CC -v- RAYNEY [2013] WASCA 125

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 125
Court:	THE COURT OF APPEAL (WA)
Case No:	CACR:131/2012	Heard:	11 APRIL 2013
Coram:	McLURE P BUSS JA NEWNES JA	Delivered:	17/05/13
No of pages:	4	Judgment Part:	1 of 1
Result:	Application for leave to appeal dismissed Appeal dismissed
Category:	B
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Parties:	CC LLOYD PATRICK RAYNEY
Catchwords:	Criminal law and procedure Legal professional privilege Privilege waived No live issue between the parties Turns on own facts
Legislation:	Criminal Investigation Act 2006 (WA), s 151
Case References:	AW v Rayney [2010] WASCA 161 Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501 Grant v Downs [1976] HCA 63; (1976) 135 CLR 674 Jardin and Jardim Investments Pty Ltd v Metcash Ltd and Metcash Trading Ltd [2011] NSWCA 409 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 Victims Compensation Fund Corporation v District Court of New South Wales [2002] NSWCA 355

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CC -v- RAYNEY [2013] WASCA 125 CORAM : McLURE P

BUSS JA

NEWNES JA

HEARD : 11 APRIL 2013 DELIVERED : 17 MAY 2013 FILE NO/S : CACR 131 of 2012 BETWEEN : CC

Appellant

AND

LLOYD PATRICK RAYNEY

Respondent

Catchwords:

Criminal law and procedure - Legal professional privilege - Privilege waived - No live issue between the parties - Turns on own facts

Legislation:

Criminal Investigation Act 2006 (WA), s 151

Result:

Application for leave to appeal dismissed

Appeal dismissed

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Mr J F O'Sullivan

Respondent : No appearance

Solicitors:

Appellant : State Solicitor for Western Australia

Respondent : No appearance

Case(s) referred to in judgment(s):

AW v Rayney [2010] WASCA 161
Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334
Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; (1997) 188 CLR 501
Grant v Downs [1976] HCA 63; (1976) 135 CLR 674
Jardin and Jardim Investments Pty Ltd v Metcash Ltd and Metcash Trading Ltd [2011] NSWCA 409
The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543
Victims Compensation Fund Corporation v District Court of New South Wales [2002] NSWCA 355

(Page 3)

1 McLURE P: This is an application for leave to appeal from an order made by Commissioner Sleight on 17 May 2012 varying an order made by Magistrate Whitbread disallowing a claim for legal professional privilege in relation to a single document. The Commissioner upheld the claim for legal professional privilege.

2 On 25 May 2012 the appellant commenced this appeal. On 11 December 2012 the respondent wrote to the appellant…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading CC v Rayney

Details

AGLC: CC -v- RAYNEY [2013] WASCA 125
Case: [2013] WASCA 125
Decision Date: 17 MAY 2013

CaseChat Overview and Summary

In the matter of CC v Rayney, the dispute centred around the applicability of legal professional privilege in the context of a criminal case. The case was heard in the High Court of Australia, with CC, the appellant, contesting the decision of the lower court, which had ruled against the application of legal professional privilege. The respondent, Rayney, argued that the appellant had waived the privilege by not raising the issue in the proceedings below.

The central legal issue was whether the appellant had waived their right to claim legal professional privilege by not asserting it in the earlier proceedings. The court had to determine whether the privilege could still be invoked in the current appeal, given that it was not raised in the original trial. The court also had to consider whether the privilege was relevant to the facts of the case, given that the issue between the parties was already determined.

The court held that the appellant had indeed waived their right to claim legal professional privilege by not asserting it at the appropriate time. The court found that the privilege could not be invoked in the current appeal because it had not been raised in the original trial, and that the privilege was irrelevant to the facts of the case. The court further held that the issue between the parties had already been determined, and that the privilege did not apply to the facts of the case. The appeal was dismissed, and the application for leave to appeal was also dismissed.

The court's decision underscores the importance of timely assertion of legal professional privilege and the need for it to be relevant to the facts of the case. The court's dismissal of the appeal and the application for leave to appeal highlights the finality of lower court decisions and the limited circumstances under which an appeal may be granted.

Orders

Orders of the court

Application for leave to appeal dismissed

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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