FAGAN v. STATE OF NEW SOUTH WALES [2004] NSWCA 182

New South Wales Court of Appeal

CITATION : FAGAN v. STATE OF NEW SOUTH WALES [2004] NSWCA 182 revised - 2/08/2004 HEARING DATE(S) : 26/02/2004 JUDGMENT DATE : 10 June 2004

JUDGMENT OF : Spigelman CJ at 1; Beazley JA at 2; Santow JA at 95 DECISION : 1. Appeal allowed; 2. Declare that the directions given by Commander Reith, Detective Inspector Wright and Chief Inspector Lapham, if complied with by any officer to whom they were given, would breach the appellant's entitlement to legal professional privilege in respect of communication between his legal representatives and such officers; 3. The respondent is to pay the appellant's costs of the appeal and of the hearing at first instance.

CATCHWORDS : PRIVILEGE - Legal professional privilege - Nature of privilege - Rule of substantive law - Rule is not to be outweighed by principle that there is no property in a witness - Rule is to be applied strictly and not limited to judicial or quasi-judicial proceedings. - STATUTORY INTERPRETATION - Statue not to be construed as abrogating a fundamental principle of the common law in the absence of clearly expressed intention to do so. LEGISLATION CITED : Police Act 1990 (NSW) Supreme Court Act (1970) (NSW) Attorney-General (NT) v. Maurice (1986) 161 CLR 475 Daniels Corp International Pty. Limited v. Australian Competition and Consumer Commission (2002) 192 ALR 561 CASES CITED : Harmony Shipping Co v. Saudi Europe Line (C.A.) [1979] 1 WLR 1380 J. Corp Pty. Limited v. BLF (1992) 110 ALR 510 Mann v. Carnell (1999) 201 CLR 1 Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 19 ALR 547 at 560 PARTIES : Geoffrey Fagan (Appellant) State of New South Wales (Respondent) FILE NUMBER(S) : CA 40171/03 COUNSEL : P. Blackett SC/M. Cahill/A. Naylor (Appellant) P. Menzies QC/C. Hodgson (Respondent) SOLICITORS : Oates & Smith (Appellant) Crown Solicitor's Office (H. Allison) (Respondent)