Director of Public Prosecutions (NSW) v Stanizzo

The Director of Public Prosecutions (NSW) appealed to the Court of Appeal of New South Wales against orders made by Rothman J. The dispute concerned the admissibility of certain statements referred to in an affidavit filed by Mr Stanizzo, and the application of client legal privilege to those statements, particularly in light of potential exceptions.

The Court of Appeal was required to determine whether a reference to statements within an affidavit, without the statements themselves being formally tendered, was sufficient to make those statements evidence on an interlocutory application. Furthermore, the Court had to consider whether client legal privilege attached to the statements, and if so, whether any exceptions to that privilege, such as the fraud or abuse of power exceptions, applied. A related issue was whether the Director of Public Prosecutions could be considered a "client" and the Solicitor for Public Prosecutions and Crown Prosecutors could be considered "lawyers" for the purposes of establishing client legal privilege.

The Court of Appeal found that a mere reference to statements in an affidavit did not render them evidence. It held that for statements to be considered evidence, they must be formally tendered. Regarding client legal privilege, the Court determined that the Director of Public Prosecutions, in the context of the proceedings, could be considered a client, and the legal officers acting for the Director could be considered lawyers. However, the Court concluded that the circumstances did not warrant the application of the fraud or abuse of power exceptions to overcome the privilege.

Consequently, the Court of Appeal granted leave to appeal, allowed the appeal, and set aside the orders made by Rothman J. Mr Stanizzo's notice of motion was dismissed, and he was ordered to pay the appellant's costs of the motion and the appeal. The Court also directed the Director of Public Prosecutions to file a notice of appeal and ordered that a certificate be issued to Mr Stanizzo under s 6 of the Suitors’ Fund Act 1951 (NSW).