Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1254

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1254

The defendant was entitled to inspection and further particular discovery because the plaintiff could not rely on the discretionary protection previously applied to subpoenaed documents to withhold relevant discovered pre-litigation documents for which no valid privilege claim defeated inspection; former client files and ledger cards were to be inspected, and particular discovery was required where the evidence indicated the existence or possible overlap of relevant documents not properly disclosed.

Jurisdiction
Australia
Judgment Date
17 December 1999
Procedural Posture
Defamation Proceedings / Defendant's Applications Concerning the Plaintiff's List of Documents and Particular Discovery
Outcome
Defendant's applications substantially succeeded; inspection and particular discovery orders were made and the plaintiff was ordered to pay the defendant's costs.
Legal Topics
['discovery' 'inspection of Documents' 'particular Discovery' 'client Legal Privilege' 'litigation Privilege' 'confidential Communication Privilege' 'costs']
['civil Procedure' 'defamation'] ['discovery' 'inspection of Documents' 'particular Discovery' 'client Legal Privilege' 'litigation Privilege' 'confidential Communication Privilege' 'costs']

Case Brief

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Procedural Posture

Defamation Proceedings / Defendant's Applications Concerning the Plaintiff's List of Documents and Particular Discovery

Legal Issues

  1. 1 ['Whether documents marked by the plaintiff as not produced for inspection should be produced for inspection to the defendant.' 'Whether former client files and ledger cards over which client legal privilege was asserted should be produced for inspection.' 'Whether further discovery was required for motor vehicle documents, diaries, statutory declarations of Robert Cussons, and documents overlapping with MFI 22 or Exhibit A on the Motion.' 'Whether the Waind v Hill discretion applied to discovered pre-litigation documents in the same way as it had to subpoenaed documents in the Corrs Subpoena judgment.']

Ratio Decidendi

The defendant was entitled to inspection and further particular discovery because the plaintiff could not rely on the discretionary protection previously applied to subpoenaed documents to withhold relevant discovered pre-litigation documents for which no valid privilege claim defeated inspection; former client files and ledger cards were to be inspected, and particular discovery was required where the evidence indicated the existence or possible overlap of relevant documents not properly disclosed.

Court Disposition

Defendant's applications substantially succeeded; inspection and particular discovery orders were made and the plaintiff was ordered to pay the defendant's costs.

Orders

  • ['The plaintiff is to produce for inspection to the defendant by no later than 4pm on 7 January 2000 documents: 2, 4, 5, 10, 16, 17, 19, 20, 22, 23, 34-57, 60, 61, 66-73, 77-83, 85-88, 90-98, 104-115, 119-121, 123, 124, 127, 128, 131, 137-146, 148, 150-153, 170 and 175.' 'The plaintiff is to produce for inspection...