WCX M4-M5 Link AT Pty Ltd in its personal capacity and its capacity as trustee of the WCX M4-M5 Link Asset Trust v Acciona Infrastructure Projects Australia Pty Ltd [2022] NSWSC 375

WCX M4-M5 Link AT Pty Ltd in its personal capacity and its capacity as trustee of the WCX M4-M5 Link Asset Trust v Acciona Infrastructure Projects Australia Pty Ltd [2022] NSWSC 375

Privilege was waived because the Contractor advanced a positive case that counsel's instructions and authority to make the concession came from the plaintiffs' solicitors alone, while counsel were retained by and in large part instructed by the Contractor. That position was inconsistent with maintaining privilege over any instructions the Contractor gave to counsel that formed the basis, or part of the basis, for the concession.

Jurisdiction
Australia
Judgment Date
01 April 2022
Procedural Posture
Equity Commercial List Procedural Ruling Concerning Client Legal Privilege Claimed Over Material Produced on Subpoena / Determination of Privilege Claims Arising Before the Plaintiffs' Interlocutory Injunction Application and the Contractor's Stay Motion
Outcome
Privilege waived; plaintiffs granted access to material produced on subpoena.
Legal Topics
['subpoena' 'client Legal Privilege' 'waiver of Privilege' 'expert Determination' 'commercial Arbitration Stay Application' 'interlocutory Injunction']
['civil Procedure' 'evidence' 'equity'] ['subpoena' 'client Legal Privilege' 'waiver of Privilege' 'expert Determination' 'commercial Arbitration Stay Application' 'interlocutory Injunction']

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Procedural Posture

Equity Commercial List Procedural Ruling Concerning Client Legal Privilege Claimed Over Material Produced on Subpoena / Determination of Privilege Claims Arising Before the Plaintiffs' Interlocutory Injunction Application and the Contractor's Stay Motion

Legal Issues

  1. 1 ['Whether the Contractor waived client legal privilege in respect of communications between the Contractor and its former solicitors, MinterEllison, produced on subpoena to Mr Wood.' "Whether the Contractor's pleaded and submitted position that counsel acted on instructions from the plaintiffs alone was inconsistent with maintaining privilege over instructions the Contractor gave to counsel concerning the concession in the expert determination."]

Ratio Decidendi

Privilege was waived because the Contractor advanced a positive case that counsel's instructions and authority to make the concession came from the plaintiffs' solicitors alone, while counsel were retained by and in large part instructed by the Contractor. That position was inconsistent with maintaining privilege over any instructions the Contractor gave to counsel that formed the basis, or part of the basis, for the concession.

Court Disposition

Privilege waived; plaintiffs granted access to material produced on subpoena.

Orders

  • ['Privilege waived in respect of the relevant communications.' 'Plaintiffs granted access to material produced on subpoena.']