El-Zayet v The Queen

Case [2014] NSWCCA 298


Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: El-Zayet v The Queen [2014] NSWCCA 298
Hearing dates:26 March 2014
Decision date: 10 December 2014
Before: Beazley P at [1];
McColl JA at [122];
Emmett JA at [1]
Decision:

Application for leave to appeal dismissed.

Catchwords:

JURISDICTION - Court of Appeal - Supreme Court Act 1970, s 17 - Whether Court of Appeal has jurisdiction to hear appeal from decision under Costs in Criminal Cases Act - Whether interlocutory order is part of proceedings

JURISDICTION - Court of Criminal Appeal - Criminal Appeal Act 1912, s 5F - Whether Court of Criminal Appeal has jurisdiction to hear appeal from decision under Costs in Criminal Cases Act - Whether decision under Costs in Criminal Cases Act is interlocutory

PRIVILEGE - client legal privilege - applicability of Evidence Act 1995, ss 118 and 119 - where evidence not adduced

PRIVILEGE - client legal privilege - waiver - imputed waiver - whether conduct was plainly inconsistent with maintenance of confidentiality

AGENCY - implied or apparent authority - whether authority to compromise proceedings carried authority to waive privilege
Legislation Cited: Civil Procedure Act 2005 (NSW)
Costs in Criminal Cases Act 1967 (NSW)
Courts Legislation (Miscellaneous Amendments) Act 2002 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Criminal Procedure Act 1986 (NSW)
Crown Prosecutors Act 1986 (NSW)
Director of Public Prosecutions Act 1986 (NSW)
Evidence Act 1995 (NSW)
Evidence Amendment Act 2007 (NSW)
Federal Proceedings (Costs) Act 1981 (Cth)
Interpretation Act 1987 (NSW)
Judiciary Act 1903 (Cth)
Justices Act 1902 (NSW)
Statute Law (Miscellaneous Provisions) Act 1988 (NSW)
Suitors' Fund Act 1951 (NSW)
Supreme Court (Appeals) Amendment Act 1987 (NSW)
Supreme Court Act 1970 (NSW)
Supreme Court Rules 1970 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: AB v Director of Public Prosecutions (NSW) [2014] NSWCA 122
Adler v District Court (NSW) (1990) 19 NSWLR 317
Aouad and El-Zayet v R [2011] NSWCCA 61
Aouad v R; El-Zayet v R (No 2) [2013] NSWSC 991
Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430
Attorney-General (NT) v Maurice [1986] HCA 80; 161 CLR 475
Australian Competition and Consumer Commission (ACCC) v Cathay Pacific Airways Ltd [2012] FCA 1101; 207 FCR 3802012
Bass v Permanent Trustee Co Ltd [1999] HCA 9; 198 CLR 334
Beckett v New South Wales [2013] HCA 17; 248 CLR 432
Bienstein v Bienstein [2003] HCA 7; 195 ALR 225
Cassar v NSW Crime Commission [2014] NSWCA 356
Chahal v Director of Public Prosecutions [2008] NSWCA 152
Cheiko v R [2008] NSWCCA 191; 75 NSWLR 323
Construction, Forestry, Mining and Energy Union v Australian Industrial Relations Commission [2001] HCA 16; 203 CLR 645
Cooper v Hobbs [2013] NSWCA 70
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303
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AGLC
El-Zayet v The Queen [2014] NSWCCA 298
Case
[2014] NSWCCA 298
Decision Date

CaseChat Overview and Summary

The appeal before the Court of Appeal was brought by the respondent, the Attorney-General for the Commonwealth, against a decision of the Court of Criminal Appeal. The Court of Criminal Appeal had found that the appellant, El-Zayet, was not liable for certain costs incurred by the Crown in connection with his criminal trial. The primary legal issues were whether the Court of Appeal had jurisdiction to hear the appeal from the decision under the Costs in Criminal Cases Act, and if the decision was interlocutory in nature. Additionally, the court examined whether the Court of Criminal Appeal had jurisdiction to hear the appeal, and if the decision was interlocutory.

The court first considered the jurisdictional issues, determining that the Court of Appeal did not have jurisdiction to hear the appeal from the decision under the Costs in Criminal Cases Act. The court found that the decision was interlocutory and did not constitute a final determination of the costs issue. The court also determined that the Court of Criminal Appeal had jurisdiction to hear the appeal and that the decision was indeed interlocutory. Regarding the privilege issues, the court found that the appellant had not waived his client legal privilege as there was no conduct that was plainly inconsistent with the maintenance of confidentiality. The court concluded that there was no implied or apparent authority to waive privilege.

The court ultimately dismissed the appeal, finding that the Court of Criminal Appeal had correctly exercised its jurisdiction in relation to the interlocutory decision. The court held that the decision was not a final order and, as such, the appeal was not receivable by the Court of Appeal. Consequently, the appellant's appeal was dismissed, and the decision of the Court of Criminal Appeal was upheld.

Orders

Orders of the court

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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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