Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Director of Public Prosecutions (NSW) v Stanizzo [2019] NSWCA 12 Hearing dates: 11 February 2019 Date of orders: 11 February 2019 Decision date: 14 February 2019 Before: Basten JA, Payne JA, Sackville AJA Decision: (1) Grant leave to appeal.

(2) Allow the appeal.

(3) Set aside orders 1 to 4 made by Rothman J on 24 December 2018.

(4) Dismiss Mr Stanizzo's notice of motion filed on 25 June 2018 in the court below.

(5) Order that Mr Stanizzo pay the appellant's costs of the notice of motion and of this appeal.

(6) Direct the Director of Public Prosecutions to file within seven days of these reasons a notice of appeal in the form of the draft contained in the white folder.

(7) Order that a certificate in respect of the appeal under s 6 of the Suitors' Fund Act 1951 (NSW) be issued to Mr Stanizzo. Catchwords: EVIDENCE – interlocutory application – adducing evidence – statements referred to in affidavit – statements not tendered – whether reference in affidavit sufficient to make statements evidence on interlocutory application

EVIDENCE – privilege – client legal privilege – loss of client legal privilege – fraud exception to client legal privilege – abuse of power exception to client legal privilege

EVIDENCE – privilege – client legal privilege – whether Director of Public Prosecutions is a "client" – whether Solicitor for Public Prosecutions and Crown Prosecutors are "lawyers" providing legal services to Director of Public Prosecutions Legislation Cited: Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 13 Crimes Act 1900 (NSW), s 61I Crown Prosecutors Act 1986 (NSW), ss 4, 5 Director of Public Prosecutions Act 1986 (NSW), ss 6, 7, 9, 20, 21, 23, 32 Evidence Act 1995 (NSW), ss 75, 117, 119, 125, 131A Supreme Court Act 1970 (NSW), s 101 Cases Cited: Alfred v Lanscar (2007) 162 FCR 169; [2007] FCA 833 Aouad v R; El-Zayet v R [2013] NSWSC 760 Attorney General (NT) v Kearney (1985) 158 CLR 500; [1985] HCA 60 Australian Competition and Consumer Commission v Australian Institute of Professional Education Pty Ltd (in liq) (No 2) [2018] FCA 1459 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501; [1997] HCA 3 Hamilton v State of New South Wales [2016] NSWSC 1213 Hamilton v State of New South Wales [2017] NSWCA 112 R (Cth) v Petroulias (No 22) [2007] NSWSC 692; (2007) 213 FLR 293 Sugden v Sugden (2007) 70 NSWLR 301; [2007] NSWCA 312 Category: Principal judgment Parties: Director of Public Prosecutions (NSW) (Applicant) Vincent Francis Stanizzo (Respondent) Representation: Counsel: N Newton and T Buterin (Applicant) P Lange and M K Rollinson (Respondent)