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Judgment

1. THE COURT: This is an application for leave to appeal against a decision dated 22 April 2020 of Lonergan J sitting in the Common Law Division of the Supreme Court ([2020] NSWSC 423). Her Honour set aside as an abuse of process a subpoena issued on 19 June 2019 at the request of the present applicants ("the Craigs") and directed to Ms Fiona Inverarity, a solicitor (the present 62nd respondent).
2. In the underlying Common Law Division proceedings the Craigs sued the present 1st to 61st respondents ("JWS"), who are partners in a firm of solicitors, for damages for professional negligence. The Craigs allege that when acting on their behalf in Equity Division proceedings JWS failed to give them proper advice in relation to an offer of a settlement made by the defendants in those proceedings ("the Silverbrook Parties").
3. There are issues in the Common Law Division proceedings as to the proper construction of a written offer made on behalf of the Silverbrook Parties by their solicitors and as to what attitude the Silverbrook Parties would be likely to have taken if clarification of the offer had been sought on behalf of the Craigs. To assist the Craigs on these issues, they had a subpoena issued in April 2018 to the Silverbook Parties' solicitors, requiring production inter alia of the following: "[1] File notes made by you on or about 6 September 2013 to record the instructions pursuant to which you (practising as 'In Legal' solicitors) sent a letter ('Offer Letter') to Johnson Winter Slattery solicitors dated 6 September 2013 making an offer to settle proceedings numbered 2010/333159 in the Supreme Court of New South Wales ('Proceedings'). … [5] Any documents which you have which define the value or quantum of the offer made in the Offer Letter."
4. Ms Inverarity, solicitor, responded to the subpoena by producing documents to the Court including five documents in an envelope marked "privileged".
5. By Notice of Motion filed on 15 May 2018 the Craigs sought an order overruling Ms Inverarity's claim that the documents were subject to legal professional privilege and granting the Craigs leave to inspect the documents produced. At the hearing of the application before Lonergan J, the Craigs were represented by counsel and JWS by a solicitor.
6. By judgment of 30 October 2018 Lonergan J dismissed the Notice of Motion with costs ([2018] NSWSC 1539). Her Honour determined as follows that the documents produced were privileged: "[18] It is clear… that the party claiming privilege bears the onus of proof that the relevant material is privileged. It is also clear that this onus can be discharged by production of the material to the Court for inspection and by evaluation of the character of the documents. [19] With the consent of counsel for the plaintiffs and the defendants, I have undertaken inspection of the material over which privilege is claimed, and have no doubt that the documents are confidential communications between the client and a lawyer acting for the client or confidential communications made between two or more lawyers acting for the client."
7. Her Honour also rejected the Craigs' argument that there had been a waiver of privilege.
8. The Craigs then filed a Summons seeking leave to appeal against her Honour's decision insofar as it related to the documents produced under paragraph [1] of the subpoena. There was no challenge in relation to documents produced under paragraph [5]. The application for leave was not however pursued and was dismissed at their request on 24 May 2019.
9. On 19 June 2019 the Craigs issued a further subpoena, the schedule to which was in the following terms: "All 'documents' as defined in the Dictionary to the Evidence Act 1995 (New South Wales) (not including solicitors' file notes) which record, state, set out or confirm the instructions (or any component thereof) received from any one or more of the clients for whom you acted, pursuant to which you (practising as "In Legal solicitors) sent a letter ('Offer Letter') to Johnson Winter Slattery solicitors dated 6 September 2013 making an offer to settle proceedings numbered 2010/333159 in the Supreme Court of New South Wales ('Proceedings')." (Emphasis added.)
10. The Craigs were then informed by a number of communications from Ms Inverarity that the documents that would respond to this subpoena were the same as those which had been the subject of the previous production and judgment of Lonergan J. The same claim to legal professional privilege was therefore made.
11. Thereafter, on 6 August 2019, JWS filed a Notice of Motion seeking an order setting aside the second subpoena as an abuse of process on the ground that it was an attempt to obtain access to documents already ruled to be protected from disclosure by legal professional privilege.
12. At the hearing of this motion before Lonergan J both sets of parties were represented by counsel. As noted above, by her judgment of 22 April 2020, her Honour set the subpoena aside as an abuse of process.
13. As also noted above, the Craigs now seek leave to appeal against that order. At the hearing in this Court, the Craigs did not have legal representation but Ms Craig said that they had had the assistance of a barrister in preparing their written submissions. Their primary arguments were that the second subpoena sought different documents to paragraph [1] of the first subpoena (because there was an express exclusion in the second subpoena of "file notes") and that in her first judgment Lonergan J did not in fact determine whether the five documents produced were privileged, only whether there had been any waiver of privilege.
14. We have concluded that the application for leave to appeal should be dismissed for the following discretionary reasons.
15. First, the terms of the second subpoena schedule were such that there was a high likelihood that any documents produced in response to it would be the subject of legal professional privilege.
16. Secondly, Ms Inverarity's communications established that the only documents available to be produced in response to that schedule were the five documents produced in response to paragraphs [1] and [5] of the first subpoena.
17. Thirdly, contrary to the Craigs' submissions, Lonergan J in her first judgment did determine that those five documents were the subject of legal professional privilege which had not been waived.
18. Fourthly, the Craigs had the opportunity to seek leave to appeal against that judgment but consented to the dismissal of their leave application which related to paragraph [1] of the first subpoena. They did not challenge the decision insofar as it related to paragraph [5] of the subpoena.
19. Fifthly, no arguable basis has been put to this Court for any suggestion that, contrary to Lonergan J's first decision, the five documents are not the subject of legal professional privilege which has not been waived.
20. For these reasons, the Craigs have not demonstrated that a reversal of Lonergan J's decision of 22 April 2020 would advance the Craigs' position: there are no documents caught by their second subpoena other than the five documents produced in response to the first subpoena and those five documents have been found to be subject to legal professional privilege which has not been waived. Moreover, there is no reason to consider that that finding might be erroneous.
21. In these circumstances, the Craigs' Application for Leave to Appeal should be dismissed with costs.
22. In addition JWS sought an order that any costs ordered to be paid to them by the Craigs be paid forthwith, JWS accepting that in the absence of such an order the costs would not be payable until the conclusion of the Common Law Division proceedings (see r 42.7 of the Uniform Civil Procedure Rules 2005 (NSW) and Metropolitan Petar v the Macedonian Orthodox Community Church St Petka Inc (No 2) [2007] NSWCA 142 at [49]). We accept JWS' submission that it is a sufficient reason to make that order in this case that the present application constituted an unsuccessful attempt to challenge a decision at first instance that the Craigs had abused court process by issuing the second subpoena.
23. For these reasons, we order that the application for leave to appeal be dismissed with costs, such costs to be payable forthwith.