Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Marshall v Prescott [2013] NSWCA 152 Hearing dates: 12 April 2013 Decision date: 06 June 2013 Before: McColl JA (at [1]); Barrett JA (at [2]); Ward JA (at [94]) Decision: 1. Grant leave to appeal in respect of Orders 1 and 2 made in the Common Law Division on 29 August 2012. 2. Direct that a notice of appeal in terms of the notice of appeal contained in the White Book be filed within fourteen days. 3. Appeal allowed in part. 4. Vary Order 1 made in the Common Law Division on 29 August 2012 by omitting "documents 13, 14, 15, 17 and 20" and substituting "documents 13, 14, 15 and 17". 5. Direct that the parties do, within fourteen days, exchange and file written submissions on the costs orders that should be made in relation to the application for leave to appeal and the appeal. 6. Reserve for the future consideration of the Court all questions of costs of the application for leave to appeal and the appeal. 7. Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 that, until the expiration of the period of 35 days commencing upon the making of these orders (and thereafter for such further period, if any, as the Court may, within that period of 35 days, by order specify), the schedule included immediately after [93] of the judgment of the Court be omitted from every copy of the judgment published or furnished to any person (other than GIO Workers Compensation (NSW) Pty Ltd and its legal advisers) or recorded on CaseLaw NSW. 8. Grant to GIO Workers Compensation (NSW) Pty Ltd liberty to apply on seven days notice for an order specifying a further period for the purposes of Order 7. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - costs - leave to appeal sought in respect of costs orders made on an issue-by-issue basis - applicant seeks to challenge the judge's conclusions on certain of the issues but not the ultimate decision - whether an appeal court should canvass intermediate conclusions merely for the sake of an appeal on costs - leave refused - PROCEDURE - subpoena to non-party - legal professional privilege at common law - common interest privilege - person maintaining claim by subrogation to proceeds of pending litigation - communication to that person of confidential legal advice given to the party in whose shoes the person seeks to stand - whether common interest of the litigant and the person claiming by subrogation exists so as to preclude a finding of waiver of privilege - PROCEDURE - subpoena to non-party - legal professional privilege at common law - where the non-party claiming by subrogation has agreed to fund proceedings brought by the litigant - whether the litigation funding agreement is protected by legal professional privilege Legislation Cited: Civil Procedure Act 2005, s 98(1) Court Suppression and Non-publication Orders Act 2010 Evidence Act 1995, ss 117 to 126, 131A High Court Rules 2004 (Cth), r 40.02.1 Supreme Court Act 1970, s 101(2)(c) Workers Compensation Act 1987, ss 3(1A), 151Z(1)(b) Cases Cited: Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 Baltic Shipping Company v Dillon [1991] 22 NSWLR 1 Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd (1988) 13 NSWLR 689 Buttes Gas & Oil Co v Hammer (No 3) [1981] QB 223 Cook v Pasminco Pty Ltd (No 2) (2000) 107 FCR 44; [2000] FCA 1819 CSR Ltd v Eddy [2008] NSWCA 83; (2008) 70 NSWLR 725 Esso Australia Resources v Commissioner of Taxation [1999] HCA 67; 201 CLR 49 Hansfield Developments v Irish Asphalt Ltd [2009] IEHC 420 Green v CGU Insurance Ltd [2008] NSWSC 390 House v The King [1936] HCA 40; (1936) 55 CLR 499 Farrow Mortgage Services Pty Ltd v Webb (1996) 39 NSWLR 601 Mann v Carnell [1999] HCA 66; 201 CLR 1 Marshall v Prescott (No 2) [2012] NSWSC 619 Marshall v Prescott (No 4) [2012] NSWSC 992 Matthews v SPI Electricity Pty Ltd [2013] VSC 285 Nauru Phosphate Royalties Trust v Allen Allen & Hemsley (22 March 1996, 13 Tolley's "Professional Negligence" 64) Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275 Priceline Pty Ltd v JHY Nominees Pty Ltd [2010] VSC 61 Re Global Medical Imaging Management Ltd [2001] NSWSC 476 Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622 Rickard Constructions Pty Limited v Rickard Hailes Moretti Pty Ltd [2006] NSWSC 234 Singtel Optus Pty Ltd v Weston [2011] NSWSC 1083; (2011) 81 NSWLR 526 Spotless Group Ltd v Premier Building and Consulting Group Pty Ltd [2006] VSCA 201; (2006) 16 VR 1 The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543 TransGrid v Members Lloyds' Syndicate 3210 [2011] NSWSC 301 Category: Principal judgment Parties: Margaret Lesley Marshall - First Appellant Kim Neil Marshall - Second Appellant Michael Prescott - First Respondent GIO General Limited - Second Respondent GIO Workers Compensation (NSW) Limited - Third Respondent The Partners TurksLegal - Fourth Respondent Representation: C J Bevan/E W Young - Appellants D J Russell SC - 2, 3, 4 Respondents Turner Freeman Lawyers - Appellants TurksLegal - Second, Third and Fourth Respondents File Number(s): 2012/287040 Decision under appeal Date of Decision: 2012-08-29 00:00:00 Before: Bellew J File Number(s): 2009/297404 Judgment 1McCOLL JA: I agree with Barrett JA's reasons and the orders his Honour proposes. 2BARRETT JA: These reasons relate to an application for leave to appeal and, subject to leave being granted, an appeal from orders made on 29 August 2012 by a judge of the Common Law Division (Bellew J) in proceedings which have not yet reached a final hearing. 3The orders challenged are an order dismissing a claim to have certain subpoenas set aside, an order refusing access to five documents produced on subpoena and orders concerning the costs of those interlocutory determinations. 4The Court directed that the question of leave in respect of the costs orders be argued first. At the end of submissions on that matter, the Court refused leave to appeal in respect of the costs orders (Orders 3, 4 and 5 of 29 August 2012) and indicated that its reasons would be announced later. 5The Court then heard argument on the leave application and appeal relating to the subpoena and privilege issues and reserved its decision. 6As a prelude to an explanation of the matters arising, it is necessary to refer to a course of events over a number of years. Background 7In the pending Common Law Division proceedings, Margaret Lesley Marshall and Ken Neil Marshall (who are mother and son and will be referred to as "the Marshalls") sue Michael Prescott ("Prescott"), a lawyer practising in Adelaide. 8The Marshalls are the widow and son of Neil Marshall who was killed when an aircraft on which he was a passenger crashed off the coast of South Australia in May 2000. Following that incident, the Marshalls, as well as other persons, brought proceedings in Pennsylvania against the manufacturer of the aircraft's engines ("Textron"). The Pennsylvania proceedings were commenced in May 2002. 9Prescott acted in Australia for some of the plaintiffs in the Pennsylvania proceedings. He did not act for the Marshalls but had contact and dealings with them in his role as Australian representative of Kriendler & Kriendler ("Kriendlers"), the United States lawyers who were acting for the plaintiffs in the Pennsylvania proceedings, including the Marshalls. The Marshalls' Australian lawyers were Turner Freeman. 10At the time of his death, Neil Marshall had been estranged from his wife for some five years and was living in a de facto relationship with Linda Carruthers ("Carruthers"). She successfully pursued a claim in the Compensation Court of New South Wales in consequence of Neil Marshall's death. She was awarded a death benefit of some $200,000 which was payable by Neil Marshall's employer and in fact paid by the employer's workers compensation insurer, GIO Workers Compensation (NSW) Pty Ltd ("GIO"). 11The Pennsylvania proceedings in which Kriendlers acted for the Marshalls and other plaintiffs were settled in February 2003. The entitlement of the Marshalls under the settlement amounted to some $420,000. Kriendlers received the settlement proceeds. 12Carruthers became aware of the outcome in Pennsylvania and made it known that she considered herself entitled to the moneys received from Textron in respect of the death of Neil Marshall. Kriendlers stated that no part of the settlement moneys would be paid over to the Marshalls unless Kriendlers received acceptable assurances that Carruthers had no entitlement. An arrangement was made under which the moneys were held by Turner Freeman which Turner Freeman undertook to Kriendlers would not be released pending judicial determination of Carruthers' asserted entitlement to them. 13In April 2004, new proceedings (which became known as known as the "Carruthers proceedings") were commenced in the Equity Division of the Supreme Court. The Marshalls sued Carruthers for declaratory relief as to their sole entitlement to the residue of the Pennsylvania settlement moneys. Carruthers cross-claimed asserting that she was entitled to those moneys to the exclusion of the Marshalls. Prescott initially acted for Carruthers in the Carruthers proceedings but, in November 2005, the Marshalls (in separate proceedings) obtained an injunction restraining him from continuing to do so. Teece Hodgson & Ward became Carruthers' lawyers in place of Prescott. 14The Carruthers proceedings resulted in a consent declaration in June 2008 that the Marshalls were entitled to the proceeds of the United States settlement to the exclusion of Carruthers. Carruthers' willingness to settle on that basis came after it had become clear to her that a de facto spouse did not occupy any preferred position under the law of Pennsylvania while a lawful wife was living. Costs were awarded to the Marshalls against Carruthers. 15By that time, however, a large part of the United States settlement proceeds held by Turner Freeman had, pursuant to an order of the court, been absorbed in the payment of legal costs. The balance was paid to the Marshalls. 16The Common Law Division proceedings with which I began (and from which the matters now before this Court arise) were commenced by the Marshalls against Prescott in 2009 with a view to recovering costs improperly expended on the Carruthers proceedings. Central to those proceedings are allegations by the Marshalls that Prescott misconducted himself in relation to the Carruthers proceedings, including by breach of fiduciary duty and conspiracy. In the Common Law Division proceedings, there are, as identified by the primary judge, issues as follows in respect of allegations made by the Marshalls: 1. On 30 July 2004, Prescott commenced a course of conduct of procuring GIO to fund a defence and cross-claim in the Carruthers proceedings, in the name of Carruthers as the nominee of GIO. 2. Such conduct was undertaken in order to recover an amount to enable GIO to reimburse itself for the sum of some $200,000 it had paid to Carruthers under the workers compensation judgment of 2001. 3. The course of conduct in 1 and 2 was commenced by Prescott in the immediate aftermath of the giving of the undertaking referred to at [13] above and the commencement of the Carruthers proceedings pursuant to that undertaking. 4. On 15 October 2004, Carruthers filed a defence and cross-claim in the Carruthers proceedings, on behalf of GIO as her nominee and at the expense of GIO, in which she denied certain facts, asserted certain facts and failed to disclose, or identify, certain other facts, in particular that she was GIO's nominee. 5. In about December 2004, GIO entered into a litigation funding agreement with Carruthers, under which it agreed to fund her defence and cross-claim in the Carruthers proceedings on the basis that, if she succeeded in obtaining the balance of the Pennsylvania settlement proceeds, she would make good the death benefit sum outlaid by GIO; and on the further basis that GIO would indemnify her in respect of costs. 6. The conduct in 5 occurred after further steps had been taken by Prescott to procure GIO to fund his legal fees to file a defence and cross-claim for Carruthers in the Carruthers proceedings. 7. But for the conduct alleged against Prescott: (a) Carruthers would never have filed her defence and cross-claim in the Carruthers proceedings; (b) the Marshalls would have been entitled to sign a default judgment in their favour against Carruthers very soon after the commencement of the proceedings on or about 30 April 2004; and (c) the entitlement of the Marshalls to the net balance of the Pennsylvania proceeds would have been established by no later than 30 June 2004. at which stage they would have incurred only nominal legal costs. 8. The making of the litigation funding agreement by Carruthers was undertaken secretly, in that knowledge of it was withheld from the Marshalls until discovery took place in 2006 in proceedings the Marshalls commenced in November 2005 seeking to restrain Prescott from, inter alia, assisting Carruthers in the Carruthers proceedings. 17There are thus allegations by the Marshalls of wrongdoing by Prescott by way of his assisting Carruthers to mount a defence and cross-claim in the Carruthers proceedings in order that there might be funds from which GIO could recoup the workers compensation payment it had previously made to Carruthers. The subpoenas 18It was against that background that three subpoenas for the production of documents were issued in the Common Law Division proceedings on the application of the Marshalls. The subpoenas were directed to GIO, its related company GIO General Ltd and their solicitors Turks Legal. I shall refer to the two companies and the firm of solicitors together as "the GIO entities". 19The subpoena directed to each of the corporate GIO entities called for the production of: "All documents, records, writings and correspondence in respect of funding of litigation by or on behalf of, or in the name of, Linda Hope Carruthers, by or Linda Hope Carruthers, GIO General Limited, GIO Workers Compensation (NSW) Limited against Margaret Lesley Marshall, in respect of a claim to settlement funds obtained by Margaret Lesley Marshall in the Middle District Court of Pennsylvania, arising out of the death of the late Neil Marshall." 20The subpoena directed to the other GIO entity (Turks Legal) required the production of a more comprehensive collection of documents related to the same subject matter. 21Each subpoena sought, in general terms, the production of material in respect of the Marshalls' assertion that GIO funded Carruthers's defence and cross-claim in the Carruthers proceedings. The GIO entities' challenges to the subpoenas 22Each of the GIO entities filed in the Common Law Division proceedings a notice of motion seeking an order that the subpoena addressed to it be set aside. They invoked rule 33.4(1) of the Uniform Civil Procedure Rules 2005. 23Upon the hearing of the notices of motion, the GIO entities, the Marshalls and Prescott were represented by counsel. Prescott elected to make no submissions. The protagonists, therefore, were the GIO entities and the Marshalls upon whose application the subpoenas had been issued. 24The argument of the GIO entities was, in summary, that the subpoenas addressed to them should be set aside and, if they were not set aside, the Marshalls nevertheless should not have access to five particular documents because those documents were protected by legal professional privilege to which GIO was entitled. The five documents were identified as Documents 13, 14, 15, 17 and 20 and will be described presently. 25The questions raised by the GIO entities' motions were identified by the primary judge (at [24] of his reasons of 8 June 2012) as the following: 1. Did the GIO entities, not being parties to the proceedings, have a sufficient interest to seek to have the subpoenas served on them by the Marshalls set aside? 2. Were the Marshalls required to establish a legitimate forensic purpose in order to sustain the subpoenas? 3. If so, did the Marshalls establish such purpose? 4. If so, were any of the five contentious documents protected by legal professional privilege? 26His Honour answered these questions as follows: 1. Yes. 2. Yes 3. Yes 4. Yes, as to five documents produced in response to the subpoenas; but otherwise No. 27In the result, therefore, the Marshalls successfully withstood the challenges to their subpoenas mounted by the GIO entities but were unsuccessful in their contention that they should have access to the five particular documents. 28The first three questions set out at [25] above were determined by a judgment given on 8 June 2012 ([2012] NSWSC 619, the "June reasons"). The primary judge then received further evidence and written submissions, following which he gave a second judgment of 29 August 2012 ([2012] NSWSC 992, the "August reasons") dealing with the fourth question and the costs of the motions brought by the GIO entities. The costs orders 29Having determined the GIO entitles' motions in the way I have described. the primary judge made costs orders on 29 August 2012, as follows (at [104]): "3. I order that the applicants [GIO entities] pay 50 percent of the plaintiffs' [sic] costs of the plaintiffs [the Marshalls] of the notices of motion. 4. I order that the plaintiffs [the Marshalls] pay the costs of the GIO in respect of the claims for privilege. 5. I order that the costs in 3 and 4 above be paid forthwith." 30The rationale for Order 3 was explained by the judge in the August reasons as follows: 1. The question whether the subpoenas should stand involved Questions 1, 2 and 3 set out at [25] above. 2. The first and second issues were determined against the Marshalls. 3. Although the motions were ultimately determined in favour of the Marshalls (because of the positive answer the judge gave to Question 3 at [25] above), "a considerable amount of valuable court time was taken up in dealing with the first two issues, in respect of each of which the plaintiffs advanced submissions which, in my view, were clearly contrary to authority and thus largely untenable" (these are the words of the primary judge at [99] of the August reasons). 4. The issues litigated on the hearing of the motions to set aside the subpoenas were clearly separable. The GIO entities, although ultimately unsuccessful, succeeded on the two issues which together occupied the bulk of the time which was taken at the hearing. The Marshalls were on notice of the position taken by the GIO entities and of the authorities on which they proposed to rely, which authorities were clearly contrary to the propositions the Marshalls sought to advance; and the Marshalls made no real attempt in the course of the hearing to distinguish those cases or to advance some reason why they should not be followed. 5. Because the Marshalls were ultimately successful on the motions, the judge did not accept the submission of the GIO entities that each party should be left to bear its own costs. The circumstances, as the judge viewed them, supported a conclusion that, in the exercise of the court's discretion, the Marshalls should not have the entirety of their costs of the motions. 31The reasons relating to Order 4 (which reflected the court's answer to Question 4 at [25] above) were stated by the judge at [100] of the August reasons: "The entirety of the privilege claims have been resolved in favour of the GIO, and against the plaintiffs [the Marshalls]. The issues arising from those claims were dealt with quite separately from the hearing of the original motions, and indeed on the basis of written submissions without any further appearance on behalf of the parties." The Marshalls' challenge to the costs orders 32The Marshalls' case in this Court concerning the costs orders was put on two bases. First, it was submitted that the primary judge had erred both in considering the question of costs of the application to set aside the subpoenas on an issue-by-issue basis when the Marshalls had had overall success and (having adopted the issue-by-issue approach on the earlier aspect) in not adopting the same approach to the costs related to the privilege question. 33Second, the Marshalls say that the apportionment of costs in respect of the motion was defective because the judge answered Questions 1 and 2 at [25] above incorrectly and, had his answers to those questions been correct, all three of the questions relevant to the set-aside motion would have been answered favourably to the Marshalls, with the result that there would have been no occasion for any apportionment. Reasons for refusing leave to appeal on the costs issues 34As to the complaint concerning adoption and non-adoption of an issue-by-issue basis, it is sufficient to say, in summary, that the discretion with respect to costs under s 98(1) of the Civil Procedure Act 2005 is a broad discretion susceptible to appellate review only on grounds of the kind referred to in House v The King [1936] HCA 40; (1936) 55 CLR 499 at 504-5, that the approach the judge took was clearly open and that nothing put by the Marshalls indicated that the result was plainly unjust or reflected some error of principle. 35The second basis of complaint emphasises an added reason for non-intervention by this Court. Even if the judge had decided Question 1 or Question 2 differently, the substantive outcome of the application for an order setting aside the subpoenas would have been the same. The contention of the Marshalls that a different answer should have been given to Question 1 or Question 2 (or both) was therefore advanced solely with a view to persuading this Court that it should intervene to correct what the Marshalls view as a defective exercise of the discretion on costs. 36Section 101(2)(c) of the Supreme Court Act 1970 provides that an appeal "as to costs only which are in the discretion of the Court" may be brought only by leave of the Court of Appeal. The overall purpose of the provision is to ensure that an appeal as to costs only in which an exercise of discretion is challenged should proceed only where there is some good reason of policy for entertaining it. 37There are two important and related reasons for refusing leave to appeal on the second aspect of the complaints concerning the costs orders. In the first place, it is not in the interests of justice for an appeal court to review and correct some part of the reasoning underlying a decision at first instance in circumstances where the party seeking review accepts the decision itself as correct. Having succeeded and therefore being content with the substantive outcome, a party is in no position to isolate discrete steps in the reasoning process and to ask that they be corrected. Second and in similar vein, a court will, in general, not try a hypothetical case for the sake of deciding a question of costs: Re Minister for Immigration and Ethnic Affairs; Ex Parte Lai Qin [1997] HCA 6; (1997) 186 CLR 622. 38These considerations are reflected in the observation of Kirby P in Baltic Shipping Company v Dillon [1991] 22 NSWLR 1 at 32, that costs orders "should not become a vehicle for re-litigating the substantive issues of the trial". 39The foregoing are my reasons for joining in the order that leave to appeal be refused in relation to the costs questions. After leave had been refused, counsel for the Marshalls conceded that grounds of appeal going to Question 1 at [25] above fell away. The privilege issues - preliminary 40I turn now to the issues of privilege in respect of documents produced by the GIO entities. The primary judge approached (and disposed of) the privilege claims on the footing that the matter fell to be decided by reference to common law principles concerning legal professional privilege unaffected by the provisions in Division 1 of Part 3.10 (ss 117 to 126) of the Evidence Act 1995 as they apply either of their own force or through s 131A of that Act. Although the correctness of that approach was raised with counsel in the course of argument in this Court, there was no submission on either side that it was the Evidence Act provisions, rather than common law principles, that should be applied (but see Priceline Pty Ltd v JHY Nominees Pty Ltd [2010] VSC 61 per Croft J at [4]; TransGrid v Members Lloyds' Syndicate 3210 [2011] NSWSC 301 at [10] per Ball J; Singtel Optus Pty Ltd v Weston [2011] NSWSC 1083; (2011) 81 NSWLR 526 at [24]-]28] per White J; Matthews v SPI Electricity Pty Ltd [2013] VSC 285 per Derham AsJ at [23]). I proceed accordingly. 41The relevant species of common law privilege is that referred to by Deane J in Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 114 (in terms approved by Gleeson CJ, Gaudron and Gummow JJ in Esso Australia Resources v Commissioner of Taxation [1999] HCA 67; 201 CLR 49 at [35]): "[A] person should be entitled to seek and obtain legal advice in the conduct of his affairs and legal assistance in and for the purposes of the conduct of actual or anticipated litigation without the apprehension of being thereby prejudiced." 42In Mann v Carnell [1999] HCA 66; 201 CLR 1, Gleeson CJ, Gaudron, Gummow and Callinan JJ noted at [19] that the common law privilege "extends generally to confidential communications of a professional nature between a person and his lawyer made for the purpose of obtaining or giving legal advice". 43A composite description of what are sometimes referred to as advice privilege and litigation privilege was given by Gleeson CJ, Gaudron, Gummow, and Hayne JJ in The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543 at [9], as follows: "It is now settled that legal professional privilege is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings." (Citations omitted) The documents for which privilege is claimed 44The five documents in respect of which the GIO entities resist production are described in the August reasons (at [25]) as follows: "(i) a letter dated 24 October 2003 from Prescotts Barristers and Solicitors ('Prescotts') (the defendant's law practice) to Turks Legal in relation to the Carruthers proceedings, discussing legal strategies and funding ('document 13'); (ii) a letter dated 4 August 2004 from Prescotts to Turks Legal in relation to the Carruthers proceedings, discussing legal strategies and funding ('document 14'); (iii) a letter dated 4 August 2004 from Prescotts to THW in relation to the Carruthers proceedings, discussing legal strategies ('document 15'); (iv) a letter dated 19 May 2005 from Prescotts to Turks Legal in relation to the Carruthers proceedings, discussing legal strategies ('document 17'); and (v) a funding agreement dated 9 June 2005 between the GIO and Carruthers in respect of the Carruthers proceedings ('document 20')." 45Turks Legal were, at all material times, GIO's solicitors. At the time Documents 13, 14, 15 and 17 were created, Prescott was acting for Carruthers in the Carruthers proceedings but, in late 2004, she was in the process of retaining Teece Hodgson & Ward ("THW"). 46The members of this Court, like the primary judge, have inspected the documents for the purpose of considering the privilege question (Uniform Civil Procedure Rules, rule 1.8(a)). 47In approaching the privilege issues, it is convenient first to state the position reached by the primary judge. His Honour considered Documents 13, 14, 15 and 17 together. Document 20 was considered separately. The judge's decision on Documents 13, 14, 15 and 17 48The primary judge decided that GIO did not enjoy legal professional privilege in any of Documents 13, 14, 15 and 17. His conclusion was stated thus (at [45] - [46] of the August reasons): "45 The privilege which is asserted is privilege claimed on behalf of the GIO. The GIO has been identified in the submissions advanced on its behalf as 'the client'. However, none of documents 13, 14, 15 and 17 constitute communications between the GIO (as the client) and any of its lawyers. They are all communications on behalf of Carruthers, albeit in some instances sent to lawyers acting for the GIO. 46 Viewed in this way none of the documents reveal communications between the GIO (as the client) and its lawyers. Accordingly, no legal professional privilege of the GIO attaches to any of them. I therefore accept the plaintiffs' submissions that the claim for legal professional privilege is not made out." 49Carruthers was the defendant to the Carruthers proceedings brought by the Marshalls. As I have said, Prescott was, at the time of the creation of the letters, Carruthers' lawyer in those proceedings. 50The primary judge then turned to the question of common interest privilege - in essence, whether such legal professional privilege as Carruthers herself might enjoy in the documents enured also for the benefit of GIO because of some relevant interest common to Carruthers and GIO. 51The interest of GIO in the Carruthers proceedings arose from the claim or interest it considered itself to have in respect of the balance of the Pennysylvania proceeds by reason of its having paid the death benefit received by Carruthers. As outlined at [11] above, Carruthers, as Neil Marshall's de facto wife, had been paid a lump sum death benefit under the Workers Compensation Act 1987 in consequence of his death. She was, by s 3(1A) of the Act, regarded as "the worker" and s 151Z(1)(b) provided, in effect, that if she, having received the compensation benefit, later received damages in respect of the death of Neil Marshall, she would be liable to repay the compensation benefit out of those damages. Although on the face of things it was Neil Marshall's employer that paid the compensation benefit to Carruthers, the benefit was in fact paid by GIO as the employer's workers compensation insurer. 52GIO proceeded on the footing that it could rely on s 151Z(1)(b) (no doubt by subrogation to the insured employer's rights) to claim entitlement to any damages to which Carruthers became entitled as a result of the Pennsylvania proceedings, up to the amount of the death benefit it had paid to Carruthers. Central to GIO's claim in this respect was the proposition that Textron, the manufacturer of the aircraft engines, was putatively a person liable to pay tort damages in respect of the death of Neil Marshall. That being so, it was said, any access that Carruthers could obtain to the proceeds of the Pennsylvania proceedings would benefit GIO via s 151Z. But Carruthers' prospects of recovering the Pennsylvania proceedings were threatened by the claims that the Marshalls had brought against Carruthers in the Carruthers proceedings, with the result that GIO's interest was, in an immediate sense, an interest in seeing Carruthers mount a strong defence against the Marshalls and being successful in the Carruthers proceedings so that she, not the Marshalls, received any proceeds of the Pennsylvania proceedings. 53The primary judge held that the position occupied by GIO in relation to successful defence of the Carruthers proceedings gave it a sufficient interest in common with Carruthers to attract the benefit of legal professional privilege enjoyed by Carruthers. The judge was of the view that the fact that s 151Z would operate to GIO's benefit only if and when Carruthers achieved entitlement to the proceeds of the Pennsylvania settlement did not destroy or preclude the common interest. Nor did any such consequence flow from the fact that GIO had no direct recourse against the Marshalls for any part of the settlement moneys. 54His Honour then (at [66] - [71] of the August reasons) stated the following conclusions on the common interests privilege question affecting Documents 13, 14, 15 and 17: "66 Documents 13, 14 and 17 are each communications from Prescotts (acting for Carruthers) to Turks Legal (acting for the GIO). Accordingly, they were communications between the parties who had a common interest in the outcome of the Carruthers proceedings. 67 It is evident from an examination of these documents that they were confidential, and were prepared for the dominant purpose of providing advice for legal services in relation to the Carruthers proceedings. In my view, they amount to the sharing of confidential information between entities who had a self same interest, the production of which would result in disclosure of confidentiality. 68 In these circumstances it is my view that common interest privilege attaches to each of the documents. 69 Document 15 is a communication from Prescotts to THW in relation to the Carruthers proceedings. At that time, Prescotts acted for Carruthers as did THW. THW were also retained by the GIO. Accordingly, the communication was between the parties, namely Carruthers and the GIO, who shared a self same interest in the outcome of the Carruthers proceedings. 70 I am satisfied having looked at the document that it constitutes a confidential communication prepared for the dominant purpose of sharing information in relation to the Carruthers proceedings. The letter has been produced by the GIO, from which I infer that it was shared by THW with the GIO consistent with the arrangements which were in place. 71 In these circumstances it is my view that common interest privilege attaches to the document." 55The parties agree that there is a minor but inconsequential error in [69]. Teece Hodgson & Ward at no time acted for GIO. 56The Marshalls argue that the judge's analysis is flawed. The essential first step in considering common interest privilege, they say, is to determine whether anyone is entitled to legal professional privilege in the document. Only then, it is submitted, can there be consequential inquiry into the existence and nature of any interest common to that person and the person claiming common interest privilege. The Marshalls also say that, even if matters are approached in the correct order, the judge's conclusion on common interest privilege is erroneous. Common interest privilege 57If a document in which legal professional privilege subsists is given to someone else so that the content ceases to be confidential, the privilege is usually lost. This is because the act of giving is, in the particular circumstances, inconsistent with any continuing intention to maintain confidentiality: Mann v Carnell (above) at [13]. An exception operates, however, where the person entitled to the privilege and the person to whom the content of the document is made known have such a commonality of interest in relation to the subject matter of the privilege that sharing of the content is consistent, rather than inconsistent, with an ongoing intention to preserve confidentiality and privilege. Questions of common interest privilege usually arise (as here) when litigation is on foot or foreshadowed. The present case does not raise the question whether the concept extends beyond the litigation context. 58Common interest privilege was described by Lord Denning MR in Buttes Gas & Oil Co v Hammer (No 3) [1981] QB 223 at 243 as a privilege in aid of anticipated litigation in which several persons have a common interest. He said: "There is a privilege which may be called a 'common interest' privilege. That is a privilege in aid of anticipated litigation in which several persons have a common interest. It often happens in litigation that a plaintiff or defendant has other persons standing alongside him - who have the self-same interest as he - and who have consulted lawyers on the self-same points as he - but these others have not been made parties to the action. Maybe for economy or for simplicity or what you will. All exchange counsels' opinions. All collect information for the purpose of litigation. All make copies. All await the outcome with the same anxious anticipation - because it affects each as much as it does the others. Instances come readily to mind. Owners of adjoining houses complain of a nuisance which affects them both equally. Both take legal advice. Both exchange relevant documents. But only one is a plaintiff. An author writes a book and gets it published. It is said to contain a libel or to be an infringement of copyright. Both author and publisher take legal advice. Both exchange documents. But only one is made a defendant." 59In Spotless Group Ltd v Premier Building and Consulting Group Pty Ltd [2006] VSCA 201; (2006) 16 VR 1 at [34], Chernov JA instanced the identity of interest between an insurer and the insured or between parties in a common pursuit as often-cited illustrations of the principle. 60In Farrow Mortgage Services Pty Ltd v Webb (1996) 39 NSWLR 601, Sheller JA noted (at 611) that the observations in Buttes Gas & Oil Co v Hammer (No 3) (above) had been adopted in Australia. He referred with approval (at 611-612) to decisions of Giles J in Bulk Materials (Coal Handling) Services Pty Ltd v Coal & Allied Operations Pty Ltd (1988) 13 NSWLR 689 and Network Ten Ltd v Capital Television Holdings Ltd (1995) 36 NSWLR 275. Points emerging from these decisions include the following: 1. While suggestions that the parties must have a common solicitor have been made in some cases, that is not an element of the necessary common interest. 2. Insurers have a common interest with their insured in litigation brought against the insured because they, as underwriters of the insured's liability, have an interest in seeing the insured mount the most effective defence. 3. Insurers have that interest even before they decide to accept indemnity because, upon the making of that decision, they become subject to steps taken earlier in the litigation. 61Sheller JA emphasised (at 609) that common interest is not, in the particular context, "a rigidly defined concept", an observation that has been repeated elsewhere. 62A presently existing common interest will not be destroyed by the circumstance that there is potential for future divergence of interests. This was made clear by Robert Walker J in Nauru Phosphate Royalties Trust v Allen Allen & Hemsley (22 March 1996, reported in Volume 13 of Tolley's "Professional Negligence", p 64), where solicitors holding insurance were defending claims brought against them by a client and discovery was sought of correspondence between the solicitors and their insurer concerning the claim. The judge observed that the solicitors and their insurers had a common interest in defending the action brought by the client while it remained on foot and the extent of the cover had not been finally determined. In relation to defence of the claim, they were "facing the same way", although on the question of ultimate liability of the insurer to the solicitors, there were opposing interests. 63A succinct description of the necessary process of analysis appears in the judgment of McKechnie J in the Irish case of Hansfield Developments v Irish Asphalt Ltd [2009] IEHC 420 at [53]. The first step, it was said, is to determine by normal standards whether the document would be privileged in the hands of the party communicating the information, assuming that no disclosure had in fact been made. If it is found that the documents would be so privileged, the court must proceed to the second step which is to ask whether the relationship between the parties was sufficiently close that the transmission of documents should not be held to amount to an implied waiver of the privilege. The nature of that assessment was described in this way (also at [53]): "In considering this the Court should take into account the relationship between the parties, as well as the nature and purpose of the disclosure and whether there could be held to be an objective intention to waive privilege on the part of the holder." 64McKechnie J continued: "Privilege should not be overborne lightly, and therefore the ultimate question must be whether it is reasonable in the circumstances to conclude that there was an implied waiver of the privilege. If such an implied waiver cannot be found, the Court should not otherwise interfere." 65This formulation in terms of implied waiver and intention to waive represents, in my opinion, an accurate summation of the relevant principle. Normally, disclosure of protected content by the holder of the privilege causes the privilege to be lost. This is because of the inherent inconsistency between failing to safeguard the confidentiality essential to privilege and, at the same time, seeking to maintain the immunity that the privilege confers. Where there is, in relation to actual or pending litigation (or its course or outcome), a commonality of interest between, on the one hand, a party to the litigation who is also the holder of the privilege and, on the other, the person to whom disclosure of the privileged content is made by that party for a purpose relevant to that litigation, the commonality of interest supplies a rational basis for inferring an intention that the party's confidentiality should continue and the party's privilege should be maintained, even though the subject matter of the disclosure has passed into the hands of the other person. Analysis - Documents 13, 14, 15 and 17 66The Marshalls complain that the primary judge did not take the essential first step of deciding whether Documents 13, 14, 15 and 17 were protected by legal professional privilege in favour of Carruthers and that his Honour therefore undertook an inquiry into the existence of common interest without an essential prerequisite having been satisfied. 67That criticism is not warranted. The judge made clear in the part of his judgment quoted at [54] above that the letters were written by Prescott, who was Carruthers' lawyer, and that they contained information confidential to Carruthers that concerned her strategy in relation to the Carruthers proceedings. His Honour did not say in so many words that privilege on the part of Carruthers attached accordingly but that is the unmistakeable import of his expressed findings. The judge had the letters before him, as do the judges who heard the matter in the Court of Appeal. My own perusal of them confirms that each contains information that is obviously confidential to Carruthers regarding her prospects and intended or recommended actions in relation to the Carruthers proceedings. The letters clearly attracted legal professional privilege; and it was Carruthers who was entitled to that privilege. 68The Marshalls next say that, even if Carruthers enjoyed privilege in the letters, there was no common interest of any relevant kind as between Carruthers and GIO. They contend that there was, at the time the letters were written, no more than some potential future operation of s 151Z(1)(b) of the Workers Compensation Act in favour of GIO; and that that - which reflected no more than an essentially financial interest of GIO - was insufficient to give rise to any common interest of Carruthers and GIO at that time. Counsel for the Marshalls pointed out that s 151Z(1)(b) would operate in favour of GIO (if at all) only if and when Carruthers actually obtained the Pennsylvania proceeds. This is because of the words ". . . if the worker recovers . . . those damages". The Marshalls further say that if GIO had any right, it was a right to sue Textron in Carruthers' name or, if Carruthers had already made recovery from Textron, to sue Carruthers; but GIO had no right to sue the Marshalls with a view to recovering the Pennsylvania settlement moneys held by them (or their solicitors). In addition, the Marshalls say, the claim asserted by Carruthers in the Carruthers proceedings - in essence, a claim to sole entitlement, as against the Marshalls, to the residue of the Pensylvania settlement moneys - was not a claim in respect of which s 151Z(1)(b) can operate. 69I do not accept that, even if any of those contentions is correct, it destroyed the common interest of Carruthers and GIO in seeing the balance of the Pennsylvania settlement moneys brought home to Carruthers. The common interest did not arise in a narrow technical way from the operation of s 151Z(1)(b). It was shown by a broader evaluation of the circumstances. Unless Carruthers established that she was entitled to the net settlement proceeds to the exclusion of the Marshalls, GIO would have no platform from which to launch any s 151Z(1)(b) claim against Carruthers. In the absence of a fund to which it could lay claim as against Carruthers, GIO's supposed entitlement under s 151Z(1)(b) was entirely academic. GIO therefore had a very clear interest in seeing Carruthers prevail over the Marshalls and obtain what was left of the settlement moneys. If that were achieved, one of two consequences might follow. Carruthers might agree that GIO was entitled to reimbursement because of s 151Z(1)(b); or GIO might be forced to institute proceedings against Carruthers to establish that entitlement. The important point is that success by Carruthers against the Marshalls was an essential legal precursor to the emergence of any final solution for GIO by way of recoupment of what it had paid out to Carruthers by way of death benefit. 70Carruthers' interest in establishing her right to the balance of the settlement moneys was obvious. Even if it eventually emerged that GIO was entitled, as against her, to reimbursement through s 151Z(1)(b) of the $200,000 lump sum, Carruthers would be entitled to keep the balance of the $420,000 settlement in the Pennsylvania proceedings. 71The position of Carruthers and GIO was relevantly similar to that of the solicitors and the insurer in Nauru Phosphate Royalties Trust v Allen Allen & Hemsley (above). There was, in that case, potential for future dispute between the solicitors and the insurer as to whether the insurer was in truth bound to make good any loss that the solicitors suffered. In the meantime, however, each party had a very distinct legal interest of its own in the defence of the claim made by the client in the hope that there would ultimately be no loss about which to argue. The matter was put thus by Robert Walker J (at 67): "Any professional firm which finds itself in the position of the Defendant may have to have discussions of great sensitivity with its insurers. There are two issues, on one of which the firm and the insurers have a common interest (as Miss Gloster puts it 'are facing the same way') and the other on which they are facing diametrically different ways." 72Likewise in this case, there was potential for future dispute between Carruthers and GIO as to whether Carruthers was required to make reimbursement to GIO out of any Pennsylvania proceeds Carruthers ultimately received. But in the meantime it could only be to the advantage of Carruthers and GIO alike that it should be Carruthers, rather than the Marshalls, who had an established entitlement to those proceeds. It was pursuit of that advantage that caused them to have a common interest in Carruthers' success against the Marshalls. 73The primary judge's decision on the question of common interest privilege in relation to Documents 13, 14, 15 and 17 was, in my respectful opinion, correct. GIO was entitled to assert that privilege in response to the requirement imposed by the subpoenas. The judge's decision on Document 20 74The primary judge described the privilege claim in respect of Document 20 as follows (at [72] - [73] of the August reasons): "72 The GIO's claim for privilege attaching to document 20, namely the litigation funding agreement, was based upon what was described as 'an extension' of the claim for both legal professional privilege and common interest privilege. The nature of the extension which was relied upon was that described by Santow J (as his Honour then was) in Re Global Medical Imaging Management Limited (in liq) [2001] NSWSC 476 at [7]: 'To deny legal privilege to a funding agreement of this sort would fail to give proper weight to its inextricable connection with the very subject matter of the legal advice that might be given and the nature of the professional legal services to be rendered. It has the potential to reveal the litigants' likely legal strategy. The funding agreement in a literal and substantive sense fulfils the purpose of providing legal services in terms not only of the overall capacity to have them at all, but also their availability at the critical junctures in the case. Whilst it may not reveal the content of legal advice it reveals the confidential circumstances of its availability and throws oblique light on the confidential circumstances to which the advice is directed.' 73 The applicants also relied on the decision of Bergin J (as her Honour then was) in Rickard Constructions Pty Limited v Rickard Hailes Moretti Pty Limited [2006] NSWSC 234. Although not referred to by the GIO in submissions, other observations on this issue have been made in subsequent decisions including Apple Computer Australia Pty Limited v Wily [2002] NSWSC 855 at [19], and Weston (as special purpose liquidator of One Tel Ltd) v Publishing and Broadcasting Limited [2011] NSWSC 14 at [23]." 75After a discussion of decided cases, the primary judge stated his conclusions as follows (at [84] - [89]): "84 What emerges from an examination of the authorities is that whilst a document in the nature of document 20 may be characterised as confidential, and may be prepared for the dominant purpose of obtaining legal services, each case must be determined on its own facts. In particular, the nature of the connection between the preparation of the document, and the dominant purpose of obtaining legal services, must be assessed. If the document is merely one which does nothing more than create a relationship, then it is likely that no privilege will attach to it. I have examined document 20 carefully with these principles in mind. As a result, a number of matters emerge. 85 Firstly, there is a clearly stated intention on the part of Carruthers and the GIO that the terms of the document will remain confidential, absent compulsion by law. That, of course, is not conclusive but is a relevant matter to be taken into account. 86 Secondly, the document has the potential to reveal, at least in general terms, the legal strategy which was to be adopted in relation to the Carruthers proceedings. The fact that it does so by implication, rather than expressly, does not mean that privilege should not attach to it (see CSR v Eddy ([2008] 70 NSWLR 725) per Hodgson JA at [7]. 87 Thirdly, the document by its very nature fulfils the purpose of providing legal services, at least in terms of the overall capacity to have them at all. 88 Fourthly, the document has an obvious, and inextricable, connection with the advice tendered by GIO's lawyers to Carruthers in relation to the Carruthers proceedings. On any view, its content goes well beyond simply specifying rates for work which is to be carried out. 89 In these circumstances I am satisfied that privilege attaches to document 20." Analysis - Document 20 76The Marshalls make three complaints about this part of the decision. First, they question the existence of the so-called "extension" of legal professional privilege and common interest privilege. Second, they say that there was no express finding of legal professional privilege attaching to the funding agreement and an essential element of any common interest privilege was therefore lacking. The third complaint is that a transaction between a party to litigation and a provider of that party's finance for the litigation cannot, of its nature, attract the protection afforded to communications between lawyer and client. 77Counsel for the Marshalls submitted that the first instance decisions to which the primary judge referred, commencing with Re Global Medical Imaging Management Ltd [2001] NSWSC 476, do not support any general principle that legal professional privilege attaches to a litigation funding agreement. That submission is obviously correct. In one of the subsequent cases mentioned by the primary judge (Rickard Constructions Pty Limited v Rickard Hailes Moretti Pty Ltd [2006] NSWSC 234), Bergin J, as the Chief Judge in Equity then was, said of Re Global Medical Imaging Management Ltd (at [36]): "This decision is not authority for the proposition that the relationship between a funder of litigation and the funded party is a confidential relationship. Rather it may be authority for the more limited proposition that a funding agreement may satisfy the requirements of s 119 of the Act, depending on the particular terms of that agreement. It will depend on the facts of each case." 78The case before Bergin J concerned provisions of the Evidence Act but her Honour's statement is equally relevant to a case such as the present where common law legal professional privilege is in issue. 79As Bergin J observed, the question whether a particular document embodying a litigation funding agreement is protected by privilege depends wholly on the content of the document - viewed, no doubt, in light of the surrounding circumstances. 80The line of first instance decisions to which the primary judge referred was the subject of comment by Basten JA (with the concurrence of Hodgson and McColl JJA) in CSR Ltd v Eddy [2008] NSWCA 83; (2008) 70 NSWLR 725, where a question of privilege arose under s 119 of the Evidence Act in relation to a costs agreement between lawyer and client, as distinct from a litigation funding agreement. This Court was of the opinion that the general law position in relation to a costs agreement was correctly stated by Lindgren J in Cook v Pasminco Pty Ltd (No 2) (2000) 107 FCR 44; [2000] FCA 1819 at [47]. Lindgren J there observed that, generally, an agreement between a lawyer and a prospective client as to the terms of retainer does not attract legal professional privilege because it is not created for the dominant purpose of the giving or receiving of legal advice or of being used in existing or anticipated legal proceedings. It is entered into by parties whose interests are, at the time, generally opposed. 81Referring to a litigation funding agreement, Basten JA said (at [66]); "There is no doubt that a funding arrangement, whether with a third party or with a lawyer, may be characterised as a confidential document and may indeed be prepared for the dominant purpose of obtaining legal services. However, the nature of the connection must be assessed according to the purpose of the statutory provision [ie, s 119 of the Evidence Act]. That purpose is the same as the purpose of the general law protection and, for reasons already noted, does not extend to a document the purpose of which is to create the relationship. Different issues may arise in relation to documents prepared for or provided to a litigation funder." 82The primary judge recognised the need to make an assessment of the particular agreement before him in order to judge its quality. His conclusions were stated in the part of his judgment set out at [75] above. In challenging the evaluative conclusion that resulted from that examination, the Marshalls are, of course, hampered by lack of access to the document. I am bound to say, however, that my own conclusion, based on inspection of the document and a consideration of its content, differs from that of the primary judge. 83His Honour was correct in his finding that there is, in the agreement, a clearly stated intention on the part of Carruthers and GIO that the terms of the document will remain confidential, absent compulsion of law; and that that is a relevant matter. 84 The judge next said (at [86] in the August reasons) that the content of the document has "the potential to reveal, at least in general terms, the legal strategy which was to be adopted in relation to the Carruthers proceedings". I do not consider that to be a correct assessment. In order to explain my reasons, I refer to the outline of the provisions of the agreement in general terms which is set out in the Schedule to these reasons. 85I am not persuaded that access by the Marshalls to the terms of the agreement would potentially reveal, even in general terms, the legal strategy to be adopted in relation to the Carruthers proceedings. While the agreement makes it clear who is likely to make certain classes of decisions, it stops well short of identifying or providing insight into any legal strategy or plan of action. It is to be noted, in that connection, that the document contains nothing to indicate the size of any "war chest" to be made available (compare Green v CGU Insurance Ltd [2008] NSWSC 390) and accordingly does not provide the kind of insight into strategy - particularly as to seeking or agreeing to settlement - that information of that kind might indirectly give. 86The primary judge next observed (at [87] of the August reasons) that the agreement "by its very nature fulfils the purpose of providing legal services, at least in terms of the overall capacity to have them at all". That characterisation is, in my opinion, at odds with the reasoning in CSR Ltd v Eddy (above) and Cook v Pasminco Pty Ltd (No 2) (above). A retainer agreement or costs agreement between lawyer and client creates a right or opportunity for the client to have legal services and thus has the characteristic to which the primary judge referred. But, for the reasons stated in those two cases, that is insufficient to cause legal professional privilege to attach. Although the agreement may be stated (or intended) to be confidential to the parties, it is not itself the medium by which communications of a professional nature between lawyer and client are made for the purpose of obtaining or giving legal advice; nor does it repeat or quote any such communications. 87The final consideration to which the judge referred (at [88] of the August reasons) was that the document had "an obvious, and inextricable, connection with the advice tendered by GIO's lawyers to Carruthers in relation to the Carruthers proceedings". I must say that my reading of the agreement simply does not bear out this assessment. Nothing in the agreement can, in my view, be seen as a reflection of legal advice tendered. 88In summary, therefore, I am of the opinion that Document 20 is not protected by any legal professional privilege available to Carruthers. That being so (and given the derivative nature of common interest privilege as discussed above), no claim for common interest privilege is maintainable by GIO. Nor, in my view, is any supposed "extension" of legal professional privilege or common interest privilege maintainable by GIO. I do not regard the line of first instance decisions beginning with Re Global Medical Imaging Management Ltd (above) as a source of some hitherto undisclosed species within the genus privilege. If, as in my opinion is the case, Document 20 is not protected by legal professional privilege or common onterest privilege, no privilege claim at all is maintainable in relation to it. The decision that the Marshalls should not have access to Document 20 cannot stand. 89I should add, in relation to Document 20, that the objection to production was founded wholly on considerations of legal professional privilege and associated doctrines and that there has been no occasion to consider wider questions about the court's inherent power (and its duty) to administer its own proceedings so as to achieve the ends of justice. Disposition 90The subpoena matters raise important questions of principle warranting a grant of leave to appeal. 91I propose orders as follows: 1. Grant leave to appeal in respect of Orders 1 and 2 made in the Common Law Division on 29 August 2012. 2. Direct that a notice of appeal in terms of the notice of appeal contained in the White Book be filed within fourteen days. 3. Appeal allowed in part. 4. Vary Order 1 made in the Common Law Division on 29 August 2012 by omitting "documents 13, 14, 15, 17 and 20" and substituting "documents 13, 14, 15 and 17". 5. Direct that the parties do, within fourteen days, exchange and file written submissions on the costs orders that should be made in relation to the application for leave to appeal and the appeal. 6. Reserve for the future consideration of the Court all questions of costs of the application for leave to appeal and the appeal. 92The issue of costs will be dealt with on the papers unless a compelling submission requiring an oral hearing is received. 93There is one further matter. Because the Schedule to the judgment contains a summary of the terms of Document 20 and the Marshalls may be minded to appeal the aspect of the decision concerning that document, it is appropriate to impose a short and temporary embargo on disclosure of the content of the schedule except to GIO and its legal advisers. The embargo should accommodate the period prescribed by rule 40.02.1 of the High Court Rules 2004 (Cth). I therefore propose the following additional orders: 7. Order pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 that, until the expiration of the period of 35 days commencing upon the making of these orders (and thereafter for such further period, if any, as the Court may, within that period of 35 days, by order specify), the Schedule to the judgment of the Court be omitted from every copy of the judgment published or furnished to any person (other than GIO Workers Compensation (NSW) Pty Ltd and its legal advisers) or recorded on CaseLaw NSW. 8. Grant to GIO Workers Compensation (NSW) Pty Ltd liberty to apply on seven days notice for an order specifying a further period for the purposes of Order 7. 94WARD JA: I agree with the reasons of Barrett JA and with the orders his Honour proposes. ********** Schedule [Suppressed - See Order 7] ********** 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: 06 June 2013