Craig v Johnson [2020] NSWCA 278

Procedural Posture

Application for Leave to Appeal / Court of Appeal Application Against a Supreme Court of New South Wales Common Law Division Decision Setting Aside a Subpoena as an Abuse of Process

Legal Issues

1. 1 ['Whether leave to appeal should be granted from the decision setting aside the second subpoena as an abuse of process.' 'Whether the second subpoena sought documents different from those already produced and ruled to be subject to legal professional privilege.' 'Whether costs should be payable forthwith under r 42.7 of the Uniform Civil Procedure Rules 2005 (NSW).']

Ratio Decidendi

Leave to appeal was refused because the second subpoena was highly likely to catch privileged documents only, Ms Inverarity's communications established that the only responsive documents were the same five documents produced under the first subpoena, Lonergan J had already determined that those documents were subject to legal professional privilege which had not been waived, the applicants had not pursued their earlier leave application against that decision, and no arguable basis was shown for doubting the privilege finding. Reversal of the decision setting aside the second subpoena would not advance the applicants' position.

Court Disposition

Application for leave to appeal dismissed with costs, such costs to be payable forthwith.

Orders

• ['The application for leave to appeal is dismissed with costs.' 'The costs are to be payable forthwith.']