Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1155

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 1155

Although confidential exhibits A and B were privileged, Dr Dent used MFI 21 in the witness box to try to revive his memory before giving evidence. Section 122(6) therefore operated so that evidence of MFI 21 was not prevented. The Court declined to give a direction under s 126B because the evidence had probative value and importance to a critical component of the plaintiff's damages claim, including the alleged psychiatric illness and its causes. Section 126 had no application once MFI 21 was available pursuant to s 122(6).

Jurisdiction
Australia
Judgment Date
26 November 1999
Procedural Posture
Defamation Proceeding; Evidentiary Claim for Privilege / Ruling During Cross Examination on Claim for Privilege
Outcome
Privilege claim rejected as to MFI 21.
Legal Topics
['privilege' 'client Legal Privilege' 'professional Confidential Relationship Privilege' 'use of Document to Revive Memory' 'cross Examination of Expert Witness' 'discretion to Exclude Evidence']
['evidence' 'defamation'] ['privilege' 'client Legal Privilege' 'professional Confidential Relationship Privilege' 'use of Document to Revive Memory' 'cross Examination of Expert Witness' 'discretion to Exclude Evidence']

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Procedural Posture

Defamation Proceeding; Evidentiary Claim for Privilege / Ruling During Cross Examination on Claim for Privilege

Legal Issues

  1. 1 ['Whether the documents within the privilege claim, and in particular MFI 21, were privileged under the Evidence Act 1995 (NSW).' 'Whether s 122(6) of the Evidence Act 1995 (NSW) permitted the adducing of evidence of MFI 21 because Dr Dent used it in the witness box to try to revive his memory.' 'Whether the Court should direct under s 126B of the Evidence Act 1995 (NSW) that evidence not be adduced on the basis of professional confidential relationship privilege.' 'Whether s 126 or s 135 of the Evidence Act 1995 (NSW) affected the use or admissibility of MFI 21.']

Ratio Decidendi

Although confidential exhibits A and B were privileged, Dr Dent used MFI 21 in the witness box to try to revive his memory before giving evidence. Section 122(6) therefore operated so that evidence of MFI 21 was not prevented. The Court declined to give a direction under s 126B because the evidence had probative value and importance to a critical component of the plaintiff's damages claim, including the alleged psychiatric illness and its causes. Section 126 had no application once MFI 21 was available pursuant to s 122(6).

Court Disposition

Privilege claim rejected as to MFI 21.

Orders

  • ['In relation to MFI 21, no claim for privilege is available to prevent its being adduced into evidence or otherwise being the subject of cross-examination.']