Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority

(2002) 4 VR 332; [2002] VSCA 59

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Discovery and inspection
3. › Legal professional privilege
4. › Litigation privilege
5. › Communications between solicitor and third party
6. › Whether reports of loss assessors and engineers commissioned for dominant purpose of anticipated litigation
7. › Whether litigation reasonably anticipated at time reports commissioned
1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Litigation privilege
5. › Standard for 'reasonably anticipated' litigation
6. › Whether real prospect of litigation required or probability on balance of probabilities
7. › Whether mere possibility sufficient

Quick Take

Litigation privilege attaches to reports commissioned by solicitors from third parties where there is a 'real prospect' of litigation — more than a mere possibility but not requiring that litigation be more likely than not. The stricter standard requiring near-certainty of litigation (Warner v The Women's Hospital) is disapproved. The Australian Safeway Stores dictum that the evidence gathering process must be well advanced before litigation can be said to be reasonably anticipated is too widely stated and does not apply where a potential defendant commissions investigation through solicitors after an incident inherently likely to lead to litigation.