Perazzoli v BankSA (No 4) [2016] FCA 725

Perazzoli v BankSA (No 4) [2016] FCA 725

The Court set aside the earlier refusal of leave because the applicants' earlier cursory submissions were explained by a shared understanding that leave to appeal and cross-appeal would not be opposed, making it appropriate in the interests of justice to revisit the issue despite the public interest in finality. Leave to appeal was granted only on confined grounds raising arguable errors of law on the findings made in the Privilege Judgment, and not to permit re-exploration of the primary evidentiary material. Leave was refused for proposed litigation privilege grounds that misstated the law or the Privilege Judgment, but granted on the confined ground that, on the findings, there was a...

Jurisdiction
Australia
Judgment Date
23 June 2016
Procedural Posture
Application for Leave to Appeal and Cross Appeal From Interlocutory Privilege Orders in a Commercial and Corporations Proceeding / Application Under R 39.05(c) of the Federal Court Rules 2011 (cth) to Set Aside an Order Refusing Leave to Appeal, and Renewed Applications for Leave to Appeal and Cross Appeal
Outcome
Order refusing leave to appeal set aside; applicants granted limited leave to appeal; BankSA granted leave to cross-appeal or file a notice of cross-contention; costs dealt with as ordered.
Legal Topics
['legal Professional Privilege' 'advice Privilege' 'litigation Privilege' 'solicitor Client Relationship' 'interlocutory Appeal' 'cross Appeal' 'abuse of Process' 'subpoenas' 'summary Dismissal' 'bankruptcy Examination Orders']
['commercial and Corporations' 'corporations and Corporate Insolvency' 'civil Procedure' 'evidence'] ['legal Professional Privilege' 'advice Privilege' 'litigation Privilege' 'solicitor Client Relationship' 'interlocutory Appeal' 'cross Appeal' 'abuse of Process' 'subpoenas' 'summary Dismissal' 'bankruptcy Examination Orders']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Cross Appeal From Interlocutory Privilege Orders in a Commercial and Corporations Proceeding / Application Under R 39.05(c) of the Federal Court Rules 2011 (cth) to Set Aside an Order Refusing Leave to Appeal, and Renewed Applications for Leave to Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether Order 2 of the orders made on 7 June 2016 refusing leave to appeal should be set aside under r 39.05(c) of the Federal Court Rules 2011 (Cth).' 'Whether the applicants should be granted leave to appeal on proposed grounds concerning advice privilege and the existence of a solicitor-client relationship between GMG Legal Services Pty Ltd and the applicants and group members.' 'Whether the applicants should be granted leave to appeal on proposed grounds concerning litigation privilege and whether there was a real prospect of litigation before 30 June 2013.' 'Whether BankSA should be granted leave to cross-appeal or file a notice of cross-contention concerning the finding that there was not a colourable case of abuse of process or misuse of documents produced by BankSA.' 'What costs orders should be made on the applications.']

Ratio Decidendi

The Court set aside the earlier refusal of leave because the applicants' earlier cursory submissions were explained by a shared understanding that leave to appeal and cross-appeal would not be opposed, making it appropriate in the interests of justice to revisit the issue despite the public interest in finality. Leave to appeal was granted only on confined grounds raising arguable errors of law on the findings made in the Privilege Judgment, and not to permit re-exploration of the primary evidentiary material. Leave was refused for proposed litigation privilege grounds that misstated the law or the Privilege Judgment, but granted on the confined ground that, on the findings, there was a...

Court Disposition

Order refusing leave to appeal set aside; applicants granted limited leave to appeal; BankSA granted leave to cross-appeal or file a notice of cross-contention; costs dealt with as ordered.

Orders

  • ['On the application by the applicants, Order 2 of the Orders made on 7 June 2016 is set aside pursuant to r 39.05(c) of the Federal Court Rules 2011 (Cth).' 'Leave is given to the applicants to appeal from Order 1 of the Orders made on 7 June 2016 in respect of the proposed grounds of appeal as set out in [10] of...