General: Loss adjuster’s reports declared privileged

Ensham Resources Pty Ltd v AIOI Insurance Company Limited [2012] FCA 710

Introduction

In the case of Ensham Resources Pty Ltd v AIOI Insurance Company Limited [2012] FCA 710 the Federal Court of Australia upheld an insurer's claim of legal professional privilege over a loss adjuster's reports irrespective of their being prepared several years before litigation was commenced. Importantly, this was held to be the case not as a result of the solicitors' deliberate attempts to label the documentation as privileged but by virtue of an assessment of the context of the creation of the documents, reaffirming the principle that labelling (or failing to label) a document as privileged will not serve to clarify its status.