Amalgamated Television Services Pty Limited v Marsden [2000] NSWCA 63

Amalgamated Television Services Pty Limited v Marsden [2000] NSWCA 63

There was no inconsistency, informed by ordinary notions of fairness, between the claimant's disclosure that particulars were based on or in accordance with D13's statement and its maintenance of confidentiality over the statement itself. Providing particulars of its case based on the statement was not a waiver, and saying in affidavits that this had been done was not a waiver either. Leave was granted and the order requiring inspection of D13's statement was set aside.

Jurisdiction
Australia
Judgment Date
27 March 2000
Procedural Posture
Defamation Proceedings; Application for Leave to Appeal From an Interlocutory Order Concerning Legal Professional Privilege and Inspection of a Witness Statement / New South Wales Court of Appeal, Leave to Appeal and Appeal Argued Together From an Order of Levine J Made on 10 February 1999
Outcome
Leave to appeal granted; appeal allowed from the order of Levine J so far as it required the statement of D13 to be made available for inspection; that part of the order set aside.
Legal Topics
['leave to Appeal From Interlocutory Order' 'waiver of Legal Professional Privilege' 'client Legal Privilege' 'particular Discovery' 'notices to Produce' 'particulars of Justification']
['defamation' 'civil Procedure' 'evidence' 'legal Professional Privilege'] ['leave to Appeal From Interlocutory Order' 'waiver of Legal Professional Privilege' 'client Legal Privilege' 'particular Discovery' 'notices to Produce' 'particulars of Justification']

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Procedural Posture

Defamation Proceedings; Application for Leave to Appeal From an Interlocutory Order Concerning Legal Professional Privilege and Inspection of a Witness Statement / New South Wales Court of Appeal, Leave to Appeal and Appeal Argued Together From an Order of Levine J Made on 10 February 1999

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from an interlocutory order requiring inspection of the statement of D13.' 'Whether the claimant waived legal professional privilege in the statement of D13 by providing particulars based on or in accordance with that statement and by referring to that process in affidavits.' 'Whether waiver was to be assessed under common law principles rather than by derivative application of the Evidence Act 1995 in a pre-trial application.']

Ratio Decidendi

There was no inconsistency, informed by ordinary notions of fairness, between the claimant's disclosure that particulars were based on or in accordance with D13's statement and its maintenance of confidentiality over the statement itself. Providing particulars of its case based on the statement was not a waiver, and saying in affidavits that this had been done was not a waiver either. Leave was granted and the order requiring inspection of D13's statement was set aside.

Court Disposition

Leave to appeal granted; appeal allowed from the order of Levine J so far as it required the statement of D13 to be made available for inspection; that part of the order set aside.

Orders

  • ['Grant leave to appeal.' '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.' "Respondent to pay the...