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 1999PARTIES :
Amalgamated Television Services Pty Ltd
John MarsdenJUDGMENT 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 appealSOLICITORS: Appellant - Mallesons Stephen Jaques, Sydney
Respondent - Phillips Fox, SydneyCATCHWORDS: 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 APPEALCA 40191/99
CLD 20223/95 & 20592/96MASON P
HANDLEY JA
GILES JAThursday 15 April 1999
AMALGAMATED TELEVISION SERVICES PTY LTD
v
MARSDENJUDGMENT1 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…
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- Case
- [1999] NSWCA 97
- Decision Date
CaseChat Overview and Summary
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
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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