Mitsubishi Australia Limited v The Electricity Trust of South Australia

Mitsubishi Australia Limited sought special leave to appeal from a decision of the Full Court of the Supreme Court of South Australia concerning the claim of legal professional privilege over certain documents. The dispute centred on whether reports generated from an internal accident investigation conducted by The Electricity Trust of South Australia (ETSA) were protected by privilege. Mitsubishi argued that the Full Court erred in its interpretation of the findings at first instance and that the documents were not solely prepared for the purpose of seeking legal advice.

The central legal issue before the High Court was whether documents brought into existence for dual purposes, one of which was to inform senior management and the board of directors about an incident to prevent future occurrences, could be clothed with legal professional privilege simply by stating they were prepared for the purpose of seeking legal advice. This involved an examination of the principles established in *Grant v Downs* regarding the dominant purpose test for privilege.

The applicant, Mitsubishi, contended that the Full Court had misinterpreted the decision of the primary judge, Justice Debelle. Mitsubishi argued that the documents were brought into existence for purposes beyond seeking legal advice, specifically for internal management and operational review, and therefore could not be retrospectively privileged. They submitted that the assertion that the reports were solely for legal advice was an assertion made on behalf of ETSA, which they did not concede as fact, and that the Full Court's finding that the proceedings were conducted for the exclusive purpose of preparing a report for legal advisers was an error.

The High Court considered whether the question was purely one of fact, as suggested by Toohey J, or one of interpretation of the primary judge's judgment, as argued by Mitsubishi. Brennan J noted that if the fact was that the proceedings were conducted for the exclusive purpose of preparing a report for legal advisers, then the decision below would be unassailable in light of *Grant v Downs*. The application for special leave was ultimately granted, indicating the High Court considered the legal issues raised to be of sufficient importance to warrant further consideration.