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HWL Ebsworth ordered to hand over file notes to former ANZ employee
Years after HWL Ebsworth disclosed the names of ANZ Bank employees who were meeting with the corporate regulator amid a major investigation into market manipulation, the firm has been ordered by a Supreme Court to hand over a number of file notes to a former employee that detail their communications with the bank.
Naomi Neilson
In 2014, 19 ANZ Bank employees represented by HWL Ebsworth (HWLE) believed their communications with the Australian Securities and Investments Commission (ASIC) regarding alleged market manipulation were confident. Via invoices for legal services sent to the bank itself, their identifies soon became known.
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As the investigation was taking place within the bank itself, employees were entitled to have their legal fees paid by ANZ and were shared by its lawyers at Clayton Utz. The invoices detailed the extent of each phone call, email and meeting and while initially the employees were anonymised, within a month full names were used.
One of the 19 employees, Etienne Alexiou, is currently pursuing separate Federal Court proceedings against the bank following his employment termination. He has asked that HWLE hand over any and all file notes relating to their communication with an employee or representative of ANZ, any partner or employee of Clayton Utz, counsel retained by ANZ on his behalf and any representative of ASIC.
HWLE recently told the NSW Supreme Court that Mr Alexiou was not entitled to the file notes as a matter of law. The court heard that the firm believed the file notes relating to meetings with solicitors representing ANZ or ASIC – or those retained on behalf of the plaintiff – were for internal purposes and protection of solicitors only.
“HWLE resisted production [of the file notes] on the basis that the file notes were not prepared for the benefit of the client and that the client was not charged for such work,” the court submitted under evidence, clarifying it meant creation of file notes.
While the file note preparations were not charged to the client, the attendance of two solicitors in a December 2014 meeting was. The court said that evidence did not disclose why it was necessary for more than one solicitor to attend meetings, with experience suggesting in which more than one solicitor attends meetings or sits in on telephone conversations, “the more junior solicitor might be there… to make notes”.
“The proposition that he or she is there making notes only for the benefit of the solicitors as if to protect the solicitors or only in the solicitors’ own interests rather than the client’s interests is somewhat difficult to accept, absent direct evidence,” the NSW Supreme Court judgement submitted.
“This is particularly so when the attendance of both solicitors at the meeting was charged to the client’s account.”
The Supreme Court has ordered that HWLE turn over all documents – including memoranda, emails and file notes, recording or communications – with an employee or representative of the ANZ Bank, with a partner or employee of Clayton Utz, with any counsel retained for Mr Alexiou and with anyone at ASIC.
The full judgement can be read on AustLII: Alexiou v Alexandra White and ors t/as HWL Ebsworth Lawyers [2021] NSWSC 485 (7 May 2021).
