Samenic Limited v APM Group (Aust) Pty Ltd - [2011] VSC 194

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S CI 2009 7466

SAMENIC LIMITED (formerly Hoyts Cinemas Limited) and another	Plaintiffs
- and -
APM GROUP (AUST) PTY LTD and others	Defendants

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JUDGE:	MUKHTAR AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	29 April 2011
DATE OF JUDGMENT:	12 May 2011
CASE MAY BE CITED AS:	Samenic Limited v APM Group (Aust) Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VSC 194	Revised 24 May 2011

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PRACTICE AND PROCEDURE ― Legal advice privilege ― Subpoena for document production ― Fire damage to property under construction ― Claim against construction contractors and managers ― Insured loss ― Insurer’s engagement of fire investigator ― Retention of lawyers for advice ― Production of investigator’s report ― Whether report is privileged from production ― Dominant purpose of bringing report into existence ― Evidence Act 2008 (Vic), (No 47 of 2008), s 118.

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APPEARANCES:	Counsel	Solicitors
For the second defendant (as subpoenaing party)	Mr M McInnis	Hunt and Hunt
For the third defendant (as objector)	Mr P Zappia	Norton Rose

HIS HONOUR:

The Prothonotary has referred to the Court for hearing and determination an objection to a subpoena for production of documents.[1] The objection involves something which is not uncommon in litigation where insurers are involved, that is, a litigant trying to get hold of an insurance investigator’s report after an insured incident has occurred. The question on this objection concerns legal advice privilege ― not litigation privilege ― under s 118 of the Evidence Act. Does this subpoena result in the disclosure of the contents of a confidential document prepared by another person (the subpoenaed party) for the dominant purpose of the lawyer providing legal advice to the client (the insurer)?
[1]See rule 42A.09

This case was well and thoroughly argued, with a real question for determination. The onus is on the party claiming the privilege. I have little doubt that the documents sought are confidential by nature and provenance. And it is not said lawyers were involved as a perfunctory step to attract the privilege by design, with no real intention to seek or gain legal advice. But I must say I have had my doubts whether the affidavit evidence was of a sufficient strength to establish the dominant purpose was for legal advice where it was also apparent or to be supposed, objectively, that the report was also needed by the insurer for its own ordinary business purposes. It is not clear to me precisely what legal advice was being sought on what legal problem. But the law recognises the concept of legal advice as being wide enough to include what a party should do in a legal context.

All things considered, I cannot assess the objector’s evidence as lacking conviction. Legal professional privilege is an important legal right based on a rule of substantive law, with a renowned public purpose. Erring on the side of protecting that right, for the reasons that follow,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] VSC 194
Decision Date: 12 May 2011

CaseChat Overview and Summary

In the case of Samenic Limited v APM Group (Aust) Pty Ltd, the dispute arose from a fire that occurred at a property under construction. The plaintiff, Samenic Limited, sought damages against the defendants, APM Group (Aust) Pty Ltd and others, for the fire damage. The matter was heard in the Supreme Court of Victoria. The central issue before the court was whether a fire investigator's report prepared at the direction of an insurer was subject to legal advice privilege and thus exempt from production under a subpoena. The report was potentially relevant to Samenic’s claim, and they sought its disclosure.

The court had to determine whether the report was privileged under the legal advice privilege, which exempts confidential communications between a client and their lawyer made for the dominant purpose of seeking or giving legal advice. The court considered the dominant purpose test, focusing on whether the primary motivation for creating the report was to obtain or provide legal advice. Additionally, the court examined the nature of the relationship between the insurer and the fire investigator, and whether the report was prepared as part of a litigation strategy.

The court found that the dominant purpose of the fire investigator's report was to provide factual information rather than to seek or give legal advice. The report was prepared to assess the cause of the fire and the extent of the damage, which was essential for the insurer to evaluate a potential claim. The court concluded that the report was not privileged because its creation was not primarily for the purpose of obtaining or providing legal advice. Consequently, the report was not exempt from production under the subpoena.

The court ordered that the fire investigator's report be produced to Samenic Limited, as it was not protected by legal advice privilege. This decision allowed Samenic to access potentially critical evidence in their claim against the construction contractors and managers.

Orders