Graham & Callan & Anor (No 2)

This matter concerned an application by the plaintiffs, Graham & Callan & Anor, for an order that certain documents be produced for inspection. The defendants sought to resist this production on the grounds of legal professional privilege. The application was heard by Macmillan J in the Supreme Court of Victoria.

The central legal issue before the court was whether the documents in question, which included draft affidavits and notes of discussions between the plaintiffs and their legal advisors, were protected by legal professional privilege. Specifically, the court had to determine if the dominant purpose for which these documents were created was for the purpose of obtaining legal advice or for use in litigation.

Macmillan J applied the principles established in *Esso Australia Resources Ltd v Commissioner of Taxation* and *Seven Network Ltd v News Ltd*, which require the dominant purpose test to be applied to the creation of documents. His Honour found that the notes of discussions and draft affidavits were created for the dominant purpose of obtaining legal advice and preparing for litigation. Consequently, these documents were held to be protected by legal professional privilege and were not required to be produced for inspection.