Sydney Airports Corporation Ltd v Singapore Airlines Ltd

Sydney Airports Corporation Ltd (SAC) and Singapore Airlines Ltd (SIA) were parties to litigation concerning an accident at Sydney Airport. SIA sought discovery of an expert report commissioned by SAC's in-house solicitor shortly after the accident. SAC resisted discovery, claiming the report was protected by litigation privilege under section 119 of the *Evidence Act 1995* (Cth) and rule 23.1(c) of the *Supreme Court Rules*. The case proceeded to the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the expert report was prepared for the dominant purpose of litigation. This required the court to consider the timing of the dominant purpose assessment, the impact of multiple purposes on the claim for privilege, the relevance of the subjective intention of the person commissioning the report, and whether the relevant dominant purpose was that of the company or the in-house solicitor, particularly in contrast to the purpose if an external solicitor had been engaged.

The Court of Appeal held that the dominant purpose of the report was litigation. The court reasoned that the assessment of dominant purpose should be made at the time the report was commissioned. While the report may have had other purposes, such as operational review, the primary and overriding purpose was to obtain expert advice for the defence of anticipated or ongoing litigation. The court considered the subjective intention of the in-house solicitor to be relevant to determining the company's dominant purpose. The court found no distinction in the application of the dominant purpose test whether the report was commissioned by an in-house or external solicitor.

Leave to appeal was granted, but the appeal was ultimately dismissed with costs.