Perazzoli v BankSA (No 3) [2016] FCA 677

Perazzoli v BankSA (No 3) [2016] FCA 677

BankSA was largely successful in challenging the applicants' claims of privilege over subpoenaed documents because the applicants did not establish solicitor/client relationships prior to 30 June 2013 or dominant purpose for privilege in many instances; litigation funder involvement did not maintain privilege where no retainer existed; as such, BankSA was awarded 60% of its costs of the privilege dispute. Leave to appeal by applicants was refused because no error of principle was identified—only factual disagreements with application of identified principles.

Parties
First Applicant: Galliano Perazzoli; Second Applicant: Moreno Ferluga; Third Applicant: William Johnson; First Respondent: BankSA, a Division of Westpac Banking Corporation Ltd; Second Respondent: Michael Christopher Samra; Third Respondent: Michael Christopher Samra as Trustee of the Michael Christopher Samra Family Trust trading as Adelaide Lending Centre; Fourth Respondent: Adelaide Lending Centre Group Pty Ltd (In Liquidation); Non Party: Nicholas David Cooper
Jurisdiction
Australia
Judgment Date
07 June 2016
Procedural Posture
Class Action / Interlocutory Application Concerning Production of Documents and Privilege, With Orders on Leave to Appeal and Costs
Outcome
Applicants' application for leave to appeal refused; costs apportioned as orders; directions for potential cross-appeal.
Legal Topics
Legal Professional Privilege, Subpoena, Class Actions, Costs
Commercial Law Corporations Law Legal Professional Privilege Subpoena Class Actions Costs

Case Brief

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Parties

Galliano Perazzoli

First Applicant

Moreno Ferluga

Second Applicant

William Johnson

Third Applicant

BankSA, a Division of Westpac Banking Corporation Ltd

First Respondent

Michael Christopher Samra

Second Respondent

Michael Christopher Samra as Trustee of the Michael Christopher Samra Family Trust trading as Adelaide Lending Centre

Third Respondent

Adelaide Lending Centre Group Pty Ltd (In Liquidation)

Fourth Respondent

Nicholas David Cooper

Non Party

Procedural Posture

Class Action / Interlocutory Application Concerning Production of Documents and Privilege, With Orders on Leave to Appeal and Costs

Legal Issues

  1. 1 Whether documents subpoenaed by BankSA are protected by legal professional privilege
  2. 2 Whether solicitor/client relationship existed for purposes of privilege prior to 30 June 2013
  3. 3 Whether litigation privilege attaches to certain documents

Ratio Decidendi

BankSA was largely successful in challenging the applicants' claims of privilege over subpoenaed documents because the applicants did not establish solicitor/client relationships prior to 30 June 2013 or dominant purpose for privilege in many instances; litigation funder involvement did not maintain privilege where no retainer existed; as such, BankSA was awarded 60% of its costs of the privilege dispute. Leave to appeal by applicants was refused because no error of principle was identified—only factual disagreements with application of identified principles.

Court Disposition

Applicants' application for leave to appeal refused; costs apportioned as orders; directions for potential cross-appeal.

Orders

  • First respondent has leave to uplift, inspect and copy documents except for those found privileged as listed in annexures.
  • Application for leave to appeal by applicants refused.