Re Bank Mansion Pty Ltd - [2018] VSC 52

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT
CORPORATIONS LIST

S CI 2017 03240

IN THE MATTER OF BANK MANSION PTY LTD (IN LIQUIDATION)
(ACN 142 812 360)

BANK MANSION PTY LTD (IN LIQUIDATION) (ACN 142 812 360)	First Plaintiff
and
GLENN FRANKLIN IN HIS CAPACITY AS LIQUIDATOR OF BANK MANSION PTY LTD (IN LIQUIDATION) (ACN 142 812 360)	Second Plaintiff

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JUDGE:	MATTHEWS JR
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2017 and 14 December 2017
DATE OF RULING:	2 February 2018
CASE MAY BE CITED AS:	Re Bank Mansion Pty Ltd
MEDIUM NEUTRAL CITATION	[2018] VSC 52

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PRACTICE AND PROCEDURE – Legal professional privilege – Production of documents in the course of a public examination – Solicitor’s invoices – Appropriate redactions – Inspection of documents for the purpose of determining the question – Ruling sustaining privilege in relation to some redactions and rejecting privilege in relation to others – Corporations Act 2001 (Cth), Division 1 of Part 5.9.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr C R Brown	Mills Oakley
For the examinee George Konstas	Dr O Bigos	Robert James Lawyers

JUDICIAL REGISTRAR MATTHEWS:

Introduction

The second plaintiff, Glenn Franklin, is the liquidator of the first plaintiff, Bank Mansion Pty Ltd (‘Bank Mansion’).

Pursuant to the provisions of Division 1 of Part 5.9 of the Corporations Act 2001 (Cth) (‘Act’), Mr Franklin is conducting public examinations under the supervision of the Court of a number of persons concerning the examinable affairs of Bank Mansion. One of those examinees is George James Konstas.

During the course of his examination, orders were made requiring Mr Konstas to produce a number of documents to the Court, including certain invoices (which are identified below) which had been rendered by the law firm of which he is a partner, Robert James Lawyers (‘RJL’), costs agreements between RJL and Bank Mansion, and documents relating to three specified trust account transfers from Bank Mansion to RJL.

This ruling concerns a claim that certain of the invoices to be produced to the Court by Mr Konstas are subject to legal professional privilege. Privilege was initially claimed over the whole of the invoices referred to in the orders, however that is no longer the case. Three of the invoices have been produced to the plaintiffs in their entirety and are no longer the subject of a privilege claim. In respect of another six invoices, privilege is no longer claimed over the whole of the documents however redacted copies have been produced to the plaintiffs, where the portions redacted are said to be those portions the subject of the privilege claim.

The plaintiffs dispute the privilege claim over the redacted portions of the subject invoices.

Mr Konstas has sworn an affidavit on 20 December 2017 (‘Konstas Affidavit’) in support of the privilege claim. Amongst other things, that affidavit exhibits a set of the redacted invoices,[1] and a set of unredacted invoices.[2] The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Bank Mansion Pty Ltd

Details

AGLC: Re Bank Mansion Pty Ltd [2018] VSC 52
Case: [2018] VSC 52
Decision Date: 2 February 2018

CaseChat Overview and Summary

The case of Re Bank Mansion Pty Ltd involved a dispute over the production of documents during a public examination. The primary parties in the dispute were Bank Mansion Pty Ltd and the Australian Securities and Investments Commission (ASIC). The dispute centred on the issue of legal professional privilege and the extent to which certain documents, specifically solicitor’s invoices, could be redacted before production. ASIC sought the production of these documents as part of its investigation into the affairs of Bank Mansion, while Bank Mansion argued that the documents were privileged and should not be disclosed.

The legal issues before the court revolved around the scope of legal professional privilege and the appropriate level of redactions that could be made to documents before production. The court had to determine whether certain information contained in the solicitor’s invoices was protected by legal professional privilege, and if so, what parts of the documents could be redacted while still maintaining the privilege. The case also considered the provisions of the Corporations Act 2001 (Cth) and Division 1 of Part 5.9, which govern the disclosure of documents in public examinations.

The court carefully examined the solicitor’s invoices in question, balancing the need for transparency and the protection of legal professional privilege. It ruled that some parts of the invoices were indeed privileged and should not be disclosed, while other parts, which did not pertain to legal advice or litigation, could be appropriately redacted. The court sustained privilege in relation to certain redactions and rejected privilege in relation to others, providing a nuanced approach to the application of privilege in this context. The court’s decision highlighted the importance of inspecting documents to determine the precise nature of the information and the extent of any privilege that may apply.

Orders