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. Partly arising from the discussion of the proposition that I have mentioned Mr Motbey then invited the Court to inspect the documents in question. This course was objected to by Mr Hallam but the Court decided to inspect the documents and has done so. Notwithstanding the effect which Mr Motbey contended that inspection would have we are of the view that it is not reasonably arguable that the documents are privileged from inspection on the basis of the privilege against self-incrimination which was being relied on by Mr Motbey's clients. There would be no point once we arrived at this conclusion in granting leave to appeal. We wish, however, to make it clear that in reaching the conclusion that we have reached we are not indicating approval of the precise procedure adopted by Santow J in the 2 UNREPORTED JUDGMENTS circumstances of the production of the documents to the Court in this case where those documents were produced by solicitors from their own files. If the point were to arise again in regard to other documents we have the tentative view that it would need to be dealt with only after argument related to the particular documents then in question taking into account the circumstances of their production to the Court and in the light of the guidance which Rochfort might well give in such circumstances. Notwithstanding the reservation just mentioned the Court is nevertheless clear that the order in the present application should be that Santow J's ruling, which has the effect that the documents may be inspected by the plaintiff, must stand, and that the application for leave must therefore be dismissed with costs.