Craig v Johnson

The applicants, Craig and Johnson, sought leave to appeal a decision of the primary judge concerning a subpoena issued to their solicitor. The dispute centred on whether the subpoena effectively captured documents that had already been produced in response to an earlier subpoena and had been ruled by the court to be subject to legal professional privilege.

The central legal issue before the Court of Appeal was whether the primary judge erred in refusing to set aside the subpoena. This required the court to consider the scope of the subpoena and whether it could validly encompass documents previously determined to be privileged. A further issue arose regarding the timing of payment of costs ordered by the primary judge.

The Court of Appeal, comprising Macfarlan and Brereton JJA, reasoned that the applicants had a prior opportunity to seek leave to appeal the decision regarding legal professional privilege but failed to do so. They found that the current application for leave to appeal was therefore without merit. Furthermore, the court determined that the applicants' unsuccessful attempt to challenge the primary judge's finding that they had abused the court process meant that the costs ordered by the primary judge were payable forthwith.

Consequently, the application for leave to appeal was dismissed, with costs ordered to be paid by the applicants, and such costs were to be payable forthwith.