The primary judge's reasons
145 Under Item 1 of the Notice of Opposition, BankSA described this ground of opposition to the claims of privilege as follows:
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 [Griffins], 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.
146 At [56]-[62], the primary judge summarised Mr Griffin's evidence to the effect that:
(a) he was approached by investors at the end of the creditors' meeting in September 2009 who requested that he assist them to recover the monies they had lost through the Samra entities;
(b) he convened a meeting of investors at the offices of Griffins on 1 October 2009 to discuss potential legal avenues for recovery of their losses. Mr Griffin assumed those investors who attended wished to discuss with him, as a lawyer, their legal options, to receive legal advice and to consider retaining Griffins for any future legal action. Griffins also acted for individual investors in relation to some discrete matters relating to Mr Samra and ALC;
(c) he then had intermittent further meetings of a similar character with investors from time to time. In the course of those meetings, investors were asked to provide documents for Griffins' consideration and from time to time Griffins created documents "for the purpose of providing legal advice to investors regarding possible claims to recover their losses" including a potential claim against BankSA;
(d) from about late 2009, he had discussions with litigation funders LCM and IMF about funding a potential claim against BankSA to recover the investors' losses. His Honour inferred that the discussions with litigation funders were at Mr Griffin's instigation rather than on instructions from any of the investors;
(e) all communications with each investor or investors and with LCM and IMF were confidential; and
(f) by about mid-2013, LCM, Griffins and potential class members had progressed towards entering into a litigation funding agreement for the present proceeding. Instructions were given to counsel to draw pleadings and to obtain senior counsel's advice as to the prospects of success. The appellants entered into a formal retainer agreement with Griffins in about June 2013 to investigate, and if appropriate, institute and conduct the present proceeding.
147 The primary judge said (at [63]-[64]) that Mr Ferluga's evidence broadly confirmed the evidence of Mr Griffin, to the effect that:
(a) he attended the meeting at Griffins on 1 October 2009, together with a number of other investors "in relation to a possible class action, to discuss the possible recovery of losses from dealings with Samra";
(b) he followed that up with a further meeting with Griffins on 7 October 2009 when he provided more detailed instructions about his and his family's interests and the monies they advanced to ALC, and arranged to provide documents as requested. That level of communication continued over the next several years;
(c) Griffins was, on behalf of the Ferluga entities, to provide legal advice to him "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".
148 The primary judge held (at [65]):
In my view, there was a limited solicitor-client relationship between at least Mr Ferluga and his family's interests and [Griffins] from about 1 October 2009, when he says he first met with other investors and [Griffins] 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.
(Emphasis added)
149 At [66] the primary judge said:
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 [Griffins] ceased to act for the Trustee), [Griffins] 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 [Griffins] (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.
(Emphasis added)
150 At [67], the primary judge noted BankSA's submission that, until about 30 June 2013, Griffins 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. His Honour said that "[t]hat proposition underlies its strike out application. It is no surprise to the applicants." His Honour said it was therefore necessary to assess the evidence about the nature and extent of the relationship between investors and Griffins over the period up to 30 June 2013. The primary judge took into account that it was open to the appellants to adduce further evidence and they did not.
151 The primary judge said [at [68]) that:
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… were made pursuant to any retainer or indeed directly for a client with whom [Griffins] 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 [Griffins] to act for them and to pursue such a claim.
(Emphasis added)
At [69], his Honour noted Mr Griffin's evidence that he had "sporadic and general discussions" with LCM from late 2009, but did not secure litigation funding until about mid-2013.
152 In relation to Mr Ferluga's evidence, the primary judge said (at [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 [Griffins], a meeting with Mr Coombe on 7 October 2009. Then he refers to numerous further discussions and communications with [Griffins] 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 [Griffins'] 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.
153 His Honour noted (at [71]) Mr Griffin's evidence that it was only in 2014 that LCM required the preparation of draft pleadings and advice from senior counsel, after which his Honour inferred LCM committed to funding the proceeding itself. Importantly, the primary judge said (at [72]):
There is nothing to indicate that, prior to about 30 June 2013, LCM was provided with any detailed briefing by [Griffins] 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.
154 His Honour concluded (at [73]):
In short, having regard to Mr Griffin's unequivocal assertion, I am not persuaded that any communication between [Griffins] and LCM, or records of those communications, prior to 30 June 2013 took place in circumstances where Mr Griffin or [Griffins] 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 [Griffins]/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 [Griffins] to investigate and conduct such a claim as the present. I accept that Mr Griffin for [Griffins] 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.
155 The primary judge's reference to "Mr Griffin's unequivocal assertion" must be a reference to Mr Griffin's statement in the First Griffin Affidavit that:
(a) at the time that he first met with the investors (1 October 2009) he was "not then retained to act in regards [to] a representative proceeding or in any proceedings against BankSA"; and
(b) "[d]uring the "Samra Bankruptcy Proceedings" [conducted over the period 23 August 2011 until 30 July 2013], Griffins Lawyers had not been retained by the Applicants or any of the Group Members (as this expression is defined at paragraph 4 of the Statement of Claim) in respect of this representative proceeding."
156 The primary judge noted (at [75]) Mr Griffin's evidence that from 1 October 2009 he spoke with investors, both individually and sometimes together, with a view to considering possible legal claims they may have, and that in dealing with the investors Griffins was acting in a professional capacity as a firm of solicitors and on a confidential basis. Mr Griffin said that "the material assembled [by Griffins] was to assist in the consideration of possible legal claims and to provide legal advice to investors, including dealings with LCM and IMF."
157 His Honour said (at [76]) that it does not necessarily follow that a lawyer/client relationship existed between Griffins and all the investors it spoke to. His Honour cited Brookfield Multiplex Ltd v International Litigation Funding Partners Pte Ltd (No 2) (2009) 180 FCR 1; [2009] FCA 449 (Brookfield) at [19] (Finkelstein J) and said that a formal professional retainer is not required but there must be a professional relationship in pursuance of a request, express or implied, made of the lawyer in a professional capacity.
158 The primary judge concluded (at [78]) that:
The result of those conclusions is that, in respect of communications (or documents recording communications) between the applicants and group members and [Griffins] from 1 October 2009, and documents provided to [Griffins] 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 [Griffins] 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.
(Emphasis added)
159 At [80], the primary judge reiterated the conclusion that a lawyer/client relationship existed between the Ferluga entities and Griffins in the period from 1 October 2009 to 30 June 2013, being a retainer "generally to explore the prospects/recovery of their losses by investing in ALC, including by a claim against BankSA."
160 In a passage which is central in the appeal, the primary judge said at [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) [Griffins] 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 [Griffins]. There is no evidence of any coherent record of those with whom [Griffins] 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 [Griffins] 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]… In my view, it is more likely that a number of persons who attended spasmodic meetings or spasmodically communicated with [Griffins] were hopeful of participating in a claim such as the present, but it was left to [Griffins] (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 [Griffins] met, but I am not satisfied that there were none, or an insignificant number of such persons.
(Emphasis added)
161 The primary judge said (at [82]) that he was not persuaded on the evidence that the intentions of the investors with whom Griffins interacted prior to 30 June 2013, judged objectively, was to have a solicitor and client relationship with that firm. His Honour said (at [83]) that he did not expect detailed evidence from each of the investors or each of the authors of the various documents, or from each of the solicitors or employees of Griffins involved in dealings with those investors. However, in light of BankSA's contention that Griffins was, for itself, instigating the investigations, the appellants could have adduced evidence to the contrary through Mr Griffin, through records of Griffins or through a small number of investors, and they did not.
162 His Honour held (at [84]) that the claims to advice privilege were not established at large, but instead only in relation to particular documents recording communications between Griffins and investors where a lawyer/client relationship was established.
163 The primary judge also said:
(a) (at [134]), that a lawyer/client relationship did not exist to the extent asserted by the appellants;
(b) (at [136]), that he generally concluded that, in its dealings with IMF and LCM, Griffins, through Mr Griffin, "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"; and
(c) (at [144]), that Mr Griffin said in his second affidavit that he was at all times acting in his professional capacity in the matters, meetings and communications with investors to which he referred, which matters meetings and communications were confidential. He says that all investors were dealing with him "as a solicitor and had the manifest intention of seeking legal advice or legal services in relation to their losses." However, as the primary judge noted, in his first affidavit Mr Griffin said that until 30 June 2013, Griffins had not been retained by the appellants or other investors except in limited respects in regard to discrete matters.
164 The primary judge referred (at [141]-[142]) to the trust account statement, invoices and receipts (referred to at [136] above) which record payments by investors, including Mr D'Ortenzio, to Griffins for disbursements incurred by the firm in investigating the claims against BankSA.
165 His Honour concluded (at [145]):
Overall, I am not satisfied that the material to which I have been referred, including the above, exposes that [Griffins] 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 [Griffins] 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 [Griffins], [Griffins] 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.
(Emphasis added)
166 The primary judge said (at [146]-[148]) that he drew that conclusion with some confidence because of the absence of any specific evidence from Mr D'Ortenzio or from any other person who contributed to Griffins' trust account to pay disbursements in about late 2011. In addition, apart from the period from late 2011 to mid to late 2012, during which period the trust account monies were collected and disbursed, there was no evidence of any further request for the payment of fees monies, and any records in that regard could have been provided by Griffins. He said (at [148]) that:
There is no basis for knowing whether any particular communications concerned a particular "retainer" of [Griffins] by an investor for a particular purpose, or were pursuant to a client/lawyer relationship of the character referred to.
His Honour said (at [149]) that there is no basis for knowing, beyond the period covered by the trust account statement, invoices and receipts, whether the investors who contributed those funds had any prior or ongoing relationship with Griffins. If so, his Honour said one would expect that Griffins would have a basis for identifying those persons, the fee basis for doing the work it did, record of the fees charged or to be charged, or an agreement not to charge fees except in particular circumstances.
167 The primary judge also said (at [152]) that privilege was established in respect of certain communications 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 reference to various document descriptions in the Privilege Schedule, the primary judge ruled that the privilege claims made in respect of a limited number of documents listed in Annexure 4 were made out, but not established in relation to the balance of the documents listed in that annexure.