Kayler-Thomson v Colonial First State Investments Limited (No 3)

The case of Kayler-Thomson v Colonial First State Investments Limited (No 3) involved a dispute regarding the production of documents for inspection in proceedings concerning the conduct of the first respondent as trustee of superannuation funds. The applicants, who were members of the superannuation funds, sought to inspect certain documents that the respondent resisted producing on the basis of a claim to legal professional privilege. The applicants argued that a joint legal professional privilege existed between the third applicant and the first respondent as beneficiary and trustee. The documents in question related to time periods when the third respondent was not invested in the relevant option. The first respondent maintained that the previous decision in an interlocutory application brought by the first applicant was binding upon the third applicant and that the doctrine of Anshun estoppel precluded the third applicant from raising new reasons in support of the present application.

The court considered the structure of the Trust Deed and the beneficiary's interest in the trust. The questions for determination were adjudicated on the basis that a joint privilege existed. The court found that the reasoning in the previous case was contrary to the contentions advanced by the third applicant. The court also found that the principles associated with Anshun estoppel did not apply in circumstances where successive applications were made within the same proceedings. The present application by the third applicant was not an instance where there was a repeat application by the same party, and the decision in the previous case did not determine claims to joint privilege that may be made by other members of the Fund based upon their personal circumstances.

The court determined that the interest of a beneficiary in the administration of the whole of the Fund was not confined to the units allocated in the beneficiary's Investment Portfolio. Rather, the beneficiary had an interest in the due administration of the Fund as a whole. The liability of the trustee to pay benefits to a person related to all Assets of the Fund and was not attributable to any particular Investment Portfolio or Division.

The court ordered that the answers to questions 1 to 5 in Annexure A to the orders dated 12 August 2022 be determined in the affirmative. The first respondent was ordered to pay the third applicant's costs of and incidental to the determination of those questions in any event, such costs to be assessed if not agreed.