Kayler-Thomson v Colonial First State Investments Limited (No 2)

• Jurisdiction: Australia Federal only
• Judgment Date: 27 July 2021
• Neutral Citation: [2021] FCA 854
• Date: 27 July 2021
• Court: Federal Court

Federal Court of Australia

Kayler‑Thomson v Colonial First State Investments Limited (No 2) [2021] FCA 854

File number:	VID 1313 of 2018
Judgment of:	COLVIN J
Date of judgment:	27 July 2021
Catchwords:	PRIVILEGE - application for production of documents for inspection - where respondent resists production on basis of claim to legal professional privilege - where proceedings concern conduct of first respondent as trustee of superannuation funds - where proceedings brought on behalf of members of superannuation funds - whether joint legal professional privilege exists between first applicant and first respondent as beneficiary and trustee - whether joint privilege principles between trustee and beneficiaries confined to small trusts with identifiable beneficiaries with vested interests - whether Superannuation Industry (Supervision) Act 1993 (Cth) abrogates joint privilege between trustee and beneficiaries - whether disputed documents relate to management and administration of trust - application dismissed ; REPRESENTATIVE PROCEEDINGS - where first applicant is representative applicant of representative proceedings - where some documents created before first applicant became member of superannuation fund - where first applicant claims some members of class were joint privilege holders - whether first applicant as representative applicant entitled to claim production of discoverable documents on basis of joint privilege of class members
Legislation:	Evidence Act 1995 (Cth) Federal Court of Australia Act 1976 (Cth) Part IVA Superannuation Industry (Supervision) Act 1993 (Cth)
Cases cited:	AIT Investment Group Pty Ltd v Markham Property Fund No 2 Pty Ltd [2015] NSWSC 216 Asirifi-Otchere v Swann Insurance (Aust) Pty Ltd (No 2) [2020] FCA 1355 Attorney-General (NT) v Maurice (1986) 161 CLR 475 Avanes v Marshall [2007] NSWSC 191; (2007) 68 NSWLR 595 Benson v Cook [2001] FCA 1684; (2001) 114 FCR 542 Blenkinsop v Herbert [2017] WASCA 87; (2017) 51 WAR 264 Breen v Williams (1996) 186 CLR 71 Chan v Valmorbida Custodians Pty Ltd (Ruling) [2020] VSC 590 Coco v The Queen (1994) 179 CLR 427 CPT Custodian Pty Ltd v Commissioner of State Revenue [2005] HCA 53; (2005) 224 CLR 98 Crowe v Stevedoring Employees Retirement Fund Pty Ltd [2003] VSC 316 Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 Deutsch v Trumble [2016] VSC 263; (2016) 52 VR 108 Dillon v RBS Group (Australia) Pty Ltd [2017] FCA 896; (2017) 252 FCR 150 Dyczynski v Gibson [2020] FCAFC 120 Esso Australia Resources Ltd v Commissioner of Taxation (Cth) [1999] HCA 67; (1999) 201 CLR 49 Farrow Mortgage Services Pty Ltd (in liq) v Webb (1996) 39 NSWLR 601 Fast v Rockman [2015] VSCA 61 Fay v Moramba Services Pty Ltd [2009] NSWSC 1428 Great Southern Managers Australia Ltd (Receivers and Managers Appointed) (in liq) v Clarke [2012] VSCA 207; (2012) 36 VR 308 Guest v Guest [2015] VSC 761 Hancock v Rinehart [2013] NSWSC 1402 Hancock v Rinehart [2015] NSWSC 2140 Hancock v Rinehart [2016] NSWSC 12 Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 Kennon v Spry; Spry v Kennon [2008] HCA 56; (2008) 238 CLR 366 Krok v Szaintop Homes Pty Ltd (No 1) [2011] VSC 16 McDonald v Ellis [2007] NSWSC 1068; (2007) 72 NSWLR 605 Mercanti v Mercanti [2014] WASC 64 Palmer v Ayres [2017] HCA 5; (2017) 259 CLR 478 Queensland Local Government Superannuation Board v Allen [2016] QCA 325 Re Combined Projects (Arncliffe) Pty Ltd [2018] NSWSC 649 Re Estate Late Chow Cho-Poon; Application for Judicial Advice [2013] NSWSC 844 Re Gulbenkian's Settlement Trusts; Whishaw v Stephens [1970] AC 508 Re Londonderry's Settlement [1965] Ch 918 Re Simersall; Blackwell v Bray (1992) 35 FCR 584 Re Tillott [1892] 1 Ch 86 Schreuder v Murray (No 2) [2009] WASCA 145; (2009) 41 WAR 169 Schreuders v Grandiflora Nominees Pty Ltd [2014] VSC 310 Shimshon v MLC Nominees Pty Ltd [2020] VSC 640 Silkman v Shakespeare Haney Securities Ltd [2011] NSWSC 148 Spellson v George (1987) 11 NSWLR 300 Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212 Watson v Schreuder Partners Lawyers [2020] FCA 1044 Webster (Trustee) v Murray Goulburn Co-Operative Co Limited (No 3) [2018] FCA 990 Wigmans v AMP Limited [2021] HCA 7 Wright v Stevens [2018] NSWSC 548
Division:	General Division
Registry:	Victoria
National Practice Area:	Commercial and Corporations
Sub-area:	Commercial Contracts, Banking, Finance and Insurance
Number of paragraphs:	136
Date of hearing:	8 April 2021
Counsel for the Applicants:	Dr KP Hanscombe QC with Ms AM Folie
Solicitor for the Applicants:	Slater & Gordon
Counsel for the Respondents:	Mr SG Finch SC with Ms S Mirzabegian
Solicitor for the Respondents:	Herbert Smith Freehills

ORDERS

		VID 1313 of 2018
BETWEEN:	KEITH KAYLER-THOMSON First Applicant ; PETER CURRIE Second Applicant
AND:	COLONIAL FIRST STATE INVESTMENTS LIMITED (ACN 002 348 352) First Respondent ; COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124) Second Respondent ; AVANTEOS INVESTMENTS LIMITED (ACN 096 259 979) Third Respondent

order made by:	COLVIN J
DATE OF ORDER:	27 JULY 2021

THE COURT ORDERS THAT:

1. Subject to order 2, the interlocutory application by the first applicant dated 19 October 2020 be dismissed.

2. There be liberty to the first applicant to apply within 14 days to pursue any part of the application that the first applicant maintains was not determined by these reasons.

3. The first applicant do pay the costs of and incidental to the interlocutory application to date in any event, such costs to be assessed if not agreed.

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

REASONS FOR JUDGMENT

COLVIN J:

1. Mr Keith Kayler‑Thomson is an applicant in representative proceedings brought against Colonial First State Investments Limited (Colonial) and other parties, one being the Commonwealth Bank of Australia (CBA). Colonial is alleged to be a subsidiary and close associate of the CBA.

2. The claims made against Colonial concern its conduct as the trustee of two superannuation funds (Funds). The Funds are the Colonial First State FirstChoice Superannuation Trust (FirstChoice Fund) and the Commonwealth Essential Super Fund (Essential Fund).

3. Colonial has provided discovery of documents in the proceedings. It has claimed that legal professional privilege applies to a considerable number of the discovered documents. On that basis it resists inspection of those documents by solicitors acting for Mr Kayler‑Thomson as representative applicant.

4. ...