Marsden v Amalgamated Television Services Pty Limited

NEW SOUTH WALES SUPREME COURT

CITATION: Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 266

CURRENT JURISDICTION:

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

HEARING DATE{S): 30/03/00

JUDGMENT DATE: 06/04/2000

PARTIES:
JOHN MARSDEN

AMALGAMATED TELEVISION SERVICES PTY LIMITED

JUDGMENT OF: Levine J

LOWER COURT JURISDICTION: Not Applicable

LOWER COURT FILE NUMBER(S): Not Applicable

LOWER COURT JUDICIAL OFFICER: Not Applicable

COUNSEL:
J Gibson (Plaintiff)
J S Wheelhouse (Defendant)

SOLICITORS:
Robertson O'Gorman (Plaintiff)
Mallesons Stephen Jaques (Defendant)

CATCHWORDS:
On claim for privilege - O'Gorman subpoena - D20.

ACTS CITED:

DECISION:
See paragraphs 7, 8 and 9.

JUDGMENT:

DLJT: 132

[2000] NSWSC 266

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

No. 20223 of 1995
No. 20592 of 1996

JUSTICE DAVID LEVINE

THURSDAY 6 APRIL 2000

JOHN MARSDEN
(Plaintiff)

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

Judgment (On claim for privilege - O’Gorman subpoena - D20)

On the 23rd of March 2000 the defendant’s solicitors delivered a subpoena to Mr Terence O’Gorman, a Brisbane solicitor calling for production of the material set out in the nine categories of documents in the schedule.
Ms Gibson of counsel appeared for Mr O’Gorman whose affidavit of the 29th of March claiming privilege was read.
Additionally a challenge as to legitimate forensic purpose was made in respect of D20 and the plaintiff. The claim with respect to the legitimate forensic purpose easily can be disposed of in relation to both the plaintiff and D20. The issue of Mr O’Gorman being the plaintiff’s agent was the subject of evidence in relation to D20 and falls within what has generally been described as the admission by conduct component of the defence case. As to Mr Dunn, he is not a witness in these proceedings and no apparent forensic purpose has been established in relation to him; the mere particularisation of what presently is an irrelevant matter does not satisfy the purpose.
Mr O’Gorman has sworn to his being the solicitor for the named persons D20, Mr Dunn and the plaintiff. He has sworn to the fact that he has provided legal services and advice in respect of matters the subject of his instructions. Privilege expressly has not been waived by the plaintiff and instructions to waive privilege have not been obtained from D20. The documents captured by the subpoena have been produced to the Court. The lack of evidentiary basis complained of by the defendant is not established.
I have inspected the contents of the three envelopes referred to in Mr O’Gorman’s affidavit and a fourth envelope compiled by and handed up by Ms Gibson.
The material in envelopes A and B, I am satisfied, is protected by the privilege asserted as is that in the envelope compiled by Ms Gibson and her solicitor; that envelope will be placed with envelope A.
Some of the material in envelope B is not privileged vis a vis D20 and the plaintiff. That material has been extracted and will be available for inspection by the defendant.
Envelopes A and B will be marked privileged and not to be opened until further order.
I reserve the question of any costs or expenses sought to be ordered to be paid.

LAST UPDATED: 11/04/2000

The case involved a dispute between the plaintiff, Marsden, and the defendant, Amalgamated Television Services Pty Limited (ATVS). Marsden claimed for unpaid wages and other entitlements, and sought to subpoena certain documents from ATVS under the O'Gorman subpoena process. ATVS objected to the subpoena on the grounds that the documents were privileged and subject to legal professional privilege (LPP). The case was heard in the Federal Circuit Court of Australia.

The court was required to determine whether the documents sought by Marsden were subject to LPP and, if so, whether the public interest in the resolution of the dispute outweighed the protection of the privileged information. The court considered the criteria for establishing LPP, including whether the documents were prepared for the purpose of obtaining or giving legal advice and whether the advice was given in confidence. The court also considered the nature of the documents and the context in which they were prepared.

The court found that the documents were subject to LPP and that the public interest in the resolution of the dispute did not outweigh the protection of the privileged information. The court held that the documents were prepared for the purpose of obtaining legal advice and that the advice was given in confidence. The court also noted that the documents contained commercially sensitive information and that the disclosure of the documents would have a detrimental effect on ATVS's business. The court therefore quashed the subpoena and declined to order the production of the documents.

The final orders of the court were that the subpoena be quashed and that the parties bear their own costs of the application. The court also noted that the decision was without prejudice to the merits of the underlying dispute between the parties.

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