Life or Death and a claim for privilege

  • 26 Oct 2017

The District Court of NSW was recently required to consider issues in relation to whether various documents relating to a factual investigation were privileged and if so, whether there had been a waiver of privilege as a result of an inadvertent disclosure of the documents.

The plaintiff sought access to documents regarding investigations which centred around concerns that a claim made under a life insurance policy was made in circumstances where the person was not deceased. An Australian Investigator had been appointed and had retained another investigator based in Russia to assist in the investigations.

Where client legal privilege is claimed, this attaches to both privileged communications and privileged confidential documents made for the dominant purpose of the client being provided with legal advice or legal services by a lawyer in relation to actual or anticipated proceedings. The Courts have previously found that dominant means ‘clearly paramount’ and not merely ‘primary’ or ‘substantial’. The purpose is to be determined objectively, however, the subjective intent of the person responsible for the creation of the document or communication is relevant to considering the objective purpose.

The Court noted that when the documents in question were created, a claim had been made against a life insurance policy for the alleged death of a person, the insurer had denied the claim, proceedings had been commenced against the insurer and an Australian investigator had been retained by the insurer, who in turn appointed a Russian based investigator to prepare the insurer’s’ evidence. It was satisfied that the documents were brought into existence for the dominant purpose of legal advice in relation to the proceedings.

Regarding the disclosure of privileged documents during discovery, the Court held that privilege had not been waived by inadvertent disclosure.

In a last ditched effort to obtain access to the documents, it was also argued that privilege had been waived during submissions by reference to the content of the material. However, the Court dismissed that claim on the basis that the only material referred to was introductory in nature and did not reveal the substance of the content of the investigations.

This decision provides a useful summary of the principles relating to legal professional privilege. Whilst the purpose for which a document or communication was made will not be determined subjectively, the subjective intent of the person who caused the creation of the communication or document is relevant to that assessment. It is therefore advisable to document a person’s intention in creating the communication, and preferably in the communication itself, if the document is for the purpose of obtaining legal advice or part of actual or anticipated legal proceedings. This is particularly the case when the person who caused the creation of the documentation or communication is not available to give evidence on this.

Reference: Gerasimov (As Executor of the Estate of the Late Vladimir Safronov) v Onepath Life Ltd (formerly ING Life Ltd) (No 2); Gerasimov (As Executor of the Estate of the Late Vladimir Safronov) v Allianz Australia Life Insurance Ltd (No 2); Gerasimov (As Executor of the Estate of the Late Vladimir Safronov) v Suncorp Life & Superannuation Ltd (No 2) [2017] NSWDC 287

Posted by Karen Kumar

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