Australian Securities and Investments Commission v Tzouvelis (No 2) [2023] FCA 1149

Australian Securities and Investments Commission v Tzouvelis (No 2) [2023] FCA 1149

The Court held that the respondents' submission that furtherance must be proved on the balance of probabilities should be rejected because the authorities support application of the prima facie standard. However, ASIC's submission that any document prima facie concerning the subject matter of an improper purpose loses privilege unless a proper purpose is apparent was also rejected; something must be apparent from the document or documents evidencing furtherance of the requisite improper purpose. Because the report did not state that the referee applied the prima facie test, the preferable course was to require the referee to reconsider the report in light of the reasons.

Jurisdiction
Australia
Judgment Date
28 September 2023
Procedural Posture
Practice and Procedure; Application Concerning Referee Report on Legal Professional Privilege and Improper Purpose / Application Under R 28.67 of the Federal Court Rules 2011 (cth) Concerning Whether a Referee's Report Should Be Adopted, Rejected or Varied
Outcome
Senior National Judicial Registrar Legge was ordered to reconsider her report; costs were reserved.
Legal Topics
['referee Appointed Under S 54 a of the Federal Court of Australia Act 1976 (cth)' 'fraud or Improper Purpose Exception to Legal Professional Privilege' 'prima Facie Standard for Communications in Furtherance of Improper Purpose' 'adoption, Rejection, Variation or Remittal of Referee Report']
['practice and Procedure' 'evidence' 'legal Professional Privilege' 'corporations and Corporate Insolvency'] ['referee Appointed Under S 54 a of the Federal Court of Australia Act 1976 (cth)' 'fraud or Improper Purpose Exception to Legal Professional Privilege' 'prima Facie Standard for Communications in Furtherance of Improper Purpose' 'adoption, Rejection, Variation or Remittal of Referee Report']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Practice and Procedure; Application Concerning Referee Report on Legal Professional Privilege and Improper Purpose / Application Under R 28.67 of the Federal Court Rules 2011 (cth) Concerning Whether a Referee's Report Should Be Adopted, Rejected or Varied

Legal Issues

  1. 1 ["Whether the referee's report should be adopted, rejected or varied under r 28.67 of the Federal Court Rules 2011 (Cth)." 'Whether the referee applied the correct test to determine whether the Relevant Documents contained or evidenced communications in furtherance of, or as a step preparatory to, either or both improper purposes.' 'Whether the prima facie standard applies to the factual inquiry as to furtherance of an improper purpose.' 'Whether the report should be reconsidered because it did not state that the referee applied the prima facie test.']

Ratio Decidendi

The Court held that the respondents' submission that furtherance must be proved on the balance of probabilities should be rejected because the authorities support application of the prima facie standard. However, ASIC's submission that any document prima facie concerning the subject matter of an improper purpose loses privilege unless a proper purpose is apparent was also rejected; something must be apparent from the document or documents evidencing furtherance of the requisite improper purpose. Because the report did not state that the referee applied the prima facie test, the preferable course was to require the referee to reconsider the report in light of the reasons.

Court Disposition

Senior National Judicial Registrar Legge was ordered to reconsider her report; costs were reserved.

Orders

  • ['Senior National Judicial Registrar Legge reconsider her report dated 2 June 2023 in light of these reasons, and provide to the chambers of O\'Callaghan J, marked "Confidential", a copy of a further report by no later than 4:00pm on 14 November 2023.' 'Costs reserved.']