Australian Securities and Investments Commission v Tzouvelis [2023] FCA 431

Federal Court of Australia

Australian Securities and Investments Commission v Tzouvelis [2023] FCA 431 File number(s): VID 623 of 2022

Judgment of: O'CALLAGHAN J

Date of judgment: 9 May 2023

Catchwords: PRIVILEGE – legal professional privilege – Australian Securities and Investments Commission seized documents pursuant to search warrant executed under s 39D of the Australian Securities and Investments Commission Act (Cth) (documents) – first respondent claimed legal professional privilege over documents – applicant sought declarations that certain of the documents were not subject to legal professional privilege because there were reasonable grounds to believe that they recorded or evidenced communications made in furtherance of improper purposes, namely diverting assets in order to minimise assets available to pay a pecuniary penalty and causing the second respondent to file and serve misleading evidence and written submissions about the financial position of the second respondent in the penalty phase of a civil penalty proceeding – where applicant established prima facie case of improper purposes – Senior National Judicial Registrar appointed as a referee pursuant to s 54A of the Federal Court of Australia Act 1976 (Cth) to inquire and report as to whether any document in respect of which the first respondent claimed legal professional privilege, contained or evidenced communications between the respondents, or any of them, and their legal advisors in furtherance of, or as a step preparatory to, either or both of the improper purposes

Legislation: Australian Securities and Investments Commission Act 2001 (Cth) s 13 Corporations Act 2001 (Cth) ss 911A, 912A, 961B, 961G 961K, 961L, 1041E, 1041G, 1041H, 1317E, 1317G Corporations Amendment (Further Future of Financial Advice Measures) Act 2012 (Cth) Crimes Act 1914 (Cth) s 35 Federal Court of Australia Act 1976 (Cth) ss 21, 54A Crimes Act 1958 (Vic) ss 82, 83A