Fagan v State of New South Wales

The appellant, Fagan, sought a declaration that certain directions given by officers of the New South Wales Police Force would breach his legal professional privilege. The State of New South Wales was the respondent. The case was heard in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the directions issued by the police officers, which required police officers to disclose communications with the appellant's legal representatives, would infringe upon the appellant's legal professional privilege. This involved considering the nature of legal professional privilege as a substantive rule of law and whether it could be abrogated by implication or overridden by the principle that there is no property in a witness. The Court also had to determine whether the privilege was limited to judicial or quasi-judicial proceedings.

The Court of Appeal held that legal professional privilege is a substantive rule of law that is not to be outweighed by the principle that there is no property in a witness. It further clarified that the privilege is not confined to judicial or quasi-judicial proceedings but extends to communications made for the purpose of obtaining legal advice. The Court reasoned that statutory interpretation requires a clear and express intention for a statute to abrogate a fundamental common law principle like legal professional privilege. Consequently, the directions given by the police officers, if complied with, would breach the appellant's entitlement to legal professional privilege.

The appeal was allowed, and the Court declared that the directions given by Commander Reith, Detective Inspector Wright, and Chief Inspector Lapham, if complied with, would breach the appellant's entitlement to legal professional privilege. The respondent was ordered to pay the appellant's costs of the appeal and the hearing at first instance.