Amalgamated Television Services Pty Limited v Marsden

THE COURT: Levine J ordered that the defendant make the statements of proposed defence witnesses D13 and D15 available for inspection by the plaintiff. The application for leave to appeal from the order is now concerned only with the statement of D13. The order was made because his Honour considered that there had been a waiver of client legal privilege in relation to the statement, according to his Honour’s reasons a waiver because the defendant through Mr Angus’ affidavit deposed to the particulars provided being of the contents of the statement. We understand the basis for his Honour’s ruling to have been that the substance of the statement had been disclosed with the defendant’s consent, so as to attract the operation of s 122(2) of the Evidence Act 1995.

Levine J did not have the assistance of seeing the statement. At the close of argument in this Court we enquired whether, subject to the views of the parties, the Court could inform itself by inspecting the statement in order better to decide the application. The defendant was agreeable to, and the plaintiff did not oppose, that course. The statement was made available and we have read it. With that assistance, we consider that it is arguable that an unqualified order permitting inspection should not have been made on the basis earlier described.

We note, however, that the plaintiff contended before us that there had been waiver on a wider basis, sufficiently described by reference to Telstra Corporation Pty Ltd v BT Australia Pty Ltd (1998) 156 ALR 634. How that argument was deployed before Levine J is not clear to us. What is clear to us, however, is that it is likely that Levine J will have to rule on whether privilege has been waived in relation to a number of further documents the subject of an affidavit of discovery directed on 10 February 1999 to be made (we were told) by 5 pm on 17 February 1999, and that the plaintiff will contend for waiver on the wider basis. Our foresight of this may turn out to be erroneous, but when raised with the parties nothing was said to lessen the prospect of further contention possibly leading, as we would apprehend, to a further application for leave to appeal by the party (or even both parties) disappointed in the result.

In our view, in these circumstances, any appellate consideration of the issue between the parties over privilege, an issue founded in the defendant’s application to rely on further particulars of justification, should not be piecemeal. The present application for leave to appeal, on which judgment is reserved, should be regarded as stood over to a date to be fixed, with the current stay on the order under appeal continuing. The parties should be invited to take up before Levine J, to the extent to which they are at issue, the question of waiver in relation to the documents recently discovered. If the parties are at issue, as seems likely, his Honour can rule as appropriate, and any further application for leave to appeal can be brought; the present application can then be relisted. If there is no issue, or issue but no further application for leave to appeal, the parties can so inform us and we can then determine the present application. From what we have been told of the course of the proceedings before Levine J, we do not think that this will increase his Honour’s travails; it may ease them.

To ensure that matters do not go astray, the parties should cause the President to be informed by letter from time to time of relevant applications to Levine J and their disposal. _________________