Privilege in work health & safety matters - caution required

Victorian Case

On 13 August 2014 the County Court of Victoria in Victorian WorkCover Authority v Asahi Beverages Australia Pty Ltd (Ruling) [2014] VCC 1260 (Asahi Case) dealt with a dispute whereby Asahi attempted to gain access to investigation reports commissioned by an insurer. The insurer claimed privilege on the basis that the report was prepared:

for the dominant purpose of obtaining or providing legal advice in respect of actual, threatened, contemplated or reasonably anticipated litigation...

In that case Judge O'Neill held that the reports were arguably brought into existence for three reasons, namely:

• Possible contemplated litigation (which would trigger the privilege).