Director of Public Prosecutions (NSW) v Stanizzo

(2019) 367 ALR 256; [2019] NSWCA 12

NSW Court of Appeal

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Interrogate

Catchwords

1. Evidence
2. › Privilege
3. › Client legal privilege
4. › Whether Director of Public Prosecutions is a 'client'
5. › Whether Solicitor for Public Prosecutions and Crown Prosecutors are 'lawyers' providing legal services to Director of Public Prosecutions
6. › Evidence Act 1995 (NSW), ss 117, 119
1. Evidence
2. › Privilege
3. › Client legal privilege
4. › Loss of privilege
5. › Fraud exception
6. › Whether communication made in furtherance of commission of fraud
7. › Whether client or lawyer must be party to fraud
8. › Evidence Act 1995 (NSW), s 125(1)(a)
1. Evidence
2. › Privilege
3. › Client legal privilege
4. › Loss of privilege
5. › Abuse of power exception
6. › Whether client or lawyer knew or ought reasonably to have known communication made in furtherance of deliberate abuse of power
7. › Evidence Act 1995 (NSW), s 125(1)(b)
1. Evidence
2. › Interlocutory applications
3. › Adducing evidence
4. › Whether reference to documents in affidavit sufficient to make documents evidence
5. › Whether documents not annexed or tendered are 'drawn into' evidence
6. › Evidence Act 1995 (NSW), s 75

Quick Take

Practitioners seeking to invoke the fraud or abuse of power exception to client legal privilege under s 125 of the Evidence Act must adduce actual evidence (not merely pleading allegations) establishing reasonable grounds, and must show that the client or lawyer (not merely a third party) was party to the fraud or knew of the abuse of power.