Amalgamated Television Services Pty Ltd v Marsden

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.