Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 235

Marsden v Amalgamated Television Services Pty Limited [2000] NSWSC 235

The defendant could not maintain confidentiality or privilege over the relevant communications because Mr Price's affidavit and evidence disclosed the substance of matters acutely relevant to the basis of the pseudonym application, the affidavit had misled the Court by suggesting the information was first received on 29 February 2000 when it had been known since August 1999, the disclosure brought about waiver under s 122(2), and s 126 required disclosure of other documents to understand exhibit 1.

Jurisdiction
Australia
Judgment Date
27 March 2000
Procedural Posture
Defamation Proceedings / Interlocutory Ruling on the Defendant's Notice of Motion of 14 March 2000 for Use of a Pseudonym and on Waiver of Privilege
Outcome
Privilege claim rejected in part; plaintiff granted access to MFI 133 and DCP1, subject to limited editing of two documents.
Legal Topics
['legal Professional Privilege' 'waiver of Privilege' 'pseudonym Orders' 'witness Safety' 'notice to Produce']
['evidence' 'civil Procedure' 'defamation'] ['legal Professional Privilege' 'waiver of Privilege' 'pseudonym Orders' 'witness Safety' 'notice to Produce']

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Procedural Posture

Defamation Proceedings / Interlocutory Ruling on the Defendant's Notice of Motion of 14 March 2000 for Use of a Pseudonym and on Waiver of Privilege

Legal Issues

  1. 1 ['Whether the defendant could maintain a claim of privilege over MFI 133 and DCP1 in light of the affidavit and cross-examination of Mr Price.' 'Whether the defendant had knowingly and voluntarily disclosed the substance of privileged communications for the purposes of s 122(2) of the Evidence Act 1995 (NSW).' 'Whether s 126 of the Evidence Act 1995 (NSW) required disclosure of related communications for a proper understanding of exhibit 1.' 'Whether the conduct relied on by the plaintiff amounted to fraud or abuse of power for the purposes of s 125 of the Evidence Act 1995 (NSW).']

Ratio Decidendi

The defendant could not maintain confidentiality or privilege over the relevant communications because Mr Price's affidavit and evidence disclosed the substance of matters acutely relevant to the basis of the pseudonym application, the affidavit had misled the Court by suggesting the information was first received on 29 February 2000 when it had been known since August 1999, the disclosure brought about waiver under s 122(2), and s 126 required disclosure of other documents to understand exhibit 1.

Court Disposition

Privilege claim rejected in part; plaintiff granted access to MFI 133 and DCP1, subject to limited editing of two documents.

Orders

  • ['The plaintiff have access to MFI 133 and to DCP1, except for the originals of two flagged documents, which have been copied to edit out material unconnected with the issues.' 'The originals of those documents, on which the editing has been made and indicated in pencil, will be returned to the defendant.' 'Access...