Amalgamated Television Services Pty Limited v Marsden

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.