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ANZ to seek privilege over sacked trader's client files held by HWL Ebsworth

Published on Lawyerly.com.au written by Christine Caulfield


ANZ will fight to keep a sacked trader from accessing a client file held by HWL Ebsworth, citing privilege over the documents, a court has heard. Trader Etienne Alexiou, who alleges he was fired after making complaints about rate-rigging at ANZ, has sued HWL for allegedly withholding documents needed to amend his case against the bank. The suit, filed late last month in the NSW Supreme Court, seeks orders compelling HWL to hand over an itemised bill of costs and other documents relating to legal services provided during an investigation by the Australian Securities and lnvestments Commission regarding alleged manipulation by ANZ of the bank-bill swap rate. Alexiou is also seeking indemnity costs from the firm, which he says has resisted handing over the documents and denied he was entitled to the material. Barrister Nick Kidd SC for Alexiou told a registrar of the court Tuesday the parties had narrowed the documents in dispute to file notes by his client's former solicitor, Alexandra White. Counsel for the bank, Yaseen Shareef, said that ANZ wanted to be heard on possible claims for legal professional or common interest privilege over the documents. The case has been tentatively scheduled for a hearing in April. Client file needed to amend case against ANZ

Alexiou retained HWL Ebsworth in November 2014 to act as his legal advisor in the ASIC investigation. Under a costs agreement, HWL provided legal services to Alexiou from November 2014 until his employment at ANZ was terminated in September 2015.

Alexiou sued ANZ in the Federal Court for unlawful termination in July 2020, claiming he was sacked for making complaints about BBSW manipulation after the bank learned he was a potential key witness in ASIC's case over the key interest rate.

In December last year, Justice Nye Perram dismissed part of Alexiou's case against ANZ that was brought under enhanced whistleblower protections implemented in 2019, finding the provisions did not apply retrospectively. The judge allowed Alexiou to file an amended pleading by March 5, but the trader claims he needs HWL's complete file to bring the amendments. "In the course of preparing the amended statement of claim, it became apparent to me that Mr Alexiou required access the whole of his file held by [HWL Ebsworth] including documents recording communications with ANZ and its solicitors Clayton Utz,"wrote Levitt Robinson senior associate Mike Gutzinger in an affidavit filed with the SupremeCourt. While providing legal services to Alexiou at the time of the ASIC investigation, HWL sent its bills of costs to ANZ and did not forward them to Alexiou, Gutzinger says.

After a request in July 2019 by Levitt Robinson for Alexiou's client file, HWL supplied only a limited number of documents relating to legal services the firm had provided to Alexiou at the time of the ASIC investigation, Gutzinger claims.


Questions of whether HWL 'intentionally docs withholding'


In October 2019, Levitt Robinson senior partnerStewart Levitt emailed HWL saying Alexiou's client file appeared to be "missing" documents, including file notes taken at meetings with ASIC and ANZ, written legal advice prepared by HWL relating to Alexiou, and itemised bills of costs.

Levitt asked whether HWL was "intentionally withholding" any documents and requested in formation about why those documents had not been produced.


These requests were unanswered, leading to a series of communications from Gutzinger to HWL in which the law firm was told there was "no basis" to withhold the documents and requesting that it "retain and not destroy" the material.


Gutzinger noted that while ANZ had paid HWL's legal bills , the firm 's costs agreement with Alexiou entitled him to receive the bill of costs.


The matter was s ent up to HWL managing partner, Juan Martinez on February 16 after emails to White went unanswered.


"It is embarrassing that we need to refer this matter to the managing partner of HWL to seek the courtesy of a response from your firm and full compliance with your former client's (and

our current client's) request" Gutzinger wrote.


Martinez responded to Gutzinger's email, saying it was "a serious matter to make unwarranted threats or conduct complaints as regards fellow practitioners".


"l have not been involved in the matter but if my understanding of the timeline is correct,1 really find your conduct and complaint extraordinary and inappropriate. We hear nothing from you for 14 months and then these communications in the space of days with threats and escalation to me," he wrote on February 17.


Gutzinger replied, denying there was any threat: saying the "escalation was necessary" due to the 14-month delay allegedly caused by HWL's failure to respond to the October 2019 correspondence.


White responded by saying that "at no time" had Alexiou paid HWL's bills or been entitled to received bills of costs from the law firm.


HWL Ebsworth did not res pond to a request for comment when the suit was filed.


Alexiou is represented by Nick Kidd SC, instructed by Levitt Robinson. HWL is represented by Alastair Vincent. ANZ is represented by Yaseen Shariff.


The case is Etienne Alexiau v Alexandra White and other persons trading as HWL Ebswortth Lawyers.


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