Warburton v The Director of Public Prosecutions (NSW) [2017] NSWSC 69

Warburton v The Director of Public Prosecutions (NSW) [2017] NSWSC 69

Privilege under ss 118 and 119 of the Evidence Act 1995 (NSW) did not apply to the documents and evidence sought from Mr Miralis as they were not confidential or privilege had been lost through voluntary disclosure. The exception for common interest privilege under s 122(5)(c) did not apply as there was no genuine common interest between Mr Warburton and Rebelution in the relevant proceedings. The subpoena should not have been set aside in full; any objections should be addressed case by case. Accordingly, the orders setting aside the subpoena were quashed and the matter was remitted for further hearing.

Jurisdiction
Australia
Judgment Date
14 February 2017
Procedural Posture
Appeal / Judgment on Application for Leave to Appeal and Appeal Itself
Outcome
Appeal allowed; leave to appeal granted; orders setting aside the subpoena quashed; matter remitted to the Local Court for further hearing.
Legal Topics
['legal Professional Privilege' 'loss of Privilege and Waiver' 'client Legal Privilege' 'subpoena' 'admissibility of Evidence' 'suppression and Non Publication Orders']
['criminal Law' 'evidence Law'] ['legal Professional Privilege' 'loss of Privilege and Waiver' 'client Legal Privilege' 'subpoena' 'admissibility of Evidence' 'suppression and Non Publication Orders']

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Procedural Posture

Appeal / Judgment on Application for Leave to Appeal and Appeal Itself

Legal Issues

  1. 1 ['Whether the subpoena issued to Mr Miralis should have been set aside on the basis of legal professional privilege under the Evidence Act 1995 (NSW)' 'Whether legal professional privilege had been waived with respect to documents and communications between Rebelution and Mr Warburton' 'Whether a common interest existed between Mr Warburton and Rebelution within the meaning of s 122(5)(c) of the Evidence Act' 'Whether s 123 of the Evidence Act permits the defendant to adduce the impugned evidence' 'Whether setting aside the subpoena amounted to an error']

Ratio Decidendi

Privilege under ss 118 and 119 of the Evidence Act 1995 (NSW) did not apply to the documents and evidence sought from Mr Miralis as they were not confidential or privilege had been lost through voluntary disclosure. The exception for common interest privilege under s 122(5)(c) did not apply as there was no genuine common interest between Mr Warburton and Rebelution in the relevant proceedings. The subpoena should not have been set aside in full; any objections should be addressed case by case. Accordingly, the orders setting aside the subpoena were quashed and the matter was remitted for further hearing.

Court Disposition

Appeal allowed; leave to appeal granted; orders setting aside the subpoena quashed; matter remitted to the Local Court for further hearing.

Orders

  • ['Leave to appeal be granted' 'The appeal be allowed' 'The order setting aside the subpoena be quashed' 'The matter be remitted to the Local Court for further hearing']