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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] NSWCA 63
Decision Date: 27 March 2000

CaseChat Overview and Summary

Amalgamated Television Services Pty Limited (the appellant) sought leave to appeal an interlocutory order made by Levine J, which had directed the disclosure of a statement made by D13. The respondent, Marsden, had sought particulars in proceedings, and these particulars were said to be based on or in accordance with the statement of D13. The core of the dispute concerned whether the appellant had waived legal professional privilege over this statement by providing particulars that were allegedly derived from it.

The Court of Appeal of New South Wales was required to determine two primary legal issues. First, whether the interlocutory order concerning the disclosure of the statement constituted a matter of practice and procedure such that leave to appeal should be granted, particularly given the circumstances of the proceedings. Second, and more fundamentally, the court had to decide whether the appellant had waived its legal professional privilege in the statement of D13 by providing particulars that were said to be based on or in accordance with that statement.

The Court applied the principles established in *Attorney-General for the Northern Territory v Maurice* and *Mann v Carnell*, which address the waiver of legal professional privilege. The court reasoned that the mere fact that particulars were provided, even if they were informed by or consistent with a privileged document, did not automatically amount to a waiver of that privilege. For waiver to occur, there needed to be an inconsistency between the act of providing the particulars and the maintenance of confidentiality protected by the privilege. In this instance, the court found no such inconsistency. The court granted leave to appeal, finding the matter to be one that justified appellate intervention.

The appeal was allowed, and the order of Levine J was set aside to the extent that it required the statement of D13 to be made available for inspection by the appellant. The respondent was ordered to pay the appellant’s costs of the appeal.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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.