Perazzoli v BankSA, a division of Westpac Banking Corporation Limited [2017] FCAFC 204

Perazzoli v BankSA, a division of Westpac Banking Corporation Limited [2017] FCAFC 204

The appellate court found, based on objective circumstances, the Privilege Schedule, unchallenged evidence, and inspection of disputed documents, that from October 2009 there was a real prospect of litigation, and the communications/documents were made for the dominant purpose of anticipated litigation, thus attracting litigation and advice privilege. The primary judge erred by not inspecting the documents and by misapplying the test for privilege. No colourable case of abuse of process was made out, and no breach of the implied undertaking was established.

Jurisdiction
Australia
Judgment Date
08 December 2017
Procedural Posture
Appeal / Judgment on Appeal and Cross Appeal
Outcome
Appeal allowed, cross-appeal dismissed
Legal Topics
['legal Professional Privilege' 'litigation Privilege' 'advice Privilege' 'abuse of Process' 'implied Undertaking' 'class Actions']
['commercial Law' 'corporations Law' 'insolvency Law' 'practice and Procedure'] ['legal Professional Privilege' 'litigation Privilege' 'advice Privilege' 'abuse of Process' 'implied Undertaking' 'class Actions']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether communications and documents between investors and Griffins from 1 October 2009 to 30 June 2013 attract litigation privilege' 'Whether communications and documents between investors and Griffins in the same period attract advice privilege' 'Whether the examination power under s 81 of the Bankruptcy Act was abused' 'Whether there was a breach of the implied undertaking regarding documents produced in bankruptcy examinations']

Ratio Decidendi

The appellate court found, based on objective circumstances, the Privilege Schedule, unchallenged evidence, and inspection of disputed documents, that from October 2009 there was a real prospect of litigation, and the communications/documents were made for the dominant purpose of anticipated litigation, thus attracting litigation and advice privilege. The primary judge erred by not inspecting the documents and by misapplying the test for privilege. No colourable case of abuse of process was made out, and no breach of the implied undertaking was established.

Court Disposition

Appeal allowed, cross-appeal dismissed

Orders

  • ['Leave to appeal granted for all grounds of appeal.' 'Appeal allowed and cross-appeal dismissed.' 'Orders 1 and 5 made on 7 June 2016 set aside.' "BankSA application to inspect documents produced under subpoena allowed only for documents with 'No objection'; otherwise dismissed."]