BONDSLAND INTERNATIONAL (AUST) PTY LTD and ORS v WESTPAC BANKING CORPORATION [1994] NSWCA 30

BONDSLAND INTERNATIONAL (AUST) PTY LTD and ORS v WESTPAC BANKING CORPORATION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, HANDLEY and SHELLER JJA 8 November 1994

[1994] NSWCA 30

Priestley JA This was an application for leave to appeal by defendants in proceedings in the Equity Division against a ruling by Santow J having the effect of permitting the plaintiff to inspect documents produced to the court under subpoena by a number of solicitors who had acted for the defendants or some of them.

Santow J had ruled that he would only consider withholding inspection of the documents from the plaintiff if the defendants who were opposing such inspection, their opposition being based on the ground that inspection would involve a breach of their privilege against self-incrimination, swore affidavits showing the grounds of their claim. He fixed a time limit for filing any such affidavits. None was filed.

The effect of his ruling was that the plaintiff then became entitled to inspect the documents.

Following that ruling this Court was approached and an order was made having the effect of staying any such inspection until the defendants' application for leave to appeal against Santow J's ruling was disposed of.

In arguing that leave should be granted, Mr Motbey for the defendants made his principal point of attack the procedure adopted by Santow J. He made other points which, however, did not go to a matter raised with him by the Court. This was the proposition that whether the procedure followed by Santow J was right or wrong and whether or not there was any merit in the ancillary points counsel was seeking to make, the ruling which Santow J made from which the inspection of the documents must follow was, on the material before Santow J and this Court, correct in any event.

In the course of the discussion in which this proposition was raised reference was made to the High Court decision in Rochfort v Trade Practices Commission, (1982) 153 CLR 134, which was a case which would have been relevant to a number of aspects of the argument both before Santow J and in this Court but which had not been drawn to Santow J's attention.