Filipowski v Nikolaos; Filipowski v Pontain Shipping Co Limited [2004] NSWLEC 432

Filipowski v Nikolaos; Filipowski v Pontain Shipping Co Limited [2004] NSWLEC 432

A prosecutor's valid claim for legal professional privilege at the pre-trial stage is sufficient to bar production of documents, and the privilege is not overridden by the prosecutor's general duty of disclosure; there is no requirement or mechanism for a balancing of fairness when the privilege is validly claimed under the applicable procedural rules.

Parties
Prosecutor: Barbara Filipowski; Defendant: Kandilis Nikolaos; Defendant: Pontain Shipping Co Limited
Jurisdiction
Australia
Judgment Date
11 August 2004
Procedural Posture
Criminal / Pre Trial (notice to Produce and Privilege Dispute)
Outcome
Application for orders to set aside notice to produce granted.
Legal Topics
Legal Professional Privilege, Prosecutor's Duty of Disclosure, Pre Trial Procedure, Production of Documents
Criminal Law Evidence Law Environmental Law Practice and Procedure Legal Professional Privilege Prosecutor's Duty of Disclosure Pre Trial Procedure Production of Documents

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Parties

Barbara Filipowski

Prosecutor

Kandilis Nikolaos

Defendant

Pontain Shipping Co Limited

Defendant

Procedural Posture

Criminal / Pre Trial (notice to Produce and Privilege Dispute)

Legal Issues

  1. 1 Whether the common law definition for legal professional privilege applies to criminal pre-trial procedures in the Land and Environment Court.
  2. 2 Whether a claim for legal professional privilege by the prosecutor is subject to the prosecutor's duty of disclosure.

Ratio Decidendi

A prosecutor's valid claim for legal professional privilege at the pre-trial stage is sufficient to bar production of documents, and the privilege is not overridden by the prosecutor's general duty of disclosure; there is no requirement or mechanism for a balancing of fairness when the privilege is validly claimed under the applicable procedural rules.

Court Disposition

Application for orders to set aside notice to produce granted.

Orders

  • Paragraphs 1 and 2 of the Notice to Produce issued on behalf of the Defendants and dated 15 July 2004 be set aside.
  • The question of costs be reserved.