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.