Singapore Airlines v Sydney Airports Corporation & Anor [2004] NSWSC 380

New South Wales Supreme Court

CITATION : Singapore Airlines v Sydney Airports Corporation & Anor [2004] NSWSC 380 HEARING DATE(S) : 27 April 2004 JUDGMENT DATE : 7 May 2004

JUDGMENT OF : McDougall J at 1 DECISION : See paras [74] to [77] of judgment

CATCHWORDS : EVIDENCE - discovery - where corporate counsel commissioned expert report into accident soon after accident occurred - claim for discovery of expert report - whether report privileged - s 119 Evidence Act 1995 - Pt 23 r 1(c) Supreme Court Rules - whether dominant purpose and existence of anticipated proceedings to be assessed at time report commissioned or when report brought into existence - where report had multiple purposes - whether there was a dominant purpose -where report commissioned by corporate counsel on behalf of company within the scope of employee's authority - whether relevant dominant purpose is that of corporate counsel or company - distinction between employee's purpose in commissioning report and company's purpose - whether at time report was commissioned there was an anticipated legal proceeding - if privilege existed, whether subsequently lost - ss 122 and 123 Evidence Act 1995 - whether common law of waiver relevant - whether privilege lost by voluntary disclosure - distinction between disclosure of substance and effect relating to an expert report - whether disclosure of substance LEGISLATION CITED : Supreme Court Rules Evidence Act 1995 (NSW) Baker v Campbell (1983) 153 CLR 52 Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 Galway v Constable [2001] QSC 180 Australian Competition & Consumer Commission v Australian Safeway Stores Pty Ltd (1998) 81 FCR 526 Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 Hartogen Energy Ltd (in liq) v Australian Gas Light Co (1992) 36 FCR 557 Sparnon v Apand Pty Ltd (1996) 68 FCR 322 CASES CITED : Mann v Carnell (1999) 201 CLR 1 Adelaide Steamship Company Ltd v Spalvins (1998) 81 FCR 360 Telstra Corporation Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 Garratt's Ltd v Thanga Thangathurai [2002] NSWSC 39 Perpetual Trustees (WA) Ltd v Equuscorp Pty Ltd [1999] FCA 925 Fort Dodge Australia Pty Ltd v Nature Vet Pty Ltd [2002] FCA 501 Sovereign v Bevillesta [2000] NSWSC 521 Ampolex Limited v Perpetual Trustee Company (Canberra) Ltd (1996) 40 NSWLR 12 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Singapore Airlines Limited (Plaintiff) Sydney Airports Corporation Limited (First Defendant) Bovis Lend Lease Pty Limited (Second Defendant) Sydney Airports Corporation Limited (First Cross-Claimant) PARTIES : Qantas Airways Limited (First Cross-Defendant) Sydney Airports Corporation Limited (Second Cross-Claimant) Bovis Lend Lease Pty Limited (Second Cross-Claimant) Bovis Lend Lease Pty Limited (Cross-Claimant to the Third Cross-Claim) Sydney Airports Corporation Limited (First Cross Defendant to the Third Cross-Claim) Airport Equipment Limited (Third Cross-Defendant to Third Cross-Claim) FILE NUMBER(S) : SC 50006/03 G Curtin (for Singapore Airlines Limited) COUNSEL : N A Nicholls (for SACL) M J Darke (for Qantas) Riley Gray-Spencer (for Singapore Airlines) SOLICITORS : Sparke Helmore (for SACL) Ebsworth & Ebsworth (for Qantas)