GR Capital Group Pty Ltd v Xinfeng Australia International Investment Pty Ltd

1. [1]

   MACFARLAN JA: This is an application for leave to appeal from part of a judgment of Ward CJ in Eq dated 22 May 2020 given on an application by the present applicants (“the Judgment Debtors”) to set aside a subpoena issued on the application of the respondent (“Xinfeng”).

2. [2]

   The substantive, underlying proceedings were commenced by Xinfeng and Mr Yuqing Liu (referred to by the primary judge collectively as “the Judgment Creditors”) against the Judgment Debtors in 2018. In those proceedings Xinfeng sought recovery of a $10 million loan with interest. Mr Yuqing Liu was a plaintiff but what he sought in the proceedings is not clear as this Court was not provided with a copy of the statement of claim. This is not however of present significance as Mr Yuqing Liu was not a party to the application for leave to appeal.

3. [3]

   By cross-claim in the substantive proceedings, the Judgment Debtors sought relief in relation to what they alleged was a larger transaction between the parties of which the payment of $10 million to them was part. The proceedings were fixed for an expedited final hearing to commence on 18 October 2018 but on that day the Judgment Debtors, in what the primary judge later described as “a complete capitulation”, consented to judgment against them, in favour of Xinfeng, for the full $10 million claim (with liberty to apply in relation to interest reserved), to the dismissal of their cross-claim and to orders for them to pay indemnity costs.

4. [4]

   On 2 September 2019 the Judgment Debtors filed a Notice of Motion seeking to have the consent orders of 18 October 2018 set aside. Their amended Motion was pursued on the following bases, as described by the primary judge:

5. [5]

   The second contention involved (and continues on appeal to involve) an allegation that Mr Wensheng Liu, the directing mind of the Judgment Debtors, was unaware when giving instructions for the Judgment Debtors to consent to the 18 October 2018 orders of the illegality of the transaction and therefore unaware that the Judgment Debtors might have had a defence of illegality available to them. The primary judge proceeded, in my view correctly, on the basis that if any such mistake were to constitute a defence, it would have to have been “operative” in the sense that knowledge of the illegality of the transaction would have caused Mr Wensheng Liu to have the Judgment Debtors defend the proceedings (and pursue their cross-claim) rather than consent to judgment against them. Before this Court counsel for the Judgment Debtors accepted that proposition.

6. [6]

   The motion to set aside the consent orders was supported by an affidavit of Mr Wensheng Liu who described the process by which amounts totalling about $AU10 million were transferred from China to Australia. He said that until recently he did not believe that the transfers were unlawful under Chinese law and that he had believed that a company through whom the transfers were effected (KVB Kunlun) had or would obtain the necessary licences and approvals. He continued:

7. [7]

   Although Xinfeng submitted to this Court that the Judgment Debtors’ application to set aside the consent orders on the basis of their second contention was hopeless, the arguability or otherwise of that application was not fully canvassed before this Court. In particular, no detailed consideration was given in argument as to whether equitable relief for unilateral mistake might be available in the absence of circumstances such as described in Taylor v Johnson (1983) 151 CLR 422; [1983] HCA 5 where the non-mistaken party had knowledge of the other party’s mistake. As the present application for leave to appeal succeeds on other grounds, it is unnecessary to address this question further other than to note that this judgment should not be taken to suggest that the Judgment Debtors have an arguable case for setting aside the consent orders on the basis of unilateral mistake.

8. [8]

   To assist in countering the Judgment Debtors’ application to set aside the consent orders, Xinfeng on 10 March 2020 issued a subpoena to the former solicitors of the Judgment Debtors, Colin Biggers & Paisley. That firm was acting for the Judgment Debtors at the time of the consent orders and had instructed counsel to appear at the expedited hearing fixed for 18 October 2018. Relevantly the subpoena sought the production of:

9. [9]

   The Judgment Debtors then filed a Notice of Motion seeking to have the subpoena set aside on the basis that the documents of which it sought production were the subject of legal professional privilege. At the hearing of the motion before Ward CJ in Eq, the sole issue was whether the Judgment Debtors had waived privilege by their conduct, it being accepted that the documents were prima facie privileged.

The judgment at first instance

1. [10]

   In addressing the issue of whether the Judgment Debtors had impliedly waived their legal professional privilege, her Honour noted in her judgment of 22 May 2020, by reference to Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66 at [29], that the test to be applied is one of inconsistency between the conduct of the person entitled to the privilege and that person’s maintenance of the privilege. The parties accepted before her Honour, and in this Court, that waiver in the present case is to be determined by reference to the common law principles stated in Mann v Carnell, rather than s 122 of the Evidence Act 1995 (NSW) which nevertheless states that where that section is applicable the test is also one of such inconsistency.

2. [11]

   After reviewing relevant authorities, her Honour’s principal reasoning was as follows:

3. [12]

   Her Honour took the view that whilst legal professional privilege had been waived in the manner that she described, the subpoena was nevertheless too broad and that to give effect to the overriding statutory objective for the just, quick and cheap resolution of the real issues in dispute (see s 56 of the Civil Procedure Act 2005 (NSW)), she should make an order requiring production of documents to the limited extent she thought appropriate and otherwise directing that the persons to whom the subpoena was directed not be required to comply with it. As a consequence, her Honour then directed production as follows:

4. [13]

   Her Honour also granted the parties “general access” to documents to be produced in compliance with the order.

5. [14]

   In this Court the Judgment Debtors conceded that they had, to a limited extent, waived privilege. As a result, they accepted that the following form of order (which shows deletions from that made by her Honour) was justifiable:

Grounds of appeal

1. [15]

   The Judgment Debtors sought leave to appeal to this Court on the following three grounds. Their application and the appeal that would follow if leave were granted were heard concurrently.

2. [16]

   First, the Judgment Debtors contended (subject to the limited concession referred to in [14] above) that her Honour erred in finding that they had waived privilege in respect of legal advice given by their former solicitors as to the merits of the claims made by Xinfeng in the proceedings.

3. [17]

   Secondly, they contended that the primary judge erred in ordering the production of a more limited category of documents than was sought by the subpoena. They submitted that that amounted to an impermissible redrafting by the Court of the schedule to the subpoena.

4. [18]

   Thirdly, they contended that the primary judge erred in making an order for general access to the documents to be produced without inviting submissions from the parties as to the making of the order.

Consideration of the first appeal ground

1. [19]

   As the application for leave and the appeal were heard concurrently, it is convenient to address the merits of the appeal first and, in particular, the proposed first ground of appeal, which was the focus of most of the argument in this Court.

2. [20]

   As to that ground, whilst the parties accepted that the test for waiver was, as adopted by the primary judge, one of inconsistency, they had competing contentions as to how the authorities indicated that that test should be applied. It is appropriate therefore to undertake a broad chronological survey of the authorities. I note that the present case, unlike many of the authorities, is not concerned with an implied waiver of legal professional privilege arising out of a partial disclosure of advice which is a species of conduct that may be relevant in this context. Rather, it is concerned with implied waiver resulting from inconsistency between other conduct (essentially that involved in raising and advancing issues) and the maintenance of privilege. Nevertheless the authorities to which I refer are relevant to both types of conduct.

3. [21]

   In Thomason v The Council of the Municipality of Campbelltown (1939) 39 SR (NSW) 347, the appellant signed an election to claim benefits under the Workers’ Compensation Act 1926, stating that she had been advised by her solicitor of her legal rights which were independent of the Workers’ Compensation Act. She was found to have waived privilege in respect of her communications with the solicitor. It being necessary for the respondent to prove what knowledge the appellant had as to her legal rights, “one of the issues in the case was what advice if any [the appellant] had received from her legal advisers as to her alternative legal rights” (at 358-9). Jordan CJ concluded at 359 that:

4. [22]

   As noted in Goldberg v Ng (1996) 185 CLR 83; [1995] HCA 39 at 96, the decision in Attorney-General (NT) v Maurice (1986) 161 CLR 475; [1986] HCA 80 was authority for the proposition that whether a partial disclosure gives rise to an implied waiver “ultimately falls to be resolved by reference to the requirements of fairness in all the circumstances of the particular case”.

5. [23]

   In Goldberg v Ng itself (a case involving, as did Maurice, disclosure to a third party), the plurality emphasised (at 95-96):

6. [24]

   In Standard Chartered Bank v Antico (1995) 36 NSWLR 87 Hodgson J said that Thomason appeared to suggest that it was enough to constitute waiver that the legal advice was relevant to an issue in the proceedings. His Honour was inclined to the view that that proposition was “a little too broad” and concluded that the following was the correct principle:

7. [25]

   In Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1995) 37 NSWLR 405 at 411, Giles CJ Comm D at 411 applied the above quoted conclusion stated by Jordan CJ in Thomason. His Honour’s decision that the privilege holders had waived privilege in their legal advice was based on the fact that they had “exposed to scrutiny their corporate states of mind, being states of mind to which their legal advice is likely to have contributed”.

8. [26]

   In Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152, a misleading and deceptive conduct case raising an issue as to reliance by the applicant on the conduct, the majority (Branson and Lehane JJ) said at 166-7:

9. [27]

   Their Honours added that it was not the case that “whenever a person’s state of mind is relevant to an issue in proceedings, privilege is taken to be waived in relation to legal advice that may have played [a] part in the formation of that state of mind” and that it was “unnecessary and inappropriate … to attempt to define exhaustively the scope of the principle” concerning waiver. Their Honours continued at 168:

10. [28]

    In Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd [1999] FCA 925, the Full Federal Court followed the approach of the majority in Telstra Corporation v BT and found that by pleading reliance on misleading and deceptive representations, the applicant had waived privilege in relation to its legal advice. The Court emphasised at [12] that it was not concerned with the situation in which there was a “mere pleading” of reliance. Rather, there was “the added ingredient of evidence that legal advice was sought and obtained at a relevantly material time”.

11. [29]

    In Wayne Lawrence Pty Ltd v Hunt [1999] NSWSC 1044 at [11]-[12], Hodgson CJ in Eq said that the majority in Telstra Corporation v BT had concluded that privilege was waived when the applicant “opened up as an element of the cause of action, an issue which could not fairly be assessed without examination of relevant legal advice”. His Honour said that determination of whether privilege had been waived in such a case was “a matter of degree in each case” and added:

12. [30]

    Mann v Carnell was then decided later in 1999. The Court’s oft-quoted statement of principle at [29] in that case was as follows:

13. [31]

    In Garratts Ltd v Thanga Thangathurai [2002] NSWSC 39 at [65], Bergin J referred to the facts of the case before her and concluded at [69]:

14. [32]

    In Liquorland (Australia) Pty Ltd v Anghie (2003) 7 VR 27; [2003] VSC 73, directors of a company that had been taken over were sued for damages. Byrne J had to consider whether the offeror had waived privilege in legal advice it received by alleging in its statement of claim that it relied on information disclosed by the takeover target. His Honour stated that “the putting in issue by the client of its relevant state of mind … is merely the starting point … [i]t is only where this examination shows that there will arise an unfair consistency between the position of the client setting up this state of mind and its maintenance of the privilege that waiver will arise and, then, only to the extent necessary to avoid the unfairness” (at [41]).

15. [33]

    In DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499; [2003] FCA 384, Allsop J (as his Honour then was) undertook an extensive review of the authorities. His Honour treated the decision in Telstra as authority for the proposition that “a pleading of a state of mind to which legal advice is or might be materially relevant” satisfied the requirement of inconsistency later identified in Mann v Carnell (at [95]). His Honour considered that proposition to be too broad but felt bound by subsequent authority, in particular the Full Court decision in Perpetual Trustees v Equuscorp, to follow Telstra, notwithstanding that Telstra was decided before Mann v Carnell (at [112]). Earlier in his judgment (at [58]), in the course of his consideration of pre-Mann v Carnell decisions, including Standard Chartered Bank v Antico, Allsop J had made the observations quoted later in Rio Tinto (see [36] below).

16. [34]

    In Seven Network Ltd v News Ltd (No 7) [2005] FCA 1092, Sackville J expressed the view at [24], by reference to Allsop J’s decision in DSE v Intertan, that “there is much force in the view that the reasoning in Mann v Carnell requires Telstra v BT to be reconsidered”. His Honour appeared to regard the reasoning of the majority in Telstra as not importing, sufficiently or perhaps at all, the requirement stated in Mann v Carnell that relevant inconsistency be found.

17. [35]

    In Chen v City Convenience Leasing Pty Ltd [2005] NSWCA 297, Gzell J (with whom Bryson JA and Windeyer J agreed) said, after referring to Telstra, Wayne Lawrence, Mann v Carnell and DSE v Intertan:

18. [36]

    In Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; [2006] FCAFC 86, the Full Federal Court, after reviewing authorities, said:

19. [37]

    In Council of the NSW Bar Association v Archer (2008) 72 NSWLR 236; [2008] NSWCA 164, Hodgson JA (with whom Campbell JA agreed) said:

20. [38]

    In that case at [72], Handley AJA added:

21. [39]

    In Osland v Secretary, Department of Justice (2008) 234 CLR 275; [2008] HCA 37, the plurality said at [45]:

22. [40]

    Their Honours referred to Benecke v National Australia Bank (1993) 35 NSWLR 110 as an example of such an inconsistency. In that case, Mrs Benecke asserted that her lawyer had compromised a claim without her consent and attempted to rely on legal professional privilege to prevent the lawyer giving her own account of the instructions. The plurality in Osland at [45] said about that case that “an appreciation of the unfairness if Mrs Benecke could give her version of her communications with her lawyer and at the same time prevent the lawyer from giving her own version was one aspect of the inconsistency between her conduct in making certain kinds of allegation against her lawyer and holding her lawyer to obligations of confidentiality”. Referring to cases of partial disclosure (but equally applicable to the consequences of other forms of conduct), the plurality at [49] emphasised that “questions of waiver are matters of fact and degree”.

23. [41]

    In Bailey v Department of Land and Water Conservation (2009) 74 NSWLR 333; [2009] NSWCA 100, Tobias JA (with whom Allsop P and Hodgson JA relevantly agreed) said the inconsistency to which Mann v Carnell refers is often “evidenced by the nature of the proceedings which are brought by the party seeking to maintain the privilege” (at [136]). His Honour referred in this regard to Bar Association v Archer at [48]. In the same decision, Allsop P relevantly commented on what Tobias JA said as follows:

24. [42]

    In Archer Capital 4A Pty Ltd v Sage Group plc (No 3) [2013] FCA 1160; (2013) 306 ALR 414, Wigney J said:

25. [43]

    In R v Seller (2015) 89 NSWLR 155; [2015] NSWCCA 76, Bathurst CJ (with whom Bellew J agreed) said at [164]:

26. [44]

    In Macquarie Bank Ltd v Arup Pty Ltd [2016] FCAFC 117, the Full Federal Court, dealing with a claim by Arup arising out of alleged misleading or deceptive conduct by Macquarie, found that it could not be said “that the question of reliance [by Arup] must have been informed by or addressed in the legal advice that Arup received” (at [35]). It continued:

27. [45]

    Their Honours applied the statement of Wigney J in Archer Capital at [22] referred to in [42] above and continued:

28. [46]

    In Viterra Malt Pty Ltd v Cargill Australia Ltd (2018) 58 VR 333; [2018] VSCA 118 the Victorian Court of Appeal reviewed authorities and observed:

29. [47]

    Their Honours continued:

30. [48]

    In Re Jimmy’s Recipe Pty Ltd [2020] NSWSC 516 there were issues concerning a settlement deed which settled longstanding litigation that included issues of rectification in equity and relief on the basis of a unilateral mistake which the plaintiff had unconscionably sought to exploit. The fifth defendant, who was represented by solicitors and counsel, asserted that he had a particular state of mind at relevant times. Leeming JA, who was sitting at first instance, said that “[t]here is every reason to think that his lawyers were involved in settling the terms of the deed, in accordance with his instructions, and that his understanding of what the deed involved was informed by legal advice from them” (at [7]).

31. [49]

    His Honour referred to “some nuances” in the case authorities, especially in the Federal Court, referring in particular to Seven Network Ltd and Macquarie Bank v Arup. His Honour continued:

32. [50]

    In Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd (No 2) [2020] FCA 1013, Allsop CJ, sitting at first instance in the Federal Court, referred to ASIC asserting that there had been a waiver of legal professional privilege by ANZ “advancing a positive case about its state of mind about the fees” that were in issue. His Honour continued:

33. [51]

    His Honour said that the relevant principle was expressed by the Full Federal Court in Rio Tinto at [61], in the passage referred to at [36] above.

34. [52]

    The authoritative decisions of the High Court in Mann v Carnell ([30] above) and Osland ([39]-[40] above) categorically state that at common law the test to determine whether there has been waiver of legal professional privilege by the privilege holder’s conduct is one of inconsistency between that conduct and retention of the privilege. In these circumstances, there does not appear to be any difference between the applicable test under the common law and that under s 122 of the Evidence Act which refers in terms to the same type of inconsistency.

35. [53]

    The relevant test is not, as the older High Court authorities of Attorney-General v Maurice and Goldberg v Ng ([22]-[23] above) arguably suggest, simply one of fairness. As stated in Mann v Carnell, although considerations of fairness may “inform” the issue of inconsistency, the test is not one of “some overriding principle of fairness operating at large” ([30] above).

36. [54]

    Accordingly, decisions that predate Mann v Carnell must be approached with caution. In particular, the proposition that relevance to a fact put in issue by the privilege holder is sufficient to give rise to a waiver (supported by decisions such as Thomason and Telstra: see [21], [26]-[27] above) is not correct.

37. [55]

    Post Mann v Carnell Federal Court authorities, such as DSE ([33] above) and Macquarie Bank ([44]-[45] above), direct particular attention to whether an express or implied assertion has been made “either about the contents of the confidential communication or which necessarily lays open the confidential communication to scrutiny”. This approach appears ultimately to derive from that of Hodgson J in Standard Chartered Bank v Antico ([24] above).

38. [56]

    In New South Wales, the post-Mann v Carnell decision of this Court in Chen ([35] above) referred to the test as being inconsistency and identified such matters as the centrality of the relevant issue to the case and the likelihood of the party in question having received legal advice regarding that issue as relevant to application of that test. In this Court’s later decision in Archer ([37]-[38] above), both Hodgson JA and Handley AJA referred to the need for the privilege holder to have made express or implied assertions about the content of its privileged communications but gave some tentative support for the notion that there might be relevant inconsistency where there was simply a likelihood that legal advice affected the relevant party’s state of mind. In Bailey ([41] above), Allsop P sitting as a member of this Court, emphasised, as he had done in the Federal Court, that for relevant inconsistency to arise there needed to be an express or implied assertion about the contents of the confidential communication. Later, in ASIC v ANZ ([50]-[51] above), Allsop CJ, then sitting as a member of the Full Federal Court, again emphasised the need for the content of the confidential communication to have been put in issue by the holder of the privilege.

39. [57]

    I draw from these authorities the following propositions of present relevance:

    1. (1)

       The test is one of inconsistency between the privilege holder’s conduct and its maintenance of the privilege, not one of general fairness or of relevance to an issue in the proceedings.

    2. (2)

       Enquiring whether the privilege holder has made express or implied assertions about the contents of the confidential communications, and whether its conduct has therefore “laid open the communications to scrutiny”, assists in ensuring that the court’s focus is on inconsistency rather than simply relevance. If the privilege holder is understood to be asserting something about the contents of the communications, it is but a short step to conclude that it would be inconsistent for it to prevent those contents being scrutinised.

    3. (3)

       On the other hand mere relevance of the content of the privileged communications to an issue raised in the proceedings by the privilege holder does not equate to inconsistency – something more is needed. It is of the essence of legal professional privilege that, if maintainable, it entitles a party to withhold potentially relevant documents from inspection by the other party.

    4. (4)

       The determination of whether there has been an express or implied assertion about the contents of privileged communications giving rise to a relevant inconsistency is an evaluative decision to be made after consideration of the whole of the circumstances of the case. No hard and fast rules can be formulated. Those circumstances will include the degree of relevance of any advice to the issues in the proceedings, the centrality of the relevant issues in the proceedings and the likelihood of advice having been given, informed, as the High Court said in Mann v Carnell, by considerations of fairness.

    5. (5)

       Having considered all those circumstances, the court must decide whether it would be inconsistent with the privilege holder’s conduct for it to maintain privilege. The line between relevance to an issue and inconsistency in this context may be very fine and therefore one on which views might well differ.

40. [58]

    In the present case, I have concluded on balance that the primary judge did not apply the correct test. I appreciate that her Honour referred to the test of inconsistency but her reasoning seems to me to have assumed that relevance and the likelihood of advice having been given would alone determine whether there had been a waiver, rather than those matters being part of the circumstances from which a conclusion of inconsistency might or might not be drawn. Her Honour’s conclusion that privilege was waived in relation to records of advice concerning not only an illegality defence but also other defences in my view suggests this. As well, I make the following comments on the relevant paragraphs of her Honour’s judgment quoted in [11] above:

41. [59]

    Re-deciding the issue of waiver, I conclude that there would be inconsistency to the extent conceded by the Judgment Debtors on appeal (see [14] above), but not otherwise. That is, there would be an inconsistency between the Judgment Debtors asserting on the one hand that they were ignorant of the possibility of an illegality defence when they consented to the orders made on 18 October 2018 and on the other hand maintaining privilege in respect of legal advice concerning the existence of such a defence. The circumstances in which that consent was given are important in this respect. The consent was proffered by the Judgment Debtors on the first day of an expedited final hearing of the proceedings in which the Judgment Debtors’ pleadings were, it can be presumed, drawn and settled by the Judgment Debtors’ lawyers. A reasonable bystander would in my view regard it as inconsistent for the Judgment Debtors to assert that on that day and at that time they were ignorant of the possibility of an illegality defence and at the same time claim to be entitled to keep to themselves what, if anything, their lawyers who were then acting for them and conveying their consent to the Court had told them about the possibility of such a defence. Implicitly, they were “laying that advice out for scrutiny”.

42. [60]

    As I see it, the position is different in respect of legal advice concerning the merits of other defences. Certainly, it can be inferred that, first, the Judgment Debtors were likely to have received advice on that topic and, secondly, that that advice would arguably be relevant to the issue of how the Judgment Debtors would have acted if they had not been ignorant of the illegality defence. Knowledge of such advice could well be used by Xinfeng to test the Judgment Debtors’ assertion that if they had realised that an illegality defence might be available, they would not have consented to judgment. The confidential documents might for example indicate that the Judgment Debtors were advised that their pleaded defences had some prospects of success. Armed with that knowledge Xinfeng could then seek to have an inference drawn that the Judgment Debtors decided not to pursue the defences due, for example, to considerations of legal costs or to matters of corporate policy such as an unwillingness to be involved in litigation unless virtually assured of success. They might then argue that the same considerations would have led to the Judgment Debtors not pursuing an illegality defence even if they had known that it was a possibility.

43. [61]

    These are matters that do not in my view however rise beyond relevance to an issue, to inconsistency in the Judgment Debtors’ positions. It cannot be said that in this respect the Judgment Debtors have implicitly laid open the advice they received for scrutiny.

44. [62]

    As the Judgment Debtors have established error and the issue of waiver is one of importance both to the parties and as a matter of general principle, I consider that leave to appeal should be granted and the appeal allowed.

Consideration of the second and third appeal grounds

1. [63]

   Neither the second nor third appeal ground arises as the first ground has been successful. It is appropriate however to make the following brief observations on those grounds.

2. [64]

   I would not have granted leave to appeal in respect of the second ground, concerned with re-drafting of the subpoena. Whilst judges should not be encouraged to re-draft subpoenas without being urged by the parties to do so, it was open to the parties to approach the primary judge to seek reconsideration of the form of the order by advancing arguments that they had not yet had the opportunity to put. To do so would have been consistent with the observations I made in other contexts in Consolidated Lawyers Ltd v Abu-Mahmoud [2016] NSWCA 4 at [39]-[40] and Miller Heiman Pty Ltd v Sales Principles Pty Ltd (2017) 94 NSWLR 500; [2017] NSWCA 106 at [74] concerning the appropriateness of parties, wherever possible, approaching the primary judge to deal with matters that they assert have been overlooked or not fully argued, rather than bringing them first to this Court.

3. [65]

   Likewise I would not have granted leave to appeal in respect of Ground 3 which complained that the primary judge had granted a right of general access in respect of documents to be produced under her order. As indicated above in connection with the second ground of appeal, the parties should have approached her Honour first rather than this Court. Her Honour would have been, and still is, well placed to address any arguments about access which could not be resolved between the parties consistently with Practice Note SC Gen 19 which in paragraph 8 contemplates that a party who is arguably entitled to claim privilege over documents to be produced on subpoena will ordinarily have first right of access to those documents.

Orders

1. [66]

   For the reasons given above, I propose the following orders:

   1. (1)

      Leave to appeal granted.

   2. (2)

      Order for production made at first instance on 22 May 2020 set aside.

   3. (3)

      In lieu of that order for production, make the following order:

   4. (4)

      Order the respondent to pay the applicants’ costs of the appeal proceedings.

2. [67]

   McCALLUM JA: I agree with Macfarlan JA.

3. [68]

   SIMPSON AJA: I agree with Macfarlan JA.