Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd

[2005] NSWCA 47

NSW Court of Appeal

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Catchwords

1. Evidence
2. › Privilege
3. › Litigation privilege
4. › Dominant purpose test
5. › Document commissioned by in-house solicitor
6. › Multiple purposes including privileged and non-privileged purposes
7. › Whether privileged purpose shown to be dominant
8. › Onus of proof
9. › Evidence Act 1995 (NSW), s 119
1. Evidence
2. › Privilege
3. › Litigation privilege
4. › In-house solicitor
5. › Whether status of in-house solicitor relevant to dominant purpose inquiry
6. › Whether in-house solicitor equivalent to external solicitor for privilege purposes
7. › Evidence Act 1995 (NSW), ss 117, 119
1. Evidence
2. › Privilege
3. › Litigation privilege
4. › Dominant purpose test
5. › Subjective intention of person commissioning report
6. › Whether subjective intention determinative
7. › Relevance of objective assessment
8. › Whether purpose is that of corporation or individual employee

Quick Take

When an in-house solicitor commissions an expert report that serves both privileged (litigation) and non-privileged (operational) purposes, the in-house solicitor's status is relevant to the factual inquiry because in-house solicitors are more likely to act for purposes unrelated to legal proceedings than external solicitors. The subjective intention of the commissioning solicitor is relevant but not determinative; the court applies an objective test and the relevant purpose is that of the corporate client, not solely the individual employee. A purpose may be the most important single factor without being 'dominant' in the requisite sense of clear paramountcy.