Supreme Court New South Wales Medium Neutral Citation: Plus One International Pty Ltd v Ching [2020] NSWSC 939 Hearing dates: 20 July 2020 Date of orders: 22 July 2020 Decision date: 22 July 2020 Jurisdiction: Equity Before: Williams J Decision: The Registrar's decision of 29 May 2020 is reviewed insofar as that decision concerns the subpoenas issued by the plaintiffs to five educational institutions. The Registrar's decision is otherwise affirmed. Catchwords: PRACTICE AND PROCEDURE – review of decision of registrar – where registrar set aside subpoenas issued to educational institutions, banking entity and private health insurance provider – whether Court should exercise its discretion to review decision of registrar – decision reviewed in part PRACTICE AND PROCEDURE – subpoenas and notices to produce – application to set aside subpoenas – whether subpoenas issued by plaintiff to certain educational institutions should be set aside on the basis of an impermissible fishing exercise – subpoenas not set aside Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 33.4 and 49.19 Cases Cited: Associated Dominions Assurance Society Pty Ltd v Fairfax (1952) 72 WN (NSW) 250 Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 Elanor Operations Pty Ltd v Chief Commissioner of State Revenue [2020] NSWSC 840 Noble Earth Technologies Pty Ltd v Hampic Pty Ltd [2012] NSWSC 935 Rinehart v Rinehart [2018] NSWSC 1102 Category: Procedural and other rulings Parties: Plus One International Pty Ltd (First Plaintiff) Plus One Migration Pty Ltd (Second Plaintiff) Yiu Tung Ching (First Defendant) Jieyi Lu (Second Defendant) Representation: Counsel: Ms D Dinnen (Plaintiffs) Mr D P O'Connor (Defendants) Solicitors: Comasters Law Firm and Notary Public (Plaintiffs) Juris Cor Legal (Defendants) File Number(s): 2018/387905 Publication restriction: N/A Judgment 1. The plaintiffs in this proceeding are jointly engaged in the provision of advisory and consultancy services in education and migration. 2. At all material times, Danniel Bo Lin Lee (known as Danniel Lee) was the director of operations and manager of the plaintiffs' business. 3. The first defendant was employed in the plaintiffs' business in about November 2016. There is a dispute about the scope of the role and duties of the first defendant, but it appears from the pleadings to be common ground that the first defendant's role included that of marketing officer. 4. The second defendant was employed in the plaintiffs' business in about April 2017. Again, there is a dispute about the scope of the second defendant's role, but it appears from the pleadings to be common ground that her role included preparing and collating client's student applications for colleges, visa applications, student insurance applications and preparing submissions for any Administrative Appeals Tribunal appeals. The plaintiffs plead that the second defendant's role also included marketing the plaintiffs' business. 5. There is a dispute about the nature of the information that the plaintiffs gather in the course of their business and whether that information is confidential. 6. The plaintiffs plead that they gather a range of information in relation to their clients, including "referral leads from client", and that the information is confidential. The plaintiffs plead that their business relies heavily on client leads and referrals from previous clients. The defendants plead that the plaintiffs' business also relies on and obtains "leads and referrals from a network of the agents or staff". 7. The plaintiffs plead that their confidential information, including referral leads from clients, is valuable information which, if released or accessed outside the plaintiffs' business, would allow competitors to anticipate and understand each client's education and visa requirements. The plaintiffs claim that access to this information would enable competitors to identify target clients and client leads, provide relevant contact details and timing for competitors to undercut the plaintiffs' pricing structure. 8. It is common ground that each of the defendants owed a duty of confidence to the plaintiffs and were subject to implied obligations as part of their employment contract with the plaintiffs to protect and maintain the confidentiality of the plaintiffs' confidential information, not to use that information other than in the legitimate exercise of their duties as employees of the plaintiffs and to return all confidential information to the plaintiffs on ceasing employment with the plaintiffs. It is also common ground that the plaintiffs provided the defendants with access to the confidential information for the sole purpose of the defendants carrying out their duties as employees of the plaintiffs. 9. The first defendant resigned from the plaintiffs' employment at the end of August 2018. On 13 September 2018, the defendants informed the plaintiffs that they had started a business under the name "JP International Consultancy" which would offer certain services. The plaintiffs claim that the defendants' business offers the same services as the plaintiffs. The defendants maintain that JP International Consultancy only provides education services. 10. There is a dispute about whether the defendants have used the plaintiffs' confidential information for the benefit of JP International Consultancy. In their statement of claim filed on 17 December 2018, the plaintiffs seek an order requiring the defendants to return the plaintiffs' confidential information to them, an injunction restraining the defendants from using the plaintiffs' confidential information, an account of profits, damages, interest and costs. The defendants deny that the plaintiffs are entitled to that relief. The substantive proceeding is listed for hearing commencing on 24 August 2020 before another Judge of this Court. 11. On 17 February 2020 the defendants filed an amended notice of motion seeking to set aside part of one notice to produce and seven subpoenas that had been issued by the plaintiffs on 22 and 26 November 2019. Five of those subpoenas were issued to educational institutions, one subpoena was issued to Australia and New Zealand Banking Group Ltd (ANZ) and one subpoena was issued to Medibank Private Limited (Medibank). 12. The amended notice of motion was heard by Registrar Walton on 3 April 2020. Further written submissions were made by the parties on 15 April 2020. 13. On 29 May 2020, the Registrar delivered reasons for her decision dismissing the defendants' application to set aside the relevant parts of the notice to produce, and setting aside the seven subpoenas. 14. On 11 June 2020, the plaintiffs filed a notice of motion seeking review of the Registrar's decision under r 49.19 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) insofar as the Registrar's decision related to the subpoenas. 15. The review application was listed before me for urgent determination in view of the impending hearing of the substantive proceeding. 16. UCPR r 49.19 relevantly provides: "(1) Subject to subrule (2), if in any proceedings a registrar gives a direction or certificate, makes an order or decision or does any other act, the court may, on application by any party, review the direction, certificate, order, decision or other act and make such order, by way of confirmation, variation, discharge or otherwise, as the court thinks fit. 1. The principles applicable to a review of a Registrar's decision under r 49.19 were helpfully summarised by Hallen AsJ (as his Honour then was) in the following passage from Noble Earth Technologies Pty Ltd v Hampic Pty Ltd [2012] NSWSC 935 at [39], which I gratefully adopt: "Relevant principles drawn from authorities relating to the nature of a review are: (a) The review power conferred is not an appeal and, accordingly, is not subject to the limitations that apply to proceedings by way of appeal: Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61 at [6], [10], [50], [52]; Al-Shennag v Statewide Roads Pty Limited [2009] NSWSC 210 per Hall J at [44]–[46]; it is "not restricted" to a reconsideration of the primary material before the Registrar: Lollback v Brakepower Pty Ltd [2010] NSWSC 1457 at [10]. (b) It is unnecessary for the applicant for review to demonstrate any material error of fact, or principle, in the order under review. On the review, the court may exercise its powers regardless of error. However, review, in the relevant sense, involves discretionary intervention: Tomko v Palasty (No 2) at [52]; Lollback v Brakepower Pty Ltd at [13]; the discretion extends to a discretion whether, and if so, how, to intervene. (c) The conduct of the review is at large and in the discretion of the Court. Notwithstanding the foregoing, the review is not accurately described as a hearing de novo: Perpetual Ltd v Barghachoun [2010] NSWSC 108 at [3], although it involves many of the features of a hearing de novo. (d) There is an onus on a person seeking to have a court set aside, or vary, a registrar's decision to make out a case that the court conducting the review, in the interests of justice, should exercise its discretion to do so: Tomko v Palasty (No 2) per Hodgson JA at [7]. In other words, there must be a basis shown for setting aside, or varying, the decision or orders of the registrar. (e) Although on review, the Court should consider the matter afresh, it does not follow that the reasoning of the registrar should be ignored, or that variations in the material presented to her, or him, and the evidence that was adduced are irrelevant. The starting point is, therefore, the decision that is to be reviewed. The court does not merely cast that decision to one side and proceed as if it had never been made. The court will have regard to the basis on which the decision was made and the material placed before the court itself on the application for review: Wily re LED (South Coast) Pty Ltd [2009] NSWSC 946 at [24] – [26]. The real question is whether there are any grounds, or any reasons, which would warrant a review of the orders that have been made by the registrar: Al-Shennag v Statewide Roads Pty Limited at [47]. (f) What will be required to make out a case for intervention will vary depending upon the nature of the registrar's decision under review: Groeneveld v Wollongong City Council [2009] NSWLEC 149; (2009) 168 LGERA 260, per Preston CJ at [12]. However, the court should inform itself of the material before the registrar at the time when he, or she, made the decision, should consider the reasons for the decision, and then should make its own decision based on the material before it after having the benefit of the submissions of each party. (g) It is proper for the Court to exhibit a natural inhibition against the unrestrained substitution of the reviewing Court's views for those of the registrar: Westpac Banking Corp v Abemond Pty Ltd; Westpac Banking Corp v Cameron (NSWSC, 3 November 1994, unreported). (h) When it comes to matters of practice and procedure, there should be a natural inhibition against overturning a registrar's decision: Wentworth v Graham [2002] NSWSC 397; (2002) 55 NSWLR 638 at 640–641. However, where substantive error is established, then the Court would consider reviewing the registrar's decision and would make such other order as it is authorised to make: Al–Shennag v Statewide Roads Pty Limited at [46]. (i) In the case of a decision which finally determines a party's rights, or which (albeit one of practice or procedure) has a decisive impact on those rights, a Court may be more willing to intervene. It may permit further evidence to be led that does not satisfy the strict requirements for fresh evidence, if it is satisfied that the interests of justice require this. It may decide to substitute its own discretionary decision for that of the registrar, even though no House v R (1936) 55 CLR 499 error is shown, again if it is satisfied that the interests of justice require this: Tomko v Palasty (No 2) at [5]–[9], [50], and [52]. (j) If fresh, or additional, evidence, is produced, it may be received by the court and taken into account (Fenwick v Wambo Coal Pty Limited [2011] NSWSC 176, per White J, at [46]), or the court may refer the matter back to the Registrar for consideration as a fresh application: Portal Software v Bodsworth [2005] NSWSC 1115 at [17]. The court may be more inclined to intervene on a review based on fresh evidence, changed circumstances, or where error is demonstrated in the decision under review: Tomko v Palasty (No 2) at [52]. (k) The decision of the registrar stands until it is set aside: Lawteal Pty Limited v Ofo [2005] NSWSC 984, per Malpass AsJ at [19]. (l) The registrar must give sufficient reasons for his, or her, decision: Thompson v New South Wales Land and Housing Corporation [2008] NSWSC 74 per Malpass AsJ at [9] – [16]." 1. On the hearing of the review application before me, the plaintiffs relied on the same evidence that they had relied on at the hearing of the defendants' amended notice of motion before the Registrar. The only difference was one of form, namely that the evidence on the hearing of the review application was contained in an exhibit to the affidavit of the plaintiffs' solicitor which simply listed the material relied on: affidavit of Gina Bae affirmed on 11 June 2020 and Exhibit GB–1 to that affidavit. Applicable principles 1. As the Registrar noted, UCPR r 33.4 relevantly provides: 33.4 Setting aside or other relief (1) The court may, on the application of a party or any person having a sufficient interest, set aside a subpoena in whole or in part, or grant other relief in respect of it. 1. There is no dispute that the defendants' had a sufficient interest to seek orders setting aside the subpoenas, which relief was granted by the Registrar. 2. In Elanor Operations Pty Ltd v Chief Commissioner of State Revenue [2020] NSWSC 840, Ward CJ in Eq summarised the applicable principles as follows ([42]–[45]): "42. As to the applicable legal principles on an application to set aside a subpoena or a notice to produce it is not here disputed that, for a subpoena or notice to produce to be issued there must be a legitimate forensic purpose and that the party issuing the subpoena or notice to produce bears the onus of establishing that legitimate forensic purpose (see, for example, Rinehart v Rinehart [2018] NSWSC 1102 at [43]–[50] (Rinehart); Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 at [52]; and Xinfeng Australia International Investment Pty Ltd v GR Capital Pty Ltd [2020] NSWSC 620 (Xingfeng) at [35]–[41]). 43. It must be able to be concluded that the documents sought could "possibly throw light" on the issues in the case, or that it is likely that the documents will materially assist on an identified issue or that there is a reasonable basis, beyond speculation, that it is likely that they will materially assist (see, for example, ICAP Pty Ltd v Moebes [2009] NSWSC 306 at [28]–[30], per Nicholas J, affirmed on appeal in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307 at [27], per Tobias JA, Basten JA and Handley AJA agreeing) Elsewhere it has been said that the question is whether there is a reasonable basis for supposing that the material called for will likely add in some way to the relevant evidence in the case (including whether the documents called for are capable of providing a legitimate basis for cross-examination) (see Sharpe v Grobbel [2017] NSWSC 1065 at [35], per Brereton J, as his Honour then was). 44. It is accepted that a subpoena or notice to produce will be set aside if it is being used as part of what is commonly referred to as a "fishing expedition" (see Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254, per Owen J, Street CJ and Herron J agreeing) or where it is oppressive (the question of oppression to be determined as part of a multifactorial balancing exercise – i.e., balancing the degree of apparent relevance to issues in the proceedings against the likely cost or burden of production; see for example Azzi v Volvo [2006] NSWSC 283 at [6], per Brereton J, as his Honour then was; and Rinehart at [49]). (See generally on the issue: In the matter of One.Tel Ltd (in liq) – Singtel Optus Pty Ltd v Weston [2010] NSWSC 1491 at [31]–[40].) 45. It is noted by the plaintiffs that, where a subpoena or notice to produce is drafted in a manner which is objectionable, it is ordinarily not for the Court to redraft it (see Xinfeng at [41]; Lowery v Insurance Australia Ltd [2015] NSWCA 303 at [25], per Basten JA; Rinehart v Rinehart [2019] NSWSC 759 at [38). However, the same issue does not arise, for obvious reasons, to the extent of discovery that should be ordered to be provided; nor is it necessarily an inflexible rule, when approaching the extent to which compliance will be ordered in relation to a subpoena (see for example, how the matter was approached in Rinehart)." 1. In Rinehart v Rinehart [2018] NSWSC 1102, Ward CJ in Eq said at [47]: "Whether the formulation of the test in civil proceedings is best expressed as an "on the cards" test (i.e., that it is on the cards that the documents sought will materially assist on an identified issue) (see the use of that expression in criminal proceedings in Alister v R (1984) 154 CLR 404; [1984] HCA 85; R v Saleam (1989) 16 NSWLR 14, at 18; Attorney-General (NSW) v Chidgey [2008] NSWCCA 65), or that the material could "possibly throw light on" an identified issue (see Trade Practices Commission v Arnotts Ltd (No 2); or as formulated by Nicholas J in ICAP Pty Ltd v Moebes at [30] (namely, that "it must be shown that it is likely the documentation will materially assist on an identified issue, or there is a reasonable basis beyond speculation that it is likely that the documentation will [materially assist]"), what is ultimately required is an assessment as to the relevance of the documents sought by reference to the issues in the proceedings (see Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (Cth) [1997] FCA 1504; 37 ATR 432 at 439–440 per Spender J; Nicholls v Michael Wilson and Partners Limited [2010] NSWCA 100 per Young JA)." 1. A subpoena will not satisfy those criteria if it is a fishing expedition in the sense that: "…a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not." (See Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 at 254; Broadway Plaza Investments Pty Ltd v Broadway Plaza Pty Ltd [2019] NSWSC 410 at [134]). Subpoenas issued to educational institutions 1. The subpoenas issued by the plaintiffs on 22 and 26 November 2019 that are the subject of this review application included subpoenas addressed to the following educational institutions: 1. Sydney School of Business and Technology Pty Ltd; 2. Australasia Onsung Church Incorporated trading as Australasia Language College; 3. Training Masters Pty Ltd; 4. Onyx Developments Pty Ltd trading as Australasia International School; and 5. Steps Sunshine Coast International College Pty Ltd. 1. Each of the five subpoenas required production of the following categories of documents: 1. Student letters of offer sent to "JP International Consultancy" from 1 May 2018 to the date of the subpoena; 2. College Applications made by "JP International Consultancy" from 1 May 2018 to the date of the subpoena; 3. Any contracts between the educational institution and "JP International Consultancy" from 1 May 2018 to the date of the subpoena; 4. Any invoices issued by "JP International Consultancy" to the educational institution from 1 May 2018 to the date of the subpoena; and 5. Any Agent Application forms submitted by "JP International Consultancy" or the defendants or any other representative of "JP International Consultancy". 1. The significance of the date 1 May 2018 is that there is evidence that the defendants registered their business in May 2018. [1] 2. The plaintiffs have documentary evidence indicating that the defendants have been dealing with Sydney School of Business and Technology Pty Ltd, Australian Vocational Training Institute Pty Ltd and Australasia International School in respect of persons alleged to be clients of the plaintiffs. There is some evidence that Australian Vocational Training Institute, Training Masters and Steps Sunshine Coast International College are under the same management, and Australasia International School is under the same management as Australasia Language College. [2] 3. The Registrar set aside the five subpoenas issued to the educational institutions on the basis that they were drafted so widely that they were a "fishing expedition". The Registrar considered that, in the absence of evidence of the way in which the plaintiffs' client referral system worked, the Court could not be satisfied that documents evidencing communications of the kind in the five categories set out in the subpoenas would materially assist either party in relation to the issue whether the defendants used "referral leads" obtained from the plaintiffs' clients. 4. The plaintiffs submitted that Court should exercise its discretion to review the Registrar's decision in relation to the subpoenas addressed to the educational institutions because the Registrar misunderstood or misapplied the test for what is a "fishing expedition". The defendants opposed the review application and submitted that, because the subpoenas went beyond seeking documents involving persons on the plaintiffs' client lists and there was no evidence of the plaintiffs' referral system, the subpoenas were fishing. 5. In my opinion, the evidence in paragraphs 26, 28 and 30 of Mr Lee's affidavit affirmed on 19 August 2019 [3] establishes that the plaintiffs' client referral system involved existing clients of the plaintiffs referring or recommending their friends or associates to the plaintiffs or education and/or migration advice or services. I consider that there is a reasonable basis beyond speculation to think that the documents required to be produced under these subpoenas will assist by revealing the extent to which the defendants' dealings with those educational institutions involve persons who are clients of the plaintiffs or persons recorded in the plaintiffs' records as having been the subject of referrals by clients of the plaintiffs. There is a reasonable prospect that such evidence, either alone or together with other evidence (including evidence elicited from witnesses in cross-examination), will provide a basis for inferences to be drawn about whether the defendants' business has been developed using information that the plaintiffs allege is confidential to them, or has been developed by the defendants independently. 6. It is the pattern or proportion of commonality between the defendants' dealings and the plaintiffs' clients or referral leads that is likely to assist. It is not merely speculative to think that a pattern or proportion is likely to emerge. It is not necessary to be able to discern at this stage whether that pattern or proportion is more likely to assist the plaintiffs or the defendants. It is sufficient that it is likely to assist in the resolution of the issue. 7. For those reasons, I have concluded that the Court should exercise its discretion to review the Registrar's decision in relation to the five subpoenas issued to the educational institutions and paragraphs 2, 4, 5, 7 and 8 of the defendants' amended notice of motion filed on 17 February 2020 should be dismissed in lieu of order 2 made by the Registrar. 8. The parties informed me that the educational institutions have already produced documents in answer to the five subpoenas. At the hearing of the review application, the defendants sought first access to those documents in the event that the Court made the decision that I have indicated above. The plaintiffs submitted that a general access order be made, but accepted that the plaintiffs would suffer no prejudice if the defendants were granted first access for a short period. 9. As I understood the defendants' submissions, they sought first access to check whether the documents contain any private information of the defendants' clients or information that is commercially sensitive to the defendants, and to consider whether to seek orders in relation to any such information. 10. I have concluded that there should be an order that the defendants have first access to the documents produced under those five subpoenas for 7 days from the date of these reasons, and for the plaintiffs to have access to the documents thereafter in the absence of any further order of the Court. Subpoena to Medibank Private Limited 1. The subpoena to Medibank issued by the plaintiffs on 26 November 2019 required production of overseas student health cover policies issued in the name of, and applied for by, the first defendant or JP International Consultancy from 1 May 2018 to the date of the subpoena. 2. In his affidavit affirmed on 1 April 2020, Mr Lee deposed that Medibank is commonly used by those in a similar business to the plaintiffs' business to obtain overseas student health cover policies on behalf of students. Mr Lee deposed that he is aware that some persons who he says were clients of the plaintiffs who went to the defendants' business obtained policies through AHM Insurance, which Mr Lee says is a business operated by Medibank. 3. The Registrar set aside the subpoena to Medibank for the same reasons as the subpoenas issued to the educational institutions were set aside. 4. On the review application, the plaintiffs again submitted that the Court should exercise its discretion to review the Registrar's decision in relation to the subpoenas addressed to the educational institutions because the Registrar misunderstood or misapplied the test for what is a "fishing expedition". The plaintiffs submitted that the documents would materially assist in establishing the scope of the defendants' business and the extent to which it was derived from the plaintiffs' confidential information (including referral leads). The plaintiffs' submissions acknowledged that, unlike the documents subpoenaed from the educational institutions, the documents produced by Medibank would not assist in identifying any financial gain made by the defendants in providing services using what the plaintiffs allege is their confidential information about clients and client referral leads. As I understand the submission, the Medibank documents would assist in the same manner that I have identified in [30]–[31] above, but it is only the documents produced by the educational institutions (together with the financial records of the defendants' business) that will assist in identifying financial gain. 5. The defendants opposed the review application and submitted that, because the subpoenas went beyond seeking documents involving persons on the plaintiffs' client lists and there was no evidence of the plaintiffs' referral system, the subpoenas were fishing. 6. For the reasons I have explained in [30]–[31] above, I do not consider that the subpoena is "fishing" on the grounds that it goes beyond documents relating to persons on the plaintiffs' client list. However, I do not consider that the documents will materially assist in circumstances where, on the plaintiffs' case, the core of the defendants' business is education and migration services, the plaintiffs' have subpoenaed a wide range of educational institutions for the categories of documents that I have referred to above, those documents will assist in identifying the proportion of the defendants' clients who were clients or client referral leads of the plaintiffs and the fees earned by the defendants for acting for those clients, and arranging health cover is merely an ancillary activity to the defendants' provision of education services and dealings with those educational institutions. 7. The plaintiffs have not persuaded me to exercise the Court's discretion to set aside the Registrar's decision in relation to the subpoena issued to Medibank. ANZ 1. The subpoena issued to ANZ on 26 November 2019 seeks production of bank statements for the period since 1 May 2018 in respect of accounts in the name of the first defendant or JP International Consultancy and any account opening applications in the name of JP International Consultancy. 2. There was no evidence before the Court on the hearing of the review application to suggest that the defendants' business banks with ANZ. I was informed on the hearing of the review application that Commonwealth Bank statements for the defendants' business had already been produced. The plaintiffs submitted that the defendants may bank with the ANZ because they are aware from their previous employment of the first defendant that the first defendant banks with the ANZ. In my opinion, this is speculation. 3. The plaintiffs also submitted that the subpoena has a legitimate forensic purpose insofar as it requires production of the first defendant's bank statements because the first defendant may have received payments relating to the defendants' business into their personal bank account. Again, I regard this as speculation. 4. If an examination of the defendants' financial records that have been produced under the notice to produce and the Commonwealth Bank statements had revealed any reason to believe that payments relating to the defendants' business are likely to be deposited into other accounts in addition to the Commonwealth Bank account, it would have been open to the plaintiffs to adduce evidence of this at the hearing of the review application. They did not do so. 5. The plaintiffs have not persuaded me to exercise the Court's discretion to set aside the Registrar's decision in relation to the subpoena issued to ANZ. Costs 1. The plaintiffs have been successful on the review application in relation to five of the subpoenas. It was those subpoenas that occupied most of the time on the hearing of the review application. No party adduced any evidence or provided any written submissions specifically for the review application. Both parties simply relied on the written submissions and evidence that had been before the Registrar. In those circumstances, the appropriate order in my opinion is that costs should follow the event and the defendants should pay the plaintiffs' costs of the review application. However, I will hear from the parties in the event that any party submits that a different costs order should be made. Conclusion and orders 1. For the reasons above, I make the following orders: 1. Set aside order 2 made by the Registrar on 29 May 2020 and, in lieu thereof, dismiss paragraphs 2, 4, 5, 7 and 8 of the defendants' amended notice of motion filed on 17 February 2020. 2. Order that the defendants have first access to the documents produced under the following subpoenas for a period of 7 days from the date of these orders, and the plaintiffs have access thereafter: 1. Subpoena issued by the plaintiffs on 26 November 2019 to Australia Onsung Church Incorporated trading as Australasia Language College; 2. Subpoena issued by the plaintiffs on 26 November 2019 to Training Masters Pty Ltd; 3. Subpoena issued by the plaintiffs on 26 November 2019 to Onyx Developments Pty Ltd trading as Australasia International School; 4. Subpoena issued by the plaintiffs on 26 November 2019 to Steps Sunshine Coast International College Pty Ltd; and 5. Subpoena issued by the plaintiffs on 22 November 2019 to Sydney School of Business & Technology Pty Ltd. 1. Order that the plaintiffs' notice of motion filed on 11 June 2020 is otherwise dismissed. 2. Subject to order 5 below, order that the defendants pay the plaintiffs' costs of the notice of motion filed on 11 June 2020. 3. Grant liberty to any party seeking an alternative costs order to order 4 above to provide written submissions of no more than two pages to the Associate to Williams J by 28 July 2020 in support of the alternative costs order. Grant liberty to the other party to provide written submissions in reply of no more than two pages to the Associate to Williams J by 31 July 2020. Any such application for an alternative costs order is to be determined on the papers. ********** Endnotes 1. Affidavit of Danniel Bo Lin Lee affirmed on 19 August 2019, paragraph 19 and Tabs "E" and "F" of Exhibit DL–1 to that affidavit (at pages 63 and 88–89 of Exhibit GB–1 to the affidavit of Gina Bae affirmed on 11 June 2020). 2. Affidavit of Danniel Bo Lin Lee affirmed on 1 April 2020, paragraphs 2–9 and Annexure "A" and "B" (pages 52–53 and 55–58 of Exhibit GB–1 to the affidavit of Gina Bae affirmed on 11 June 2020); affidavit of Stephanie Yuen affirmed on 19 August 2019, paragraphs 5–6 and Annexure "C" (pages 142 and 152–159 of Exhibit GB–1 to the affidavit of Gina Bae affirmed on 11 June 2020). 3. Pages 64–65 of Exhibit GB–1 to the affidavit of Gina Bae affirmed on 11 June 2020. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 July 2020