Rankilor v City of South Perth

[2016] WASCA 28

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Practice and Procedure
2. › Discovery
3. › Particular discovery
4. › Whether applicant established reasonable grounds to be fairly certain documents existed
5. › Rules of the Supreme Court 1971 (WA), O 26
1. Practice and Procedure
2. › Legal professional privilege
3. › Litigation privilege
4. › Assessor's report commissioned by insurer
5. › Dominant purpose test
6. › Whether privilege waived by disclosure to insured's solicitor
7. › Common interest privilege
1. Practice and Procedure
2. › Subpoena
3. › Whether subpoena may be used as substitute for discovery

Quick Take

An assessor's report commissioned by an insurer for the dominant purpose of use in anticipated litigation is protected by legal professional privilege, and that privilege is not waived by disclosure of the report to the solicitors acting for the insured where the insurer and insured share a common interest in defeating the claim. A subpoena cannot be used as a substitute for discovery. On an application for particular discovery, the applicant must establish reasonable grounds to be fairly certain the documents exist — mere speculation, assumption, or conjecture is insufficient.