Federal Court of Australia

Alexiou v Australia and New Zealand Banking Group Limited (Notice to Produce) [2021] FCA 1538

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant’s interlocutory application be dismissed.

2.    The file notes marked MFI-1 be returned to the Respondent.

3.    Costs are to be dealt with upon the resumption of the adjourned hearing of the Respondent’s interlocutory application for suppression orders under s 37AF of the Federal Court of Australia Act 1976 (Cth).

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

REASONS FOR JUDGMENT

PERRAM J:

1    This is an interlocutory application by the Applicant, Mr Alexiou, for production of three file notes created by solicitors retained by the Respondent (‘ANZ’). The application raises the issue of whether the file notes are subject to legal professional privilege. I conclude that they are.

2    The context in which this question arises is as follows: ANZ was subject to an investigation by the Australian Securities and Investments Commission (‘ASIC’). That investigation concerned the question of whether ANZ was involved in the manipulation of the Bank Bill Swap Rate. The Applicant, Mr Alexiou, was employed by ANZ as the head of a department upon which ASIC’s inquiry was focussed. Both ANZ and Mr Alexiou had potential exposure to the investigation and what might follow from it.

3    On 5 December 2014 Mr Alexiou attended an interview with an officer of the ANZ. Present at that interview were three lawyers from Clayton Utz who were acting for ANZ in relation to the investigation. These were a partner, Mr Mavrakis, a special counsel, Mr Slater and a solicitor, Ms McCaughan. Present also were Mr Alexiou’s own solicitors (from HWL Ebsworth (‘HWLE’)) and his counsel. The interview lasted for approximately two hours. During the interview Mr Slater and Ms McCaughan both took detailed file notes. Both notes have been subsequently typed up. Ms McCaughan’s typed file note may have been subject to some revision by Mr Slater or Mr Mavrakis although Mr Slater, who gave affidavit evidence, was unable to be sure of this. The typed version of Mr Slater’s own file note was reviewed by him.

4    Mr Alexiou seeks the production of Mr Slater’s handwritten file note, the typed version of his file note and the typed version of Ms McCaughan’s file note. In my view, it is clear that the three file notes are privileged and that production should not be ordered. Each was created for the dominant purpose of providing legal advice to ANZ. I reject Mr Alexiou’s contention that several purposes were at work in the creation of the three file notes which is without substance. This submission was erected, for example, on the emaciated contention that one of the purposes of the interview was fact finding. Whether or not this is so, it remains the case that the three file notes were prepared for the purpose of providing legal advice.

5    That being so, it is rudimentary that the three file notes are privileged: AWB Ltd v Cole (No 5) [2006] FCA 1234; 155 FCR 30 (‘Cole’) at [44(8)] per Young J. Counsel for Mr Alexiou, Mr McInerney SC, endeavoured to persuade me that unprivileged communications which are contained within a solicitor’s file note are not themselves privileged and that the passage at [44] in Cole was too broadly drawn. I was not taken to any decision in which such a criticism of [44] has been made. I have been unable to find any such criticism myself. On the contrary, [44] has been cited with approval on a number of occasions: see e.g. Song v Commissioner of Taxation [2018] FCA 840 at [5] per Davies J; Morton v Bolinda Publishing Pty Limited [2017] FCA 187 at [49] per Burley J; and Hallett v Endeavour Industries Ltd [2016] NSWSC 886 at [38] per Rothman J.

6    The central thrust of Mr Alexiou’s submission was directed at demonstrating that any joint privilege or common interest privilege in the communications which occurred at the meeting had been lost. This is the wrong question. The correct question is whether the file notes were privileged. Whether the file notes were recording privileged or unprivileged communications is a red herring. The file note of a solicitor who records what is said in Court is just as much privileged as a file note which records privileged advice at a conference with counsel. This submission, as with the next, suffers from the defect of conflating the topic of privilege in the communications which occurred at the meeting with the topic of privilege in the file notes.

7    Mr Alexiou also submitted that the privilege in the file notes had been waived. The argument went something like this. First, Mr Alexiou’s solicitors HWLE had taken a file note of the interview too (which is not surprising). Secondly, in satellite litigation in the New South Wales Supreme Court Mr Alexiou had waived his privilege in that file note (this too is uncontroversial). Thirdly, Mr Slater had referred in his evidence to this HWLE file note and confirmed that its contents were correct. Finally, by doing so he had waived privilege. I reject this argument. There is no inconsistency between ANZ maintaining its privilege in Clayton Utz’s file notes of the interview and Mr Slater’s evidence that the HWLE file note was correct. Contrary to Mr Alexiou’s submissions there is also no unfairness. The decision to waive his privilege in the HWLE file notes was Mr Alexiou’s decision. His waiver of the privilege in the HWLE file notes did not, and could not, have the effect of waiving ANZ’s privilege in the three Clayton Utz file notes. If Mr Slater had sought to say that the HWLE file notes were incorrect in some way the question might perhaps be different (I express no view). But this, of course, is precisely what Mr Slater did not do.

8    Finally, in his written submissions, Mr Alexiou contended that any privilege in the file notes had been removed by statute. This was because Mr Alexiou’s interview constituted a protected disclosure within the whistle blower regime in s 1317AB of the Corporations Act 2001 (Cth) and s 52B of the Banking Act 1959 (Cth). This submission was abandoned at the hearing.

9    I will order that the application for production of the three file notes be dismissed. The unredacted file notes marked for identification during the hearing of the interlocutory application may be returned to ANZ. It was not necessary for me to examine these in determining the interlocutory application and I did not do so. I will deal with the costs of the present application upon the resumption of the adjourned hearing of ANZ’s interlocutory application for suppression orders.

Associate:

Dated:    8 December 2021