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  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.
The case related to investigation reports that were obtained by
Powercor following the Victorian bushfires in February 2009.
Powercor, through its in-house lawyer, commissioned investigation
reports into the cause of the fire (as there were allegations that
Powercor's faulty power facilities caused the fire).
Litigation followed soon after those reports had been commissioned
and during the course of that litigation, Powercor claimed
privilege over the investigation reports it had obtained prior to
the commencement of litigation, which was challenged by the
Significantly, Powercor's CEO, who allegedly asked
Powercor's in-house solicitor to arrange for an investigation
that gave rise to one of the reports, did not give any
evidence. His failure to give evidence (in circumstances
where it was central to the establishment of privilege) led the
Court to draw the inference that his evidence would not have
assisted Powercor's claim to privilege.1
The Judge found that there were many different purposes but no
'dominant purpose' behind the commissioning of the
reports. Some of the purposes included – to comply
with statutory reporting requirements; to provide information to an
insurer; and internal reporting. The Court concluded that
there had not been a dominant purpose for obtaining the reports
(either for legal advice and/or use in anticipated
This decision is a timely reminder for lawyers and professionals
involved in pre-litigation investigations and audits of the need to
clearly separate, distinguish and establish the purpose for the
commissioning of such reports, and satisfy the requirements of the
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