Unsworth v Tristar Steering and Suspension Australia Limited

The applicant in this matter sought to rely on litigation privilege to protect documents from disclosure in a proceeding. The documents were notes of a meeting with the respondent. The meeting took place between the applicant’s legal representatives, the applicant, and the respondent’s representatives. The Federal Circuit and Family Court of Australia was required to decide whether the applicant’s legal representatives could rely on litigation privilege to protect the notes of the meeting from disclosure. The court found that the notes could not be protected by litigation privilege because the meeting was not confidential and it was not held for the dominant purpose of the applicant being provided with professional legal services. The applicant’s legal representatives were not acting in a professional capacity at the meeting and were not providing legal services to the applicant. The meeting was not confidential because the applicant’s legal representatives were acting in a dual capacity as both legal and business representatives of the applicant. The court held that the notes could not be protected by litigation privilege because the meeting was not held for the dominant purpose of the applicant being provided with professional legal services.

The court considered the circumstances of the meeting, including the presence of the applicant’s business representatives, the subject matter of the meeting, and the purpose of the meeting. The court found that the dominant purpose of the meeting was to negotiate a settlement of the dispute between the parties, rather than to provide legal services to the applicant. The court also considered the nature of the notes, which were factual rather than legal in nature, and did not contain any legal advice or opinion. The court held that the applicant’s legal representatives were not acting in a professional capacity at the meeting and were not providing legal services to the applicant. The court rejected the applicant’s claim for litigation privilege for the notes of the meeting. The court ordered that the notes be disclosed to the respondent.