Perazzoli v BankSA (No 2)

In Perazzoli v BankSA (No 2), the applicants, who had lost significant funds due to a Ponzi scheme, sought to establish a class action against BankSA. The dispute involved complex questions regarding legal professional privilege, particularly concerning communications between lawyers and potential class members and the trustee in bankruptcy. The applicants argued that their communications with their former solicitors, GMG, and their current solicitors, JWS, were privileged. BankSA contested these claims, arguing that the communications were not privileged as they did not meet the necessary criteria for legal professional privilege.

The court had to determine whether the applicants' communications with their solicitors were protected by legal professional privilege, specifically whether they were for the dominant purpose of giving or obtaining legal advice or for use in actual or reasonably anticipated legal proceedings. The court also had to consider whether the trustee in bankruptcy could claim privilege over communications relating to potential claims by investors. The key issue was whether these communications were part of an actual or reasonably anticipated legal proceeding, or if they were unsolicited advice.

The court ruled that the claims to privilege by the applicants were only partially successful. The communications between the applicants and their former solicitors, GMG, were not privileged as they did not meet the criteria for legal professional privilege. However, the communications between the applicants and their current solicitors, JWS, were privileged. The trustee in bankruptcy's claims to privilege were essentially successful, as the trustee had not waived his privilege and the communications were for the purpose of exploring potential claims by investors.

The court ordered that BankSA prepare a minute of the orders based on these findings. The applicants and the trustee were given the opportunity to propose their own minutes of order if they disagreed with BankSA's proposal. The parties were also invited to confer on the costs of the hearing.