Federal Court of Australia

Holt v Mitsubishi Motors Corporation [2025] FCA 191

ORDERS

THE COURT ORDERS THAT:

1.    The applicants’ application, filed on 2 October 2024, be dismissed.

2.    The applicants pay the respondents’ costs as agreed or assessed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

RAPER J:

1    Mitsubishi Motors Corporation (the first respondent) is the manufacturer of Mitsubishi Triton Utes, which were imported into Australia for supply to consumers by the second respondent, Mitsubishi Motors Australia Limited. Mr Benjamin Holt and Mr Jason Teuma (the applicants in this proceeding) are members of a class who bought such a vehicle between 1 May 2015 and 25 November 2021 from MMAL. The applicants complain that each of those vehicles were to be supplied with a fuel consumption label affixed which described fuel consumption results according to standardised testing as enshrined in Australian law. However, the applicants assert that the labels on the vehicles stated results of tests that were conducted improperly, such that prospective purchasers were misled by those labels as to the fuel efficiency of those vehicles. The underlying litigation is in the process of finalising discovery, an amended statement of claim and an amended defence have been filed.

2    These short reasons concern an interlocutory application made by the applicants seeking orders for the production of certain documents and certified translations of those documents. The respondents resist the application on the basis that legal professional privilege attaches to the documents. The claim was confined to litigation privilege.

3    The applicants relied on two affidavits of Mr Benjamin Bishop affirmed 2 October 2024 and 6 December 2024. The respondents relied on an affidavit of Mr Shirakawa Takashi affirmed 22 November 2024 and on an affidavit of Mr Stephen Douglas Voss sworn 18 December 2024.

4    The common law, as opposed to the Evidence Act 1995 (Cth), applies to privilege claims made with respect to inspections of documents: Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 at [37] per Wigney J, citing Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49; HCA 67 at [16]–[28] per Gleeson CJ, Gaudron and Gummow JJ, [64] per McHugh J.

5    For legal professional privilege to attach to the documents in issue, it is necessary for the party claiming legal professional privilege to satisfy the Court that the documents were created for the dominant purpose for use in actual, “reasonably apprehended” or “reasonably anticipated” litigation. For litigation to be “reasonably apprehended” or “reasonably anticipated”, there must be a “real prospect” of that litigation, as distinct from a mere possibility, but it does not have to be more likely than not: Perazzoli v BankSA [2017] FCAFC 204 at [70] per Perram, Foster and Murphy JJ, citing Mitsubishi Electric Australia Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332; VSCA 59 at [19] per Batt JA (with whom Charles and Callaway JJA agreed); Ensham Resources Pty Ltd v AIOI Insurance Company Ltd (2012) 209 FCR 1; FCAFC 191 at [53]–[57] per Lander and Jagot JJ; Australian Competition and Consumer Commission v Yazaki Corporation [2014] FCA 1316 at [30]–[33] per Besanko J.

6    This proceeding was commenced on 26 November 2021. The documents in issue were created between 14 and 30 November 2020 (save for the embedded copy documents which were created earlier). There are 28 documents in issue identified by the applicants in Annexure A to the application. Documents 3 and 30 were not pressed at hearing. The parties accepted that the relevant facts disclosed in Annexure A are agreed, as to the documents’ file type, date of creation, title, author and recipient.

7    The issues to be determined are therefore whether proceedings were extant, reasonably apprehended or anticipated, and, if this is established, whether the documents were created for the dominant purpose of use in that extant or prospective litigation.

8    The relevant facts surrounding the creation of the documents are as follows. Mr Shirakawa, a corporate officer and general manager within the engineering division of MMC, in Japan, was responsible for research and technological development of vehicles. On 9 November 2020, he received an email from a former colleague, Mr Kumura Haruyoshi. In that email, Mr Kumura referred to extant litigation in Australia with respect to Mitsubishi Triton vehicles and stated that there was a high probability that the issue would result in a class action. After receipt of that email, Mr Shirakawa conversed with colleagues via email and sought the assistance of other MMC employees, Mr Matsuo Takanobu and Mr Ando Yoichiro, to gather and prepare testing information. The documents fall into three categories: first, emails (and attachments) between Mr Shirakawa and other MMC employees; secondly, versions of PowerPoint presentations; and thirdly, documents “embedded” within the PowerPoint presentations.

9    The respondents primarily rely on the evidence of Mr Shirakawa. Mr Shirakawa was not required for cross-examination. Mr Shirakawa gave evidence as to the reasons why he created the documents. I accept that the test for determining whether there were extant or reasonably anticipated proceedings and whether their creation was for the dominant purpose of use in that litigation is an objective one.

Summary of competing positions

10    The applicants submitted that the respondents have not proven that the documents are covered by litigation privilege because (a) the documents were not created for “use in litigation” in the relevant sense, and to the extent that they were, they were not created for the dominant purpose of use in litigation; (b) litigation was not extant in relevant sense (MMC was not a party to the then extant proceeding, the Begovic proceedings, which, as will be explained below, had reached the stage where the trial had concluded and the appeal had been heard with judgment reserved) or if it was, those extant proceedings were not the dominant purpose of the creation of the documents; (c) the class action was not reasonably apprehended at the time – the Begovic litigation involved one person, all that the Bannister Law advertisement revealed was an investigation into a possible class action (such that no litigation was at that time anticipated) and MMC did not put a litigation hold on the deletion of documents until on or about 22 November 2021; and, (d) with respect to the embedded documents, privilege has not been established for the same reason as with respect to the other documents. However, even if MMC establishes that the documents are privileged, the mere fact that copies of non-privileged documents were attached to privileged documents does not make the copies privileged documents. The applicants also argued that there was a qualification to privilege for copy documents of non-privileged documents.

11    By contrast, the respondents submitted, addressing each of the applicants’ claims: (a) that Mr Shirakawa’s evidence establishes that the documents were created for use in litigation and for the dominant purpose of that use; (b) the evidence establishes that there were extant proceedings – it does not matter that those proceedings involved a different corporate respondent; MMC is the parent of that entity. Further, whilst the Begovic litigation had moved into the appellate phase, information gathering remained relevant to inform those processes, and where Mr Shirakawa perceived from this litigation he would be asked to assist; (c) the evidence establishes that there was a real prospect of a class action at the time of the relevant communications: There did not need to be a class action filed at that time. The respondents submitted that the evidence establishes: (i) that MMAL had lost the Begovic litigation at first instance; (ii) after the Begovic litigation had commenced, Bannister Law had advertised in July 2019, with reference to that litigation, that car-owners express interest in a potential class action. The respondents did not accept that a failure to put a litigation hold until November 2021 was of any significance. As to the copy documents, the respondents submitted that the same analysis applies, namely, if it is established that the copies were created for the dominant purpose of assisting litigation there is no additional requirement that needs to be satisfied. The respondents rejected the existence of any qualification to the same analysis.

12    The confidential exhibit containing the documents was not made available to the applicants. A court may examine a document over which privilege is claimed in order to ascertain whether the nature and content of the document supports the claim to legal professional privilege. Such a course may illuminate the purpose for which the documents were brought into existence: Grant v Downs (1976) 135 CLR 674; HCA 63 at 689 per Stephen, Mason and Murphy JJ. See also Trade Practices Commission v Sterling (1979) 36 FLR 244; FCA 33 at 246 per Lockhart J. As to whether the court should inspect the documents is within the Court’s discretion. Ultimately, for the reasons which follow, after reviewing the evidence and inspecting the documents, I am satisfied that the claim for privilege is made out.

The proceedings were extant or reasonably apprehended or anticipated on or before 14 November 2020

13    The respondents submit that there was litigation ongoing at the time the documents were created, and further litigation reasonably anticipated. The documents were created between 14 and 30 November 2020 (save for the embedded copies dealt with separately). There were two limbs to the claim that proceedings were reasonably apprehended or anticipated: It was submitted that the litigation to which Mr Shirakawa responded was actual (the Begovic proceedings) and not merely contemplated. In addition, reliance was separately placed on the anticipation of the class action proceedings now before this Court.

14    It was without dispute that in April 2018, Mr Begovic initiated proceedings in the Victorian Civil and Administrative Tribunal, the proceeding was heard in April 2019, and the decision delivered in May 2019: Begovic v Northpark Berwick Investments Pty Ltd (Civil Claims) [2019] VCAT 772. The proceeding in the Supreme Court of Victoria was then heard in September 2020 and judgment delivered in May 2021: Mitsubishi Motors Australia Ltd v Begovic [2021] VSC 252. The Victorian Court of Appeal then heard the appeal in May 2022 and delivered judgment in August 2022: Mitsubishi Motors Australia Pty Ltd v Begovic (2022) 403 ALR 558; VSCA 155. The High Court special leave application was heard and granted in February 2023: Mitsubishi Motors Australia Ltd v Begovic [2023] HCATrans 15. The High Court proceedings were heard in August 2023 and delivered in December 2023: Mitsubishi Motors Australia Ltd v Begovic (2023) 98 ALJR 155; HCA 43.

15    Accordingly, prior to the creation of the documents, proceedings relating to Mr Begovic’s claims had been commenced and heard in two forums in Australia, before VCAT and with a decision pending before the Supreme Court of Victoria.

16    It is my view that the respondents have established that there were actual proceedings on foot, to which Mr Shirakawa thereafter took action, which led to the creation of the documents in issue. This is evident from the fact that it was Mr Shirakawa’s uncontested evidence that he set about taking the relevant steps immediately after being informed of the Begovic proceedings. The evidence establishes that it was upon hearing of these proceedings Mr Shirakawa believed that his department’s assistance may be required “in defending the existing Begovic litigation”, or the “next instance of the Begovic Proceeding”. It is my view that the latter evidence is a reference to any appellate proceedings: Shirakawa [10].

17    I do not accept the applicants’ submission that because the Begovic proceeding was at the appellant review stage, this precludes the ability of the respondents to rely on the privilege. The litigation remained on foot for another two years. The ascertainment of technical information and knowledge could be used to inform the then current and possible future litigation.

18    I do not accept that the first respondent is not able to rely on these extant proceedings for the privilege claim because it was not a party to the Begovic proceedings in the circumstances of this case. My attention was drawn to the obiter reasons of Wigney J in NSW Ports at [43]–[44]. Those reasons concerned whether a person is able to claim litigation privilege where they were not a party, or were not anticipated to be a party, to the relevant proceedings or anticipated proceedings, at the relevant time. His Honour identified the issue but noted it was not addressed by the parties and there did not appear to be authority directly on point.

19    The circumstances of that case were very different than from here. In that case, the claim of privilege was over documents of a non-party who had been subpoenaed in the litigation. They concerned not extant but anticipated proceedings. Justice Wigney was not called on to consider whether litigation privilege could extend to the parent company of a party (in this case, MMC) who was in a position to assist in the litigation of a subsidiary and where it was anticipated that it would be assisting the lawyers for either the parent or subsidiary. MMC possessed the technical, manufacturing and design expertise with respect to the vehicle and leadership of the corporate group. Here, the privilege is being claimed by both MMC and MMAL. It is clear that Mr Shirakawa was intending to be of assistance to the Begovic proceedings, that is, for MMC to assist MMAL, including for him to assist MMAL’s legal department: Shirakawa [10]. From my review of the documents, I am satisfied, by reason of a number of features of those documents, that this was the case.

20    Further, even if I were wrong in this regard, I am of the view that, separately, the respondents have established that litigation was reasonably apprehended or anticipated.

21    The determination of whether litigation is reasonably anticipated is determined objectively, having regard to all the circumstances existing at the time the document was created and is “fact-sensitive”: Yazaki at [34] and [38]. There must be a real prospect or real probability of litigation, as distinct from a mere possibility, but it does not have to be more likely than not: Mitsubishi Electric at [16]–[20]; Ensham at [54]–[57] per Lander and Jagot JJ.

22    I accept the applicants’ submission that what Mr Shirakawa stated in his evidence as to why he initiated his technical investigation to be of assistance in any potential class action (which he considered “likely”) is not determinative: Shirakawa [10], [17], [20]. The determination of the purpose for which a document is brought into existence is a question of fact which must be determined objectively. However, evidence of subjective purpose will be relevant and is often decisive: Esso at [172] per Callinan J; Sydney Airports Corporation Ltd v Singapore Airlines Ltd [2005] NSWCA 47 at [6] per Spigelman CJ, with whom Sheller JA and Campbell AJA agreed.

23    The applicants submitted that it was not reasonable for MMC to apprehend or anticipate a class action as at the relevant time (in November 2020), for a number of reasons. It was submitted that as at the time of the creation of the documents, no class action proceedings had been filed, and the proceedings would not be filed for another 12 months. As at November 2020, Bannister Law had not written to the respondents about the possibility of a class action being commenced. The first letter from Bannister Law to MMAL was sent a month later on 14 December 2020. It was submitted that, even then, the letter described that Bannister Law was “still investigating”.

24    I do not accept that it was not reasonable for MMC or MMAL to apprehend or anticipate the class action proceeding. The evidence established that, as at 8 July 2019, Bannister Law, a class action firm, on its website, stated that it was conducting a “Mitsubishi fuel labelling investigation” concerning Mitsubishi MQ Triton GSL (4x4) models. Mr Voss, a partner at Thomson Geer, solicitors for the respondents, gave unchallenged evidence as to sighting this website on that date. The website gave details of the Begovic proceedings and stated that “Bannister Law is investigating a potential class action” and stated that it was “interested to hear from any Mitsubishi MQ Triton GSL (4x4) model owners who purchased the vehicle between 2015 and 2019 and have experienced the same issue as Mr Begovic – higher than expected fuel consumption”.

25    I do not accept the applicants’ criticism of Mr Voss’ evidence that, because his evidence says nothing about his anticipation of legal proceedings when he saw the website advertisement, that it says anything about the state of mind of his clients.

26    The advertisement, on its terms, revealed the clear link between the Begovic litigation and the class action being investigated. The advertisement stated it was investigating a potential class action, that the fuel labels may be misleading consumers, then referred to the Begovic VCAT decision, which had been delivered in May of that year. The combination of having lost before VCAT and a class action firm advertising for potential claimants, created a real prospect of litigation.

27    I do not accept the applicants’ submission that, given Bannister Law’s purported inaction between 2019 and November 2020, it would have been reasonable for MMC at that time to apprehend that by then there remained no real possibility of a class action. If anything, the contrary could be inferred; that Bannister Law was awaiting the outcome of the Supreme Court of Victoria. Those proceedings had been heard in September 2020, but judgment was yet to be delivered (judgment was not delivered until May 2021).

28    The applicants relied on the reasoning in Australian Consumer Commission v Australian Safeway Stores (1998) 81 FCR 526 at 545–6 for the proposition that, an investigation in many cases is logically anterior to the point in time when it might be said litigation is readily apprehended. That may be so. However, the determination of this issue is fact dependent. As observed by Perram J, in Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 2) [2011] FCA 1057 at [30], albeit in the context of considering the dominant purpose, there is a false dichotomy between an investigation and an anticipation of litigation:

I see no particular difficulties in accepting that there will be periods during many investigations when litigation is very likely. In the real world, there is no precise moment when investigation ceases and the contemplation of litigation begins; life is not nearly so tidy.

29    The applicants claimed that reliance should be placed on the fact that MMC did not implement a litigation hold in relation to a potential class action until 22 November 2021. According to the applicants, that indicates that MMC did not apprehend or anticipate a real possibility of any class-action litigation before that time. I do not accept that the fact of when the litigation hold was placed, displaces the earlier evidence indicative of there being a real prospect.

30    In addition, the applicants submitted, relying again upon the obiter reasoning in NSW Ports identified above, that, even if the possibility of litigation is anticipated, the person creating the documents needed to have been anticipated to be a party. That is, MMC as distinct from MMAL, must have been anticipated to be a party to a potential class action as of November 2020. It is my view that the evidence establishes that there was a real prospect of litigation against MMC.

31    Whilst I accept that Mr Shirakawa’s evidence that he thought a class action was likely as at November 2020, is not determinative, it may be taken into account. The occurrence of any event, such as a manufacturing fault, in common experience, very often leads to litigation, and may found a sufficient anticipation of litigation: Mitsubishi Electric at [22]. It was Mr Shirakawa’s evidence that he:

was conscious of the recent class actions in the vehicle manufacturing industry, such as the Volkswagen ‘Dieselgate’ litigation, and had been involved in preparing a response in relation to a ‘Dieselgate’ investigation in the course of my previous employment Nissan. In light of that previous experience, and the information provided by Mr Kumura, I was concerned that the Begovic Proceeding could result in further litigation, including a potential class action.”: Shirakawa [9].

32    I accept that these apprehensions were reasonable and well-founded from the surrounding facts. Mr Shirakawa’s external colleague, Mr Kumura, rated the “possibility” of an associated class action at “80%-90%”. Other industry consultants were marketing engineering solutions purporting to enable MMC to remedy the alleged defect so as to avert this litigation risk.

33    Indeed, in the letter from Bannister Law to MMAL, dated 14 December 2020, Bannister Law was asking for MMAL to confirm “whether or not Mitsubishi Corporation (Japan) conducts business in Australia or has a place of business in Australia”. Similarly, by letter dated 16 December 2020, Bannister Law repeated the same request to the respondents’ legal representatives.

The documents were created for the requisite dominant purpose

34    There was no dispute between the parties as to what a “dominant purpose” is and how it is proven.

35    A “dominant purpose” is one that predominates over other purposes; it is the prevailing or paramount purpose. The determination of purpose is a question of fact to be determined objectively. An appropriate starting point when applying the dominant purpose test is to ask what was the intended use of the document which accounted for it being brought into existence. In AWB Ltd v The Honourable Cole (2006) 152 FCR 382; FCA 571 at [107] per Young J:

The authorities accept that an appropriate starting point when applying the dominant purpose test is to ask what was the intended use or uses of the document which accounted for it being brought into existence: see Pratt Holdings Pty Ltd v Commissioner of Taxation (Cth) (2004) 136 FCR 357 at [35] per Finn J. I would add that where the document is immediately communicated by its author to several other persons, including the author's legal adviser, by a circular email (which is the case here), it is also important to ask what was the dominant purpose of that email communication.

36    The mere fact that a document may prove of use in litigation does not qualify it as a privileged document. The relevant dominant purpose must actually be directed to intended use of the document in litigation, not merely that it “might be useful”.

37    The party asserting the privilege bears the onus of proving the facts necessary to establish the claim, and must do so with direct admissible evidence. While the Court can examine the documents in issue for itself, this power exists not to facilitate proof of the privilege claim, but to enable the claim to be scrutinised and tested.

38    As recently observed by Shariff J in Australian Securities and Investments Commission v Noumi Ltd [2024] FCA 349 (whose observations were approved by the Federal Court of Australia Full Court in Australian Securities and Investments Commission v Noumi Ltd [2024] FCAFC 174 at [75]):

61    The dominant purpose test can be difficult to apply when there are competing purposes. To characterise a purpose as “dominant” entails that it is the “prevailing or paramount purpose or one which predominates over other purposes”: AWB v Cole at [105]; Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust 4A v Sage Group plc (No 2) [2013] FCA 1098 at [11]; Kenquist Nominees Pty Ltd v Campbell (No 5) [2018] FCA 853 at [11]. If two purposes are of equal weight, “neither can be said to be the dominant purpose”: Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Ltd [2021] FCA 511 at [95](f). If the most that can be said on the evidence is that one of the purposes of the communication included providing legal advice to the client, privilege will not apply: Esso at [50]. If the decision to bring the document into existence would have been made irrespective of any purpose of obtaining legal advice, the latter purpose cannot be dominant: Commissioner of Taxation of the Commonwealth of Australia v Pratt Holdings Pty Ltd [2005] FCA 1247 at [30](8).

62    Legal professional privilege is not limited to communications between lawyer and client, but may also cover communications with a third party if those communications are made for the dominant purpose of a lawyer providing legal services: Pratt Holdings Pty Ltd v Commissioner of Taxation [2004] FCAFC 122; (2004) 136 FCR 357. However, privilege does not extend “to third party advices to the principal simply because they are then ‘routed’ to the legal adviser”: Pratt Holdings at [46] (Finn J). The principle in Pratt Holdings extends to communications from the client to the third party and not only communications emanating from the third party. In this way, the privilege captures communications between the client and third party during the “iterative process” of the third party preparing a commissioned document: New South Wales v Betfair Pty Ltd [2009] FCAFC 160; (2009) 180 FCR 543 at [36]-[40].

63    The party claiming privilege bears the onus of establishing its existence: Grant v Downs at 689 (Stephen, Mason and Murphy JJ). The claimant must provide evidence of facts from which the court can determine whether an assertion as to the purpose of the communication is properly made. Generally, the “best evidence” will be that given by the person whose purpose is in question: Australian Competition and Consumer Commission v NSW Ports Operations Hold Co Pty Ltd [2020] FCA 1232 at [49]. However, while subjective purpose will be relevant and often decisive, dominant purpose is a question of fact that must be determined objectively: Esso at [172] (Callinan J).

64    Ordinarily, the relevant purpose will be that of the author of the document in question: AWB v Cole at [108]; “or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence”: Grant v Downs at 677 (Barwick CJ). Where a “technical report” has been commissioned by a solicitor, the relevant intention may be that of the solicitor: Mitsubishi Electric Pty Ltd v Victorian Workcover Authority (2002) 4 VR 332 at [14] (Batt JA, Charles and Callaway JJA concurring). In other cases, it may be necessary “to examine the evidence concerning the purpose of other persons involved in the hierarchy of decision-making or consultation that led to the creation of the document and its subsequent communication”: AWB v Cole at [110].

65    As a matter of general principle, it is not possible to describe the evidence necessary to support such a claim in all cases, which may depend on the circumstances such as the factual and legal issues dividing the parties and the number of documents said to attract the claim: Martin v Norton Rose Fulbright Australia [2019] FCAFC 234 at [30].

66    In many instances, the character of the documents will illuminate the purpose for which they were brought into existence: Grant v Downs at 689 (Stephen, Mason and Murphy JJ). Where that is not the case, it may be demonstrated by identifying the circumstances in which the communication took place and the topics to which the instructions or advice were directed: Commissioner of Taxation v PricewaterhouseCoopers [2022] FCA 278 at [146] (and the cases there cited).

39    For the following reasons, I am satisfied that the documents in issue were brought into existence for the dominant purpose of use in litigation.

40    Mr Shirakawa is the Corporate Officer and Division General Manager of the EV Powertrain Engineering Development Division 1 within MMC. In this role, he is responsible for research and technological development of MMC vehicles, including the Mitsubishi Triton. As part of his role, Mr Shirakawa also works with MMC’s legal department and MMC’s Total Customer Satisfaction Division, the department responsible for handling customer complaints, including those what escalate to court action.

41    There was no dispute that Mr Shirakawa only set the process in train for the creation of the relevant documents, after he received an email from an ex-colleague referring to litigation in Australia regarding Mitsubishi Triton vehicles. As a consequence of this email, Mr Shirakawa searched the internet for online articles about the Begovic litigation and became aware that MMAL had lost the case at first instance before VCAT. Mr Shirakawa stated that he was conscious of the then recent class action involving Volkswagen. Mr Shirakawa’s evidence, as to his “concern”, as at 9 November 2020, in light of the recent class action and the information provided regarding the Begovic proceeding, was that “the Begovic Proceeding could result in further litigation, including a potential class action”.

42    As a consequence, Mr Shirakawa “anticipated that MMC’s legal department may require [his] assistance”. He was surprised that he had not been already contacted and therefore he “wanted to investigate the issues in the Begovic Proceeding as soon as possible to enable [him] to prepare information to assist MMC’s legal department in defending the existing Begovic litigation and any potential class action in the event (which at that time [he] considered likely) that MMC’s or MMAL’s legal department required [his] assistance”.

43    The reason why Mr Shirakawa wanted to investigate the issues as soon as possible was because, as he explained in the next paragraph of his evidence, the gathering of the testing material and data was a time-consuming process which he could not provide at short notice if asked by MMC’s legal department, and he was “concerned to ensure that [his] department was in a position to assist MMC’s legal department in the event that they sought its assistance”.

44    The applicants submit that Mr Shirakawa’s evidence does not establish that the documents were created “for use in litigation” citing Grant v Downs at 683. According to the applicants, because it was Mr Shirakawa’s evidence that he was not even sure if it would be used in litigation, was not asked for, nor was it intended that it be provided at that time, was not sufficient to establish “use”. It was submitted that by Mr Shirakawa putting himself in a position where he could assist if asked, was not enough to enliven the privilege.

45    The evidence reveals that Mr Shirakawa assumed that he would be required by MMC’s legal department to prepare the materials that were prepared. The documents were brought into existence for (anticipated) use in legal proceedings.

46    Legal professional privilege extends to drafts notes and other material brought into existence by the client for the purpose of communication to the lawyer, whether or not they are themselves actually communicated to the lawyer, subject to meeting the dominant purpose test: AWB Ltd v Cole (No 5) (2006) 155 FCR 30; FCA 1234 at [44], citing Saunders v Commissioner of Australian Federal Police (1998) 160 ALR 469 at 472 per French J. In Saunders, Mr Saunders (an inveterate notetaker) had prepared extensive, “albeit rather disordered and untidy notes” in preparation of instructions for his legal representatives. French J opined that, consistent with the purpose served by the privilege (in this case, legal advice privilege), “notes, drafts, charts, diagrams, spreadsheets and the like prepared by a client as a way of marshalling information to be the subject of confidential communication to the client’s solicitors should also attract its protection”: Saunders at 472–3.

47    Accordingly, contrary to the applicants’ initial submission, the authorities are not so emphatic as to require that the documents have to have been actually used in litigation, it is sufficient that they were prepared for the dominant purpose of assisting with the litigation. As Lockhart J observed in Sterling at 245, the privilege extends to any document made for the purpose (even without request or suggestion) of being put before the solicitor with the object of obtaining his or her advice or enabling him or her to prosecute or defend an action citing Southwark and Vauxhall Water Co v Quick (1878) 3 QBD 315. In that decision, it was held (per Cockburn CJ with whom Mellor and Beett JJ agreed), in respect of certain documents for which it was unclear whether they had been submitted to the lawyer, no distinction ought be drawn between the information obtained upon the suggestion of a solicitor with the view of it being submitted to him or her for the purpose of his or her advising upon it, and that procured spontaneously by the client for the same purpose. Similarly, Justice Beett concluded that where it was found that the object for which the notes were taken, and the transcript made, was that they might be furnished to the solicitor for his or her advice, it stands on the same footing as others which were sent to the solicitor.

48    To this end, Mr Shirakawa similarly had not been asked, but was anticipating such a request, and had produced documents to respond to that eventuality. As observed by French J in Saunders at 478:

Accepting that much of the information provided to Dunn by Saunders may have been strictly unnecessary for the purposes for which advice was being sought, that is not an answer to a claim of legal professional privilege. It is not uncommon in legal practice that clients will provide a mass of irrelevant information in respect of which it is the adviser's task to identify what is relevant and what is necessary for properly advising on the case at hand. In addition, it may be that the adviser asks for more than is strictly necessary in order to obtain a proper historical perspective on the client's commercial activities. Having reviewed the documents in question and having regard to the evidence of Dunn and in light of the time that has passed and the kind of client that Saunders was, I conclude that on the balance of probabilities the spreadsheets in question were prepared for the purpose of obtaining legal advice from Dunn albeit they may have been intermediate stages in the preparation of a composite document which was annexed to an affidavit sworn by Dunn.

The fact that the documents may not have been shown to him but were supplanted for that purpose by a more elaborate or complete version does not defeat the privilege that attaches to them as part of the process of confidential communication· with a legal adviser. On the face of it the purpose of this paperwork was clear enough. It was the compilation of a fairly comprehensive history of transactions to properly instruct legal advisers. Legal professional privilege would attach to these documents.

49    I am of the view that Mr Shirakawa putting himself in a position where he could assist if asked (and, where he considered it was likely he would be asked), falls within the scope of the cloak of privilege, but so long as the placing himself in that position was for the dominant purpose of use in extant or anticipated legal proceedings.

50    By extrapolation, the respondents submitted (and I accept), where there was a process of refinement of the material before it was thought to be in a form that was useful to be provided to the lawyers, that does not detract from documents having privileged status, and it does not change the fact that those investigations were made for a dominant purpose of assisting in that litigation.

51    The applicants submitted that Mr Shirakawa’s evidence as to his concerns in creating the documents, is not evidence of a dominant purpose, citing News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563; HCA 45. It was submitted that there is a distinction to be drawn between motive and purpose. It was submitted that, whereas a significant motivation for Mr Shirakawa was litigation, which is what prompted him to commission some analysis, that was not the purpose to which the analysis was to be directed. The applicants submitted that Mr Shirakawa’s evidence was that he was bothered by his department being in a state of unpreparedness and so took steps to initiate the technical investigation in accordance with the usual practice of investigating after a customer complaint. To the extent Mr Shirakawa said he thought it necessary to conduct the investigation to assist MMC’s legal department in the Begovic proceedings or any class action, if requested, that evidence, according to the applicants, rose no higher than a purpose of putting his department in a position of being able to assist if required.

52    It was submitted by the applicants that Mr Shirakawa’s evidence reveals that he was responding to customer complaints. The investigations were for the purpose of working out whether there was a chronic problem, being a commercial purpose. The applicants effectively asked the Court to infer from email headers for certain of the documents, referring to “Triton Buyback”, that this revealed there was a commercial consideration at play; namely, a buyback of vehicles, such that, Mr Shirakawa’s actions were responsive to a commercial risk, rather than litigation. Putting to one side the inextricable intertwining between commercial and litigation risk, I do not accept the factual premise underlying the applicants’ submission.

53    It is worthwhile extracting the critical parts of Mr Shirakawa’s evidence:

12.     Prior to learning of the Begovic case through my external colleague Mr Kumura, I had not been aware that any issue or query concerning the fuel economy of the Triton vehicle subject of the Begovic litigation had been raised with MMC.

13.     This was a matter of concern to me. When a customer raises an issue or query concerning a mismatch between catalogued fuel economy and actual fuel economy, MMC's usual practice in my experience is to conduct a very detailed and lengthy technical investigation to ensure that there is nothing wrong with the relevant vehicle or vehicles. This investigation typically then provides a basis upon which to inform the customer that any mismatch between catalogue and actual fuel efficiency values was a result of the catalogue values being derived from driving under very specific conditions (such as the New European Driving Cycle, which applied to the vehicles the subject of this proceeding), which are not repeatable in real life.

14.     In my experience, detailed technical investigations of this kind are also necessary given the risk that customer complaints of this kind can give rise to litigation and especially to class action litigation. I am mindful of the risk of class actions brought for Australian consumers in relation to the performance and emissions of diesel engines because of the case brought against Toyota in Australia concerning the functioning of DPF filters on Toyota's vehicles.

15.     I now consider, and as at 20 November 2020 I considered, that technical investigations of the nature that I described above are necessary to conduct in order to prepare to respond to customer complaints and to any litigation that may arise from those complaints.

16.     My fundamental concern upon receiving the email from Mr Kumura (annexed and marked "ST-1") was that, if the complaint made by Mr Begovic were to turn into a class action, my department was not (at the time when I received the email from Mr Kumura) prepared to assist MMC's legal department in understanding and responding to that litigation. We did not have sufficient technical information about the affected cars to prepare any sort of response. The usual practice followed by MMC in such cases (which I have described above) did not appear to have been followed in relation to Mr Begovic's complaint.

17.     When I found this out, this bothered me. I thought it was a problem. I took immediate steps (which I describe further below) to initiate the technical investigations which I considered were necessary to enable my department to provide assistance to MMC legal in the event of a request for assistance in responding to the Begovic litigation or any associated class action.

54    This evidence reveals, contrary to the applicants’ submission, that the investigations were not for the purpose of whether there was a chronic problem (a commercial purpose) and to respond to possible future customer complaints.

55    This is so because Mr Shirakawa’s evidence at [13] and [14] was to describe a usual practice that had not been undertaken. This included a justification for that usual practice being to work out whether there was anything wrong. I do not accept that the evidence rises to the height of trying to fill the gap in process in order to attend to the purpose of working out what was wrong or responding to possible future complaints simpliciter.

56    I accept that, where there are two purposes of equal weight and neither is dominant in the relevant sense, then the document is not privileged from production. Similarly, if there are several purposes roughly of similar weight, it cannot be said that one prevails over the other: AWB v Cole at 411 [106]:

106    Kenny J also said [in Commission of Taxation (Cth) v Pratt Holdings Pty Ltd (2005) 60 ATR 466 at [30]] that where two purposes are of equal weight, neither is dominant in the relevant sense; hence a document is not privileged from production where one purpose for its creation is to obtain legal advice, but there is another equally important purpose. I agree. The same conclusion follows if several purposes are of roughly similar weight, and it cannot be said that one prevails over the other. In Waugh v British Railways Board [1980] AC 521 at 543, Lord Edmund-Davies adopted the dominant purpose test propounded by Barwick CJ in Grant v Downs, and stated that the element of clear paramountcy should be the touchstone. It is not unusual for privilege claims to fail because the evidence does not establish the requisite dominant purpose.

(Citations omitted.)

57    The dominant purpose is to be determined objectively, having regard to the evidence, the nature of the document and the parties’ submissions: AWB Ltd v Cole at [110]. In the usual case, the question will be whether the requisite dominant purpose existed at the time the document was brought into existence.

58    However, it is my view that, Mr Shirakawa’s purpose in orchestrating the creation of the documents was to ensure that he and his department were ready to assist MMC’s legal team in the extant and anticipated litigation. It is clear from his evidence at [14]–[16] that Mr Shirakawa perceived complaints as the precursor to litigation. This is evident from what he says at [14], that the detailed technical investigations are also necessary given the risk of customer complaints giving rise to litigation especially class action litigation. Thus, where he refers at [15] to being prepared to respond to customer complaints and to any litigation, I am of the view, that this evinces one purpose, being prepared to respond to litigation.

59    I do not accept the applicants’ submission that while Mr Shirakawa reveals a purpose related to a potential class action, account ought not be taken of that evidence because he does not directly say in his affidavit that it was the ruling or most important or predominant purpose for commissioning the analysis. For the reasons already given, Mr Shirakawa explains why he commissioned the analysis, for the purpose of anticipated requests from lawyers in response to the extant or anticipated proceedings. His actions thereafter affirm that purpose. I do not accept that the evidence establishes any purpose beyond that. Further, I do not accept that there was a need for him to say that that reason was the ruling or most important one. On the contrary, its inclusion is likely to have not assisted me given evidence adopting verbal formula or conclusory assertions of privilege has all too often been found by courts to be insufficient: at ASIC v Australian Lending Centre at [29] per Perram J. It is clear from what he says, and more particularly from his conduct (set out below), that I am persuaded by his evidence.

60    Even if I were wrong about this and it evinces dual purposes (to respond to customer complaints and to any litigation), it is my view that the purpose of use in litigation was the dominant one.

61    This is so because Mr Shirakawa had started the preparations in response to his knowledge of the current and possible future litigation. It was his evidence at [17], that he undertook the proactive steps which he considered were necessary to enable his department to provide assistance to MMC’s legal department in the event, which he considered likely, that there would be a request for assistance either in the extant or a possible class action. His immediate articulation (the day after receipt of Mr Kumura’s email) as to the need for Mr Matsuo and Mr Ando to gather and prepare testing information to assist MMC’s legal department, involved providing them with a copy of the Begovic VCAT decision, asking them to summarise it, consider technical insights or “likelihood of escalation” (Exhibit R1). I do not accept this evidence reveals a “commercial object” divorced from responding to the extant and anticipated litigation. It was Mr Shirakawa’s evidence that by “likelihood of escalation”, he meant “the likelihood that MMC would encounter the same technical issue in other vehicles. That is, [he] intended for them to consider whether any problem was specific to Mr Begovic’s vehicle or was likely to be a chronic problem which would affect other vehicles”: Shirakawa [22]. This intention was affirmed by the email from Mr Matsuo, who forwarded this email, to Mr Yoichiro and Mr Ando, stating that he asked Mr Ando to “provide his technical opinion in relation to the Begovic Decision and the likelihood that MMC would encounter the same technical issue in other vehicles”: Shirakawa [26]. I am satisfied that this evidence should be accepted from my review of what is contained in the subsequent exchanges in the privileged documents.

62    Mr Shirakawa’s subsequent actions were consistent with the claimed purpose: Mr Shirakawa communicated with MMC’s TCS on the same day as receipt of Mr Kumara’s email, seeking information about the potential class action risk: Shirakawa [25]. On 13 November 2020, the General Manager of TCS, Mr Takeuchi, provided Mr Shirakawa with the views of MMAL’s legal representatives in relation to the Begovic Decision: Shirakawa [25]. Mr Shirakawa provided those views to Mr Matsuo and Mr Ando on 18 November 2020, whilst they were undertaking the task of gathering and preparing testing information: Shirakawa [27].

63    Furthermore, Mr Shirakawa alerted the General Manager of MMC’s legal department, Mr Takazawa, to the fact that he had started to compile data related to the allegations and findings in the Begovic decision in case this data was required for the purpose of potential future legal proceedings: Shirakawa [28].

64    In response to Mr Shirakawa’s request, Mr Ando created a PowerPoint presentation entitled “Australian fuel economy issue_organisation of numerical information” on 23 November 2020 and provided it to Mr Shirakawa on the same day: Shirakawa [29] and [30]. Amendments were made to that PowerPoint thereafter: Shirakawa [31]–[36]. On 25 November 2020, Mr Ando sent Mr Shirakawa another version of the PowerPoint: Shirakawa [37]. On 30 November 2020, Mr Shirakawa sent Mr Ando his comments in relation to the PowerPoint.

65    I do not accept that by use of the subject title “Triton Buyback” in certain of the documents, is anything more than a description of one of the consequences of the Begovic decision: VCAT ordered that MMAL buy back the vehicle.

66    Mr Shirakawa gave two reasons for why he did not give the information to MMC legal or any other person in MCC in November and December 2020: First, because the technical information prepared required considerable further work to clarify and simplify before it could be made accessible to employees outside his technical department (including the MMC legal department); and, secondly, because MMC legal had not asked for this initial analysis or any other assistance prior to November 2021: Shirakawa [41].

67    As adverted to above, I have inspected the documents. In my opinion, the character and content of the documents assist the respondents in establishing their claim for legal professional privilege. That character and content supports the conclusion that they were brought into existence, and were to be used, for the dominant purpose of use in the extant or anticipated legal proceedings.

Privilege attaches to the copies of the embedded non-privileged documents

68    It was agreed between the parties that the “embedded” documents 7, 8, 11, 12, 15, 16, 20, 21, 28 and 29 in Category 3, were created much earlier on 7 August 2019 and 18 April 2020. The evidence does not establish which of these dates applies with respect to each document. The parties submitted that it did not matter because the same submission applied regardless of which date applied.

69    The respondents justify the claim for privilege on the basis that they are copies of non-privileged documents which are embedded (or, attached to) a privileged PowerPoint and where those copies were created for the same privileged purpose relied upon with respect to the other documents in issue, again relying on the evidence of Mr Shirakawa.

70    The applicants make two submissions as to why the copy documents are not privileged. First, they submit that the mere fact that a copy of a non-privileged document is attached to a privileged document does not make the copy privileged. It is only when the copy was communicated or intended to be communicated to a lawyer that it becomes privileged. The applicants submit that, when looking to Mr Shirakawa’s evidence at [40] and [41], it was not Mr Shirakawa’s intention when he created the PowerPoint presentation (that embedded the copy documents) that he would give it to the lawyers, and therefore privilege should not lie. For this, the applicants relied upon Commissioner of Australian Federal Police v Propend Finance Pty Limited (1997) 188 CLR 501; HCA 3.

71    It may be accepted that the mere attaching of a non-privileged document to a communication with a lawyer or as part of the collection of material anticipated for use in litigation, will be insufficient to give rise to a claim of privilege, unless it is established that the creation of the copy was brought into existence for the dominant purpose of obtaining or giving legal advice or for use in litigation that is reasonably apprehended or anticipated. As propounded by Brennan CJ in Propend, the test is anchored to the purpose for which the document was brought into existence; the use to which the document is put after it is brought into existence is immaterial: at 508. Justice McHugh observed that, on one view, it appears contrary to commonsense that the law should give privilege to a copy of a document when it does not give it to the original: at 552–3. However, in this area of law, as in other areas of law and life, commonsense is a misleading guide. His Honour emphasised that legal professional privilege turns on purpose and no argument is needed to show that the purpose of the creation of a copy may be very different from the purpose of the person who created the original: Propend at 553. This must be so, as Gummow J opined, at 571:

It is not a question of extracting one or other of what may be numerous documents, all of which form part of the privileged communication, and declassifying those particular documents on the footing that the original or other copies exist … The communication as a whole is protected to foster the confidential relationship in which legal advice is given and received and thereby to advance the respect for and observance of the law.

72    Mr Shirakawa’s evidence revealed that, as part of the various amended versions of the PowerPoint documents provided by Mr Ando to Mr Shirakawa in November 2020, two other documents were embedded into those documents. A summary of rolling resistance values for the 2019 Triton model and an internal 2019 MMC instruction manual for setting the value of the chassis dynameter load setting for the purpose of a fuel economy test. I am satisfied, from my review of Mr Shirakawa’s evidence and the privileged documents, that no distinction can be made between the respondents’ claim in relation to the embedded documents in the PowerPoint and the rest of the claim. I can discern no different purpose associated with the creation of the copy documents than that with respect to the rest of the documents which I am satisfied are privileged. Each of the documents in issue is a version of (or a communication concerning, or a document embedded within) a PowerPoint presentation created by the MMC engineering department at the request, and under the direction, of Mr Shirakawa after he learned of the Begovic proceedings. Mr Shirakawa’s purpose in requesting and directing that this work be done was to enable his team to assist the defence of the extant and anticipated proceedings.

73    Secondly, the applicants made a misconceived submission, purportedly relying on the reasoning of Brennan CJ in Propend, that there is a qualification to the privilege, as having general application, that where a party has not been given access to the non-privileged original document, or it is no longer in existence, or its location not disclosed, the privileged copy loses the privilege. Propend is not authority for this proposition at all. The High Court was considering the circumstances in which, during the execution of a search warrant issued pursuant to the relevant criminal legislation, the police seized documents from a solicitor’s office. The solicitor claimed privilege with respect to copies of documents for which the originals were not privileged. Chief Justice Brennan alone referred to the existence of the qualification but very clearly in the context of the relevant criminal legislation. There is no way this authority could be cited as one of general application. Further, the issue of discovery was not for me to decide and the question of whether the original non-privileged documents will be discovered as part of that process remains for resolution.

Conclusion

74    For the above reasons, the application is dismissed and, as in the usual course, the applicants be ordered to pay the respondents’ costs of the application.

Associate:

Dated:    14 March 2025