Sadler v Director of Public Prosecutions

The appeal before the Full Court of the Supreme Court of South Australia concerned the appellant's claims of legal professional privilege over certain documents that had been returned by the Commissioner pursuant to a subpoena. The dispute arose from an application made by the Commissioner, the nature of which was central to the appeal, following the return of documents that comprised the appellant's solicitor's file in relation to a personal injury claim. The District Court had made orders determining claims of legal professional privilege made by the appellant over these documents.

The legal issues before the Full Court included whether the District Court's orders were made in its civil or criminal jurisdiction, the competency of the appeal, and the extent to which legal professional privilege attached to specific documents. The Court was required to determine if certain documents were subject to legal professional privilege, and if so, whether that privilege had been lost. A further issue was whether a particular document was created in furtherance of an alleged fraud, thereby vitiating any claim to privilege.

The Court held that the Commissioner's application, by putting in issue a substantive right of privilege of a criminal defendant, engaged the Court's civil, declaratory jurisdiction, rather than arising incidentally in the criminal jurisdiction. Consequently, the orders of the District Court were made in the exercise of its civil jurisdiction to make declarations of right, and the appeal was competent under section 43 of the District Court Act 1991 (SA). The Court found that Documents 23, 350, and 353a were subject to legal professional privilege. However, in relation to Document 26, the Court found a prima facie basis for concluding it was made in furtherance of, or as a step preparatory to, an alleged fraud, and therefore legal professional privilege did not attach to it.

The Full Court granted an extension of time to file the Notice of Appeal. The appeal was allowed in relation to Documents 23, 350, and 353a, with the Court holding that legal professional privilege existed and was maintained over these documents. The appeal was dismissed in relation to Document 26.