Australian Securities and Investments Commission v Australia and New Zealand Banking Group Ltd (No 2)

The Australian Securities and Investments Commission (ASIC) brought proceedings against Australia and New Zealand Banking Group Ltd (ANZ) in the Federal Court, seeking orders for the discovery of certain documents. The dispute centred around ANZ’s charging of a Periodical Payment Non-Payment (PPNP) fee and whether this was permissible under the bank's terms and conditions. ASIC aimed to obtain documents that either recorded the contents of a 2011 communication between ANZ and ASIC, or that revealed the passing-on of the substance of this communication between ANZ employees between 1 July 2011 and 23 February 2016. ANZ argued that legal professional privilege was claimed over certain documents and that no waiver of privilege had occurred.

The court had to determine whether the privilege over certain documents had been waived by way of disclosure in prior correspondence or whether it had been impliedly waived. The court examined the February 2014 letter from ANZ to ASIC, which disclosed certain information about the PPNP fee issue, and the subsequent communications in August 2016 regarding the remediation of the issue. It was established that the February 2014 letter did not disclose any legal advice and thus did not constitute a waiver of privilege. The court found that the subsequent communications did not imply a waiver of privilege either, as they did not disclose any confidential communications between ANZ and its legal advisors.

Accordingly, the court ruled that there was no waiver of legal professional privilege and dismissed ASIC's application to the extent it sought production of the documents described in the interlocutory application. The court ordered that ANZ provide a list of documents as per the specified rules and conditions, and that this list be verified by an affidavit. The parties were directed to discuss the costs of the application at the next case management hearing.