FEDERAL COURT OF AUSTRALIA

Perazzoli v BankSA (No 2) [2016] FCA 260

ORDERS

THE COURT ORDERS THAT:

1.    The first respondent submit its proposed minutes of order to give effect to these reasons for decision, and to the extent that the applicant or the Trustee of the bankrupt estate of the second respondent do not agree with those minutes of order they submit their respective proposed minutes of order, each within a period to be fixed by the Court.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MANSFIELD J:

INTRODUCTION

1    The nature of this proceeding, and the procedural steps which underlie the current controversy, are set out in the reasons for judgment of White J in Perazzoli v BankSA [2015] FCA 373 at [2]-[16]. I will not repeat them.

2    These reasons for judgment, dealing with one refined but complex set of issues arising out of those procedural steps, assume an awareness of those matters.

3    The applicants are faced with the interlocutory application of the first respondent (BankSA) seeking summary dismissal, or a permanent stay, of the proceeding. As White J pointed out at [7], BankSA says its application for a stay is on the following bases:

The principal relief which BankSA will seek on its interlocutory application is the grant of a permanent stay. BankSA has indicated that the stay is sought on the following basis:

•    First, documents were sought and produced by BankSA in answer to the examination summonses that were issued on the application of the Trustee, but which improperly sought documents as an aid to litigation that was in contemplation by the applicants and other group Members; and

•    Secondly, there was a misuse of those documents (in contravention of the Harman undertaking) when the solicitors, Griffin – who were at relevant times commonly acting as solicitors to the Trustee and to the applicants and other group members – deployed the documents produced by BankSA in furtherance of the litigation by its other clients for their separate ends.

4    It is an important application, because it is possible that the other respondents (who did not appear on the present hearing), may not have resources significant enough to meet any judgment against them.

5    It is the subpoenas issued by BankSA seeking the production of documents in connection with its interlocutory application which give rise to the present issues. The three subpoenas were directed to the trustee in bankruptcy (the Trustee) of the second respondent (Mr Samra), to GMG Legal Services Pty Ltd trading as Griffins Lawyers (GMG), formally acting for the applicants, and to LCM Litigation Fund Pty Ltd (LCM), a litigation funder of the principal proceeding.

6    The Trustee complied with the subpoena to him, despite the application of the applicants to set it aside, but some of the documents produced were said to be the subject of legal professional privilege. The applicants in the proceeding, and GMG, and LCM, each applied to have the subpoenas set aside in whole or in part. LCM did not pursue its separate application. White J upheld the validity of the subpoena to the Trustee. His Honour set aside paras 2 and 4 of the subpoena to LCM, and paras 1, 5, 7 and 9 and in part para 4 (to the extent it required production of documents which “touch on” the identified subject matters) of the subpoena to GMG.

7    Hence to some degree, the subpoenas to GMG and LCM were required to be answered and the subpoena to the Trustee was answered.

THE PRESENT ISSUES

8    The present issues concern the claims that a very considerable number of the documents produced pursuant to the three subpoenas, following those rulings, are the subject of legal professional privilege, and so should not be required to be available for inspection by BankSA. That is a matter not considered by White J. As his Honour is presently the docket judge for the proceeding, it is preferable that the current issues be addressed (potentially involving the desirability of inspecting some or all of the documents in issue) by a different judge.

9    On the hearing of those issues, the applicants asserted that a very significant number of documents produced by GMG and LCM pursuant to the subpoenas to them, were the subject of their legal professional privilege. I have used that term (rather than the term “client legal privilege” which appears now to be more in vogue), because it is used in the submissions. The Trustee separately maintained his claim to legal professional privilege in respect of a lesser number of documents. The persons appearing on this argument were, therefore, the applicants and the Trustee, both asserting legal professional privilege in the documents in issue, and BankSA.

10    The very helpful written and oral submissions of counsel and the considerable preparatory work of the solicitors for the parties led to an efficient and helpful way to address the issues.

11    The starting point is a Notice of Grounds of Opposition (the Notice), presented by BankSA, in which it identifies the grounds on which it resists the claim that the documents should not be available for inspection. The documents are categorised into five separate categories, reflecting the several issues to be addressed, and in an extensive Index of documents allocating the voluminous documentary material in issue, appropriately cross-referenced, to eight Annexures to that Notice (with some sub-annexures). Minor alterations to Annexures 4.3 and 7 were presented at the hearing. The Notice was prepared from, and it is accepted accurately reflects, the Index to documents produced under the three subpoenas and the objections to inspection, as prepared by Antonietta Vozzo, a partner in the present solicitors for the applicants Johnson Winton & Slattery (JWS), and exhibited as “AV.1” to her affidavit of 21 April 2015.

12    The Notice provides the structure within which the submissions of all parties were presented. It is helpful, therefore, to record (almost by total paraphrase) those issues. It is argued:

(1)    In respect of the period prior to 1 July 2013, there was no solicitor/client relationship between any of the applicants or Group Members (as defined in para 4 of the Statement of Claim) and GMG, nor any evidence of circumstances that would otherwise attract privilege outside of an established solicitor/client relationship. If this is accepted then each of the claims to legal professional privilege identified in Annexure 1 to the Notice will be decided adversely to the applicants, and those documents will be available for inspection by BankSA.

(2)    Further and in the alternative, insofar as the claim for privilege is based upon litigation privilege, the applicants and Group Members have failed to discharge their onus of establishing that there was a real prospect of litigation at any time prior to 1 July 2013: if this is accepted then each of the claims identified in Annexure 2 to the Notice will be decided adversely to the applicants, and those documents will be available for inspection by BankSA.

(3)    Further and in the alternative, in respect of the period 1 November 2011 until 30 June 2013, insofar as privilege might otherwise have attached, there is evidence of a colourable case that communications between 1 November 2011 and 30 June 2013 were made in furtherance of an abuse of process, such that legal professional privilege does not attach to such communications. If this is accepted then each of the claims identified in Annexure 3 to the Notice will be decided adversely to the applicants, and those documents will be available for inspection by BankSA.

(4)    Further and in the alternative, the applicants and Group Members have not discharged their onus of establishing that the creation of each document was for the dominant purpose of giving or obtaining legal advice or for use in actual or reasonably anticipated legal proceedings. If this is accepted then each of the claims identified in Annexures 4.1 to 4.5 of the Notice will be decided adversely to the applicants, and those documents will be available for inspection by BankSA. The five sub-annexures are broken into:

(a)    documents internal to legal advisers (Annexure 4.1);

(b)    unprompted communications with the applicants and Group Members (Annexure 4.2);

(c)    third party communications (Annexure 4.3);

(d)    dual claims of privilege in respect of the applicants or Group Members claiming privilege over the same document as the Trustee and in respect of which no common interest has been established (Annexure 4.4); and

(e)    other (Annexure 4.5).

(5)    Further and in the alternative, the documents were created in circumstances such that the requisite confidentiality does not exist: if this is accepted then each of the claims identified in Annexure 5 to the Notice will be decided adversely to the applicants, and those documents will be available for inspection by BankSA.

13    In relation to the Trustee’s claims of legal professional privilege, it is argued:

(6)    Insofar as the claim for privilege is based upon a litigation privilege, the Trustee has failed to discharge his onus of establishing that there was a real prospect of litigation at any time. If this is accepted then each of the claims identified in Annexure 6 hereto will be decided adversely to the Trustee (and to the applicants);

(7)    Further and in the alternative, even if privilege might have otherwise attached there is a colourable case that communications were made in furtherance of an abuse of process, such that legal professional privilege does not attach to such communications: if this is accepted then each of the claims identified in Annexure 7 to the Notice will be decided adversely to the Trustee (and to the applicants) and those documents will be available for inspection by BankSA.

(8)    Finally, further and in the alternative, the Trustee has not discharged his onus of proving that the creation of the documents was for the dominant purpose of giving or obtaining legal advice for use in actual or reasonably anticipated legal proceedings. If this is accepted then each of the claims identified in Annexures 8.1 to 8.4 to the Notice will be decided adversely to the Trustee and to the applicants. The 4 sub-annexures are:

(a)    documents that do not relate to the Trustee (Annexure 8.1);

(b)    third party communications (Annexure 8.2);

(c)    dual claims of privilege in respect of the Trustee claiming privilege over the same documents as the applicants or Group Members (Annexure 8.3); and

(d)    other (Annexure 8.4 and paras [5], [7] and [9] to [22] of the affidavit of Thomas Burke sworn on 31 March 2015).

14    I shall for convenience describe each of those issues as Issues 1-8 respectively.

THE EVIDENCE

15    Obviously, to a significant extent, the resolution of those issues required findings of fact, but also to a degree some qualitative judgments. As a starting point, for example, Issue 1 requires a finding about whether there was a relevant solicitor/client relationship between GMG and the applicant and/or other Group Members from 1 October 2009 (as the applicants contend) or only from about June 2013 (as BankSA contends).

16    The evidence adduced on the issues for the applicants was as follows:

(a)    affidavit of Ms Vozzo, sworn 21 April 2015;

(b)    affidavit of Gregory Griffin, sworn 25 February 2015;

(c)    affidavit of Gregory Griffin, sworn 21 April 2015;

(d)    affidavit of Moreno Ferluga, sworn 30 April 2015;

(e)    affidavit of Wendy Jones, sworn 24 December 2014; and

(f)    affidavit of Matthew Elson, sworn 6 May 2015.

Mr Griffin is a solicitor from GMG, formerly acting for the applicants. Mr Ferluga is an applicant. Ms Jones and Mr Elson are solicitors from the legal firm representing BankSA.

17    The evidence adduced by the Trustee was in three affidavits of Mr Burke, sworn on 31 March 2015, 21 April 2015 and 1 May 2015. Mr Burke is a solicitor from the legal firm now representing the Trustee.

18    The additional evidence adduced by BankSA, which also sought to rely on the affidavits relied on by the applicants and the Trustee, was the further affidavit of Ms Jones of 23 April 2015.

19    There was no application to cross-examine any of the deponents, so I proceed on the basis of the reliability of the primary facts asserted by each of them.

The relevant principles

20    As might be expected, there was no real issue about the key applicable principles or the main authorities establishing them. The disputes centred on their application to the particular facts, or on whether the primary facts were sufficient to preserve the claim for privilege. It is not, therefore, necessary (at least at this point), to refer to other than the relevant principles. Again, these are taken largely from the submissions.

21    Common law principles govern the claims of privilege by the applicants and the Trustee, rather than ss 118 and 119 of the Evidence Act 1995 (Cth) (Evidence Act), as the issue before the Court is the inspection of documents produced in answer to subpoenas, not the admissibility of evidence: Esso Australia Resources v Federal Commissioner of Taxation (1999) 201 CLR 49 at [17] per Gleeson CJ, Gaudron and Gummow JJ and at [64] per McHugh J.

22    Legal professional privilege protects communications, not documents, although the exception to this proposition is that a document prepared with the dominant purpose of its being used as a communication with a legal adviser to obtain legal advice may be privileged even though it has not in fact been, and may never be, so used: Pratt Holdings Pty Ltd v Federal Commissioner of Taxation (2004) 136 FCR 357 at [19] per Finn J (Pratt Holdings).

23    A communication will be protected by legal professional privilege where it was brought into existence for the “dominant purpose” of:

(a)    giving or obtaining legal advice (sometimes described as “legal advice privilege”); or

(b)    use in actual or reasonably anticipated legal proceedings (sometimes described as “litigation privilege”): Grant v Downs (1976) 135 CLR 674 at 677 per Barwick CJ (Grant v Downs); Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd (2009) 174 FCR 547 at [34]-[38] (Cadbury Schweppes).

24    In order to be the “dominant purpose”, the relevant purpose must be the “ruling, prevailing or most influential” purpose: Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 at 416 per Brennan CJ, Dawson, Toohey, Gaudron, Gummow and Kirby JJ. It is not sufficient that the purpose is a “primary” or even a “substantial” purpose. Where two purposes are of equal weight neither is the dominant purpose. The “dominant purpose” must predominate over other purposes: the test is one of “clear paramountcy”: Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [7]; Melrose Cranes and Rigging Pty Ltd v Manitowoc Crane Group Australia Pty Ltd [2012] NSWSC 904 at [15] per S G Campbell JA; AWB Ltd v Cole (No 5) (2006) 155 FCR 30 at [44] per Young J (Cole).

25    The purpose for which a document was brought into existence is a question of fact to be determined objectively at the time the document is produced, having regard to the evidence and the parties’ submissions. The relevant purpose is the purpose as at the time the document is created (or, with a limited exception, when the communication is made): Cole at [44] per Young J; Barnes v Federal Commissioner of Taxation (2007) 242 ALR 601 at [5] (Barnes). Beach J said in Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Ltd (No 4) [2014] FCA 796 at [32]:

Purpose can also be determined from the content of the document understood in its full context. Indeed, the latter analysis can carry greater weight, particularly over generalised hearsay or even compounded hearsay evidence from a person other than the author or person requesting the creation of the communication (document).

26    The rationale for litigation privilege is different from that of legal advice privilege. Litigation privilege rests on the basis that in the adversarial system parties and their legal representatives generally control and determine the evidence to be called at trial without any obligation to disclose the materials they acquire in the preparation of their case: Cadbury Schweppes at [38].

27    Legal advice privilege is limited to protecting communications for the giving or seeking of legal advice; litigation privilege extends to communications other than those made for the purpose of giving and obtaining legal advice, provided that they are for the dominant purpose of use in actual or reasonably anticipated or reasonably apprehended litigation (eg evidence gathered for the purpose of the litigation). However, unlike legal advice privilege, litigation privilege only applies where litigation is in existence or reasonably in prospect (eg it does not apply to investigative or inquisitorial procedures); legal advice privilege operates even when there is no litigation in contemplation: Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd (No 2) (2009) 180 FCR 1 (Brookfield) at [6] and [7] per Finkelstein J.

28    Consequently, for a communication to be protected by litigation privilege, there must be actual or “reasonably apprehended” or “reasonably anticipated” litigation. In order for litigation to be “reasonably apprehended” or “reasonably anticipated”, there must be a “real prospect” of that litigation, as distinct from a mere possibility, but it does not have to be more likely than not: Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at [19] per Batt JA (with whom Charles and Callaway JJA relevantly agreed) (Mitsubishi); Ensham Resources Pty Ltd v AIOI Insurance Company Ltd (2012) 209 FCR 1 at [54]-[57] per Lander and Jagot JJ (Ensham Resources); Australian Competition and Consumer Commission v Yazaki Corporation [2014] FCA 1316 at [30-[33] per Besanko J.

29    The applicants and the Trustee bear the onus of satisfying the Court that a communication is subject to legal professional privilege: Grant v Downs. The existence of legal professional privilege is not established simply by using a verbal formula or by mere assertion, either by way of affidavit or submission, that privilege applies to particular communications or that communications are undertaken for the dominant purpose of obtaining or giving “legal advice” or for use in actual or reasonably anticipated legal proceedings. There must be “focused and specific” evidence as to the purpose of the communication: See the remarks of the Full Court (Tamberlin, Stone and Siopis JJ) in Barnes at [18]. Young J said in Cole:

The existence of legal professional privilege is not established merely by the use of verbal formula: Grant v Downs at 689 per Stephen, Mason and Murphy JJ. Nor is a claim of privilege established by mere assertion that privilege applies to particular communications or that communications are undertaken for the purpose of obtaining or giving “legal advice”: National Crime Authority v S (1991) 29 FCR 203 at 211-212 per Lockhart J; Candacal Pty Ltd v Industry Research and Development Board (2005) 59 ATR 615; 223 ALR 284 at [70]; Seven Network Ltd v News Ltd [2005] FCA 142 at [6]-[8]. If assertions of that kind are received in evidence in support of the privilege claim, their conclusionary nature can leave unclear what advice was really being sought. There will be cases in which a claim of privilege will not be sustainable in the absence of evidence identifying the circumstances in which the relevant communication took place and the topics to which the instructions or advice were directed: Kennedy v Wallace (2004) 142 FCR 185 (Kennedy v Wallace) at [12]-[17] per Black CJ and Emmett J and at [144]-[145] and [166]-[171] per Allsop J; see also Southern Equities Corp Ltd (in liq) v Arthur Andersen & Co (No 6) [2001] SASC 398.

30    Whether a solicitor and client relationship exists between two parties is to be determined by reference to the intentions of the parties, objectively ascertained. It is not essential that there be a formal, written or express retainer agreement; the existence of such a relationship can be implied or inferred. However, there must be a relationship of “trust and confidence” for a solicitor and client relationship to be implied or inferred: Brookfield at [19] per Finkelstein J. Even if no solicitor and client relationship exists, a communication can still be protected by privilege:

(a)    if the communication is to a lawyer, it will be privileged if it is confidential and provided to the lawyer in his professional capacity, and otherwise a communication that would attract privilege: Brookfield per Finkelstein J at [20];

(b)    if a communication is from a lawyer, it will be protected by privilege if it is given in pursuance of a request, whether express or implied, made of the lawyer “in his professional capacity”, or “if the circumstances are such that the “client” would reasonably expect to be given such advice”, but if the lawyer provides “unsolicited advice” to the “client”, the communication is not privileged: Brookfield at [20] and [21].

31    It is also common ground that, if only part of a document records a privileged communication, only that part of the document is protected by privilege, the document must be produced with the privileged portion of the document masked: Pratt Holdings at [3] per Kenny J.

32    Legal professional privilege will not attach to communications made in the furtherance of an improper purpose: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 514 per Brennan CJ, at 521-4 per Dawson J, at 531-5 per Toohey J, at 546-7 per Gaudron J, at 556-7 per McHugh J, at 572-7 per Gummow J and at 591-2 per Kirby J. One instance where Courts have held that there is an “improper purpose” such that privilege does not attach to the relevant communications is where those communications were made in furtherance of an abuse of process. The rationale behind the rule that legal professional privilege will not attach to communications made in the furtherance of an abuse of process is that the privilege exists for the advancement of the administration of justice, and it would run counter to the administration of justice to protect communications made in furtherance of an abuse of process. In Players Pty Ltd (in liquidation) (receivers appointed) v Clone Pty Ltd (2013) 115 SASR 547 (Players v Clone), the Full Court of the Supreme Court of South Australian held that privilege did not attach to certain communications where there was a “colourable case” of an abuse of process, namely the intentional concealment of relevant documents during trial.

33    Based upon that decision, BankSA says that proof on the balance of probabilities is not necessary: Cole at [218], but says that the threshold requires:

(a)    something to give colour to the charge. The statement must be made in clear and definite terms, and there must further be some prima facie evidence that it has some foundation in fact;

(b)    “reasonable grounds for believing” that the communication was for an improper purpose;

(c)    a “prima facie case”;

(d)    a “colourable case”; and

(e)    there being “material from which the existence of the purpose can reasonably be inferred.

I shall not repeat the references referred to in Players v Clone.

34    In addition, Bank SA has added two further grounds of opposition to the claimed privilege in its written Outline of Submissions, at [77] and [78]. They are that:

(9)    the Trustee’s claim to privilege wrongly extends to a document that records or evidences the terms of engagement or retainer, and to that extent it cannot be protected by privilege: document marked NDC.2, namely an email dated 15 July 2011, so described when it was produced to BankSA by its request for such documents; and

(10)    the Trustee’s claim to privilege wrongly extends to a file note of the Trustee of 9 April 2014, as a client of GMG, during a meeting with GMG with the representative of LCM; the file note records legal advice provided by GMG but it is not said that the advice was to the Trustee, and which was said to be in anticipation of obtaining legal advice and procuring legal services for an anticipated claim to which the Trustee may have been a party.

35    It is convenient to deal with those two objections at this point. As to the first, the contention of Bank SA is plainly correct: Brookfield at [25]. It is, however, accepted that, to the extent that the email records legal advice, it would be privileged and appropriately redacted before its inspection.

36    As to the second, I assume it is the same document as is referred to in [6] and [7] of Mr Burke’s affidavit of 31 March 2015. I note that from about 9 April 2014, the Trustee engaged JWS to act for him for a time. His present solicitors were engaged to act for him in relation to the BankSA subpoena. I have ruled later in these reasons that the document is privileged.

37    Those rulings should be reflected in the orders to be made on this application.

38    It should also be noted at this point that there is an overlap between the documents in each Schedule, simply because some of them fall within the attack under one or more of the eight issues. The final orders should therefore reflect the extent to which BankSA is successful in response to the applicants’ claims. That is not, of course, to lose sight of the onus of proof discussed above.

THE FACTS

39    As the judgment of White J records, the applicants allege that they (and Group Members) lost significant funds as a result of the conduct by Mr Samra operating a “Ponzi” scheme through the fourth respondent ALC Group Pty Ltd (ALC) and the third respondent, the Michael Christopher Samra Family Trust, trading as Adelaide Lending Centre (ALC Trust).

40    ALC was wound up on 6 August 2009. The liquidator of ALC conducted a meeting of the creditors of ALC in about September 2009. Mr Griffin was present at that meeting. It is not clear how he came to attend that meeting. The liquidator told the meeting he was not in a position to pursue any claim against BankSA.

41    On 1 October 2009, a meeting of some investors in the Ponzi scheme through ALC took place with Mr Griffin and others from GMG present. It appears that that meeting was arranged by Mr Griffin as a result of some discussions he had with a few of the creditors of ALC after the ALC meeting.

42    Mr Samra had declared himself bankrupt on 3 March 2010, and was later on 6 August 2010 declared bankrupt on a creditor’s petition after the first order was annulled. The Trustee was then appointed as trustee in bankruptcy. GMG was acting for the petitioning creditor and then acted for the Trustee in the bankruptcy. Mr Griffin was the principal lawyer acting for the Trustee thereafter until 30 July 2013 (I note that in fact initially the solicitors were Griffin Hilditch, a predecessor firm of GMG, but nothing turns on that).

43    In December 2011, an examination of Mr Samra under s 81 of the Bankruptcy Act 1966 (Cth) took place.

44    On 22 March 2012, the Trustee obtained orders for the examination of an officer of BankSA, and for the production of certain of its records. After some communications between lawyers for the Trustee and BankSA, the request for records was refined and those records were duly produced to the (then) Federal Magistrates Court on 7 May 2012 and on 11 July 2012. The BankSA officer was examined on 10 May 2012.

45    On 14 August 2012, the Trustee obtained an order for the examination of another officer of BankSA. An order for further production was also made, but was not pursued. That officer was examined on 6 November 2012.

46    Throughout the period up to 30 July 2013, GMG remained as the legal advisors to the Trustee, and provided or arranged the legal representation for the Trustee at the three examinations. Mr Griffin says in [17] of his first affidavit that, up to that date, GMG had “not been retained by the Applicants or by any of the Group Members (as this expression is defined at para 4 of the Statement of Claim) in respect of this representative proceeding”. He says he did act in limited respects on occasions in the period October 2009 to July 2013 for individual investors in ALC. It will be necessary to refer to that aspect further.

47    Despite that, it is clear that Mr Griffin had some discussions with LCM and with IMF Litigation Funding (IMF) about funding a possible action on behalf of investors in ALC from about late 2009, including in relation to a claim against BankSA. Again, it will be necessary to refer in more detail to that process later in these reasons. The discussions with IMF ultimately were not pursued.

48    In June 2013, LCM signed a litigation funding agreement with GMG, and GMG entered into a written retainer with the applicants (or some of them) to conduct a claim against ACL, Mr Samra and BankSA. Those steps therefore occurred whilst GMG was acting for the Trustee, and to some unspecified degree including the period of the Trustee’s examinations of officers of BankSA and his requirements for BankSA to produce documents.

49    In fact, the current proceeding in accordance with the retainer with the applicants was then not commenced until 14 November 2014. It was promptly followed by the BankSA interlocutory application to strike out the proceeding against it, and other orders.

50    GMG acted for the applicants in this proceeding until shortly after the BankSA interlocutory application, when it became apparent that, by reason of the allegations made by BankSA, it was appropriate for other solicitors to represent the applicants. The present solicitors for the applicants are JWS.

consideration

51    As the applicants point out, the present issues may give rise to questions about whether legal professional privilege attaches to confidential communications between lawyers and proposed class action group members prior to any formal retainer, and prior to any agreement with a litigation funder, and prior to the institution of proceedings. BankSA says that the present issues present no questions of general importance, but require the application of well accepted principles to the particular circumstances.

52    The factual basis for the Trustee’s claims to privilege is quite straightforward. As he says, he is a non-party who has cooperated and complied with the Court’s order. The Trustee does not now have, and has at no time had, any direct interest in the outcome of this proceeding. The Trustee is not in a position to make any submission about the relevance to the resolution of this proceeding of the documents produced in response to the subpoenas. He says he is doing no more than maintaining his right to claim legal professional privilege where that privilege arises. The Trustee contends that he has not expressly waived legal professional privilege and he does not waive his privilege now. He also contends that there has been no implied waiver of legal professional privilege.

53    The affidavit of Mr Burke of 31 March 2015 explains why he claims privilege in respect of 15 documents produced by him and individually addressed in [7]-[22] of that affidavit, and to a document marked “NDC.2”, that is an email of 15 July 2015. I have dealt with the last-mentioned document at [35] above. The 15 documents fall into two categories. The first is email communications between the Trustee and JWS between 16 April 2014 and 2 May 2014 and on 27 January 2015 (documents 2 to 9 and 15). The second is notes of meetings or email communications between the Trustee and JWS and a representative of LCM on 9 April 2014, in June 2014, and on 2 September 2014 (documents 1 and 10-14). They are not addressed in Schedules 6, 7 or 8.

54    There is another group of documents addressed in Mr Burke’s affidavit of 21 April 2015. They are 57 of the documents produced by GMG. Mr Burke has inspected each document. Where the document appears to reflect communications between the Trustee and GMG, or to reflect discussions with a purpose of providing legal advice to the Trustee generally or in relation to potential proceedings, privilege is claimed. The schedule to that affidavit lists the documents and why, in more detail, privilege is claimed in respect of some of them. I note that privilege is no longer claimed over the email exchange between 24 May and 17 June 2013, referred to in that schedule. That is document 53 in Annexure 6 to the Notice.

55    The affidavit of 1 May 2015 merely complements the earlier affidavits by identifying the status of the persons referred to in those earlier affidavits.

Issue 1 – The client/lawyer relationship with the applicants

56    Mr Griffin attended the creditors’ meeting of ALC in September 2009. It is not explained how that came about. The presiding liquidator of ALC said that he could not cause ALC to bring any proceedings against BankSA as he had a commercial relationship with BankSA. It is not clear what sort of action ALC might have brought against BankSA.

57    Mr Griffin says he was then approached at the end of the meeting by a number of “investors” (presumably also creditors of ALC) to “assist them to recover the monies they had lost” through Mr Samra and ALC.

58    As a result, Mr Griffin in about late September 2009 or early October 2009 convened a meeting of investors at the offices of GMG to discuss potential legal avenues for recovery of their losses. He assumed those investors who attended wished to discuss with him, as a lawyer, their legal options, to receive legal advice, and to consider retaining GMG for any future legal action. The firm GMG also acted for individual investors in relation to discrete matters relating to Mr Samra and ALC.

59    Mr Griffin then says he had further intermittent such meetings with an investor or investors from time to time of a similar character. In the course of those meetings, those persons were asked to provide documentation which GMG considered, and from time to time GMG generated documents for the purpose of providing legal advice to “investors” regarding possible claims to recover their losses. Obviously, that included a potential claim against BankSA.

60    From about late 2009, Mr Griffin also had discussions – I infer at his instigation only, rather than on instructions from any of the investors, because that is not asserted in his affidavits – with both LCM and IMF about funding a potential claim against BankSA to recover the investors’ losses. He points out that no funding from LCF or IMF was sought for the bankruptcy examinations.

61    He says all communications with any investor or investors, and with LCM and IMF were confidential.

62    Apparently, by about mid-2013, LCM and GMG and potential class action members had progressed towards a Litigation Funding Agreement for the present proceeding. It is not clear how that evolved, or when the stages of its evolution occurred. There were instructions given to counsel to draw pleadings, and to get senior counsel’s advice about the prospects of success. Ultimately, LCM did agree to provide funding for the present proceeding. The formal retainer between the applicants (and on behalf of potential group members) and GMG to investigate, and if appropriate to institute and conduct this proceeding was apparently entered into in about June 2013.

63    That information, in broad terms, is confirmed by Mr Ferluga. He attended a meeting at GMG on 1 October 2009, with a number of other investors in relation to a possible class action, to discuss the possible recovery of losses from dealings with Samra. He followed that up with a meeting on 7 October 2009 when he apparently gave more detailed instructions about his, and his family’s, interests and their advances to ALC, and arranged to provide documents as requested. That level of communication continued over the next several years.

64    He says GMG was, on behalf of himself, and his family’s, interests, to provide legal advice about possible action, to seek litigation funding from about October 2009, and then, subject to the funding being available, to conduct this proceeding on their behalf (initially as group members, and from November 2014 with him as a named applicant).

65    In my view, there was a limited solicitor-client relationship between at least Mr Ferluga and his family’s interests and GMG from about 1 October 2009, when he says he first met with other investors and GMG through Mr Griffin. His purpose for attending the meeting about that time was to get at least some advice about the prospects of recovery of the sums they had invested in ALC, including possibly from BankSA. It may well have been prompted by an invitation from Mr Griffin to give consideration to such prospects, either made at the ALC liquidator’s meeting or just afterwards. But Mr Ferluga’s affidavit is clear about why he spoke to Mr Griffin from time to time from about that date, and up to February 2015.

66    That finding fits broadly with Mr Griffin’s unequivocal assertion that at least until 31 July 2013 (the date he says the “Samra Bankruptcy Proceedings” came to an end and in fact the date GMG ceased to act for the Trustee), GMG had not been retained by the applicants or by any Group Member to institute and conduct the present proceeding, including against BankSA. He says his role from the latter part of 2009 was to act in limited respects for individual investors in relation to their dealings with Mr Samra and the “wider Samra matter”. There may be some slight overlap period because by about June 2013, the funding agreement between LCM and GMG (and others) for the potential conduct of this proceeding had been entered into. I will adopt the date 30 June 2013 for the date of commencement of the general retainer by the applicants to institute and conduct the current claims against BankSA.

67    The BankSA submission is that, up to about that date, GMG was itself exploring the prospects of a class action against BankSA by assembling data, exploring funding options, and inviting investors in ALC to meetings to assess and maintain an interest in such an action. That proposition underlies its strike out application. It is no surprise to the applicants. It is therefore necessary to assess the evidence about the nature and extent of the relationship between the applicants (and/or Group Members) and GMG over the period up to 30 June 2013 in that light. I therefore bear in mind, when considering the evidence and drawing inferences from it, the extent to which other evidence might have been adduced by the applicants.

68    I do not find that Mr Griffin’s communications until about the end of June 2013 or perhaps a little later with LCM or ICF about the possibility of funding a claim by the creditors of the bankrupt estate of Mr Samra, and investors in ALC, were made pursuant to any retainer or indeed directly for a client with whom GMG then had a client–solicitor relationship. The evidence is imprecise. It is consistent with Mr Griffin’s exploring the prospect of a funding arrangement for an action such as the present proceeding of his own initiative, as a means then of putting a proposal to the applicants and other group members so that they might instruct GMG to act for them and to pursue such a claim.

69    Mr Griffin says he had “sporadic and general discussions” with LCM from late 2009, but no funding commitment was made until mid-2013. He did not secure any funding from LCM to conduct the examinations on behalf of the Trustee referred to above. As he says, that process only culminated about mid-2013.

70    Mr Ferluga’s affidavit, to the extent it might support some different finding, is too vague in my view to do so. He refers to the meeting on 1 October 2009 and, as a result of a telephone call on 6 October 2009 from Mr Coombe of GMG, a meeting with Mr Coombe on 7 October 2009. Then he refers to numerous further discussions and communications with GMG until February 2015, at which he gave instructions and provided documents and sought advice about the prospects of a claim or claims. He says he also sought GMG’s advice about “the progress of the action” throughout that period. That cannot be precisely correct. The action was not instituted until 14 November 2014, and instructions to bring such a claim could not have been given at least until after 31 July 2013 on Mr Griffin’s affidavit.

71    That, incidentally, largely corresponds with the time when LCM committed to funding the investigation of the current proceeding, and entered into the Litigation Funding Agreement. Mr Griffin says that only in 2014 did LCM require the preparation of draft pleadings, and advice from senior counsel (not completed until September 2014), after which I infer LCM committed to funding the proceeding itself.

72    There is nothing to indicate that, prior to about 30 June 2013, LCM was provided with any detailed briefing by GMG to enable it to consider funding either the investigation of a claim such as the present or to authorise and fund the conduct of this proceeding.

73    In short, having regard to Mr Griffin’s unequivocal assertion, I am not persuaded that any communication between GMG and LCM, or records of those communications, prior to 30 June 2013 took place in circumstances where Mr Griffin or GMG was acting as a solicitor on behalf of, or on instructions from, the applicants or other Group Members to pursue such a claim as the present. I consider that such communications up to that date were between LCM and GMG/Mr Griffin to keep alive, and potentially to develop, the basis of a funding proposal to put to the applicants and Group Members so that they could consider whether to retain GMG to investigate and conduct such a claim as the present. I accept that Mr Griffin for GMG had an ongoing general solicitor/client relationship with Mr Ferluga over that period. I do not conclude that any communications concerning the “creditors” or the “investors” with LCM or IMF during that period were only on behalf of Mr Ferluga or his interests. I also do not conclude they were pursuant to retainers with other unspecified but generally interested potential applicants or Group Members.

74    That is, of course, also consistent with Mr Griffin’s evidence about his role and responsibilities as a solicitor for the Trustee, separate from his role later to investigate and conduct this proceeding on behalf of the applicants. In that regard, I note his evidence that the material which ultimately was the basis for the allegations in the statement of claim was assembled by two solicitors, Ms Battiste and Ms Peretko as the persons primarily responsible for that process. They were employed by GMG only from 4 November 2013 and 6 February 2012 respectively.

75    Mr Griffin’s affidavits show that (putting aside what Mr Ferluga says) he acted in discrete matters for individual investors in regard to their dealings with ALC. It is not said that the documents produced under subpoena, and not under consideration, are privileged because they relate to those retainers. Secondly, he says (as it is put on behalf of the applicants in the written submissions) he spoke with investors, both individually and sometimes together, with a view to considering possible legal claims they may have. Mr Griffin says GMG in those dealings was acting in a professional capacity as solicitors, and dealing with investors on a confidential basis. He says the material assembled was to assist in the consideration of possible legal claims and to provide legal advice to investors, including dealings with LCM and IMF.

76    It does not follow that a client/lawyer relationship existed between GMG and all those investors it spoke to over that period.

77    A formal professional retainer is not required: Brookfield. As Finkelstein J there said at [21], the provision of unsolicited legal advice is not privileged. There must be a professional relationship in pursuance of a request, express or implied, made of the lawyer in a professional capacity.

78    The result of those conclusions is that, in respect of communications (or documents recording communications) between the applicants and group members and GMG from 1 October 2009, and documents provided to GMG by them, the documents are potentially eligible to be privileged from production on the ground of legal professional privilege only where it is clear that they were made for the purposes of the retainer with Mr Ferluga only or for a particular specific (but unspecified) retainer with some other person. In respect of communications between GMG and LCM, until 30 June 2013, no legal professional privilege attaches, except where the communication was solely pursuant to the retainer with Mr Ferluga or to a client/lawyer relationship with others.

79    It is necessary to see what evidence supports the claimed privilege in relation to particular documents. As BankSA submitted, where documents were distributed beyond to those whose privilege it was, or emanated from GMG and was for purposes beyond or other than to those who had expressly or impliedly retained GMG, any privilege in that record of the communication and the privilege in the communication itself may never have existed or may have been lost.

80    I have concluded that there was a lawyer/client relationship between Mr Ferluga (and his interests) and GMG over the period covered by Annexure 1 generally to explore the prospects/recovery of their losses by investing in ALC, including by a claim against BankSA. I have also accepted that in certain specific (but unspecified by Mr Griffin) respects there was a lawyer/client relationship between some persons who are within the applicant and/or Group Members and GMG to undertake particular and separate tasks.

81    But I am not persuaded that generally there was any lawyer/client relationship with those who are now the applicants and/or Group Members to explore the prospects of recovery of their losses by investing in ALC, including by a claim against BankSA. If such relationships existed, they would have been readily established by records of the terms of the engagement, lists of the persons who had engaged (including impliedly) GMG to investigate a claim, the recording of a running fee record, the submission of accounts or the payment of professional fees. The capacity to produce such material rested with GMG. There is no evidence of any coherent record of those with whom GMG had a client/lawyer relationship. Indeed, there is no evidence of a file kept in the name of Mr Ferluga, either alone or with others, or other files save for the D’Ortensia file (addressed later in these reasons, but in relation to which Mr Griffin has given no evidence). There is no evidence of GMG having identified and recorded those “clients” to whom it had by an express or implied arrangement or relationship of trust and confidence: cf Archer Capital 4A Pty Ltd (as trustee for the Archer Capital Trust 4A) v Sage Group plc (No 3) (2013) 306 ALR 414; [2013] FCA 1160 at [65]. To the extent the evidence shows certain specific client/lawyer relationships, that evidence is discussed when considering Annexure 4. In my view, it is more likely that a number of persons who attended spasmodic meetings or spasmodically communicated with GMG were hopeful of participating in a claim such as the present, but it was left to GMG (but not pursuant to any arrangement, save perhaps with Mr Ferluga and a few others) to explore the assembly of data, the requirements of and prospects of securing funding, and the like, with a view then to putting a more specific proposal to the applicants (and the Group Members) about providing instructions to investigate, and if appropriate to institute and conduct, proceedings such as the present claim. That may not have been all of those with whom GMG met, but I am not satisfied that there were none, or an insignificant number of such persons.

82    To adopt the approach of Barratt J in Apple Computer Australia Pty Ltd v Wiley [2002] NSWSC 855 at [7], testing the evidence, I am not persuaded that the intentions of those investors (as distinct from some of those investors), with whom GMG had contact of the character described by Mr Griffin in this period, was to have a solicitor and client relationship. I am not persuaded that, judged objectively, that was the intention of those investors.

83    That is not to expect detailed evidence from each of the investors or each of the authors of various documents, or from each of the solicitors or employees of GMG involved in the dealings with those investors. I am mindful of what Austin J said in Re Southland Coal Pty Ltd (receivers and managers appointed) (in liq) [2006] NSWSC 899 at [30], albeit in the context of an acknowledged lawyer/client relationship. But, in the present circumstance, there are two competing hypotheses about the relationship of GMG and the investors generally, and I have noted the respects in which evidence in support of the claimed privilege might have been adduced either through Mr Griffin or other records of GMG, or through a small number of the investors.

84    Consequently, whilst the general claims to legal professional privilege made in respect of the documents in Annexure 1 are not all made out, there will be some documents within that Annexure which will be privileged.

85    Rather than undertake that dissection at present, I will address the extent of that privilege in relation to the contentious documents more fully when considering Issue 4.

Issue 2 – Litigation privilege

86    I do not consider that documents created to record communications prior to 30 June 2013 would attract litigation privilege. That is because, in my view, on the evidence, such documents are not shown to have been created for the dominant purpose of existing or anticipated litigation.

87    It is correct that, in a general way, the possibility of a claim such as the present was in contemplation and the possibility that, if such a possibility became a realistic possibility, then the prospect of funding such a claim by an entity such as LCM would have to be explored. Up to 30 June 2013, based upon the approach of the Full Court in Ensham Resources at [53]-[57], adopting with approval the test propounded by Batt JA in Mitsubishi at [19], the evidence does not demonstrate a real prospect of litigation, as distinct from a mere possibility. It is only at about the point that the spasmodic communication between the applicants and other group members and GMG became sufficiently focussed as to demonstrate a real prospect of litigation that litigation privilege would arise. That would then be followed by the meaningful and coherent preparation and presentation of material to LCM and its assessment, so as to indicate that the claim may or may not be pursued. That is consistent with the evidence to which I have referred about the character of Mr Griffin’s communications with LCM until about June 2013. There is no evidence to demonstrate a coherent and cogent assembly of relevant documentary material, the taking and recording of statements of potential witnesses, the drawing of any briefs for the getting of advice about the prospects of a claim such as the present being pursued, the provisional engagement of any appropriate expert witnesses, or indeed any material plan for the collation of, or the assessment of, information and possible witness statements before about that time. The funding agreement in June 2013 did not apparently authorise the proceeding, but the coherent assembly of material, the preparation of draft pleadings and the advice of counsel, upon which LCM was then to determine whether it would fund the proposed claim. The funding agreement is not in evidence, so I have inferred that from the course of events.

88    Whist the evidence shows that at least Mr Ferluga wanted to explore the prospects of recovering his investment with ALC, including against BankSA, I do not accept that the evidence of the processes of communications with GMG with him (or others) until about mid 2013 moves the communications up to that time into the category of communications where there was a real prospect of litigation such as the present.

89    Consequently, the documents which rely only on litigation privilege in Annexure 1 and as listed in Annexure 2 do not attract legal professional privilege. The prospect of litigation was until at least 30 June 2013 merely an idea of a possibility, without any real decision to pursue the coherent investigation of such a claim having been made. It was no more than a vague prospect depending on funding availability for proper investigation and the procuring of advice about the prospects of success of such a claim. It did not meet the test set out in [28] above. Consequently, I conclude that the documents listed in Annexure 2 are not protected from inspection by any legal professional privilege.

Issue 3 – Abuse of Process

90    The documents in Annexure 3 also appear in Annexure 1. To the extent that they relate to documents over which litigation privilege is claimed, it is not necessary to address them further. To the extent that they relate to documents over which advice privilege is claimed (as well as litigation privilege), their privileged status will depend upon a further review of Annexure 1 (as discussed at [84] and above). I also note that some of the documents in Annexure 3 are also documents of which the Trustee’s copies are said to be privileged in any event, as considered below.

91    BankSA submits that it has shown a colourable case of an abuse of process with respect to the documents which came into existence and record, or are, communications between 1 November 2011 and 30 June 2013 because:

(1)    the purpose of what Mr Griffin calls the “Samra Bankruptcy Proceeding”, including the communications with officers of BankSA, and its obligatory production of documents, was to investigate and procure evidence for a potential claim against BankSA on behalf of the applicants and other group members; and

(2)    the documents so produced by BankSA were used by GMG otherwise than for the “Samra Bankruptcy Proceeding” in breach of the implied undertaking that they would not be so used, because they were used to investigate on behalf of the applicants and other group members the potential claim against BankSA rather than for any proposed action by the Trustee for whom they were acting, and were communicated to the applicants and group members, and to potential litigation funders, for the purposes of supporting the bringing of this proceeding.

92    In essence, it is said, the process of requiring the production of documents from BankSA (and conducting examinations of its officers) was not for and in the interests of the Trustee for a proper purpose of the Trustee, but an investigation on behalf of third parties. That is reinforced, it is said, because the Trustee on behalf of Mr Samra’s estate could not legitimately have contemplated a claim against BankSA. Consequently, BankSA says, documents which record communications relating to that process are themselves not privileged.

93    It is clear that GMG through Mr Griffin, whilst acting for the Trustee from 6 August 2010 until 30 July 2013, was also acting in a general way to advise Mr Ferluga and possibly some other investors in ALC) in relation to the possibility of recovering their losses from investing in ALC. He says as much. He says (and I have accepted), that he had a client-lawyer relationship with Mr Ferluga and, in the manner explained above, general contact with at least some of the investors from about October 2009 which continued beyond 30 June 2013. I have also reached the view that GMG was, at least in part, pursuing inquiries in that period to determine whether funding could be procured to properly investigate, and if appropriate to institute and maintain, a claim such as the present – that is, investigating the prospects of a funded class action against BankSA – for the benefit of the investors in ALC but without having a client/lawyer relationship with all those for whose benefit such a claim might be pursued.

94    For that purpose, I accept Mr Griffin’s evidence that GMG from about 1 October 2009 acted in limited respects for individual investors “in regards [to] their dealings with Mr Samra”. He instances advice given to an investor in ALC about “noting a caveat against the property of the Samra entities”, and to another investor in proceedings against Mr Samra. He says, more broadly, GMG from time to time spoke to “investors”, either individually or together, with a view to “considering possible claims they may have”, and acted in discrete matters for individual investors in relation to the “wider Samra matter”. In my view, the evidence of Mr Ferluga is consistent with that, but in his case it explicitly includes the focus of the advice as including a claim against BankSA.

95    As noted, it is on that basis that I consider it necessary to examine the documents in Annexure 1 to identify whether they are the subject of legal professional privilege resting with Mr Ferluga or one or other or more of “the investors”.

96    The immediately obvious question is the reason for the examinations of the BankSA officers and for the production of its documents. It is clear that LCM did not fund the Trustee to conduct those examinations. But there is no direct evidence from either the Trustee or from Mr Griffin about why they were conducted or the documents required.

97    One obvious possible reason was to investigate and procure evidence for a potential claim against BankSA on behalf of the applicant and other Group Members, as investors in ALC. Mr Ferluga says that was in the contemplation of himself, and the subject of advice generally sought by him at least. Mr Griffin does not say what other “possible claims” were being considered when GMG spoke to investors in ALC from and after October 2009. However, I note also that there are a number of documents dating back from October 2009 described by GMG in Annexure 1 as relating to “Samra/BankSA” or “Samra & Bank of South Australia – Class Action” or similar. Without listing them all, I refer on page 1 of Annexure 1 to documents numbered (from the top of the page) 159, 389, 2074, 134, 135, 136, 137, 108, 109, 106 and 113. That does not include the many descriptions of “class action” documents.

98    In the absence of any other specific reason identified either by Mr Griffin, GMG, or the Trustee for those examinations or for that production by BankSA, I would be disposed to conclude that that was either the purpose for, or one of the purposes for, the examinations or at least an incidental benefit of them.

99    Mr Burke’s affidavit of 31 March 2013 describes briefly the documents over which the Trustee directly claims legal professional privilege. They are:

(1)    the email of 15 July 2011 between the Trustee and his solicitors for the purpose of obtaining legal advice on an unspecified topic and to progress an “anticipated” but unspecified legal proceeding; and

(2)    a series of 15 documents between 9 April 2014 and 27 January 2015 concerning communications between the Trustee and his solicitors (either GMG or JWS who commenced acting for the Trustee from about 9 April 2015) for the purpose of obtaining legal advice.

100    The affidavit of Mr Burke of 21 April 2015 objects to the inspection of certain documents produced by GMG in response to its subpoena. It concerns directly some of the immediately relevant documents. They are described in a schedule to his affidavit. It is clear that, whilst the Trustee maintains any proper claim in relation to those documents, all are said to be, or to record, communications with GMG. There are 57 listed documents, of which 46 are said to be privileged. The schedule is prepared by Mr Burke from his inspection of those documents.

101    The affidavit of Mr Bourke of 1 May 2015 helpfully identifies the persons who were solicitors in GMG or employees of GMG.

102    There is no explanation for the dealings with Bank SA or its officers, save for Mr Burke’s comment that the Trustee “had contemplated undertaking public examinations” as Trustee from about 14 September 2010. Nor, as noted, is there any direct explanation in Mr Griffins’ affidavits as to the Trustee’s purpose (although I draw no adverse inference from that, because the Trustee’s communications with his solicitors are of course, subject to particular issues, the subject of legal professional privilege) for those steps in his administration. Nor was there, in the course of submissions, any other suggested reason for the Trustee to have conducted those examinations or to have required that production other than to explore the prospects of a claim by the creditors of the bankrupt estate of Mr Samra, as investors in ALC (and not as creditors of the bankrupt estate), against Bank SA.

103    The written submission of the applicants acknowledges that senior counsel for the Trustee said, in the course of the examination of Mr Sporton (and as set out in the affidavit of Mrs Jones of 24 December 2014), that:

Any enquiry which benefits the creditors of the bankrupt estate is, at the very least, a relevant endeavour. If creditors – recovery can be made for creditors in a way which will reduce their claims on the bankrupt estate, that is a perfectly permissible endeavour for the trustee to explore …

104    And the applicants also acknowledge that the purpose for the BankSA enquiries as set out in the Trustee’s affidavit of 22 March 2012 in support of the examination summons at [22] (exhibited as MWE 13 to the affidavit of Mr Elson of 6 May 2015) is:

[22]    For the purposes of furthering my investigations and determining if there are grounds for such a claim or any claim that can be made on behalf of the creditors of the Bankrupt Estate I seek orders for the issue of Production of Documents by Bank SA and a Summons to Examine Finch.

105    It is not a criticism of substance to note that there may be a little loose expression there. Any claim by the creditors of the bankrupt estate of Mr Samra against BankSA probably would be in their capacity as investors in ALC and not as creditors of the estate.

106    I do not think the difficulty is in the onus of proof. I am disposed to conclude, in the light of all the material and the absence of any other specific suggested reason, that the process of inquiry into the BankSA dealings with ALC and Mr Samra included the exploration of the prospects of a claim by the creditors of the bankrupt estate of Mr Samra, as investors in ALC, against BankSA.

107    I note that Annexure 5 to the affidavit of Mr Elson of 6 May 2015 is the affidavit of the Trustee of 22 March 2012 in support of his application for orders for BankSA to produce documents, and to examine one of its officers. The Trustee at [22] of his affidavit says he has the view that BankSA may have assisted Mr Samra to breach his fiduciary duty to the investors in ALC, or as itself having breached a fiduciary duty to those who lent funds to ALC or invested in ALC and who included creditors of the bankrupt estate. He then says he proposes to investigate whether a claim can be made “on behalf of the creditors” of the bankrupt estate. I note also, as discussed later in these reasons, the Trustee (after his administration had finished) consulted JWS in April 2014, apparently to explore the prospects of a proceeding of an unidentified character, but did not proceed to bring that action.

108    The applicants contend that:

(a)    the purpose asserted by BankSA was not improper, or an abuse of process; and/or

(b)    even if such a purpose was not a proper one, so that the Trustee should not have engaged in the BankSA dealings, that does not remove the legal professional privilege which otherwise exists in the communications between the Trustee and GMG, as they were not in furtherance of any such improper purpose: see Varawa v Howard Smith & Co Ltd (1910) 10 CLR 382 at 384 per O’Connor J and at 389-390 per Isaacs J.

109    It is necessary, therefore, to further consider to a degree each of those propositions before applying the appropriate test to the material, as BankSA contests each of them.

110    The power in s 81 of the Bankruptcy Act 1996 (Cth) permits questioning “in relation to the bankruptcy”: s 81(1) about “the relevant person or any of the relevant person’s examinable affairs …”: s 81(10). “Examinable affairs” is defined widely in s 5 of the Act to include “the person’s dealings, transactions, property and affairs”.

111    The purpose of the power is to investigate the examinable affairs. Clearly that extends to identifying what assets the bankrupt had, what has happened to those assets, and whether action should be begun (or continued) to recover them: Karounos v Official Trustee (1898) 19 FCR 330 at 335 (Full Court). It was there said that the “power is exercised in the interests of creditors, and those interests should not be defeated by an unduly technical or restrictive approach to the use of power”.

112    In Griffin v Pantzer (2004) 137 FCR 209, Allsop J (as his Honour then was) said at [76] in respect of the s 81 power that the:

… public examination of the bankrupt is not merely for the identification and collecting of assets, but also for the purpose of the protection of the public by a full and searching examination to be carried out as to the conduct of the debtor, in order that a full report may be made …

113    Allsop J in Donnelly v Scott [2001] FCA 782 at [22], where it was alleged that a bankruptcy examination was impermissibly being used to pursue a creditor’s interest, said that proper control of the examination process (and any abuse) is to be exercised by the Court:

That control is manifested in, first of all, [the trustee’s] recognition, as a responsible trustee, of the need to act properly and without abuse, a recognition of which I have no doubt he has. Secondly, the examinations will take place in the presence of the Registrar. Thirdly, there is ultimately the control of the Court.

114    In a corporate insolvency context, even if compulsory examinations or production are conducted for the purpose of creditors’ independent actions, that is a legitimate purpose as the company or the bankrupt estate is relieved of the debt to the extent that the creditor makes a recovery. There are a number of authorities to support that proposition, including Evans v Wainter (2005) 145 FCR 176 (Full Court) per Lander J at 200 [142]-[144] and 216 [246]-[247]; and Re Excel Finance Corporation Ltd; Worthley v England (1994) 52 FCR 69 at 93 (Full Court).

115    At this point, and on the basis of the limited information available, it would be a large step to conclude that there was an abuse of process in the face of decisions of the Full Court of this Court referred to. They appear to adopt the approach that the production and examination powers of a liquidator may properly be exercised to explore the extent to which the creditors of the insolvent corporation, in their capacity as investors in the insolvent corporation, might have recourse to recovering their losses by investing in that corporation so as to reduce the creditors’ claims against the corporation itself. It is fair to say that the focus in those cases on that question was not so stark as in the present circumstances. Nevertheless, they are remarks of the Full Court which, so far as I can see, would apply by analogy to a bankruptcy administration under the Act.

116    In addition, as I have noted, the Trustee may have had in mind a claim by himself on behalf of the creditors of the bankrupt estate in a different capacity from that as direct investors, but arising out of the actions of BankSA in providing funds to support their investment in ALC. He may have had in mind some other form of action.

117    I do not think it is safe to conclude, on the material I am asked to act on, that inspection of the documents in Annexure 3 should be permitted on the basis that privilege in them has been lost for the reasons asserted by BankSA.

118    I make it clear that that ruling is not intended to, and should not, be any indication of the appropriate outcome of BankSA’s strike out application. It relates to the inspection of documents which are otherwise privileged (save as affected by other rulings in these reasons for judgment). Obviously, the strike out application will be addressed in the light of the evidence adduced when it is heard.

119    It is not necessary to address the second matter referred to.

120    The alternative claim of abuse of process is that the documents produced by BankSA were deployed by GMG beyond their proper use by the Trustee, and so in breach of the implied undertaking that they will not be used for any purpose other than that for which they were produced: see Hearne v Street (2008) 235 CLR 125 at [96]-[97]: Re Southern Equities Corporation Ltd (in liq); Bond v England (1997) 25 ACSR 394 at 433-437.

121    There is no evidence that the Trustee is in breach of that implied undertaking.

122    The contention is that it was breached because GMG used those documents for the purpose of the current claim, including for the purposes of advising the applicants (and the group members) in relation to it and to draw the statement of claim.

123    That assertion of fact about the use of the subpoenaed documents is directly denied by Mr Griffin. He has explained the source of the documents used to support the statement of claim. Subject to the one oversight (which he has acknowledged), it is appropriate to proceed on the basis of his affidavit. It was not challenged by cross-examination. BankSA says that that does not come to grips with the extent of its allegations, which go beyond the statement of claim. I do not accept that, on the material present, there is a clear case of breach of the implied undertaking. I do not think that it is clear that GWG or JWS have used material to institute or prosecute the present proceeding in a way which is improper. There is too much room for doubt, depending on the extent to which material was publicly received, transcript was reviewed, information was provided to creditors by the Trustee, and the like.

124    Accordingly, I do not accept the contentions that the documents listed in Annexure 3 are not the subject of legal professional privilege because they came into existence as part of a process which amounted to, or may have amounted to, an abuse of process or because they have been used improperly for the purposes of the current proceeding.

125    I do not, in the circumstances, have to address the debate about whether it is sufficient to establish a “colourable case”, or whether that has a different quality to a prima facie case of wrongdoing. I note the emphasis of the applicants, in that regard, placed upon the observations of Gibbs CJ in Attorney-General (NT) v Kearney (1985) 158 CLR 500 at 516; of Brennan CJ in Commissioner of Australian Federal Police v Propend Finance (1997) 188 CLR 501 at 514; and Re Moage Ltd (in liquidation); Sheahan v Pitterino (1998) 82 FCR 10.

Issue 4 – The Dominant Purpose Test

126    The fourth contention is directed to the adequacy of the evidence adduced to support the claims to legal professional privilege. They are listed in Annexures 4.1 to 4.5 to the Notice of Opposition. The argument is that they are not shown to have been brought into existence for the dominant purpose of giving or receiving legal advice or for use in actual or reasonably anticipated legal proceedings.

127    Annexure 4.1 provides a convenient basis for discussing the balance of the matters concerning Annexure 1, addressed above.

128    It contains internal communications of GMG or GMG communications with counsel.

129    The evidence primarily relied on by the applicants is the affidavit of Ms Vozzo. She, with a special counsel of JWS and with independent counsel, reviewed all the documents produced by the Trustee, GMG and LCM which are the subject of the present dispute. She says that the claims for legal professional privilege are articulated and particularised in the list she exhibits. Relevantly, that is in the same terms as the Annexures to the Notice, including the definitions.

130    For the reasons already given, to the extent to which the basis for the claim for legal professional privilege is “litigation privilege” and covers the period up to 30 June 2013, I do not need to address those claims further. They are covered by the ruling with respect to the documents in Annexure 2.

131    For the remainder of those documents, the issue is whether the evidence shows the dominant purpose for the documents coming into existence is to serve a client/lawyer relationship so that legal professional privilege exists.

132    This issue is related to the issue as to the existence of a relevant client/lawyer relationship addressed in Issue 1. That is because it depends upon the existence of a particular relationship or relationships, to the service of which the communication took place.

133    In a sense, the contention of BankSA is a supplementary one: even if the documents in Appendix A came into existence by reason of being records of communications which arose in, and in relation to a client/lawyer relationship, that was not (in the case of the documents in Annexure 4) the dominant purpose for which those communications took place and so it was not the dominant purpose for which the document was created. The response of the applicants is to assert that the documents came into existence for the purpose of such a relationship, self-evidently because of the full extent of that relationship.

134    As I have concluded that the lawyer/client relationship did not exist to the extent asserted by the applicants, it is necessary first to refine and confine the documents listed in Annexure 4 to those which are shown to exist because of the lawyer/client relationships which I have found to exist.

135    In the rulings which follow, I have had regard to the timing of the document, its description, and the applicable definition of why it is said to be privileged. That does not mean that the adoption of the definition has necessarily led to acceptance of the claim in relation to the particular document. For instance, document 111 of 7 October 2009 is a file note of a conversation between Mr Griffin and Adam Coombe of GMG re “Griffin” and the “Work Product”, that definition is not enough to apply readily and to accept the claim to be proved. Where the reference is to “Class action” or the like, up to 30 June 2013 I have not regarded the mere generic assertions adopting the definitions of “Propend” or “Work product” as persuasive of the existence of legal professional privilege. At that time, GMG was relevantly acting only for specific investors, to the extent they are properly identified by the evidence, and apart from those communications with the Trustee which will be privileged.

136    In view of my conclusions concerning Annexure 1, that is the general conclusions as to the existence of a client/lawyer relationship or relationships, GMG through Mr Griffin in his dealings with IMF or LCM and their officers is not shown to have been acting throughout in those dealings for any particular client or clients so as to entitle the applicants to claim privilege over all such records. My view is that he was not doing so consistently and exclusively. Where, then, an IMF or LCM officer was present, prior to 30 June 2013, the presence of that officer will mean – on the available material – that the communication was not privileged. Where it is clear that an individual client’s interests were being addressed, and only that client or those clients’ interests, the communication should be accepted as privileged unless particular reasons are identified for not being so satisfied.

137    I have taken the list of GMG solicitors and staff from Mr Griffins’ affidavit of 21 April 2015 and Mr Burke’s affidavit of 1 May 2015 (Category A and Category B). There is a list of “Dramatis personae” at the end of Exhibit AV.1 to Ms Vozzo’s affidavit (which is consistent with Mr Griffin’s list save for the addition of a GMG solicitor, Adrian Tisato). Nothing turns on that. Mr Griffin does not identify any client investors, but one was clearly Mr Ferluga. The status of other persons named in the documents in issue is not clear. Mr Burke’s affidavit of 1 May has a list of six persons who “may have been” creditors of the bankrupt estate of Mr Samra as “they were investors” in ALC, and he refers to the list of “Client (and their legal representatives)” on the Dramatis personae page of Ms Vozzo’s affidavit. How that page is compiled is not explained. So I do not place weight on it as, in fact, on a considered basis, identifying the clients of GMG up to 30 July 2013. I assume the names come from the documents produced.

138    I have not taken a reference in a document to “investors” as sufficient to identify a client/lawyer relationship, as I am not persuaded that all the actions of GMG in considering the prospect of a class action against BankSA during this period, clearly in one sense for the investors in ALC, involved communications pursuant to such a relationship with a particular client or clients or investor or investors. Nor has the Trustee indicated that he gave any specific instruction to GMC in that regard.

139    Mr Ferluga does not identify any other persons as clients of GMG. Nor does he describe any meetings with investors, other than meetings which he attended and where he does not say other investors attended.

140    The only other material from the affidavits which I can identify which might touch on this issue is Annexure MWE.15 to the affidavit of Mr Elson of 6 May 2015. It is a bundle of documents produced by GMG in response to a subpoena of 4 March 2015.

141    The documents include copy receipts issued by the Finance Department of GMG, an account of 9 October 2012 (for the period 6 March 2012 to 22 August 2012) to Carlo D’Ortenzio for disbursements (largely to Auscript), and a Trust Account Statement of 10 October 2012 to Mr D’Ortenzio, relating to the receipted amounts (all between December 2011 and March 2012), and their application.

142    The Trust Account Statement, and the Receipts, are for file “GMG 81655 D’Ortenzio, Carlo: Class Action”. It records deposits by David Niehus, Andrew Mielke, T Pezi, A & G Perazzoli, and Bill Kattis. The payments are disbursements to counsel, and to BRI Ferrier (SA) Pty Ltd (I assume for the Trustee) and to GMG for the disbursements it had paid. A small balance remained. The Trustee at the time was part of BRI Ferrier.

143    Apart from that file reference, contemporaneous emails refer to “Samra Litigation” or “Potential litigation regarding Michael Samra” or, in one internal instance referring to a list of contributors to the “potential Samra BankSA litigation”.

144    It may be accepted as Mr Griffin says in his affidavit of 21 April 2015 at [13]:

In the matters, meetings and communications with those investors to which I refer in the preceding paragraph, I was all times acting in my professional capacity as a solicitor, as were my staff members who assisted me. Those matters, meetings and communications were confidential and, I respectfully assert, subject to legal professional privilege. Despite not having a formal retainer with the investors, other than those for whom I acted in discrete matters, all investors were dealing with me as a solicitor and had the manifest intention of seeking legal advice or legal services in relation to their losses.

However, Mr Griffin in his earlier affidavit at [17] asserted that, until 30 June 2013, GMG had not been retained by the applicants or any investors in ALC except in limited respects for individual investors in regard to their dealings with Mr Samra.

145    Overall, I am not satisfied that the material to which I have been referred, including the above, exposes that GMG at the material times was acting as solicitors for all the investors who attended the meetings from time to time, or who had an interest in the possible action against BankSA, that is that there was the required relationship of trust and confidence between GMG and all of them. The contrary, in my view, is the more likely. That is, whilst Mr Ferluga (and perhaps a few others) had entered into a client/lawyer relationship with GMG, GMG was itself exploring the prospects of such an action including the funding of such an action, at least to 30 July 2013 or thereabouts for them and others with whom it did not have such a relationship.

146    I have drawn that conclusion with some confidence, in the absence of any specific evidence from Mr D’Ortensia or from the other persons who contributed to GMG’s trust account, apparently to pay disbursements, in about late 2011. The “client” list provided by Ms Vozzo shows how widely, or apparently widely, those “interested” in the proposed investigation by GMG into a potential class action were spread. I do not accept there was a relationship of trust and confidence with each of them, accepting of course the nature of such a relationship may be implied.

147    In addition, apart from the immediate period from late 2011 to mid to late 2012, over which time the trust account monies were collected and largely disbursed, there is no evidence of any further requests for the payment of fees at all or the payment of monies for any further disbursements either before or after that period. Any such records could have been provided by GMG.

148    There is no basis for knowing whether any particular communications concerned a particular “retainer” of GMG by an investor for a particular purpose, or were pursuant to a client/lawyer relationship of the character referred to.

149    There is no basis for knowing whether, beyond the period of late November 2011 to about October 2012 (the period covered by the Trust Account Statement referred to), the persons who contributed to those funds towards the disbursements had any prior or ongoing relationship with GMG of that character. If so, as it must be implied, one would expect that GMG would at least have a basis for identifying those persons, the fee basis for doing the work it did or a record of the fees charged or to be charged or potentially to be charged by it to those persons, either collectively or separately, or an agreement not to charge fees except in particular circumstances.

150    In my view, the evidence goes no further than showing that:

(1)    documents which record communications with Mr Ferluga or which were prepared for the purposes of giving him advice are privileged, but that does not include “generic” documents which record communications with investors, or others, to which he was a party;

(2)    documents of that character which record communications with Mr Niehus, Mr Mielke, T Pezi, A & G Perazzoli and Mr Kattis in the period from November 2011 to October 2012 are privileged, but again not including documents which were or are apparently more widely distributed or which record communications with investors generally or with a wider group;

(3)    documents which do not, as they are described in Exhibit AV.1 to Ms Vozzo’s affidavit (and as incorporated into Annexures 1 and 4 are not privileged.

151    For the sake of clarity, I note that ruling cuts off at documents dated 1 June 2013 and thereafter. It includes documents at which officers of IMF or LCM are noted as present, except where only those present are the Trustee, GMG personnel and one or more of the nominated persons in (1) or (2) of the immediately preceding paragraph or where the communication concerned only one or more of such persons. There is no legal professional privilege in communications between a solicitor and a potential litigation funder, except where that communication is pursuant to a retainer or by a relationship between a client with a lawyer: see Trade Practices Commission v Sterling (1979) 36 FLR 244 per Lockhart J at 246. It is not a question of waiver, but whether the communication with the litigation funding provider was pursuant to a retainer. The fact that, as between LCM and GMG, they agreed to treat their communications as confidential does not endow either GMG or LCM with the entitlement to assert legal professional privilege, if it is not the privilege of a particular client or clients.

152    Annexure 4.1 contains the list of contested documents described as internal to legal advisers. For the reasons given, of the documents in Annexure 4.1 where “Advice Privilege” is claimed, I conclude that the following documents are privileged on the basis of there being an identified and specific client/lawyer relationship as distinct from an enquiry from, or a communication with, an investor or with LCM or IMF or for internal communications where the work is not specifically related to a particular client. By way of example, document 125 is not shown to be privileged. “The “client” is identified, but the document description does not indicate that the necessary relationship exists. Where there is an apparent element of a “client” providing particular instructions, such as details of personal circumstances, I have treated that as privileged.

153    The privileged documents, in the sequence in which they are listed are documents 8, 62, 5, 235, 184, Box 2 Vol 3 File 81655 pp 1-4 (not numbered), 537, 1016, 1114, 1274, 1275, 1266, 1265, 1220, 1195, 1189, 1284, 1290, 1291, 1211, 1751, 1752, 2088, 1714 and 1715. I also include documents numbered 1129, 1115 and 1790. They are said to relate to the Trustee, and so would be within the Trustee’s privilege as concerning advice to be given to him by GMG as his solicitors.

154    Annexure 4.2 contains what are described by BankSA as unprompted communications with the applicants and Group Members.

155    Applying the same approach, for the reasons given, and taking the listing of the documents in the sequence they are set out, the following documents (putting aside those where litigation privilege also is claimed) are privileged: documents 1297, 1289, 1623, 1567, 1569, 1576, 1579, 1583, 1584, 1586, 1588, 1600, 1602 and 606.

156    I am not satisfied that the occasion of the first contact in any case was privileged, including where the description of the work is “seeking or receiving instructions …” or arranging a telephone call or meeting. As can be seen, I have accepted the claim for privilege where I have been satisfied that the relationship between GMG and the “client” is more than that of an investor in ALC who might choose to participate in a class action if it is able to be funded. I have included Mr D’Ortenzio in that, somewhat hesitantly, as the file referred to is in his name. I have also included the persons who provided the funds referred to (from about November 2011) and Mr Ferluga, and the communications which are not apparently part of “block” communications, as well as those “block” communications where earlier documents suggest that particular personal details had been provided.

157    Annexure 4.3 (21 May 2015 Version) relates to “third party communications”. The role of the identified third parties is not clear, but I have confirmed that they are not on Ms Vozzo’s client list. Many documents listed relate to communications with LCM. I do not need to address the litigation privilege claims.

158    There are six documents numbered (or described): Box 2 Vol 2 Part 2 File 81655, 400, 530, 517, 528, 1575 and 1449 which appear to relate to investors’ communications, but I am not persuaded that they are privileged, having regard to their timing and/or description. There are also a number of communications with Ezra Legal, consistent with a legal firm inquiring for a client how consideration of the potential claim is progressing.

159    There are no documents listed in Annexure 4.3 which I am persuaded are privileged.

160    Annexure 4.4 concerns claims where privilege is said to exist in a client of GMG other than the Trustee, and in the Trustee.

161    I have concluded that privilege exists in relation to three of the documents listed (rulings on Annexure 4.1, documents 1274, 1275 and 1265). For some reason, perhaps my oversight, documents 1260 and 1261 have the same character: relating to the provision of funds for certain investigatory steps and the disbursements so incurred. I conclude that those two documents are also privileged for the same reasons.

162    I do not need to address separately the Trustee’s position.

163    Annexure 4.5 has the heading “Other”. Adopting the same general approach in relation to the Advice privilege claims, I am satisfied that the documents numbered 170 and 1159 are privileged. I have not addressed separately the claims for litigation privilege in view of my earlier ruling.

Issue 5 – Notice of Communications

164    Annexure 5 concerns documents where BankSA says that privilege does not exist because of the communications they record. Putting aside the litigation privilege claims, and having regard to the persons present and/or the timing of the communications and/or the description of the record of the communications, I am satisfied that privilege exists in relation to the documents numbered 99, Box 2 Vol 1 Part 2 File 81655 pp 450-453, 5, 231, 1292, 1677, 1679, 1884, 919, 920, 829, 817, 2012, 1686 and 915.

165    I am not persuaded that privilege exists in the other listed documents.

Issue 6 – The Trustee’s Claims – Litigation Privilege

166    The Trustee’s claims are set out in the Schedule TWB.1 to the affidavit of Mr Burke of 21 April 2015. There are 57 documents described there, over which legal professional privilege is claimed. In the Notice of Opposition, BankSA has broken them into categories which appear as Annexures 6, 7 and 8.1-8.4. The Annexures are complementary, not exclusive, so Annexure 6 relates to all of them, and the subsequent Annexures relate to some only of them.

167    BankSA says that the claims to privilege are not sustainable.

168    Putting aside the point that the source of the privilege is not ss 118 and 119 of the Evidence Act, the contention is that Mr Burke’s affidavits do not clearly provide sufficient “focused” evidence to support the claims, but merely use a “verbal formula”.

169    Secondly, it is said that the claims based on litigation privilege are largely premature, that is they are made with respect to documents which came into existence but not for the dominant purpose of use in actual or reasonably anticipated litigation. Reliance is placed on Brookfield at [6] per Finkelstein J to say that investigative proceedings, such as examination proceedings, are outside its scope. Indeed, it is said that the Trustee has not identified any relevant proceedings which he proposed to pursue. As the Trustee, he could have had no claim against BankSA. There is no other known or suggested proceeding. And in any event, following Mr Samra’s discharge from bankruptcy by operation of law on 30 October 2013 (as pleaded), the Trustee after that date had no real interest in supporting the present claim against BankSA.

170    Thirdly, or consequently, it is said with respect to the documents in Annexure 7, there is a colourable case that certain communications were created in furtherance of an abuse of process. It is enough to say that I do not find that the documents there listed involved any conduct on the part of the Trustee which, in any sense, has been shown to be improper. I have dealt with that in the earlier part of these reasons. I do not need to refer to Annexure 7 further.

171    Fourthly, it is said with respect to the documents in Annexures 8.1-8.4, the material is simply insufficient to support the claimed legal professional privilege.

172    There are a few other specific contentions which will be addressed.

173    The documents in Annexure 6 are set out in the sequence, and with the detail and description of the basis of the claim, as they appear in Exhibit TWB.1 to the affidavit of Mr Burke of 21 April 2015 (omitting those documents where there is no objection to BankSA seeing them). They are listed at 1-57 in Annexure 6.

174    The documents are not listed chronologically. They cover the period of 15 July 2011 to 17 June 2013 save for one letter of 5 March 2014. The Trustee was, as noted earlier, appointed on 6 August 2010. The two summonses for examination of BankSA officers (and for production of documents) were issued on 22 March 2012 with production and the examination in May 2012 and July 2012, and then further examination was sought on 14 August 2012 with the examination on 6 November 2012. Prior to the Trustee’s appointment, the meeting of creditors had been held on 29 September 2009 and GMG had had some communications with both LCM and IMF and with potential participants in the proposed class action which ultimately led to this proceeding. Mr Samra was discharged from bankruptcy by operation of law on 30 October 2015. GMG were the solicitors for the Trustee from his appointment on 6 August 2010 to 31 July 2013, when (according to Mr Griffin) the “Samra Bankruptcy Proceedings” came to an end. Mr Burke in his affidavit of 31 March 2015 at [7] says in April 2014 the Trustee was a client of both GMG and JWS.

175    It is necessary, therefore, to recognise that material which may have been relevant to the proposed class action was not routinely brought into existence for the purposes of GMG’s professional relation as solicitors for the Trustee. It is also desirable to note that there is no affidavit of the Trustee explaining what, if any, is the “anticipated Australian proceeding in which [he] may have been a party” as referred to by Mr Burke. There is no affidavit of Mr Burke which identifies any such actual or anticipated proceeding. There was no submission that Mr Burke was either a plaintiff/applicant or a defendant/respondent to any other proceeding. There is no specific suggestion that he was eligible to be an applicant in the present proceeding. The affidavit of Mr Burke of 31 March 2015 at [7] would suggest it was the possible claim against BankSA.

176    I do not understand the basis of the assertions referred to in Exhibit TWB.1 that advice was for the dominant purpose of being provided with legal services “related to an anticipated Australian proceeding in which [the Trustee] was, or may, have been a party”. The Trustee submits that Mr Burke’s affidavit provides evidence as to the basis for the Trustee’s claim to legal professional privilege. It does not. It says that Mr Burke has inspected each of the contentious documents, and that the Trustee “agrees with the accuracy of the facts deposed to herein”. Mr Burke does not himself assert that claim.

177    The affidavit of 31 March 2015 refers to one document described in [5] and 15 further documents described in [6]-[22]. The document referred to in [5] is number 2 in Annexure 7, and also appears to be referred to in Exhibit TWB.1 in his earlier affidavit: [the file note of the Trustee of a meeting of 9 April 2014 with GMG, JWS, the Trustee and an officer of LCM]. Otherwise, the 15 further documents are not included in any of the Annexures to the Notice. They are email exchanges between the Trustee and JWS or email exchanges or copies of email exchanges between JWS and LCM copied or including between the Trustee, JWS and LCM. They cover the period 16 April 2014 to 27 January 2015. Ms Vozzo does not say that, at that time, JWS was acting for the Trustee.

178    From 6 August 2010, it is easy enough to conclude that communications between GMG and the Trustee in the course of that retainer are privileged, with the privilege resting in the Trustee.

179    For the same reasons, as I have ruled that the documents produced by GMG and LCM are not, at least until 30 June 2013, the subject of litigation privilege in the applicants or Group Members (with some specific qualifications), I do not consider that routinely the Trustee has litigation privilege in all communications he received from GMG where they related to GMG investigating the prospects of a class action against BankSA. There were, in broad terms, two processes occurring over that period. The first is the Trustee’s administration of the bankrupt estate of Mr Samra. Clearly, communications relating to that process between the Trustee and GMG would be privileged. But, on the evidence, GMG was both before the Trustee’s appointment, and then in parallel, investigating the possibility of a class action against BankSA on behalf of the investors in ALC to recover their lost investment in ALC.

180    As to that, I have proceeded on the basis that the Trustee was entitled, in the course of his administration, to explore the extent to which such a claim might have been available to the investors. The rationale would be that, to the extent that the investors might successfully pursue such a claim, their claims as creditors of Mr Samra’s bankrupt estate might have been reduced.

181    Other than that, there has been no submission that the Trustee was contemplating any other proceeding in his capacity as Trustee for the benefit of the bankrupt estate. There has been no submission that the Trustee had any capacity, on behalf of the bankrupt estate, to pursue any claim of the present character of this proceeding (or in any other way) against BankSA.

182    In my view, having regard to the reasons already given, I do not consider that litigation privilege attaches to any of the documents in Annexure 6.

183    However, I consider that the Trustee’s claim to privilege must be sustained by reference to advice privilege to the extent that applies. Communications between GMG and the Trustee should be treated as proper communications (subject to the consideration of Annexure 7) between GMG and the Trustee relating to his administration of the bankrupt estate of Mr Samra. The documents in Annexure 6 cover an action period of that administration.

184    However, that applies clearly only to documents 1, 2, 56 and 57. Most of the documents in Annexure 6 do not have that evident character. They relate more generally to GMG’s internal records, including notes of records of conversations with “investors” in ALC.

185    Having regard to the matters discussed above, I am not satisfied that those records of communications were prepared for the dominant purpose of providing advice to the Trustee on the basis he asserts. Mr Griffin does not say that. Nor does Ms Vozzo in her Exhibit AV.1 assert privilege in respect of those documents specifically on behalf of the Trustee. They are consistent with GMG communicating with investors in ALC with a view to investigating and pursuing a class action against BankSA, and in some instances with GMG communicating with specific investors where GMG had a relevant client/lawyer relationship with the investor.

186    Consequently, I do not accept the Trustee’s claims to privilege over the documents produced by GMG, and as asserted in Exhibit TWB.1 to the affidavit of Mr Burke of 21 April 2015, save for the documents numbered 1, 2, 56 and 57 in Annexure 6. To the extent to which those documents, or some of them, may be privileged by reason of privilege resting in a particular investor in ALC, I have already given my ruling. I have not cross-referenced the list of documents in Annexure 6 to the documents in the earlier Annexures.

187    I note that documents 52 and 53 appear to relate directly to the administration of Mr Samra’s bankrupt estate as they are described as relating to potential litigation against Mr Samra. What was in contemplation in that regard was not explained in evidence. The presence of third parties from IMF, and ASIC, without further explanation has meant that I am not persuaded that communication was privileged.

Annexure 7 (Amended 21 May 2015) – Abuse of Process by the Trustee

188    It is only necessary to deal with documents 1, 2, 56 and 57. As the Trustee is not said to have pursued the examination of the BankSA officers, or the production of documents by BankSA, except conscionably on his own behalf, I do not conclude that his privilege in those four documents is lost.

Annexure 8 – Proof of Dominant Purpose

189    It is not necessary to consider Annexures 8.1, 8.2 or 8.3 as the ruling with respect to Annexure 6 covers those documents.

190    Annexure 8.4 includes documents 56 and 57. In my view, the description of those two documents is sufficient to establish that they are privileged.

Trustee – Miscellaneous

191    It is necessary to address the documents over which the Trustee claims privilege, and which (as is said in Mr Burke’s affidavit of 31 March 2015) were produced by him in response to a subpoena.

192    I have ruled that the email of 15 July 2011 in the envelope marked NDC-2 is not privileged (save for any proper redaction).

193    As to the remaining 15 documents, described and addressed as [6]-[22] of that affidavit.

194    I note that Mr Burke’s affidavit at [8] says that he was told on 31 March 2015 by Ms Vozzo by telephone that JWS started acting for the Trustee (it does not say in what capacity or in what terms the Trustee entered into that client/lawyer relationship) “in relation to an anticipated Australian proceeding” on about 9 April 2014. That is some six months after Mr Samra was discharged from bankruptcy. Mr Burke says that proceeding did not commence, so it is not a reference to the current proceeding. As already noted, [7] of that affidavit asserts that the Trustee at 9 April 2014 had both GMG and JWS acting for him. The Chronology prepared by BankSA records that JWS on 9 April 2014 commenced acting for the Trustee in relation to an anticipated Australian proceeding which ultimately did not commence.

195    The BankSA position is that the evidence is not sufficiently “focused and specific” as to maintain the claim for privilege. The Trustee’s note of the meeting of 9 April 2014 (quite some time after the funding agreement with LCM with GMG and the investors) is said to record legal advice provided to him at that meeting. I accept that. BankSA has not argued that the presence of an officer of LCM on that occasion meant that the communication was not privileged, although I would not readily accept that that officer’s presence was “to assist [the Trustee] to obtain legal advice”.

196    As to the remaining 14 documents, there was an exchange of emails between JWS and the Trustee on 16 April 2014, 1 May 2014 (2) and 2 May 2104 (5), and on 27 January 2015. I see no reason to reject the claim for privilege with respect to those communications between the Trustee and his solicitors. BankSA has pointed out that they do not readily meet the description of the documents required to be produced pursuant to category 3 of the subpoenaed documents. That may be so. I do not consider that is a reason to conclude that the documents are not privileged.

197    The remaining five documents, addressed in [17]-[21] of the affidavit are:

(a)    email 3 June 2014: JWS to LCM, copied to the Trustee (and enclosing earlier emails);

(b)    email 12 June 2014: LCM to JWS, copied to the Trustee;

(c)    email 12 June 2014: Trustee to JWS and LCM;

(d)    email 13 June 2014: JWS to LCM, copied to the Trustee; and

(e)    email 2 September 2014: LCM to JWS and the Trustee.

198    In my view, the documents as described fall within the category of client/lawyer communications which would be privileged. It is not to the point that the contemplated proceeding (whatever it was) did not eventuate. No adverse point is taken that LCM was a party to those communications. The Trustee’s copy of those documents is privileged.

199    Again, BankSA has pointed out that it is not readily apparent how their production meets category 3 of the subpoenaed documents, particularly having regard to their date and the period specified in the subpoena. I do not think that is a reason not to accept that they are privileged from inspection by BankSA.

CONCLUSIONS

200    For the reasons given, the claims to privilege by the applicant have only partly been successful. I have not revisited the entirety of Annexure 1, to determine the extent to which, if at all, the rulings I have made may recognise legal professional privilege in the “advice privilege” documents there listed, having regard to my rulings on the status of the documents in Annexures 3 to 5.

201    The claims to legal professional privilege in respect of the documents in Annexure 2, based on litigation privilege, have not been successful.

202    The claims to privilege by the Trustee in respect of the documents he presented in response to the subpoena have, in essence, been successful. I have not accepted his claims to privilege over documents presented by GMG in response to the subpoena to it.

203    I consider the appropriate course is to require BankSA to prepare a minute of the orders which will follow from these rulings, where necessary by reference to particular documents. If GMG and the Trustee accept that they give effect to these reasons, I will sign them. If there is a dispute, GMG and/or the Trustee can provide the terms of the minutes of order which they consider are appropriate. In that event, each party may provide a short written submission in support of the order proposed.

204    I will hear the parties as to an appropriate timetable.

205    In the event that BankSA now wishes to obtain specific rulings with respect to particular documents listed in Annexure 1, it is to be given a fixed time to submit a list of those documents (or a list of the document numbers) and (if so advised) a brief annotation explaining why the document is not privileged, and the applicants will be given a further time to respond with (if so advised) a brief responsive annotation. I will then provide a further ruling on the papers submitted.

206    The parties are also invited to confer as to the costs of this hearing, including (as I am presently disposed) to refer the costs to be determined by the primary judge. If there is some other proposal, the parties are to put in their respective contentions, again in a time frame to be specified.

Associate:

Dated:    16 March 2016