Amalgamated Television Services Pty Ltd v Marsden - [1999] NSWCA 97

CITATION: Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 97

FILE NUMBER(S): CA 40191/99

HEARING DATE(S): 13 April 1999

JUDGMENT DATE:
15 April 1999

PARTIES :

Amalgamated Television Services Pty Ltd
John Marsden

JUDGMENT OF: Mason P at 1; Handley JA at 2; Giles JA at 3

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S) : 20223/95; 20592/96

LOWER COURT JUDICIAL OFFICER: Levine J

COUNSEL: Appellant - J S Wheelhouse & R C Titterton at hearing; W H Nicholas QC & J S Wheelhouse as to amendment to notice of appeal
Respondent - N/A at hearing; G T'OL Reynolds as to amendment to notice of appeal

SOLICITORS: Appellant - Mallesons Stephen Jaques, Sydney
Respondent - Phillips Fox, Sydney

CATCHWORDS: PRIVILEGE - client legal privilege - whether lost by providing copies of documents to Police - Evidence Act 1995 s 122(2)(a) - whether provided in the course of making a confidential communication - Evidence Act s 117(1) definition of "confidential communication" - Police could use contents of documents in investigations or for prosecution - not confidential communication.

DECISION: (1) Grant leave to amend notice of motion; (2) Appeal upheld; (3) Vary order 1 made by Levine J on 19 March 1999 by granting leave to the appellant and its legal advisers to inspect the documents referred to in para 2(a)-(f) of the amended notice of appeal (see details in formal order) and document 5 in schedule B to the affidavit of Michael Lee made on 1 March 1999; (4) Costs of the appeal to be costs in the proceedings in the Common Law Division.

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40191/99
CLD 20223/95 & 20592/96

MASON P
HANDLEY JA
GILES JA

Thursday 15 April 1999

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: The respondent alleged that he was defamed by the appellant 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.
4 The appellant’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 appellant 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 appellant provided particulars and amended particulars in accordance with this direction.
5 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 respondent’s conduct towards them.
6 The proceedings…

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: [1999] NSWCA 97
Decision Date: 15 April 1999

CaseChat Overview and Summary

Amalgamated Television Services Pty Ltd (the appellant) sought to appeal a decision of Levine J concerning client legal privilege. The dispute arose when the appellant provided copies of certain documents to the Police. The appellant contended that these documents remained subject to client legal privilege, while the Police argued that the privilege had been lost by the act of providing the copies. The appeal was heard by Mason P, Handley and Giles JJA in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the appellant had lost client legal privilege over certain documents by providing copies of them to the Police. This required the court to consider the application of section 122(2)(a) of the *Evidence Act 1995* (NSW), which deals with the loss of privilege in certain circumstances, and the definition of a "confidential communication" under section 117(1) of the same Act. Specifically, the court had to determine if the provision of the documents to the Police constituted a "confidential communication" for the purposes of the Act.

The Court of Appeal reasoned that the provision of documents to the Police, with the understanding that the Police could use their contents in investigations or for prosecution, did not amount to a "confidential communication" as defined by the *Evidence Act*. The court held that the documents were not provided in circumstances where their contents were intended to be kept secret or confidential between the parties. Consequently, the privilege was not maintained. The court granted leave to amend the notice of motion and upheld the appeal, varying the previous order to grant the appellant and its legal advisers leave to inspect the specified documents. The costs of the appeal were ordered to be costs in the proceedings.

Orders

Orders of the court

(1) Grant leave to amend notice of motion; (2) Appeal upheld; (3) Vary order 1 made by Levine J on 19 March 1999 by granting leave to the appellant and its legal advisers to inspect the documents referred to in para 2(a)-(f) of the amended notice of appeal (see details in formal order) and document 5 in schedule B to the affidavit of Michael Lee made on 1 March 1999; (4) Costs of the appeal to be costs in the proceedings in the Common Law Division.

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 Ltd v Marsden [1999] NSWCA 97
FILE NUMBER(S):	CA 40191/99
HEARING DATE(S):	13 April 1999
JUDGMENT DATE:	15 April 1999
PARTIES :	Amalgamated Television Services Pty Ltd John Marsden
JUDGMENT OF:	Mason P at 1; Handley JA at 2; Giles JA at 3

LOWER COURT JURISDICTION:	Supreme Court - Common Law Division
LOWER COURT FILE NUMBER(S) :	20223/95; 20592/96
LOWER COURT JUDICIAL OFFICER:	Levine J

COUNSEL:	Appellant - J S Wheelhouse & R C Titterton at hearing; W H Nicholas QC & J S Wheelhouse as to amendment to notice of appeal Respondent - N/A at hearing; G T'OL Reynolds as to amendment to notice of appeal
SOLICITORS:	Appellant - Mallesons Stephen Jaques, Sydney Respondent - Phillips Fox, Sydney
CATCHWORDS:	PRIVILEGE - client legal privilege - whether lost by providing copies of documents to Police - Evidence Act 1995 s 122(2)(a) - whether provided in the course of making a confidential communication - Evidence Act s 117(1) definition of "confidential communication" - Police could use contents of documents in investigations or for prosecution - not confidential communication.
DECISION:	(1) Grant leave to amend notice of motion; (2) Appeal upheld; (3) Vary order 1 made by Levine J on 19 March 1999 by granting leave to the appellant and its legal advisers to inspect the documents referred to in para 2(a)-(f) of the amended notice of appeal (see details in formal order) and document 5 in schedule B to the affidavit of Michael Lee made on 1 March 1999; (4) Costs of the appeal to be costs in the proceedings in the Common Law Division.