In other words at this point of time in the light of information I have heard, I presently cannot accept the proposition that the subpoena as it presently stands can be characterised as having "no conceivable relevance" to the issues of this case, but that of course does not necessarily lead to a finding that it should stand, or if it does stand, that there should be unhindered or unfettered compliance with it.

18 To a very great extent the second submission made by Mr McHugh is covered by what I have already referred to in dealing with the overall relevance, that is I am not presently persuaded that it can be described as "fishing".

19 The third proposition is that the material is manifestly privileged. Assuming that each of these persons referred to has been a client of the plaintiff, and assuming that in relation to any matter of instructions, files were created, it is clearly the case that not every document in such a file or files in relation to any particular client attracts client privilege. Equally, and this I understand to be acknowledged for the defendant, matters of instructions and matters constituting the provision of advice would attract privilege.

20 In relation to the first it is to be noted that the schedule to the subpoena seeks a corpus of material referred to in detail as "relating to instructions" which could incline the court forthwith to set aside the subpoena, as if the subpoena for example had been framed as requiring the production of this corpus of material "relating to advice given". That would be a clearer case.

21 But as has been submitted the phrase "relating to" is rather elusive in lending itself to clear definition in this context, and thus I am not prepared, on that limited basis, namely merely because all this material sought is "relating to instructions", to set aside the subpoena.

22 The principal matter of concern is given the relevance at this stage in a general way of the material sought to be adduced under the subpoena, as a practical exercise for the plaintiff to deal with, it could be an oppressive task. In this regard I note that there has been delivered to the courtroom several file boxes.

23 The defendant through its counsel, as I understood Mr Wheelhouse, has indicated a preparedness if necessary to issue a further subpoena, but otherwise to particularise with greater clarity the classes of documents which it seeks, an indication which, if given, would be given in such a way I assume and understand to exclude a call for what the defendant acknowledges to be clearly privileged material.

24 Approaching the resolution of this matter in what I hope is a fair and practical way, the course I propose to adopt is formally to stand over the call on the subpoena. Secondly, and it is implicit from the first course, I do not propose to set it aside. Further, thirdly to direct the defendant in accordance with the intimations made by Mr Wheelhouse to provide as it were a particularisation of the classes of documents and things in relation to each of (a) to (e) in the schedule which it contends should be produced as if under this subpoena.

25 The time within which the defendant is to do that can be a matter for resolution shortly.

26 The only reservation I have is in relation to the person (f) in the schedule. I understand that that person was not referred to in the discovered material and I will be corrected if I am wrong, has not otherwise been referred to in particulars in support of any of the defences.

27 To that extent I would hold that there is no apparent relevance in relation to the person referred to as (f) but will require the defendant to provide particulars of the basis of relevance of that person to the issues as presently defined between the parties, as well as in relation to that person, particulars of the classes of documents and things to which I have referred.

28 In the light of the submissions made it has to be recognised, as I think I have already said to some extent, that on the production by a solicitor of a file it is not to everything in that file to which privilege would attach. A further particularisation of the material along the lines I have suggested should I trust eliminate, or if not eliminate, reduce any argument as to whether any component of that material attracts the privilege which for present purposes I will assume to be asserted in respect to each person in the schedule.

29 In summary, and bearing in mind that I have not formally disposed of the application by the plaintiff made by Mr McHugh, I am persuaded that it cannot be said that there is "no conceivable relationship". I am persuaded that it cannot be said that the exercise is "fishing".

30 I am persuaded that it cannot really be said that the issue of this subpoena is an abuse of process by reason of the material being sought manifestly being privileged for the reason that the material sought cannot on any reasonable basis attract exclusively and in its totality the description of its being "manifestly privileged". It is for those reasons that I have stood over the call on the subpoena and directed the defendant to further particularise that which it seeks thereunder.

LAST UPDATED: 15/02/1999