Douglas v Morgan - [2019] SASCFC 76

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
DOUGLAS v MORGAN
[2019] SASCFC 76
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Blue and The Honourable Justice Nicholson)
1 July 2019
EVIDENCE - ADMISSIBILITY - EXCLUSIONS: PRIVILEGES - CLIENT LEGAL PRIVILEGE
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - PRODUCTION AND INSPECTION OF DOCUMENTS - GROUNDS FOR RESISTING PRODUCTION - PRIVILEGE - CLIENT LEGAL PRIVILEGE - FOR PURPOSES OF OR IN CONTEMPLATION OF LITIGATION
Appeal against a decision by a Judge of the District Court who held, on appeal against a contrary finding by a Master, that legal professional privilege did not exist in an investigator’s report commissioned by the defendant’s insurer, Allianz, following an incident in which her car collided with the first respondent.
On 20 December 2012 solicitors for the first respondent wrote to Allianz making a claim for personal injuries on her behalf. On 27 December 2012 Ms Dunham of Allianz sent a request for investigation to Verifact Investigations seeking a detailed account of the accident in order to confirm the accident circumstances. She also wrote to the first respondent’s solicitors confirming that Allianz was attempting to obtain details of the accident from the participants and would communicate further as soon as possible following receipt of these details.
On 25 February 2013 Ms Dunham telephoned the first respondent’s solicitors and said that Allianz’ liability investigations had not yet been completed and a copy of Ms Morgan’s blood alcohol certificate was required before any determination of liability could be made.
On 26 February 2013 Allianz received the investigation report. On 8 May 2013 Ms Dunham reviewed the liability status of the claim and formulated a position on liability based on the available evidence.
On 12 June 2013 Ms Dunham wrote to the first respondent’s solicitors in regards to liability, alleged that the first respondent failed to take reasonable care when crossing the road and made a settlement offer or referred to settlement in terms which invoked settlement privilege.
The primary question raised on appeal is whether, on the evidentiary material before the Master, the investigator’s report was commissioned by the insurer for the dominant purpose of submission to lawyers for use in any legal proceedings instituted by the first respondent.
Held per Blue J (Kelly and Nicholson JJ agreeing):
1. On the evidence before the Master there were two purposes of obtaining the investigation report, the immediate purpose being for Allianz to make a determination as to liability and attempt to resolve the claim and the secondary purpose being, if this could not be achieved, for provision to solicitors for use in litigation (at [74]-[82]).
2. There was no evidence adduced by Allianz and no basis to find that the secondary purpose was the dominant purpose (at [87]).
3. The investigation report was not the subject of legal professional privilege. The Master erred in finding that it was. The Judge was correct in finding that it was not (at [87]).
4. Appeal dismissed (at [90]).
Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 153 ALR 393; Cataldi v Commissioner for Government Transport [1970] 1 NSWR 65; Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49; Fox v Percy (2003) 214 CLR 118; Grant v Downs (1976) 135 CLR 674; Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332; National Employers' Mutual General Insurance Association Limited v Waind (1979) 141 CLR 648; Nickmar Pty Ltd v Preservatrice Skandia Insurance Limited (1985) 3 NSWLR 44; Perazzoli v BankSA, a division of Westpac Banking Corporation Limited [2017] FCAFC 204, considered.

DOUGLAS v MORGAN
[2019] SASCFC 76
Full Court: Kelly, Blue and Nicholson JJ

KELLY J: I agree with Blue J.
BLUE J: In the course of an action for personal injuries in the District Court, the defendant and appellant, Amy Douglas, claimed legal professional privilege in respect of an investigator’s report commissioned by her insurer following an incident in which her car collided with a pedestrian, the first respondent Laura Morgan. A Master upheld the claim and a Judge reversed that decision on appeal.
Ms Douglas appeals, by permission, to this Court against the judgment of the Judge. The primary question raised on appeal is whether, on the evidentiary material before the Master, the investigator’s report was commissioned by the insurer for the dominant purpose of submission to lawyers for use in any legal proceedings instituted by Ms Morgan.
Background
On 9 December 2012 at about 1.47am Ms Morgan was crossing North Terrace Adelaide when a car driven by Ms Douglas collided with her. Police attended. Ms Morgan was taken to the Royal Adelaide Hospital. The police administered an alcotest to Ms Douglas and a subsequent breathalyser test indicated that her blood alcohol reading was 0.076 per cent.
The police created a Collision Report (the Police Report). It narrated the circumstances summarised above. It included the names and contact details of Ms Douglas, Ms Morgan, her husband (the second respondent Brendan Morgan) and other witnesses. It included the following under the heading “Description of Collision”:
Unit one travelling east in LHL of three on North Tce Adelaide. Unit two (pedestrian) walking from southern side of North Tce towards the north side and collision occurred with unit one. Unit two then collided with parked unit three and landed on the ground.
Allianz Australia Insurance Limited (Allianz) was the claims agent for Ms Douglas’ Compulsory Third Party insurer. On 14 December 2012 Ms Morgan’s general practitioner, Dr Nguyen, submitted to Allianz a standard form Allianz “Notification of motor vehicle injury”. It stated that Ms Morgan had suffered soft tissue injuries to her left lower leg and neck and back as a result of being “hit by car while crossing the road”. The standard form contained a statement by Allianz that it would pay the doctor’s invoice for the clinical consultation and submission of the form and would endeavour to advise the doctor and patient within five business days whether the cost of any further treatment would be paid by the Compulsory Third Party scheme on a without prejudice basis.
On 17 December 2012, as a result of receiving Dr Nguyen’s Notification form, Allianz obtained a copy of the Police Report.
On 20 December 2012 Mellor Olsson, solicitors acting for Ms Morgan, sent a letter to Allianz providing details of the collision and requesting a claim number (the Initial Claim). Allianz assigned management of the claim to Rebecca Dunham, a Claims Consultant at Allianz.
On 24 December Ms Dunham read the Initial Claim. On 27 December 2012 (the next working day) she sent a standard form request for investigation to Verifact Investigations Pty Ltd (SA) (the Investigation Request). The Investigation Request attached a copy of the Police Report and the Initial Claim. It requested that statements be taken from Ms Douglas, Ms Morgan, Mr Morgan and an independent witness. It included the following under the heading “Reason for investigation”:
We wish to obtain a detailed account of the accident from the insured, witnesses and claimant if possible in order to confirm the accident circumstances and ascertain the insured and claimant’s awareness prior to the accident. We ask that you also please comment on the credibility of those interviewed.
We would like a full description of the circumstances leading up to the event, during and after including exactly where the accident occurred (distances from kerb, lanes, objects etc), the speed that the vehicle was travelling at prior to the accident, whether the insured attempted to break [sic] or avoid the collision, where the damage was located. Further with regards to the claimant we wish to confirm which direction he [sic] came from, when he was noticed on the road, what other vehicles were around and what clothes he was wearing.
On the same day Ms Dunham wrote to Mellor Olsson in response to the Initial Claim (the Initial Response) in the following terms:
We refer to the above matter and confirm that we are attempting to obtain details of the accident from the participants and will communicate further with you as soon as possible following receipt of these details.
In the meantime, so that we can give consideration to your client’s claim could you please provide the following information:
·Full Name
·Occupation
·Duties at work
·How long has your client worked in their current occupation?
·Average weekly earnings
·Medicare Number
·Blood Alcohol results
·Details of your client’s injuries
·Details of any prior or ongoing claims
·Copies of medical reports from your client’s treating practitioner
·Copies of the hospital notes
In relation to medico-legal disbursements, there is sometimes an expectation that Allianz will automatically reimburse the expenses progressively or, at the very least, at the time of settlement. Please do not presume that this will be the case. If you wish to ascertain our position, you are welcome to contact Allianz prior to these disbursements being incurred.
Allianz will not consider reimbursement of other disbursements until finalisation of the matter, other than in circumstances such as prior agreement being reached as part of the ‘Agreed Resolution Plan’ process.
It is evident that, by her reference to “attempting to obtain details of the accident”, Ms Dunham was referring to her request made on the same day to Verifact Investigations for an investigation (even if this was not apparent to Mellor Olsson).
On 18 January 2013 Mellor Olsson wrote to Ms Dunham asking her to inform them of “the status of your investigations into liability” and on 21 February Mellor Olsson enquired as to “the status of your investigations into your liability” and whether Allianz was now prepared to pay reasonable treatment expenses.
On 25 February 2013 Ms Dunham read the February letter and telephoned Mellor Olsson. She said that Allianz’ liability investigations had not yet been completed. In addition a copy of Ms Morgan’s blood alcohol certificate was required before any determination of liability could be made. Again, it is evident that by her reference to “Allianz’ liability investigations”, Ms Dunham was referring to the Verifact Investigations investigation (even if this was not apparent to Mellor Olsson) and that Allianz intended to make a determination as to liability once it received the Investigation Report and blood alcohol certificate.
On 26 February 2013 Allianz received an investigation report from Verifact Investigations (the Investigation Report). It comprised a summary of the enquiries and their outcome, four witness statements and 11 accident scene photographs. On 5 March Ms Dunham read the Investigation Report. She noted that liability could not be determined until Ms Morgan’s blood alcohol certificate had been received.
On 2 April 2013 Mellor Olsson wrote to Ms Dunham enclosing a copy of a letter from the Forensic Science Division stating that they had no record of Ms Morgan’s blood being received in relation to this motor vehicle accident.
On 8 May 2013 Ms Dunham reviewed the liability status of the claim and formulated a position based on the available evidence. On 21 May her Technical Specialist approved her liability determination.
On 27 May 2013 Mellor Olsson wrote to Ms Dunham enclosing five invoices for medical treatment requesting that they be paid by Allianz, enquiring whether Allianz would pay for further treatment needed over the next 6 months and noting that “you have not yet indicated whether your investigations on liability are complete and if so your position on liability”.
On 12 June 2013 Ms Dunham wrote to Mellor Olsson (the Ultimate Response) in the following terms:
We refer to the above matter and previous correspondence in regards to liability.
Your client has failed to take reasonable care when crossing a multi-lane road and failed to notice our insured approaching from left and has crossed into the path of the oncoming vehicle.
[Redacted]
Please contact Bec on [number] during normal office hours if you have any questions.
The redacted paragraph was redacted on the ground that its contents were “without prejudice”, thereby invoking settlement privilege.
In November 2015 Ms Morgan and Mr Morgan instituted an action in the District Court against Ms Douglas for damages for personal injuries caused by her negligent driving. In May 2016 the summons was served.
Allianz instructed solicitors to defend the action and in September 2016 Jones Harley Toole filed a defence denying negligence and in the alternative pleading contributory negligence.
In April 2017 Jones Harley Toole filed a list of documents. It included the following item for which legal professional privilege was claimed:
Investigative report dated 21 February 2013 (and subsequent reports) prepared for the dominant purpose of obtaining legal advice and for use in the within legal proceedings.
In November 2017 Ms Morgan filed an interlocutory application seeking production of the Investigation Report, challenging the claim of legal professional privilege (Ms Morgan’s application).
In December 2017 Damien Scholz, Manager – Claims employed by Allianz, swore an affidavit exhibiting various documents and describing Allianz’ investigation policy.
In January 2018 Ms Dunham swore an affidavit in which she said that she had some memory of the claim but no independent recollection of any specific details of the matter including the appointment of external investigators. She described her usual practice in arranging external investigations.
In February 2018 Ms Morgan filed an interlocutory application seeking permission to cross-examine Ms Dunham. It was agreed between the parties that the application be withdrawn on the basis of an agreement about the effect of various paragraphs of Ms Dunham’s affidavit.
In March 2018 the Master heard argument on Ms Morgan’s application and in April delivered reasons for judgment upholding the claim of privilege. In August the Judge heard the appeal and in December delivered reasons for judgment allowing the appeal and determining that the Investigation Report was not privileged.[1]
[1] Morgan v Douglas [2018] SADC 125.
The affidavit evidence
Mr Scholz said in his affidavit that Ms Dunham had the conduct of the claim on behalf of Allianz and commissioned the Investigation Report. Ms Dunham was no longer employed by Allianz and it is apparent from a later affidavit sworn by Ms Douglas’ solicitor that Ms Dunham had not been located by Allianz when Mr Scholz swore his affidavit. Mr Scholz described steps taken by Ms Dunham on the file by reference to correspondence that he exhibited and file notes made by her which he narrated. He also described Allianz’ policies in relation to investigations, which description was superseded by Ms Dunham’s description when her affidavit was filed.
Ms Dunham in her affidavit said that the only recollection she had of Ms Morgan’s claim was that, after attending a wedding, Ms Morgan and her husband were crossing North Terrace in the early hours of the morning when she was struck by the insured’s vehicle in the vicinity of the Adelaide Casino and the insured may have returned a positive alcohol reading. She had no other recollection of the specific details of the matter, including of appointing external investigators. She had no reason to believe that she did not follow her normal practice which she described in the following terms:
5.Generally I endeavour to resolve claims informally with the claimant direct or with their solicitors. However, I was also aware that if the claim could not be resolved the next stage for those claims was to proceed to Court (including going to trial where the judge would hear evidence from the claimant, insured and any witnesses and then make a ruling).
6.I was aware that the evidence gathered in the early stages of the claim would be used in the Court process.
7.Certain claims appeared tricky from the outset and looked less likely to settle at an early stage, and therefore it was important to identify and preserve any relevant evidence whilst it existed and was still fresh in everyone’s mind so that it could be used in Court.
8.In accordance with my training, upon receiving notification of a claim, I would generally make preliminary telephone contact with the claimant, insured and any known witnesses to confirm the accident circumstances, explain the claims process to the claimant, discuss the payment of any excess with the insured and to obtain any other information needed to manage the claim, such as determining whether treatment accounts should be paid on a without prejudice basis.
9.In the majority of matters, this would allow me to accept the claim and try resolving the matter quickly.
10.In matters where I was unable to make contact or I required further preliminary information to assess the claim and try to resolve the matter quickly, I would use the internal investigators available to Allianz to make contact.
11.Internal investigations would often be considered where I wanted to get a feel for that particular issue or needed more background information to enable a determination on liability or the payment of treatment accounts. In these cases, the investigator would prepare a short report of no more than 1-2 pages summarising the enquiries conducted, what they discovered and the “read” of the matter.
12.For those matters which I considered were a little more tricky or unlikely to settle quickly, I would use external investigations.
13.The appointment of external investigations is a much more formal process. It is the step I took when there was something not quite right about the claim, such as possible alcohol involvement, a suggestion that the claimant may not have been wearing a seatbelt, or conflicting versions or unusual circumstances regarding the accident such as the time or location of the accident. I would also use external investigators when contribution from the claimant was likely to be sought. The early appointment of solicitors for the claimant would also be a factor that I take into account.
14.In my experience, contributory negligence is an issue that is often challenged by the claimant, which in turn makes negotiating an early settlement more difficult irrespective of whether the claimant is unrepresented or represented, means that the claim is more likely to go to Court.
15.I would appoint external investigators when I believed the evidence needed to be preserved for court. By that I mean, witness statements should be taken as quickly as possible after the accident while the events are still fresh in the mind or photographs are taken while the area is still like it was at the time of the accident.
16.I knew and expected the external investigators would undertake comprehensive and detailed enquiries including obtaining a plan of the accident scene, photographs of damage and transcribed witness statements.
17.It was my normal practice throughout my time at Allianz managing my claims to follow this process.
It was agreed between the parties that paragraphs [3] to [17] were general statements of training, practice or understanding only and not a reference to the conduct of Ms Dunham in respect of Ms Morgan’s claim and that Ms Dunham only had regard to the Investigation Request and no other documents to make her affidavit.
The Master’s reasons

The Master identified the issues in the following terms:
I accept that the party claiming the litigation privilege, being the defendant in this case, bears the onus of establishing that:
(1) litigation was reasonably anticipated or in reasonable prospect; and
(2) that use in the litigation was the dominant purpose of obtaining the document.
The Master said that the test in respect of both issues was an objective one.
As to the first issue, the Master said that litigation was reasonably anticipated if, viewing the circumstances objectively, there is a real prospect of it as distinct from a mere possibility. The Master concluded that, looked at objectively, there was an objective basis for the reasonable anticipation of litigation by reference to the facts known to Allianz as at 27 December 2013 when the Investigation Report was requested.
As to the second issue, the Master considered whether, objectively assessed, the dominant purpose of obtaining the Investigation Report was for use in litigation. The Master primarily had regard to the terms of the Investigation Request. He had some regard to the affidavits of Mr Scholz and Ms Dunham but characterised their weight as only “modest”. He made very little reference to the correspondence between Mellor Olsson and Ms Dunham up to and including 27 December 2012 or to Ms Dunham’s correspondence and file notes thereafter. He elected to read the Investigation Report but did not rely on its contents in reaching his conclusion.
The Master concluded, by reference to the content of the Investigation Request, that there were two purposes in requesting the Investigation Report. One purpose was for advice and use in reasonably anticipated litigation, which was a privileged purpose. The other purpose was for use in pre-litigation processes, which was not a privileged purpose. The privileged purpose was the dominant purpose. The Master expressed these conclusions in the following terms:
In this case, the assessment of the dominant purpose of the person, or authority, at whose direction the document has been requested must, of necessity, in part, depend upon the content of the affidavits of Mr Scholz and Ms Dunham, and, more significantly, the content of [the Investigation Request].
The contents of [the Investigation Request] speak for themselves, and, demonstrate, objectively, and in the context, that, at the time of the request, the dominant purpose in requesting the report, was for advice and use in reasonably anticipated litigation.
The subsidiary purpose was for use in pre litigation processes such as alternative dispute resolution of one kind or another given the terms of the letter from Messrs Mellor Olsson dated 20 December 2012 which enlivened the potential for such non-dominant usage of the report.
The Judge’s reasons
The Judge identified what Ms Douglas on appeal characterises as 12 specific errors of reasoning made by the Master in reaching his conclusion that the Investigation Report was the subject of legal professional privilege.
The Judge had regard to the correspondence between Mellor Olsson and Ms Dunham and in particular the Initial Response from Ms Dunham of 27 December 2012. The Judge concluded that the purpose of seeking the Investigative Report was for Allianz to consider Ms Morgan’s claim. The Judge said:
The Master has failed to take into account NB2, a letter from Ms Dunham to the plaintiff’s solicitors. In this letter, she says:
We…confirm that we are attempting to obtain details of the accident from the participants and will communicate further with you as soon as possible following receipt of these details.
In the meantime, so that we can give consideration to your client’s claim could you please provide the following:
…
This statement, in fact, explains the purpose for which the report was obtained; that is, to obtain an account of the accident from those involved, to allow Allianz to consider the plaintiff’s claim. This letter was written on the same day as RD1; it is clear that at that time, no decision had been made to reject her claim. When this letter is taken into consideration, it makes it less likely that the dominant purpose for which the report was requested was for use in reasonably anticipated litigation.
The Judge also concluded that it could not be said that as at 27 December 2012 litigation was reasonably anticipated.
The approach on appeal
In Warren v Coombes[2] Gibbs ACJ, Jacobs and Murphy JJ said:
This Court has in a number of cases … recognized that where the question is whether a particular inference should be drawn from proved facts the appellate court has the right and duty to decide the question for itself…
Shortly expressed, the established principles are, we think, that in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it. These principles, we venture to think, are not only sound in law, but beneficial in their operation…
The duty of the appellate court is to decide the case - the facts as well as the law - for itself. In so doing it must recognize the advantages enjoyed by the judge who conducted the trial. But if the judges of appeal consider that in the circumstances the trial judge was in no better position to decide the particular question than they are themselves, or if, after giving full weight to his decision, they consider that it was wrong, they must discharge their duty and give effect to their own judgment.[3]
[2] (1979) 142 CLR 531.
[3] At 541, 551, 552.
In Fox v Percy[4] Gleeson CJ, Gummow and Kirby JJ said:
On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole…
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of "weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect".[5]
[4] [2003] HCA 22, (2003) 214 CLR 118.
In the present case, the Master heard no oral evidence. The evidence was effectively confined to a handful of documents and two short affidavits. The hearing of Ms Morgan’s application comprised only argument and was completed within two hours. The issue on appeal is whether the Master was correct to draw the inferences that he did on the basis of the documentary evidence. In these circumstances, this Court on appeal is (and the District Court Judge on appeal was) in as good a position as the Master to decide the matter and the Master enjoyed no advantage not enjoyed by this Court.
Legal professional privilege
Legal professional privilege “is a rule of substantive law which may be availed of by a person to resist the giving of information or the production of documents which would reveal communications between a client and his or her lawyer made for the dominant purpose of giving or obtaining legal advice or the provision of legal services, including representation in legal proceedings”.[6]
[6] Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; (2002) 213 CLR 543 at [9] per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
The rationale for the existence of the privilege “is that it promotes the public interest because it assists and enhances the administration of justice by facilitating the representation of clients by legal advisers, the law being a complex and complicated discipline. This it does by keeping secret their communications, thereby inducing the client to retain the solicitor and seek his advice, and encouraging the client to make a full and frank disclosure of the relevant circumstances to the solicitor.”[7]
[7] Grant v Downs (1976) 135 CLR 674 at 685 per Stephen, Mason and Murphy JJ.
The formulation of the rule and identification of its rationale emphasise the centrality of the confidential relationship between client and lawyer to the existence of the privilege. Several aspects of the criteria for the existence of the privilege follow from this centrality.
First the privilege protects communications between client and lawyer rather than information or documents per se.[8] Information that is obtained and/or recorded, and documents[9] created that record such information, for the purpose of communication between client and lawyer are capable of being protected provided that they are obtained, recorded or created for the dominant requisite purpose of legal representation.[10]
[8] Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 547-549 per Brennan CJ, 554 per Dawson J, 562 per Toohey J, 576 per Gaudron J and 586 per McHugh J .
[9] I use the term "documents" in the widest sense to include any material or electronic form of communication or record of information.
[10] Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 153 ALR 393 at 423 per Goldberg J; Esso Australian Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67, (1999) 201 CLR 49 at 73 per Gleeson CJ, Gaudron and Gummow JJ and 107 per Callinan J.
Secondly the privilege only protects confidential communications.[11] It is not necessary in the present case to explore the meaning of this requirement.
[11] Mann v Carnell [1999] HCA 66, 201 CLR 1 at [28] per Gleeson CJ, Gaudron, Gummow and Callinan JJ; Esso Australia Resources v Commissioner of Taxation [1999] HCA 67, (1999) 201 CLR 49 at [35] per Gleeson CJ, Gaudron and Gummow
Thirdly the communication must be made or the information must be obtained or recorded or the document must be created for the dominant purpose of the provision of legal services by the lawyer to the client.[12] The legal services will typically comprise advice or representation in legal proceedings but, as the formulation above suggests, is not necessarily confined to these two types of legal services. In addition, while advice can be given in an entirely non-litigious context, advice can also be given in a litigious context in which case there will often be an overlap between purposes of advice and representation. In a litigious context, litigation need not necessarily be on foot: a communication might be made between client and lawyer or information obtained or recorded or document created for the purpose of provision to a lawyer in connection with threatened or anticipated litigation.
[12] Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49 at 64 per Gleeson CJ, Gaudron and Gummow JJ.
In formulations of the rule, on occasions reference is merely made to actual, threatened or anticipated litigation. On other occasions reference is made to actual, threatened or reasonably anticipated litigation. The meaning of the adverb “reasonably” in this context is unclear. It may merely serve to emphasise that the communication must genuinely be made between lawyer and client or the information genuinely obtained or recorded or document genuinely created for the purpose of provision to a lawyer for use in connection with anticipated litigation: if litigation is not reasonably anticipated this may (not must) give reason to doubt the existence of the requisite purpose. On the other hand, it may mean that, even though the client and lawyer genuinely anticipate litigation and the information is genuinely obtained or recorded or document created for provision to the lawyer for use in connection with anticipated litigation, the test will not be satisfied unless a reasonable person would have anticipated litigation. If the latter, the rationale for the requirement is obscure. For reasons that will appear, it is not necessary to resolve this question in this case.
In formulations of the rule, it is accepted that information provided or documents created by third parties for the dominant purpose of use by a lawyer in litigation is protected. However, different opinions have been expressed whether information provided or documents created by third parties for the dominant purpose of use by a lawyer in providing advice, or at least non-litigious advice, is protected. One line of authority decides that such information and documents are protected;[13] another line of authority decides that they are not.[14] It is difficult to identify a rationale for applying a different approach when the purpose of the provision of the document to lawyers is to provide advice, or non-litigious advice, as opposed to legal representation in proceedings. In formulations of the rule, albeit at a general level, by the High Court, such as the formulation quoted at [41] above, there is no suggestion of such a distinction. However, this question does not arise on the present appeal because Ms Douglas does not contend on appeal that the purpose of obtaining the Investigation Report was for provision to solicitors for advice.
[13] See for example Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122, (2004) 136 FCR 357 at [41]-[48] per Finn J and [105]-[107] per Stone J (with each of whom Merkel J agreed).
[14] See for example Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority [2002] VSCA 59, (2002) 4 VR 332 at [10] per Batt JA (with whom Charles and Callaway JJA agreed).
Fourthly the purpose of the communication, information or document being for the provision of legal services by the lawyer to the client must be the dominant purpose.[15] “Dominant” in this context is to be contrasted with “primary” or “substantial”.[16] The purpose must have “clear paramountcy”.[17]
[15] Esso Australian Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 73 per Gleeson CJ, Gaudron and Gummow JJ and 107 per Callinan J.
[16] Grant v Downs (1976) 135 CLR 674 at 678 per Barwick CJ (dissenting) who formulated the test and whose test was adopted by the majority in Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49 in overruling the decision of the majority in Grant v Downs in favour of the sole purpose test: see Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at [10] per Batt JA (with whom Charles and Callaway JJA agreed).
[17] Waugh v British Railways Board [1980] AC 521 at 543 per Lord Edmund-Davies adopted in Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at [10] per Batt JA (with whom Charles and Callaway JJA agreed).
Fifthly it follows that the first step in determining whether privilege exists in respect of a communication or information obtained and/or recorded or document created is to make a finding as to the purpose or purposes thereof. If there is a single purpose, it is necessary to identify that purpose and determine whether it was for the provision of legal services by a lawyer to a client (a protected purpose). If there are two purposes, it is necessary to identify each purpose, determine whether each was a protected purpose or some other purpose (a non-protected purpose) and if one purpose was a protected purpose and another purpose was not, whether the protected purpose was the dominant purpose.
Sixthly the time at which the relevant purpose or purposes are to be ascertained is at the time of the communication or the obtaining or recording of the information or creation of the document in question.[18] In the case of a request for a report, ordinarily (unless circumstances materially change between the time of the request and receipt of the report[19]) the relevant time will be when the report is requested because the purpose may be expected to be a continuing one.[20] The mere fact that the information obtained and recorded or document created is not ultimately used to give advice or represent a party in litigation or otherwise for the provision of legal services does not in itself negate the existence of privilege.[21] On the other hand, the subsequent use of the information may throw light on the purpose for which it was obtained and hence be of evidentiary value in ascertaining that purpose.
[18] Grant v Downs (1976) 135 CLR 674 at 682 per Stephen, Mason and Murphy JJ; New South Wales v Jackson [2007] NSWCA 279 at [68]-[69] per Giles JA.
[19] AWB Ltd v Cole [2006] FCA 571, (2006) 152 FCR 382 at [111] per Young J; GSA Industries (Aust) Pty Ltd v Constable [2002] QSC 180, [2002] 2 Qd R 146 at [34] per Holmes J.
[20] Singapore Airlines v Sydney Airports Corporation [2004] NSWSC 380 at [21] per McDougall J.
[21] Southwark and Vauxhall Water Co v Quick (1878) 3 QBD 515 at 320-321 per Brett LJ and 323 per Cotton LJ; Electricity Trust of SA v Mitsubishi Aust Ltd (1991) 57 SASR 48 at 59 per Mohr and Matheson JJ.
Seventhly the ascertainment of the relevant purpose or purposes in this context principally involves applying a subjective test. In the case of a document, the inquiry is directed to the purpose of the person who created it or, where applicable, the person under whose direction it was created.[22] The purpose of the creator or commissioner of a document is largely equated to the use intended to be made of the document.[23] Intention is classically ascertained using a subjective test. The concept of purpose in this context is similar to the concept of purpose in the context of the phrase “the purpose of substantially lessening competition” in section 46 of the Competition and Consumer Act (Cth) which involves a subjective test (acknowledging that the meaning of a word in one context is not necessarily the same in another context).[24] Evidence from the person who created or commissioned the creation of the document is admissible as direct evidence of intended use or the purpose of creation.[25] However, intention – and purpose – can be and often are inferred from the objective circumstances.[26] Direct evidence from the person concerned might be rejected based on the objective circumstances.[27] In addition, if for example a document was objectively incapable of serving the intended use or performing the propounded purpose, it might not be regarded as having been created for the propounded purpose. Although the test is sometimes described as “objective”, that language is probably used to denote these last three aspects of the concept of purpose. Bearing those aspects in mind, the test is perhaps best described as a subjective test with objective overtones.
[22] Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at [14] per Batt JA (with whom Charles and Callaway JJA agreed); Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at [35] per Finn J (with whom Merkel J agreed).
[23] Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at [14] per Batt JA (with whom Charles and Callaway JJA agreed); Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 136 FCR 357 at [35] per Finn J (with whom Merkel J agreed).
[24] News Limited v South Sydney District Rugby League Football Club [2003] HCA 45, (2003) 215 CLR 563.
[25] Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at [14] per Batt JA (with whom Charles and Callaway JJA agreed); Ensham v AIOI Insurance [2012] FCAFC 191, (2012) 209 FCR 1 at [77] per Lander and Jagot JJ.
[26] Ensham v AIOI Insurance (2012) 209 FCR 1 at [77] per Lander and Jagot JJ.
[27] Ensham v AIOI Insurance (2012) 209 FCR 1 at [77] per Lander and Jagot JJ.

Finally the onus of proof lies on the party propounding privilege.[28]
[28] Grant v Downs (1976) 135 CLR 674 at 689 per Stephen, Mason and Murphy JJ; Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 at [11] per Batt JA (with whom Charles and Callaway JJA agreed).
Cases involving investigation
In Cataldi v Commissioner for Government Transport[29] witness statements were taken, pursuant to working orders, from the bus driver and a witness in relation to a collision between a bus and the plaintiff. The New South Wales Court of Appeal proceeded on the basis (which was common ground) that the test for the existence of privilege did not require that the requisite purpose be the sole or dominant purpose but it was sufficient that it was merely one of several purposes. This test was later overruled by the High Court in Grant v Downs (in favour of the sole purpose test) and in Esso Australia Resources v Commissioner of Taxation (in favour of the dominant purpose test). The Court of Appeal held that it could be inferred that one of the purposes of taking the witness statements was for obtaining advice as to the defendant’s legal liability and conducting litigation arising out of the accident.
[29] [1970] 1 NSWR 65.
In Grant v Downs[30] several reports were provided to the Department of Public Health within days of the death of a patient at a Psychiatric Centre operated by the Department. An officer of the Department deposed that one of the purposes of the preparation of the reports was for submission to legal advisers to advise in relation to potential liability and represent the Department in any proceedings for damages. He said that other purposes were to determine whether there had been any breaches of discipline or faults in the security of the institution. Barwick CJ (who in dissent applied a dominant purpose test) held that the evidence fell far short of establishing that the dominant purpose was to obtain advice or aid the conduct of litigation.
[30] (1976) 135 CLR 674.
In National Employers’ Mutual General Insurance Association Limited v Waind[31] the employer’s workers compensation insurer obtained reports from loss assessors and medical reports in relation to injuries suffered by an employee at his place of employment. An officer of the insurer, Mr Tritton, gave evidence that the purpose of obtaining the reports was to deny liability and defend the matter in the Workers Compensation Commission. The Judge at first instance found that there were two purposes of obtaining the reports; first to decide whether the insurer’s insured was liable for claims made upon it; and secondly for use if litigation came about to form the basis for the insurer’s brief in opposing the application. The High Court held that the reports were not privileged. Mason J (with whom Barwick CJ, Stephen, Jacobs and Aickin JJ agreed) said:
Ninety per cent of the claims do not result in litigation and the documents are brought into existence so that the appellant can decide in the first instance whether it will pay compensation or dispute liability. In these circumstances the purpose of submitting the documents to solicitors is very much of a secondary consideration because a small proportion of the cases only proceed that far.
The evidence given by Mr. Tritton in response to the plaintiff's counsel related to documents brought into existence with a view to providing a basis for discontinuing payments of compensation in cases in which an initial liability had been conceded or established. In this instance again, documents are brought into existence to enable the appellant to decide what it will do. In this situation, if the appellant decides to discontinue payments, litigation is likely to ensue. Although there is a greater likelihood that documents of this class will be submitted to solicitors for use in litigation, the primary function for which they are called into existence is, as the trial judge said, to enable the appellant to make a decision in the ordinary course of its business. Only when the appellant has made a decision to discontinue payments will the documents be submitted to solicitors for use in the subsequent litigation.
These facts do not sustain the existence of an overriding purpose of the kind which the appellant seeks to set up. If it had been the practice of the appellant to refer every claim and every case with the relevant reports to its solicitor for advice or information, the appellant might have been in a position to establish the existence of an overriding purpose which would found a claim to legal professional privilege. But the facts fall far short of this.[32]
[31] (1979) 141 CLR 648.
[32] At 655-656.
The Court also rejected a contention by the insurer that the reports were created for a single overriding purpose which included deciding on liability and use in anticipated litigation.
In Nickmar Pty Ltd v Preservatrice Skandia Insurance Limited[33] Nickmar claimed indemnity under its fire insurance policy. The insurer instructed solicitors to advise in relation to the fire claim and they in turn instructed loss adjusters to provide reports to them for the purpose of giving legal advice. There was no other purpose in obtaining the reports. Wood J held that the reports were privileged.
[33] (1985) 3 NSWLR 44.
In Australian Competition and Consumer Commission v Australian Safeway Stores Pty Ltd[34] an officer of the Commission, Mr Eva, investigated possible breaches of the Trade Practices Act with a view to the institution of proceedings. Goldberg J found that until a decision was made to institute proceedings, the purpose of creating the witness statements was a dual purpose of investigation and, if proceedings were issued, submission to lawyers for use in those proceedings, the latter not being the dominant purpose. Goldberg J said:
I am satisfied on this analysis of the evidence that up until at least 4 April 1996 Mr Eva brought the draft witness statements and such witness statements as were signed into existence for two purposes. One purpose was as part of the Commission’s investigatory process to gather evidence together for submission to the Commission for consideration as to whether proceedings should be instituted. The other purpose was as part of his preparation for the legal proceedings which he believed were prospective or reasonably anticipated…
When I consider the evidence overall, I am satisfied that a significant purpose for which the draft witness statements of Messrs Morrell, Dobson and Mrs Wiles and the George Weston employees came into existence up to 3 April 1996 was as part of the investigatory process and not for the sole or dominant purpose of prospective or reasonably anticipated legal proceedings. The process of investigation is logically anterior to, and a precursor to, the point at which it may be said that proceedings are prospective or reasonably anticipated.[35]
[34] (1998) 153 ALR 393
[35] At 411, 412.
In Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority[36] the employer’s insurer’s solicitors commissioned reports by a loss adjuster and engineers in relation to an injury suffered by a worker when a machine exploded for the purpose of giving legal advice in relation to anticipated litigation. There was no other purpose in obtaining reports. The Victorian Court of Appeal concluded that the reports were privileged.
[36] (2002) 4 VR 332.
In Perazzoli v BankSA, a division of Westpac Banking Corporation Limited[37] a firm of solicitors was approached by investors in what was alleged to be a failed Ponzi scheme with a view to bringing proceedings to recover their losses. The solicitors created documents recording their communications with the investors and documents relating to work undertaken by them for the purpose of seeking advice from counsel. The Full Court of the Federal Court concluded that there was a relationship of solicitor and client between the solicitors and investors and the documents were created for the purpose of advice by the solicitors about, and use by the solicitors in, anticipated litigation.
[37] [2017] FCAFC 204.
Allianz’s purpose or purposes in commissioning the Investigation Report
The privilege was claimed by Ms Douglas because she is the party to the litigation. However, the matter was argued at first instance and on appeal on the basis that legal professional privilege, if it existed in respect of the Investigation Report, belonged to Allianz rather than Ms Douglas. It is convenient therefore to refer to the contentions made by the appellant on appeal as contentions by Allianz. Neither party suggests that anything turns on the question whether technically the privilege (if it exists) vests in Allianz or Ms Douglas.
Although the initial claim for privilege articulated in Ms Douglas’ list of documents referred to a purpose of obtaining legal advice as well as use in proceedings and the Master in his conclusion referred to both advice and anticipated litigation, Allianz does not advance any contention on appeal that the Investigation Report was sought for the purpose of obtaining legal advice. Nor was there any suggestion in any of the contemporaneous documents or the affidavits that the Investigation Report was sought for the purpose of obtaining legal advice. This purpose therefore need not be further considered.
Starting with the Investigation Request, the reason for investigation was described as follows:
We wish to obtain a detailed account of the accident from the insured, witnesses and claimant, if possible in order to confirm the accident circumstances and ascertain the insured and claimant’s awareness prior to the accident. We ask that you also please comment on the credibility of those interviewed.
We would like a full description of the circumstances leading up to the event, during and after including exactly where the accident occurred (distances from kerb, lanes, objects etc), the speed that the vehicle was travelling at prior to the accident, whether the insured attempted to break [sic] or avoid the collision, where the damage was located. Further with regards to the claimant we wish to confirm which direction he [sic] came from, when he was noticed on the road, what other vehicles were around and what clothes he was wearing.
Considering the Investigation Request initially in isolation, the reason articulated by Ms Dunham for seeking a detailed account of the accident from the witnesses was to confirm the accident circumstances. The request on its face suggests that it was Allianz who wished to confirm the accident circumstances rather than anyone else. There is no mention of any intention to provide the information obtained to lawyers or that lawyers wanted the information. Contrary to the conclusion reached by the Master, there is nothing in the Investigation Request which indicates that the purpose of the request was to provide the information obtained to lawyers for advice or use in any litigation.
Considering the Investigation Request in context, it followed the Initial Claim from Mellor Olsson. The Mellor Olsson letter proceeded on the assumption that the response to the claim would come from Allianz (as opposed to lawyers).
Critically, at the same time as she made the Investigation Request, Ms Dunham sent the Initial Response to the Mellor Olsson Initial Claim in the terms set out at [10] above. The Initial Response commenced by saying:
We refer to the above matter and confirm that we are attempting to obtain details of the accident from the participants and will communicate further with you as soon as possible following receipt of these details.
In the context in which Ms Dunham was requesting the report from Verifact Investigations to obtain “a detailed account of the accident from the insured, witnesses and claimant”, her reference in her letter to Mellor Olsson to “attempting to obtain details of the accident from the participants” was unequivocally a reference to her request to Verifact Investigations for a report.
In the first paragraph of the Initial Response, Ms Dunham said that “we” are attempting to obtain the details, by which she was referring to Allianz. She then said that Allianz would communicate further with Mellor Olsson as soon as possible following receipt of the requested details. She thereby conveyed an intention to provide a substantive response to the claim following and having had regard to the result of Allianz’ obtaining details of the accident from the participants (via Verifact Investigations).
Ms Dunham went on in the second paragraph to request blood alcohol results, which would be relevant to liability and in particular contributory negligence, and information which would be relevant to quantum. This information was explicitly requested “so that we can give consideration to your client’s claim”. The letter unequivocally conveyed that Allianz intended to consider and make a determination concerning liability and in due course quantum in respect of the claim. There was no suggestion that the information was to be provided to solicitors to advise on the claim or for use in litigation.
Ms Dunham in the third paragraph said that Allianz would adopt a position whether it would reimburse medico-legal disbursements progressively if Mellor Olsson made such a request prior to those disbursements being incurred. Again, the letter conveyed that Allianz would make this decision.
Ms Dunham in the fourth paragraph said that Allianz would consider reimbursement of other disbursements at finalisation of the matter. She said that it would only consider interim reimbursement if it entered into a prior agreement as part of the ‘Agreed Resolution Plan’ process. This paragraph further conveyed that Allianz would make the decisions concerning reimbursement of disbursements and finalisation of the matter. It also indicated that Allianz had in place a formal ‘Agreed Resolution Plan’ process for making decisions for interim reimbursement.
The fact that Allianz intended to make a determination in relation to liability is further corroborated by the standard Allianz Notification of Motor Vehicle Injury stating that Allianz would endeavour to advise the doctor and patient within five business days whether the cost of any further treatment would be paid by the Compulsory Third Party scheme on a without prejudice basis.
The context in which the Investigation Request and Initial Response were sent by Ms Dunham on 27 December 2012 included that, objectively assessed, Ms Dunham did not at that stage have sufficient information to make a decision whether or not to accept liability. The mere fact that a car hit a pedestrian did not necessarily entail that the car driver was negligent: it was necessary to ascertain the location and movements of the pedestrian immediately before the collision to determine whether Ms Douglas failed to keep a proper lookout or was otherwise negligent. The mere fact that a pedestrian was hit by a car did not necessarily entail that the pedestrian was not negligent: again it was necessary to ascertain location and movements of the pedestrian immediately before the collision. It is clear from the Investigation Request and Initial Response that Ms Dunham expected to obtain this information from the investigation through witness interviews, sketches and photographs and, once she received that information, would be in a position to make a determination as to Allianz’ attitude to liability.
The conduct by Ms Dunham on and up to 27 December 2012 unequivocally demonstrates that her immediate or primary purpose in requesting the Investigation Report was so that Allianz could make a determination in relation to liability, which she was not in a position to do in the absence of the information expected to be obtained and recorded in the Investigation Report, and then attempt to resolve the claim. Depending on the content of that information, prospectively Allianz would either admit liability, negotiate with a view to agreeing on an apportionment of liability or deny liability.
The subsequent conduct of Ms Dunham confirms this immediate or primary purpose of requesting the Investigation Report. On 25 February 2013 she telephoned Mellor Olsson, saying that Allianz’ liability investigations had not yet been completed and Ms Morgan’s blood alcohol certificate was required before any determination of liability could be made. On 8 May she formulated a position on liability based on the Investigation Report and her Technical Specialist subsequently approved her liability determination. On 12 June she wrote to Mellor Olsson in regards to liability and adopted the position that Ms Morgan’s injuries were caused by her negligence in crossing the Road and made or referred to some proposal for resolution of the claim. Ms Dunham in fact used the Investigation Report to determine Allianz’ response to the claim. Throughout the period from December 2012 to June 2013 there was no apparent contemplation of engaging lawyers to assist in Allianz’ response to the claim. Ms Dunham’s conduct after she received and read the Investigation Report on 5 March 2013 is evidence of her purpose because Mr Scholz in his affidavit said that her conduct of the claim was in accordance with general practice and all of the evidence points to her conduct after receiving the Investigation Report having been in accordance with her purposes before she received it.
On the hearing of the appeal Allianz does not contend that it was not and is not open to find that a purpose of obtaining the Investigation Report was for Allianz to make a determination in relation to liability, although it stops short of admitting that this was a purpose of the Investigation Report. Allianz accepts that such a purpose is a non-protected purpose.
Given Allianz’ role as claims agent for the Compulsory Third Party insurer in respect of motor vehicles in South Australia, and Ms Dunham’s role as a claims consultant responsible for the management of claims on behalf of Allianz, she must have anticipated from the outset that, if the claim was not admitted and if a negotiated outcome of the claim could not be achieved, there was a significant prospect that Ms Morgan would sue Ms Douglas for damages and Allianz would be obliged to engage solicitors defend the action. She must also have anticipated that, in that event, Allianz would provide the Investigation Report to its solicitors for the purpose of legal representation in the action. It may be accepted therefore that a secondary purpose of obtaining the Investigation Report was to provide it to solicitors in the event that the claim was not determined and resolved by Allianz itself. This was however only a contingent purpose in the sense that the Investigation Report would only be used for this purpose if the claim could not be resolved by Allianz.
Ms Dunham’s affidavit is not inconsistent with the above analysis, to a significant extent confirms it and it is incapable of displacing it.
Ms Dunham said that her general practice was to endeavour to resolve claims on behalf of Allianz directly with the claimant or his or her solicitors. It was only if the claim could not be resolved that the claim would (or might) proceed to court. (paragraph [5] of her affidavit). She described a logical hierarchy of how she managed claims:
1In the majority of matters, she confirmed the accident circumstances by speaking by telephone to the claimant, insured and any known witnesses, which allowed her to accept the claim and attempt to resolve the matter quickly (paragraphs [8]-[9]).
2If she could not make contact or needed more information to assess the claim, she engaged an internal investigator to prepare a short report to enable her to attempt to resolve the matter quickly (paragraphs [10]-[11]).
3If the matter was a little more tricky or unlikely to settle quickly, she engaged an external investigator to make more extensive enquiries interviewing witnesses and taking photographs (paragraphs [12]-[16]).

It is obvious that Allianz had a financial interest in resolving claims as quickly and cheaply as possible and these three methods of attempting to resolve claims involved ascending time and expense. By contrast, if a claim could not be resolved and proceeded to court, the costs incurred by Allianz would be orders of magnitude greater. It was in the financial interests of Allianz to avoid claims proceeding to litigation if reasonably possible.
There is no suggestion in Ms Dunham’s affidavit that her aim in adopting any one of the three alternative methods (as appropriate to the circumstances) was not to make a determination as to liability and attempt to resolve the claim. Indeed, her conduct in the present case summarised above shows that she adopted the third method (which she considered to be the appropriate one) for the purpose of making a determination as to liability and attempting to resolve the claim.
Given that all of the evidence pointed to there being two purposes of obtaining the Investigation Report, the immediate purpose being for Allianz to make a determination as to liability and attempt to resolve the claim and the secondary purpose being, if this could not be achieved, for provision to solicitors for use in litigation, and the onus of proof in establishing the privilege lay on Allianz, it was incumbent on Allianz to prove that the secondary purpose was the dominant purpose. Allianz did not adduce any such evidence.
Ms Dunham’s affidavit is drafted in a manner which avoids explicitly admitting that it was a purpose of obtaining the Investigation Report to make a determination as to liability and attempt to resolve the claim. On the hearing of the appeal, Allianz points to paragraphs [6] and [15] of Ms Dunham’s affidavit in which she said that she was aware that the evidence gathered in the early stages of the claim would be used in the court process if the claim was not resolved and proceeded to litigation and she appointed external investigators when she believed that the evidence needed to be preserved for court. These statements at most prove that it was a contingent purpose of obtaining the Investigation Report that it be provided to solicitors for use in litigation if the claim could not be resolved by Allianz. They do not prove that this contingent purpose was the dominant purpose.
Given that the protected purpose was only contingent on the primary use of the Investigation Report to determine liability and attempt to resolve the claim not being successful, it is not easy to envisage what evidence would be capable of proving that the protected purpose was nevertheless the dominant purpose. For example, even if Allianz had adduced evidence that statistically there was a 90 per cent probability that Ms Morgan’s claim would proceed to litigation given its circumstances as known to Allianz, this would not necessarily establish that use for the purpose of litigation was the dominant purpose when Allianz still intended to use Investigation Report to determine liability and attempt to resolve the claim. However, Allianz did not adduce any such evidence and hence failed to prove for example that statistically there was not say a 90 per cent probability that the claim would be resolved by Allianz and not proceed to litigation. Likewise, even if Allianz had adduced evidence that it would not have obtained the Investigation Report in any event for the purpose of determining liability and attempting to resolve the claim regardless of providing it to solicitors if the claim could not be resolved, this would not necessarily establish that provision to solicitors was the dominant purpose but again Allianz did not adduce any such evidence.
Allianz complains on appeal that Ms Morgan was not entitled to challenge Ms Dunham’s evidence in the absence of cross-examination. However, for the reasons given above, Ms Dunham’s affidavit, with or without the other evidence adduced before the Master, was incapable of proving that the dominant purpose of obtaining the investigation report was for provision to solicitors for use in anticipated litigation. In those circumstances, it was not incumbent on Ms Morgan to cross-examine Ms Dunham. Having said that, if Ms Dunham had been called (by either party) to give oral evidence, it is likely that the position would have been made plain and there would have been no need for appellate intervention.
On the evidence adduced before the Master, Allianz manifestly failed to prove that the dominant purpose of obtaining the Investigation Report was for submission to solicitors for use in any litigation that might be instituted by Ms Morgan. On the evidence adduced, the purpose of obtaining the Investigation Report for submissions to solicitors for use in potential litigation could not be said to be either the primary or substantial purpose even if that were the threshold. Regardless of the threshold applied, Allianz failed to prove that the Investigation Report was obtained for the purpose of providing legal services. The Master erred in finding otherwise. The Judge was correct to allow the appeal.
Reasonable apprehension of litigation
The Master held, and Allianz accepts on appeal, that it is an additional independent element of legal professional privilege not only that a communication was made or information was obtained or recorded or a document created for the purpose of use in actual, threatened or anticipated litigation (if it was not made for the purpose of legal advice or provision of other legal services), but also that objectively assessed there was a reasonable anticipation of litigation eventuating. Allianz refers in this respect amongst others to the decisions in Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority[38] and Perazzoli v BankSA, a division of Westpac Banking Corporation Limited.[39]
[38] (2002) 4 VR 332.
[39] [2017] FCAFC 204.
For the reasons given above, it is not clear what would be the rationale or doctrinal basis for this additional element of legal professional privilege. However, it is unnecessary to further consider this question because Allianz failed to establish that the Investigation Report was obtained for the requisite dominant purpose. For the sake of completeness, if there were an independent element that there be a reasonable anticipation of litigation eventuating, I consider that this element would have been satisfied.
Conclusion
The appeal should be dismissed.
NICHOLSON J: I agree with Blue J.

[5] At [23], [25].