Prior to the commencement of litigation, parties and their legal
representatives frequently commission investigation reports into
the circumstances giving rise to a dispute. It is often assumed
that these reports are shielded from disclosure by legal
However, a recent decision handed down by the Supreme Court of
Victoria is a timely reminder that privilege will only attach to
pre-litigation investigation reports where they were obtained for
the dominant purpose of providing legal advice and/or for the
dominant purpose of using the reports in anticipated legal
In Perry & Anor v Powercor Australia Limited 
VSC 308, Justice Robson ordered the disclosure of investigation
reports obtained by Powercor following the devastating Victorian
bushfires in February 2009. It was alleged that Powercor's
faulty power facilities caused the fire.
In anticipation of legal proceedings being commenced,
Powercor's in-house lawyer had commissioned investigation
reports into the cause of the fire.
Once the litigation commenced, Powercor claimed privilege over
those reports to prevent the disclosure of them to the
The plaintiffs challenged that claim for privilege.
Justice Robson held that the reports were not protected by legal
His Honour found that Powercor had failed to establish that the
dominant purpose for obtaining the reports was for legal advice
and/or for use in the anticipated litigation. The reason for that
conclusion was that there were many different purposes for which
Powercor needed the reports including:
to comply with its own internal incident reporting regime
to comply with its statutory reporting requirements
to provide information to its insurers
to deal with the issues raised by the Royal Commission
The Court was not satisfied that Powercor's "dominant
purpose" for obtaining the reports was a privileged
In particular, the Court accepted that, in a corporate
environment, it should look beyond the views of the lawyer who
commissioned the report to ascertain "dominant purpose".
The Court drew inferences adverse to Powercor because it failed to
call its Chief Executive Officer to give evidence on the issue.
Accordingly, Powercor was ordered to produce the reports to the
If there are multiple purposes for commissioning an
investigation report, the party obtaining the report bears the onus
of proving the "dominant purpose" was to obtain legal
advice and/or for use in anticipated legal proceedings.
A failure to discharge that onus will cause the report to be
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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