Keane and Keane and Ors (No 2)

This matter concerned an application by the applicants, Keane and Keane and Ors (No 2), for an order that certain documents be produced for inspection. The respondents sought to resist this production on the grounds of legal professional privilege. The application was heard by Watts J in the Supreme Court of Victoria.

The central legal issue before the court was whether the documents in question, which included a draft affidavit and related correspondence, were protected by legal professional privilege. Specifically, the court had to determine if the documents were created for the dominant purpose of obtaining legal advice or for use in litigation.

Watts 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 satisfied for legal professional privilege to apply. His Honour examined the evidence presented by the parties, considering the circumstances surrounding the creation of the documents and the intentions of the parties involved. The court found that the draft affidavit and associated correspondence were created for the dominant purpose of obtaining legal advice and preparing for litigation, and therefore were protected by legal professional privilege.

Consequently, the court dismissed the applicants' application for production of the documents.