Grocon Group Holdings Pty Limited v Infrastructure NSW (No 2) [2023] NSWSC 1144

Grocon Group Holdings Pty Limited v Infrastructure NSW (No 2) [2023] NSWSC 1144

Grocon, by pleading and giving evidence of its reliance on the meaning and effect of the Sight Lines Clauses and particular subjective understandings (especially via Mr Grollo's and Mr Easy's affidavits), has put in issue its knowledge and the sources of its understanding in a way that amounts to an implied waiver of legal professional privilege over legal advice received on those matters, given the inconsistency between advancing those positions and maintaining confidentiality of related advice; the waiver only extends to communications recording views on specific matters in evidence, not to all privileged material about the relevant contracts.

Jurisdiction
Australia
Judgment Date
22 September 2023
Procedural Posture
Commercial List Proceedings / Interlocutory Decision on Privilege/waiver (notice of Motion)
Outcome
Orders to be formulated; parties directed to bring in agreed or competing drafts. Waiver of privilege found as set out in reasons.
Legal Topics
['legal Professional Privilege' 'waiver of Privilege' 'implied Waiver' 'misleading and Deceptive Conduct']
['evidence' 'civil Procedure'] ['legal Professional Privilege' 'waiver of Privilege' 'implied Waiver' 'misleading and Deceptive Conduct']

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Procedural Posture

Commercial List Proceedings / Interlocutory Decision on Privilege/waiver (notice of Motion)

Legal Issues

  1. 1 ['Whether Grocon has impliedly waived legal professional privilege over certain communications/documents by way of pleadings and affidavit evidence' 'Whether specific assertions of reliance and factual understandings in evidence amount to inconsistency justifying waiver of privilege']

Ratio Decidendi

Grocon, by pleading and giving evidence of its reliance on the meaning and effect of the Sight Lines Clauses and particular subjective understandings (especially via Mr Grollo's and Mr Easy's affidavits), has put in issue its knowledge and the sources of its understanding in a way that amounts to an implied waiver of legal professional privilege over legal advice received on those matters, given the inconsistency between advancing those positions and maintaining confidentiality of related advice; the waiver only extends to communications recording views on specific matters in evidence, not to all privileged material about the relevant contracts.

Court Disposition

Orders to be formulated; parties directed to bring in agreed or competing drafts. Waiver of privilege found as set out in reasons.

Orders

  • ['Parties to bring in short minutes of order to give effect to the reasons for judgment.' 'If no agreement on orders, parties to provide draft orders and short submissions within 14 days or as agreed.']