R v. P [2001] NSWCA 473

R v. P [2001] NSWCA 473

The Court held that legal professional privilege under s.119 applies in protective proceedings unless clearly displaced by statute; the challenged report of Dr. Dyball, to which objection was taken, ought not to have been admitted, but other reports where no timely objection was taken could stand. While solicitor-initiated protective proceedings are undesirable, they are not absolutely prohibited. As the outcome likely would not have changed due to available admissible evidence, the Court dismissed the appeal.

Jurisdiction
Australia
Judgment Date
13 December 2001
Procedural Posture
Appeal / Judgment on Interlocutory Appeal From Supreme Court Orders Appointing Protective Commissioner
Outcome
Appeal dismissed with costs.
Legal Topics
['legal Professional Privilege' 'client Legal Privilege' 'protected Estates' 'conflict of Interest' 'admission of Opinion Evidence' 'protected Confidences']
['evidence' 'mental Health' 'legal Profession'] ['legal Professional Privilege' 'client Legal Privilege' 'protected Estates' 'conflict of Interest' 'admission of Opinion Evidence' 'protected Confidences']

Case Brief

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Procedural Posture

Appeal / Judgment on Interlocutory Appeal From Supreme Court Orders Appointing Protective Commissioner

Legal Issues

  1. 1 ['Whether legal professional privilege or client legal privilege is displaced in protective proceedings' 'Whether opinion evidence based on privileged communications is admissible' 'Whether a solicitor may bring protective proceedings against their own client' 'Whether confidential information or privileged reports can be used or disclosed in such proceedings']

Ratio Decidendi

The Court held that legal professional privilege under s.119 applies in protective proceedings unless clearly displaced by statute; the challenged report of Dr. Dyball, to which objection was taken, ought not to have been admitted, but other reports where no timely objection was taken could stand. While solicitor-initiated protective proceedings are undesirable, they are not absolutely prohibited. As the outcome likely would not have changed due to available admissible evidence, the Court dismissed the appeal.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.' 'Order that the reports of Dr. Bell and Dr. Lewin not be served prior to 15th March 2002.']