It is a well known fact that prior to litigation commencing,
parties should do all they can to get their 'ducks in a
row'. It is often assumed that pre-litigation
investigation reports are protected from disclosure down the track
due to legal professional privilege.
A recent case in Victoria is a good reminder that this is not
always the case as privilege can only be successfully maintained in
circumstances where any such report or investigation was obtained
for the dominant purpose of either:
-
providing legal advice; and/or
-
using the report in anticipated legal proceedings.
The case of Perry & Anor v. Powercor Australia
Limited [2011] VSC 308 is a recent example where certain
pre-litigation investigation reports were not protected by legal
professional privilege. In this case investigation reports
that were commissioned by Powercor's in-house lawyer were
ordered by Justice Robson to be disclosed.
