Amalgamated Television Services Pty Limited v Marsden

[2000] NSWCA 63

CITATION:	Amalgamated Television Services Pty Limited v Marsden [2000] NSWCA 63
FILE NUMBER(S):	CA 40085/99
HEARING DATE(S):	12 February 1999
JUDGMENT DATE:	27 March 2000
PARTIES :	Amalgamated Television Services Pty Limited - Claimant John Marsden - Opponent
JUDGMENT OF:	Mason P at 1; Handley JA at 2; Giles JA at 3

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	20223 of 1995; 20592/96
LOWER COURT JUDICIAL OFFICER :	Levine J

COUNSEL:	Claimant - (12 February 1999) W H Nicholas QC & J S Wheelhouse; (24 March 2000) W H Nicholas QC Opponent - (12 February 1999) I M Barker QC, G O'L Reynolds, R G McHugh; (24 March 2000) M R Hall
SOLICITORS:	Claimant - Mallesons Stephen Jaques Opponent - Phillips Fox
CATCHWORDS:	LEAVE TO APPEAL - interlocutory order - waiver of legal professional privilege - whether matter of practice and procedure - whether leave should be granted - proceedings out of ordinary - in circumstances, leave granted. In re the Will of Gilbert (1946) 46 SR(NSW) 318 referred to. LEGAL PROFESSIONAL PRIVILEGE - delivery of particulars said to be based on or in accordance with a statement - whether waiver of privilege - whether inconsistency between this and maintaining the confidentiality protected by the privilege - no waiver. Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 and Mann v Carnell (1999) HCA66 applied. D
DECISION:	1. Grant leave to appeal; 2. Subject to the filing of a notice of appeal within seven days, appeal allowed from the order of Levine J made on 10 February 1999 so far as it required the statement of D13 to be made available for inspection by the appellant, and the order to that extent set aside; 3. Respondent to pay the appellant’s costs, and to have a certificate under the Suitors Fund Act if otherwise qualified.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40085/99
CLD 20223/95
20592/96

MASON P
HANDLEY JA
GILES JA

Monday 27 March 2000

AMALGAMATED TELEVISION SERVICES PTY LTD
v
MARSDEN

JUDGMENT

1   MASON P: I agree with Giles JA. 2   HANDLEY JA: I agree with Giles JA. 3   GILES JA: This is an application for leave to appeal from an interlocutory order made by Levine J in defamation proceedings. There has been argument as on an appeal so that, if leave be granted, the appeal can be disposed of without a further hearing. The application has taken an unusual course.

The order made by Levine J

4   The opponent alleged that he was defamed by the claimant in two television programmes. One programme was telecast on 13 March 1995, and a jury has determined that it conveyed certain defamatory imputations. The second programme was telecast on 7 May 1996, and the jury has determined that it conveyed certain other, but similar, defamatory imputations. 5   The claimant’s defences included that the imputations were matters of substantial truth. On 17 December 1996, at a time when some additional imputations were also in issue, the claimant was ordered to provide particulars of the facts, matters and circumstances on which it relied in asserting the substantial truth of each separate imputation. At various times in 1997 and 1998 the claimant provided particulars and amended particulars in accordance with this direction. 6   By letters dated 6 and 7 January 1999 the appellant provided further particulars of the facts, matters and circumstances on which it intended to rely. The particulars were concerned with three persons, sufficiently identified as D13, D14 and D15, and the opponent’s conduct towards them. 7   The proceedings came before Levine J on 4 February 1999. The opponent opposed reliance by the claimant on this further alleged conduct. The affidavits filed by the claimant in aid of reliance included affidavits by its solicitor in the proceedings, Mr Ian Angus, in which he described his endeavours to locate and obtain the assistance of D13 and D15. 8   According to the affidavits, a signed statement was obtained from D13 on 9 December 1998 and a signed statement was obtained from D15 on 11 December 1998. The statements were provided to one of the claimant’s counsel for advice upon whether their contents were sufficient to enable the claimant to call D13 and D15 as witnesses, and if so for the drafting of further particulars “based upon” or “in accordance with” the statements (both expressions were used in the affidavits). From this came the particulars supplied on 6 and 7 January 1999. In paragraph 19 of each affidavit it was said -

“19. The particulars in respect of the statements signed by D13 and D15 respectively were supplied to [the opponent’s solicitors] at the earliest opportunity [the claimant] had to supply those particulars.”

9   The opponent served notices to produce on the claimant requiring the production of documents the descriptions of which encompassed the statements of D13 and D15. The claimant applied to set the notices to produce aside on the ground that they were oppressive and disguised demands for discovery. Argument on the application was heard on 9 February 1999. It extended to whether those of the documents which would otherwise have attracted legal professional privilege, or client legal privilege as it is described in the Evidence Act 1995, had lost the privilege through waiver. 10 Following reasons delivered on 10 February 1999 (Marsden v Amalgamated Television Services Pty Limited (1999) NSWSC 44), Levine J set the notices to produce aside but made an order for particular discovery directed to documents relevant to the dispute over reliance on the further alleged conduct. His Honour specifically did not determine whether there had been waiver of privilege in relation to documents the subject of the notice to produce, save that he held that there had been waiver in respect of the statements of D13 and D15. 11 So far as presently relevant, his Honour made an order to the effect that the claimant make the statements of D13 and D15 available for inspection by the opponent.

The basis for the order

12   Levine J’s reasons recorded the opponent’s submission that, in order to be permitted to rely on the further alleged conduct, the claimant had to have made full disclosure. They went through one of Mr Angus’ affidavits (the other being in materially similar terms), recording where and how the opponent submitted that there had been waiver, including waiver because there had been only partial disclosure of what the claimant had done to obtain the statements and provide the further particulars. Early in the reasons his Honour set out paragraph 19 of Mr Angus’ affidavits and said (para [26]) -

“This paragraph, in particular, was seized upon by [the opponent’s counsel]. The letter of particulars sets out the particulars of the case [the claimant] proposes to make, yet Mr Angus had deposed to providing particulars in respect of the ‘ statements ’. The wording of paragraph 19 amounts to a waiver of privilege as to the content of the statements."

13   His Honour then dealt with the waiver of privilege in the following terms (para [32], and after setting the notices to produce aside para [36]) -

“32. In respect of waiver of privilege I was specifically referred to the decision of the Court of Appeal in Akins v Abigroup (1998) 43 NSWLR 539 and a most useful decision of Sackville J in Towney v Minister for Land & Water Conservation for the State of New South Wales (1997) 76 FCR 401 particularly at 413-4 and his Honour’s discussion of AG(NT) v Maurice (1986) 161 CLR 475. I do not propose to rehearse the submission in this regard. Suffice to say, it is Mr Reynolds’ contention that both under the Evidence Act and at common law (particularly on a Maurice fairness basis), there had been a waiver of privilege that would entitle the plaintiff to all the material sought to be encompassed by the Notices to Produce.”
“36. In one respect however, I am persuaded by the submissions of Mr Reynolds that there has been a waiver of privilege and that is by reason of the terms of paragraph 19 of each affidavit. Here Mr Angus deposes to particulars of the statements having been provided; in other words, those particulars are of the contents of those statements. He did not depose to the particulars of the ‘ case’ being provided, which case in due course would be proved by evidence which is set out in the statements.”
The course of the application

14   The claimant applied for leave to appeal from the order. The application was heard by this Court on 12 February 1999. Levine J did not have the assistance of seeing the statements. At the close of argument in this Court we enquired whether, subject to the views of the parties, the Court could inform itself by inspecting the statements in order better to decide the application. The claimant was agreeable to, and the opponent did not oppose, that course. Judgment was reserved. The statements were made available, and we read them. 15   We were then informed that, for a reason presently of no relevance, the statement of D15 was no longer in contention. Thus the application concerned only the statement of D13. 16   On 18 February 1999, for reasons then given (Amalgamated Television Services Pty Ltd v Marsden (1999) NSWCA 18), we stood the application over to a date to be fixed and extended the current stay on his Honour’s order so far as affecting the statement of D13. In short, we foresaw contention between the parties over whether privilege had been waived in relation to a number of additional documents as a result of further discovery directed by his Honour, contention in which the opponent argued that privilege had been lost on a basis raised (albeit briefly) in the course of the application. Another application for leave to appeal by a disappointed party was in prospect, and we considered that the present application should not be determined until it was known whether this Court was to be asked to resolve other but related questions of waiver. 17 In the course of our reasons we said that, with the assistance of reading the statement of D13, we considered it arguable that an unqualified order permitting inspection should not have been made on the basis, as we understood his Honour to have ruled, that the substance of the statement had been disclosed with the claimant’s consent so as to attract the operation of s 122(2) of the Evidence Act. 18   Some months passed without either a relevant further application whereby the present application was restored for hearing or a request that we give judgment in the application. Levine J disposed of the claimant’s application to amend to raise the further alleged conduct, but in the end an amendment to raise the conduct particularised in relation to D13 was no longer opposed (Marsden v Amalgamated Television Services Pty Ltd (1999) NSWSC 619). The opponent’s arguments on 12 February 1999 in support of waiver which had rested in part upon the claimant’s wish to amend to rely upon the conduct therefore fell away. 19 On 21 December 1999 the High Court delivered judgment in Esso Australia Resources Ltd v Commissioner of Taxation (1999) HCA 67 and Mann v Carnell (1999) HCA 66. It was held that in pre-trial applications a question of privilege or loss of privilege is to be decided according to common law principles unaffected by the provisions of the Evidence Act. It followed that Akins v Abigroup Ltd (1998) 43 NSWLR 539, in which this Court considered that the statute was to be applied derivatively, was incorrect. Levine J’s decision, to the extent to which it was founded on the operation of s 122(2) of the Evidence Act, was thereby invalidated. 20   The trial resumed in the latter part of 1999, and the claimant’s evidence began in February 2000. 21   In early February 2000 we were asked to proceed to judgment on the application, and the President was informed that it was proposed to call D13 in the claimant’s case late in March 2000. 22   The claimant’s submissions on 12 February 1999 had included a submission that common law rules of discovery were not affected by the provisions of the Evidence Act. The opponent’s submissions, save for a passing reference to Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475, did not deal with this topic. The opponent then took the stance, in accordance with Akins v Abigroup Ltd, that the Evidence Act principles applied derivatively. Accordingly, further submissions were required in the light of the decisions of the High Court. 23   The claimant asked that the application be relisted for further argument, and this occurred on 24 March 2000. The claimant provided a brief written submission addressed to the application of common law principles. Although invited to do so, the opponent did not make any further submissions.

Leave to appeal

24 Leave to appeal is required because the order was interlocutory, see Supreme Court Act 1970 s 101 (2)(e). The opponent relied on the well-known restraint upon appellate intervention in discretionary decisions in matters of practice and procedure (see In re the Will of Gilbert (1946) 46 SR(NSW) 318 at 323), and the cognate discouragement to disruption of hearings at first instance by appeals against interlocutory orders, and also submitted that no injustice would be done if the statement were made available for inspection although privileged. 25 For reasons given in another application for leave to appeal on a question of privilege in these same proceedings, Amalgamated Television Services Pty Ltd v Marsden (1999) NSWCA 97 at [16-17], his Honour’s decision was not a discretionary decision in a matter of practice and procedure. Without detracting from the importance of letting hearings at first instance proceed without disruption, and the risk of oppression by frequent interlocutory appeals, the proceedings before Levine J were and are out of the ordinary, and this application has been brought and prosecuted in circumstances quite different from the norm. It was made over a year ago, and has not been a vehicle for disruption of the hearing before his Honour. A reading of the statement of D13 suggests that its disclosure to the opponent would not be a formality with no practical consequence, but rather that the claimant’s privilege, if not waived, has practical substance and should be upheld. In my opinion, in the circumstances of this case leave to appeal should be granted.

Discussion

26   Mr Angus referred in para 19 of his affidavits to “particulars in respect of” the statements, but from the earlier parts of the affidavits the particulars were “in accordance with” or “based on” the statements. To amplify this, and place para 19 in its context, the affidavit set out that -

(i) on 11 November 1998 the claimant’s solicitors were told by a third party that D13 would give evidence on condition that his name was not to be in the newspapers;
(ii) one of the claimant’s counsel advised that the claimant “could not rely on a defence of justification based on evidence that D13 might be expected to give until D13 had provided a signed statement containing the evidence that he would give if so required”;
(iii) a meeting with D13 was arranged and the solicitors obtained a statement signed by D13;
(iv) a copy of the statement was sent to counsel for advice “if the contents of the statement was sufficient for us to call D13 as a witness” and if so “to draft particulars of justification based upon that statement”;
(v) counsel advised that D13 should be called as a witness “and that he would draft additional particulars of justification in accordance with the statement signed by D13”;

(vi) Mr Angus checked and settled the particulars drafted by counsel “based upon the statement signed by D13”; and
(vii) the particulars were then provided.

27   In Attorney-General for the Northern Territory v Maurice the question was whether privilege in materials used in preparing a claims book was waived by distribution and use of the book. 28 Gibbs CJ said (at 481) -

“The decisions in which this question has been considered seem to me to be particular applications of the rule that in a case where there is no intentional waiver the question whether a waiver should be implied depends on whether it would be unfair or misleading to allow a party to refer to or use material and yet assert that that material, or material associated with it, is privileged from production. Thus it has been held that the privilege in respect of a document is not waived by the mere reference to that document in pleadings ( Roberts v Oppenheim [(1884) 26 Ch D 724]; Buttes Oil Co v Hammer [No 3] [(1981) QB 223, at pp 252, 268] or in an affidavit ( Lyell v Kennedy [(1884) 27 Ch D 1, at 24]; Infields, Ltd v P Rosen & Son [(1938) 3 All ER 591 at 597]; Tate & Lyle “International Co Ltd v Government Trading Corporation ”, The Times, 24 October 1984), although the position will be different if the document is reproduced in full in the pleading or affidavit: Buttes Oil Co v Hammer [No 3] (1981) QB at 252]. These cases may be explained by saying that it is not unfair or misleading to refer to a document in a pleading or affidavit which is not put into evidence but that if the document is set out in full the privilege is waived. A fortiori, of course, privilege in respect of materials used in drawing a pleading or an affidavit and not referred to therein, would not lose their privilege because they had been used in that way.”

Mason and Brennan JJ said (at 487-8) -

“The limiting effect of legal professional privilege on the availability of evidence otherwise relevant is confined, inter alia, by the doctrine of waiver. A litigant can of course waive his privilege directly through intentionally disclosing protected material. He can also lose that protection through a waiver by implication. An implied waiver occurs when, by reason of some conduct on the privilege holder’s part, it becomes unfair to maintain the privilege. The holder of the privilege should not be able to abuse it by using it to create an inaccurate perception of the protected communication. Professor Wigmore explains -
‘[W]hen his conduct touches a certain point of disclosure, fairness requires that his privilege shall cease whether he intended that result or not. He cannot be allowed, after disclosing as much as he pleases, to withhold the remainder.’ (Wigmore, Evidence in Trials at Common Law (1961), vol 8, par 2327, p 636.)
In order to ensure that the opposing litigant is not misled by an inaccurate perception of the disclosed communication, fairness will usually require that waiver as to one part of a protected communication should result in waiver as to the rest of the communication on that subject-matter: see Great Atlantic Insurance Co v Home Insurance [(1981) 1 WLR 529; (1981) 2 All ER 485].
Hence, the implied waiver inquiry is at bottom focussed on the fairness of imputing such a waiver.”

Deane J said (at 492-3) -

“Waiver of legal professional privilege by imputation or implication of law is based on notions of fairness. It occurs in circumstances where a person has used privileged material in such a way that it would be unfair for him to assert that legal professional privilege rendered him immune from procedures pursuant to which he would otherwise be compellable to produce or allow access to the material which he has elected to use to his own advantage. Thus, ordinary notions of fairness require that an assertion of the effect of privileged material or disclosure of part of its contents in the course of proceedings before a court or quasi-judicial tribunal be treated as a waiver of any right to resist scrutiny of the propriety of the use he has made of the material by reliance upon legal professional privilege.”

29   In Mann v Carnell at [28-9] it was said that it is the inconsistency between the conduct of the client and maintenance of the confidentiality protected by the privilege which effects a waiver of the privilege. What brings about the waiver is the inconsistency, informed by notions of fairness, not “some overriding principle of fairness operating at large”. 30   Where is the inconsistency, having regard to ordinary notions of fairness, in the claimant disclosing in the affidavits of Mr Angus how it obtained the statement of D13 and provided particulars based on or in accordance with it, while maintaining its privilege over the statement itself? 31   There is no longer an issue over the claimant’s right to rely on on the particulars, and the further statement of Deane J in Attorney-General for the Northern Territory v Maurice at 493, following the passage last set out, is here applicable -

“There are, however, no considerations of fairness which require that compliance by a party with a procedural requirement that he prepare and make available a document setting forth the case which he proposes to make before a court or quasi-judicial tribunal should be treated as a waiver of his right to claim legal professional privilege in respect of all the material upon which he has relied in the preparation of that document. If, in such a document, a party sets forth part of the contents of a particular identified document or communication or asserts the effect of or his reliance upon a particular identified document or communication, it may be that considerations of fairness might require that he be treated as having waived any legal professional privilege in relation to the whole document or communication: cf Buttes Gas and Oil Co v Hammer [No 3] [(1981) 1 QB 223, at 251-252]. Where, however, he does no more than make use of privileged material (eg legal advice, expert opinion or statements of potential witnesses) for the purpose of formulating the statement in such a document of the details of the case which he proposes to make, it would be an affront to ordinary notions of fairness to hold that the effect of his compliance with that procedural requirement was that he has waived his legal professional privilege in relation to such material.”

32   If providing particulars of its case based on or in accordance with the statement of D13 is not a waiver by the claimant, then saying that that is what it has done is not a waiver either. The claimant has identified the statement of D13 in the affidavits of Mr Angus, but not in a manner enlivening considerations of fairness as contemplated by his Honour. 33   Levine J held that privilege in the statement of D134 had been waived on principles thereafter displaced by the decisions of the High Court. Applying common law principles, in my opinion, there was no waiver of privilege in the statement of D13. 34   I propose the following orders:

1. Grant leave to appeal.
2. Subject to the filing of a notice of appeal within seven days, appeal allowed from the order of Levine J made on 10 February 1999 so far as it required the statement of D13 to be made available for inspection by the appellant and the order to that extent set aside.
3. Respondent to pay the appellant’s costs, and to have a certificate under the Suitors Fund Act if otherwise qualified.
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