The court found the documents were prepared for actual or anticipated litigation
The Federal Court dismissed an interlocutory application in a class action against Mitsubishi Motors, ruling that certain documents related to fuel consumption testing data and internal communications were protected by litigation privilege as they were created for the dominant purpose of existing or anticipated legal proceedings.
The applicants purchased Mitsubishi Triton Utes between May 1, 2015, and November 25, 2021, and sought the production of certain documents and certified translations, arguing that the vehicles had misleading fuel consumption labels. The respondents opposed the application, asserting legal professional privilege over the documents.
The Federal Court ruled that litigation privilege protected the documents because the respondents prepared them for the dominant purpose of actual or anticipated litigation. The applicants submitted affidavits to support their claim for document disclosure, while the respondents presented evidence showing they prepared the documents in response to ongoing and potential litigation.
The court applied common law principles, determining that legal professional privilege applies to documents created primarily for use in legal proceedings that are either in progress or reasonably anticipated. The standard requires a “real prospect” of litigation rather than a mere possibility.
The respondents claimed they created the documents during another litigation before Australian courts and in anticipation of a potential class action. The evidence showed that a corporate officer at Mitsubishi Motors Corporation (MMC) in Japan initiated the creation of these documents after receiving information about the litigation risk. The officer subsequently engaged colleagues to gather and prepare testing data. The applicants argued that the respondents created the documents for standard internal investigations rather than for use in litigation. They also argued that MMC was not a party to the other litigation and could not claim privilege over documents prepared in anticipation of a separate class action. However, the court rejected this position, noting that MMC, as the parent company of Mitsubishi Motors Australia Limited, played a key role in the technical and engineering aspects of the case.
After reviewing the documents, the court determined that the respondents created them with a dominant purpose related to existing and anticipated litigation. The evidence established that MMC’s legal department might require assistance, prompting the engineering division to compile technical data proactively. The court found such evidence sufficient to support the claim of litigation privilege. The Federal Court ultimately ruled in favour of the respondents, dismissing the application and ordering the applicants to pay the respondents’ costs.
