Federal Court of Australia

Australia and New Zealand Banking Group Limited v James (No 2) [2021] FCA 784

ORDERS

THE COURT ORDERS THAT:

1.    Prayer 5 of relief in the Respondent’s Interim Application filed 2 July 2021 be dismissed.

2.    Pursuant to ss. 37AG and 37AF of the Federal Court of Australia Act 1976 (Cth), on the ground that the order is necessary to prevent prejudice to the proper administration of justice, until order of the Court, Confidential Exhibit PK-4 is not to be published and/or accessed except pursuant to an order of the Court.

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

REASONS FOR JUDGMENT

CHEESEMAN J:

1    This judgment follows my earlier judgment in these proceedings concerning part of the relief sought in the Respondent’s Interim Application filed on 2 July 2021: Australia and New Zealand Banking Group Limited v James [2021] FCA 768. Defined terms which are initial-capitalised have the same meaning as in my earlier judgment. On 7 July 2021, I made orders in respect of prayers 1 to 4 of the Respondent’s Interim Application. Also, on 7 July 2021, I made orders in respect of Prayer 5 which concerned a dispute in relation to privilege. On 8 July 2021, I was asked to provide reasons for judgment on the privilege dispute. The reasons that follow are in respect of the privilege dispute.

Prayer 5 - Privilege dispute

2    The Respondent, Mr James, seeks production of an unredacted copy of a document. The Applicant, Australia and New Zealand Banking Group Ltd (ANZ), claims privilege over a redacted portion of that document. The document in issue is entitled “Project Spirit – Receivership planning meeting, 8 August 2013” and bears the document ID DJG.200.002.0227. That document was produced pursuant to orders made in these proceedings on 26 April 2021. After production was given, the Respondent sought, and ANZ agreed to provide, an affidavit verifying the claims for privilege.

3    An affidavit of Mr Kucharski, solicitor for ANZ, dated 2 June 2021 and affirmed on 4 June 2021 was provided. Mr Kucharski deposes that he is an employed solicitor of Allens, the solicitor on the record for ANZ in these proceedings. Further, that Allens has acted for ANZ in relation to the disputes involving the ANZ Companies and the Respondent since approximately September 2011 and has also acted for PwC, the ANZ Receivers, since 19 August 2013, which was the date they were appointed as receivers by ANZ. Mr Kucharski deposes that he is authorised to make the affidavit on behalf of ANZ and the ANZ Receivers. Relevantly, schedule A to Mr Kucharski’s affidavit outlines the basis of the claim for privilege over this document:

4    ANZ provided the Court with a confidential exhibit comprising an unredacted copy of the document which is the subject of dispute. The parties were invited to have the matter referred to another judge other than me to determine the privilege dispute given that the substantive hearing was listed before me. The parties confirmed that they did not wish to refer the issue to another judge and that there was no objection to me inspecting the document for the purposes of determining the relief sought in prayer 5 of the Interim Application. In a further affidavit of 6 July 2021, Mr Kucharski deposed that the ANZ Receivers maintained their claim for privilege in the redacted sections of the document and similarly did not object to my inspection of the document for the purpose of adjudicating the claim of privilege.

5    Mr Kucharki also deposed to Mr Warde, who is referred to in the document the subject of the dispute, as being the relevant Allens’ partner with carriage of the matter in August 2013.

6    I am satisfied, having inspected the unredacted document, that the portion which has been redacted comprises communications which attract privilege on the basis of advice privilege for the reasons advanced by ANZ in schedule A extracted above and having regard to Mr Warde’s status as the legal adviser at the relevant time. I further note that the document bears the title “Project Spirit – Receivership planning meeting”. It is common ground that ANZ appointed PwC as the ANZ Receivers on 19 August 2013 and that since at least May 2013, ANZ had retained PwC to undertake an independent business review of TLT. The portion of the document that is redacted conforms with the description of the basis of privilege in schedule A, that is, that the communications concern legal advice to be sought from Allens in relation to security enforcement issues and in relation to stock ownership issues, Personal Property Securities Act 2009 (Cth) issues and liens.

Prayer 6 - General Ledger

7    By prayer 6 of the Interim Application, the Respondent sought production of a “general ledger” of TLT Nominees Pty Ltd, or any electronic record of such ledger information from ANZ.

8    In his affidavit affirmed 6 July 2021, Mr Kucharski gave evidence that ANZ had written to the Respondent advising that it intended to produce material responsive to the description in prayer 6 of the Interim Application upon confirmation that the Respondent agreed to treat that material as if produced under subpoena. This position was confirmed by Senior Counsel for ANZ during the hearing of the Interim Application on 7 July 2021. Thereafter, Senior Counsel for the Respondent confirmed that the Respondent had provided the confirmation sought. As it appeared that the document(s) the subject of prayer 6 would be provided in this way, it was not necessary for me to determine prayer 6 of the Interim Application. At the conclusion of the hearing of the Interim Application on 7 July 2021, I noted that if the Respondent wished to agitate prayer 6 after review of the document(s) produced, he would not be precluded from doing so.

Associate:

Dated:    12 July 2021