Samenic Limited v APM Group (Aust) Pty Ltd

Samenic Limited, the plaintiff, brought an action against APM Group (Aust) Pty Ltd, the defendant, seeking damages for fire damage to property under construction. The dispute before the court involved the admissibility of a fire investigator’s report commissioned by the defendant’s insurer. The plaintiff sought to subpoena this report for production in their case against the defendant, arguing that it was not protected by legal advice privilege. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the fire investigator’s report was subject to legal advice privilege and, if so, whether this privilege could be overcome by the plaintiff’s substantial need for the report. The court was required to determine the dominant purpose for which the report was created and whether it was prepared for the sole or dominant purpose of giving legal advice. The interpretation of section 118 of the Evidence Act 2008 (Vic) was also a central issue in the case.

The court found that the fire investigator’s report was indeed subject to legal advice privilege. The report was commissioned by the defendant’s insurer for the purpose of providing legal advice on potential claims arising from the fire damage. The court concluded that the dominant purpose test was met, as the report was created to assist in the insurer’s decision-making process regarding potential claims. The court held that the report was protected by legal advice privilege and could not be compelled for production. The plaintiff’s substantial need for the report did not override the privilege.

The court dismissed the plaintiff’s application to subpoena the fire investigator’s report. The defendant’s legal advice privilege was upheld, and the report remained protected from disclosure.