FEDERAL COURT OF AUSTRALIA
Perazzoli v BankSA (No 3) [2016] FCA 677
File number: SAD 307 of 2014 Judge: MANSFIELD J Date of judgment: 7 June 2016 Date of hearing: Heard on the papers Date of last submissions: 28 May 2016 Registry: South Australia Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: No Catchwords Number of paragraphs: 54 Counsel for the Applicants: M Livesey QC with S Evans Solicitor for the Applicants: Johnson Winter & Slattery Counsel for the First Respondent: B Roberts SC and T Besanko Solicitor for the First Respondent: Fisher Jeffries Counsel for the Non-Party: M Douglas Solicitor for the Non-Party: Norman Waterhouse ORDERS
SAD 307 of 2014 BETWEEN: GALLIANO PERAZZOLI
First Applicant
MORENO FERLUGA
Second Applicant
WILLIAM JOHNSON
Third Applicant
AND: BANKSA, A DIVISION OF WESTPAC BANKING CORPORATION LTD
First Respondent
MICHAEL CHRISTOPHER SAMRA
Second Respondent
MICHAEL CHRISTOPHER SAMRA AS TRUSTEE OF THE MICHAEL CHRISTOPHER SAMRA FAMILY TRUST TRADING AS ADELAIDE LENDING CENTRE
Third Respondent
ADELAIDE LENDING CENTRE GROUP PTY LTD (IN LIQUIDATION)
Fourth Respondent
JUDGE:
MANSFIELD J
DATE OF ORDER:
7 JUNE 2016
THE COURT ORDERS THAT:
1.The first respondent has leave to uplift, inspect and copy the following documents, subject to the usual undertakings:
1.1email of 15 July 2011 in the envelope marked NDC-2 referred to at paragraph 5 of the affidavit of Thomas William Burke sworn on 31 March 2015;
1.2all documents identified in exhibit AV.1 to the affidavit of Antonietta Vozzo sworn on 21 April 2015 except for those documents identified in Annexure 1 to this Order; and
1.3all documents identified in Exhibit TWB.1 to the affidavit of Thomas William Burke sworn on 21 April 2015 except for those documents identified in Annexure 2 to this order.
2.The application of the applicants for leave to appeal from the orders made in Order 1 be refused.
3.Leave to the first respondent to provide to the Court by 10 June 2016, and to serve on the applicants such affidavit or other material as may properly inform the Court on the maintenance of its proposed cross-appeal, including the extent to which that cross-appeal (if pursued and successful) may materially advance the resolution of their interlocutory application to summarily dismiss the proceeding.
4.Leave to the applicants to provide to the Court by 15 June 2016 and to serve material in response.
5.The applicants pay the first respondent 60% of its costs of the Privilege Argument to be taxed.
6.The first respondent pay to the non-party, Nicholas David Cooper, 30% of his costs of and incidental to the Privilege Argument to be taxed.
Note: In these orders “Privilege Argument” means the costs of and incidental to the hearing and determination of the claims to privilege between the parties addressed in the reasons for judgment and incurred on and after 30 April 2015.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MANSFIELD J:
INTRODUCTION
Reasons for judgment (the…
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- Case
- [2016] FCA 677
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to address was whether the documents in question were protected by legal professional privilege. This involved a detailed examination of the nature of the documents, the circumstances under which they were created, and whether they fell within the scope of the privilege claimed by BankSA. The court had to balance the need for disclosure in the interests of justice against the protection of privileged communications. Another significant issue was the cost implications of the dispute, including the allocation of costs between the parties and to a non-party involved in the privilege argument.
In delivering the judgment, the court found that certain documents were indeed protected by legal professional privilege, and thus should not be disclosed. However, the court also ruled that other documents were not privileged and ordered their disclosure. The court refused the applicants leave to appeal from the orders made concerning the privileged documents but allowed them to provide material to inform the court on the potential impact of a cross-appeal. The court also directed the applicants to pay a portion of the costs of the privilege argument to BankSA, and BankSA to pay a portion of the costs to a non-party involved in the privilege argument.
The final orders included specific directions for the disclosure of certain documents, refusal of leave to appeal, and detailed cost directions between the parties and a non-party. These orders reflect the court's decision to protect certain privileged communications while ensuring that the proceedings could continue with the necessary documents for justice to be served.
Orders
Orders of the court
1. The first respondent has leave to uplift, inspect and copy the following documents, subject to the usual undertakings:
1.1 email of 15 July 2011 in the envelope marked NDC-2 referred to at paragraph 5 of the affidavit of Thomas William Burke sworn on 31 March 2015;
1.2 all documents identified in exhibit AV.1 to the affidavit of Antonietta Vozzo sworn on 21 April 2015 except for those documents identified in Annexure 1 to this Order; and
1.3 all documents identified in Exhibit TWB.1 to the affidavit of Thomas William Burke sworn on 21 April 2015 except for those documents identified in Annexure 2 to this order.
2. The application of the applicants for leave to appeal from the orders made in Order 1 be refused.
3. Leave to the first respondent to provide to the Court by 10 June 2016, and to serve on the applicants such affidavit or other material as may properly inform the Court on the maintenance of its proposed cross-appeal, including the extent to which that cross-appeal (if pursued and successful) may materially advance the resolution of their interlocutory application to summarily dismiss the proceeding.
4. Leave to the applicants to provide to the Court by 15 June 2016 and to serve material in response.
5. The applicants pay the first respondent 60% of its costs of the Privilege Argument to be taxed.
6. The first respondent pay to the non-party, Nicholas David Cooper, 30% of his costs of and incidental to the Privilege Argument to be taxed.
Note: In these orders “Privilege Argument” means the costs of and incidental to the hearing and determination of the claims to privilege between the parties addressed in the reasons for judgment and incurred on and after 30 April 2015.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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