Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47

New South Wales Court of Appeal

Sydney Airports Corporation Ltd v Singapore Airlines Ltd & Qantas Airways Ltd [2005] NSWCA 47 CITATION: This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14 February 2005

JUDGMENT DATE: 9 March 2005

JUDGMENT OF: Spigelman CJ at 1; Sheller JA at 57; Campbell AJA at 58

DECISION: 1. Leave to appeal granted; 2. Appeal dismissed with costs.

CATCHWORDS: EVIDENCE - Privilege - Litigation Privilege - Where in-house solicitor commissioned expert report into accident soon after accident occurred - Claim for discovery of expert report - Whether report privileged - s119 Evidence Act 1995 - Pt 23 r 1(c) Supreme Court Rules - Whether prepared for dominant purpose of litigation - Time at which dominant purpose to be assessed - Where report had multiple purposes - Relevance of subjective intention of person commissioning report - Whether relevant dominant purpose is that of company or in-house solicitor - Whether dominant purpose different if external solicitor - WORDS & PHRASES - "dominant purpose"

LEGISLATION CITED: Evidence Act 1995: s 117, s 119.

Attorney-General for the Northern Territory v Kearney (1985) 158 CLR 510 Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49 Federal Commissioner of Taxation v Spotless Services Ltd (1996) 186 CLR 404 Grant v Downs (1976) 135 CLR 674 Hartogen Energy Ltd (in liq) v The Australian Gas Light Co (1992) 36 FCR 557 CASES CITED: Mitsubishi Electric Australia Pty Ltd v Victorian WorkCover Authority (2002) 4 VR 332 Pratt Holdings Pty Ltd v Commissioner of Taxation (2004) 207 ALR 217 Ritz Hotel Ltd v Charles of the Ritz Ltd (No 4) (1987) 14 NSWLR 100 Waterford v The Commonwealth (1987) 163 CLR 54 Waugh v British Railways Board [1980] AC 521