Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 73 (12 February 1999)

Last Updated: 18 February 1999

NEW SOUTH WALES SUPREME COURT

CITATION: Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 73

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 20223 fo 1995

20592 of 1996

HEARING DATE{S): 12 February, 1999

JUDGDMENT DATE: 12/02/1999

PARTIES:

JOHN MARSDEN

(Plaintiff)

v

AMALGAMATED TELEVISIONS 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 G McHugh

(Plaintiff)

Mr J S Wheelhouse

Mr R Titterton

(Defendant)

Mr Bartley

(Department of Community Services)

SOLICITORS:

Phillips Fox

(Plaintiff)

Mallesons Stephen Jaques

(Defendant)

Crown Solicitor's Office

(Department of Community Services)

CATCHWORDS:

Plaintiff's subpoena to Department of Community Services

ACTS CITED:

DECISION:

See paragraph 12

JUDGMENT:

- 4 -

DLJT : 8

(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 (Plaintiff's subpoena to Department of Community Services)

1 HIS HONOUR: I do not propose at this stage to set aside the subpoena, though paragraphs such as 2 always cause problems.

2 It would seem to me the following two things are apparent: first, from what I know now of the issues in this litigation, the persons referred to in the schedule are persons whose role in this case, at its litigation, will be of some very great importance.

3 Secondly, material from the Department, subject to what I will later say, again based on my understanding of the issues, could be of a kind that properly and legitimately be deployed forensically in the litigation of the issues of this case.

4 Certainly the court, and I have no doubt the plaintiff, is sensible of what I will describe broadly as matters of policy affecting the operation of the Department of Community Services in the areas of privacy, confidentiality, and the protection of the interests of those persons who fall within its jurisdiction.

5 I am of the view that the plaintiff can, with facility, particularise the classes of documents he requires produced. For example, if one category of document required is a record of the dates and places of the institutionalisation of the several persons referred to in the schedule, then that can be articulated.

6 If another class of document or thing is comprised of medical and psychological reports concerning the various people, that can be articulated. If a class of document is made up of reports of officers of the Department in a category other than psychiatric, medical or psychological in relation to the named individuals, that can be articulated.

7 I cannot, of course, exhaustively catalogue the classes, but I am of the view that they are capable of being described in relation to each of the persons referred to.

8 It may be that there is a category of material that in a historical way would disclose, for example, when the person, as it were, first came under the jurisdiction of the Department, or when the person first came under the jurisdiction of the Department within the timeframe set out in the subpoena, and the last time the person came within the jurisdiction of the Department within that timeframe. There might be a category of material that discloses what I would describe as a calendar of contact between the person and the Department.

9 In other words, I am not presently persuaded formally to set aside the subpoena. I am persuaded, given the cooperative approach indicated by the Department through its counsel, that the plaintiff should further categorise the material along the lines of, but not restricted to, the classes of documents and things to which I have referred.

10 It would seem to me that the essence of the characterisation would be the subject matter of the kind to which I have already referred; institutionalisation, medical and other reports, departmental officer reports, coming into and going out of the jurisdiction of the Department within the relevant timeframe, and so on.

11 There will be a saving in costs both to the Department, and to the plaintiff, if this can be done by communication from the plaintiff's solicitors to those instructing Mr Bartley.

12 The time within which it will be done can be the subject of discussion. The Department will have of course liberty to apply to restore the matter of the subpoena at any time.

LAST UPDATED: 15/02/1999