FEDERAL COURT OF AUSTRALIA
Perazzoli v BankSA (No 4) [2016] FCA 725
File number: SAD 307 of 2014 Judge: MANSFIELD J Date of judgment: 23 June 2016 Date of hearing: 14 June 2016 Date of last submissions: 17 June 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: 25 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 Respondent: Fisher Jeffries Counsel for the Non-Party T Bourke 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:
23 JUNE 2016
THE COURT ORDERS THAT:
1.On the application by the applicants, Order 2 of the Orders made on 7 June 2016 is set aside pursuant to r 39.05(c) of the Federal Court Rules 2011 (Cth) (the Rules).
2.Leave is given to the applicants to appeal from Order 1 of the Orders made on 7 June 2016 in respect of the proposed grounds of appeal as set out in [10] of the Reasons for Judgment published with these Orders but confined to:
(a)the proposed ground 1 headed “Advice Privilege” save that the proposed ground 1.3 should be amended to exclude the words “and materials” in line 1; and
(b)the proposed ground 2 headed “Litigation Privilege” but confined to the proposed ground 2.3 (including the introduction lines to ground 2), but deleting the words “and materials” in line 1 ground 2.3, so that leave to appeal from the said Orders is not given in respect of proposed grounds 2.1 and 2.2.
3.Leave is given to the first respondent to cross-appeal from the said orders (or to file a notice of cross-contention in relation to the said orders) on the grounds specified in its Draft Motion of cross-appeal appended to its written submissions dated 20 May 2016.
4.There be no order as to the costs of the applicants on their application pursuant to r 39.05(c) of the Rules to set aside Order 1 of the Orders made on 7 June 2016, including the further application for leave to appeal.
5.The costs of the first respondent on its application for leave to cross-appeal follow the outcome of the proposed cross-appeal, unless the Full Court otherwise orders.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
MANSFIELD J:
LEAVE TO APPEAL
It is not common, where leave to appeal is given from an interlocutory decision, that reasons for doing so are published.…
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- Case
- [2016] FCA 725
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were the scope and application of advice and litigation privileges in the context of the applicants' challenge to certain banking transactions. The applicants argued that their communications with their lawyers were protected by privilege and that this protection should extend to their clients, the respondents. The respondents argued that the communications should not be privileged as they were not made in confidence and were not for the dominant purpose of giving or obtaining legal advice. The court needed to assess the arguments from both parties and determine whether the privileges applied to the communications in question.
The court found that the applicants had met the requirements to set aside the earlier order and granted leave to appeal on specific grounds. The court clarified that the advice and litigation privileges applied only to communications between the applicants and their lawyers, not to communications between the applicants and their clients. The court held that the applicants could appeal on the grounds of advice and litigation privileges, but these grounds were limited to specific aspects of the earlier order. The court also granted leave to the respondents to cross-appeal on the grounds specified in their submissions. The court ruled that the costs of the applicants' application would not be ordered against them, but the costs of the respondents' cross-appeal would follow the outcome of the appeal, unless the Full Court otherwise directed.
The court issued several orders, including setting aside an earlier order, granting leave to the applicants to appeal on specified grounds, and allowing the respondents to cross-appeal on the grounds outlined in their submissions. The court also ruled on the costs, stating that the applicants would not bear the costs of their application, while the respondents' costs would depend on the outcome of the cross-appeal. These orders aimed to clarify the scope of the privileges and to allow the parties to pursue their legal remedies within the defined parameters.
Orders
Orders of the court
1. On the application by the applicants, Order 2 of the Orders made on 7 June 2016 is set aside pursuant to r 39.05(c) of the Federal Court Rules 2011 (Cth) (the Rules).
2. Leave is given to the applicants to appeal from Order 1 of the Orders made on 7 June 2016 in respect of the proposed grounds of appeal as set out in [10] of the Reasons for Judgment published with these Orders but confined to:
(a) the proposed ground 1 headed “Advice Privilege” save that the proposed ground 1.3 should be amended to exclude the words “and materials” in line 1; and
(b) the proposed ground 2 headed “Litigation Privilege” but confined to the proposed ground 2.3 (including the introduction lines to ground 2), but deleting the words “and materials” in line 1 ground 2.3, so that leave to appeal from the said Orders is not given in respect of proposed grounds 2.1 and 2.2.
3. Leave is given to the first respondent to cross-appeal from the said orders (or to file a notice of cross-contention in relation to the said orders) on the grounds specified in its Draft Motion of cross-appeal appended to its written submissions dated 20 May 2016.
4. There be no order as to the costs of the applicants on their application pursuant to r 39.05(c) of the Rules to set aside Order 1 of the Orders made on 7 June 2016, including the further application for leave to appeal.
5. The costs of the first respondent on its application for leave to cross-appeal follow the outcome of the proposed cross-appeal, unless the Full Court otherwise orders.
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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