On 14 March 2025,the Federal Court of Australia dismissed an application challenging a claim for legal professional privilege in the case of Holt v Mitsubishi Motors Corporation [2025] FCA 191.
A. Facts:
The case involves Mitsubishi Motors Corporation (MCC) and Mitsubishi Motors Australia Limited (the Respondents), who were sued by Benjamin Holt and Jason Teuma (the Applicants). The Applicants are part of a class who purchased Mitsubishi Triton Utes between 1 May 2015 and 25 November 2021. The Applicants claimed that the fuel consumption labels on these vehicles were misleading as they were based on improperly conducted tests, thus misrepresenting the vehicles’ fuel efficiency.
B. Legal Issues:
The primary legal issue was whether the documents requested by the Applicants were protected by legal professional privilege. The Applicants sought the production of certain documents and certified translations, which the Respondents resisted on the grounds of litigation privilege. The Court had to determine if the documents were created for the dominant purpose of use in actual, reasonably apprehended, or reasonably anticipated litigation.
The application included reference to ‘embedded documents’ referring to documents that are included within other documents, such as PowerPoint presentations. These embedded documents were essentially copies of non-privileged documents that had been inserted into privileged documents for the purpose of litigation. In this case, the embedded documents were created earlier and were included in the PowerPoint presentations prepared by Mr. Shirakawa (the Corporate Officer and General Manager of the MCC engineering division) and his team to assist in the litigation process.
C. Legal Principles Argued by Each Side:
1. The Applicants argued that:
(a) The documents were not created for use in litigation in the relevant sense and were not created for the dominant purpose of use in litigation.
(b) Litigation was not existing in the relevant sense, and the class action was not reasonably apprehended at the time.
(c) The embedded documents were not privileged, and copies of non-privileged documents attached to privileged documents do not make the copies privileged.
2. In reply the Respondents argued that:
(a) The documents were created for use in litigation and for the dominant purpose of that use.
(b) There were existing proceedings in the relevant sense, and the evidence established a real prospect of a class action at the time of the relevant communications.
(c) The same analysis applied to the embedded documents, and there is no additional requirement that needs to be satisfied.
D. Basis of the Court’s Findings:
Justice Raper found that the Respondents had established that the documents were created for the dominant purpose of use in litigation. The Court accepted the evidence of Mr. Shirakawa, who initiated the creation of the documents in response to the Begovic proceedings (a case brought by Mr Begovic in the Victorian Civil and Administrative Tribunal concerning fuel economy) and the potential for a class action. The Court also found that the documents were privileged, including the embedded documents, as they were created for the dominant purpose of assisting in the litigation.
The Court dismissed the Applicants’ application and ordered them to pay the Respondents’ costs.
https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/2025/191.html
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