Perazzoli v BankSA (No 4)

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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

  1. 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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Details
Case
[2016] FCA 725
Decision Date

CaseChat Overview and Summary

The Federal Court of Australia dealt with an application by Perazzoli against BankSA. The applicants sought to set aside an earlier order and to appeal from that order, while the respondents sought leave to cross-appeal. The dispute concerned the scope of advice and litigation privileges in the context of a bank's dealings with its clients. The court had to determine whether the applicants had the right to appeal and whether the respondents could cross-appeal, focusing on the grounds provided by both parties.

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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