Singapore Airlines v Sydney Airports Corporation

In the case of Singapore Airlines v Sydney Airports Corporation, the dispute involved an application for the discovery of an expert report commissioned by the defendant, Sydney Airports Corporation, in relation to an accident that occurred at Sydney Airport. The plaintiff, Singapore Airlines, sought the report on the basis that it contained information relevant to the proceedings. The matter was heard in the Supreme Court of New South Wales. The central legal issues revolved around the application of legal privilege to the expert report, specifically whether the report was protected by legal professional privilege under the Evidence Act 1995 and whether this privilege was lost through any subsequent voluntary disclosure.

The court had to determine whether the dominant purpose test for legal professional privilege was to be assessed at the time the report was commissioned or when the report was brought into existence. It was also necessary to clarify whether the relevant dominant purpose was that of the corporate counsel or the company. The court further considered whether the existence of an anticipated legal proceeding at the time the report was commissioned was sufficient to establish privilege and if the privilege could be lost by voluntary disclosure. Additionally, the court examined the distinction between the disclosure of the substance and the effect of an expert report in the context of privilege.

The Supreme Court held that the dominant purpose test should be assessed at the time the report was commissioned. The court found that the dominant purpose of the report was the preparation for anticipated legal proceedings, and this purpose was held by both the corporate counsel and the company. The court concluded that the privilege was not lost by the voluntary disclosure of the substance of the report, as the disclosure of the substance did not equate to the disclosure of the effect. Therefore, the expert report remained protected by legal professional privilege. The court ultimately denied the plaintiff's application for discovery of the expert report.