Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 212

Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 212

The Court applied Akins & Ors v Abigroup Limited and treated the Evidence Act 1995 (NSW) client legal privilege principles as governing inspection of the subpoenaed and produced documents. The disputed documents were privileged when created because they were made for legal advice or professional legal services relating to actual or anticipated civil and criminal proceedings. Disclosure to the Royal Commission did not destroy privilege because material was produced under compulsion of law or as confidential communications in the statutory context of the Royal Commission (Police Service) Act 1994. Disclosure to the Police also did not destroy privilege because the material was provided...

Jurisdiction
Australia
Judgment Date
19 March 1999
Procedural Posture
Defamation Proceedings; Interlocutory Application Concerning Client Legal Privilege and Inspection of Subpoenaed or Produced Documents / Plaintiff's Notice of Motion to Preclude Inspection by the Defendant, Heard Within the Defendant's Interlocutory Application for Leave to Amend Particulars of Justification During a Trial in Progress
Outcome
Plaintiff's Notice of Motion granted substantially; inspection of specified privileged and confidential documents restricted to the plaintiff and his legal advisers, with specified exceptions.
Legal Topics
['client Legal Privilege' 'legal Professional Privilege' 'subpoenas for Production' 'notice to Produce' 'inspection of Documents' 'waiver of Privilege' 'confidential Communications' 'royal Commission Material' 'police Investigation Material' 'public Interest Immunity']
['evidence' 'civil Procedure' 'defamation'] ['client Legal Privilege' 'legal Professional Privilege' 'subpoenas for Production' 'notice to Produce' 'inspection of Documents' 'waiver of Privilege' 'confidential Communications' 'royal Commission Material' 'police Investigation Material' 'public Interest Immunity']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Defamation Proceedings; Interlocutory Application Concerning Client Legal Privilege and Inspection of Subpoenaed or Produced Documents / Plaintiff's Notice of Motion to Preclude Inspection by the Defendant, Heard Within the Defendant's Interlocutory Application for Leave to Amend Particulars of Justification During a Trial in Progress

Legal Issues

  1. 1 ['Whether the principles of the Evidence Act 1995 (NSW) dealing with client legal privilege govern inspection of documents produced on subpoena or pursuant to a Notice to Produce.' 'Whether documents created by or for the plaintiff, his lawyers, or witnesses were privileged when created under advice privilege or litigation privilege.' 'Whether disclosure of privileged material to the Royal Commission into the New South Wales Police Service or to the New South Wales Police Service caused privilege to be lost.' 'Whether production to the Royal Commission under ss 6 or 7 of the Royal Commission (Police Service) Act 1994 was production under compulsion of law for the purposes of s 122 of the Evidence Act 1995 (NSW).' 'Whether provision of privileged material to police investigators was a confidential communication and whether police use of that material involved express or implied consent to disclose its substance so as to extinguish privilege under s 122(4) of the Evidence Act 1995 (NSW).' 'Whether inspection of the disputed confidential exhibits should be restricted to the plaintiff and his legal advisers.']

Ratio Decidendi

The Court applied Akins & Ors v Abigroup Limited and treated the Evidence Act 1995 (NSW) client legal privilege principles as governing inspection of the subpoenaed and produced documents. The disputed documents were privileged when created because they were made for legal advice or professional legal services relating to actual or anticipated civil and criminal proceedings. Disclosure to the Royal Commission did not destroy privilege because material was produced under compulsion of law or as confidential communications in the statutory context of the Royal Commission (Police Service) Act 1994. Disclosure to the Police also did not destroy privilege because the material was provided...

Court Disposition

Plaintiff's Notice of Motion granted substantially; inspection of specified privileged and confidential documents restricted to the plaintiff and his legal advisers, with specified exceptions.

Orders

  • ['Inspection of material produced to the Court by the New South Wales Police Service in answer to subpoenas for production over which the plaintiff claimed privilege, being MFI 8 and confidential exhibit BJW 4 to the affidavit of B J Whittaker affirmed on 1 March 1999, is restricted to the plaintiff and his legal...