Where a party has already exercised one right of appeal from an interlocutory privilege ruling and seeks leave to appeal to the Court of Appeal, particular caution applies and leave will not be granted absent an issue of principle or demonstrated significant injustice. A pleading that implicitly impugns the conduct of a non-party (such as the DPP) in discharging statutory responsibilities can support a finding of common interest between that non-party and the defendant for the purposes of s 122(5)(c) of the Evidence Act 1995 (NSW), even where the non-party is not named as a defendant.
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