Ensham Resources Pty Limited v Aioi Insurance Company Limited [2012] FCAFC 191

Ensham Resources Pty Limited v Aioi Insurance Company Limited [2012] FCAFC 191

The Court refused leave to appeal, holding that the applicant did not establish sufficient doubt or risk of substantial injustice regarding the primary judge's decision. The relevant loss adjuster reports were prepared when litigation was reasonably anticipated and were commissioned for the dominant purpose of providing advice in relation to anticipated litigation. The process of interposing the solicitor between insurer and loss adjuster did not in itself defeat privilege. The insurers' duty of utmost good faith was not directly material to the privilege question. While Buchanan J would have granted leave, the appeal itself would fail: privilege, on the evidence, was properly found to...

Parties
Applicant: Ensham Resources Pty Limited; First Respondent: Aioi Insurance Company Limited; Second Respondent: Mitsui Sumitomo Insurance Company Limited; Third Respondent: Sompo Japan Insurance Inc; Fourth Respondent: Tokio Marine & Nichido Fire Insurance Company Limited; Fifth Respondent: Nissay Dowa General Insurance Corporation Limited
Jurisdiction
Australia
Judgment Date
21 December 2012
Procedural Posture
Application for Leave to Appeal (interlocutory) / Leave to Appeal From Interlocutory Orders—full Federal Court Determination
Outcome
Leave to appeal refused (by the majority); appeal would be dismissed (per Buchanan J)
Legal Topics
Legal Professional Privilege, Litigation Privilege, Discovery and Inspection, Dominant Purpose Test, Privilege Over Loss Adjuster Reports, Good Faith in Insurance Contracts
Practice and Procedure Evidence Insurance Law Legal Professional Privilege Litigation Privilege Discovery and Inspection Dominant Purpose Test Privilege Over Loss Adjuster Reports +1 more

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Parties

Ensham Resources Pty Limited

Applicant

Aioi Insurance Company Limited

First Respondent

Mitsui Sumitomo Insurance Company Limited

Second Respondent

Sompo Japan Insurance Inc

Third Respondent

Tokio Marine & Nichido Fire Insurance Company Limited

Fourth Respondent

Nissay Dowa General Insurance Corporation Limited

Fifth Respondent

Procedural Posture

Application for Leave to Appeal (interlocutory) / Leave to Appeal From Interlocutory Orders—full Federal Court Determination

Legal Issues

  1. 1 Whether reports provided by the loss adjuster were subject to legal professional privilege (litigation privilege)
  2. 2 Whether the reports were prepared for the dominant purpose of use in reasonably anticipated litigation
  3. 3 Whether the insurers' duty of utmost good faith affects privilege claims

Ratio Decidendi

The Court refused leave to appeal, holding that the applicant did not establish sufficient doubt or risk of substantial injustice regarding the primary judge's decision. The relevant loss adjuster reports were prepared when litigation was reasonably anticipated and were commissioned for the dominant purpose of providing advice in relation to anticipated litigation. The process of interposing the solicitor between insurer and loss adjuster did not in itself defeat privilege. The insurers' duty of utmost good faith was not directly material to the privilege question. While Buchanan J would have granted leave, the appeal itself would fail: privilege, on the evidence, was properly found to...

Court Disposition

Leave to appeal refused (by the majority); appeal would be dismissed (per Buchanan J)

Orders

  • The application for leave to appeal against the orders of Cowdroy J made 6 July 2012 be refused.
  • The applicant pay the respondents' costs of the application.