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

Supreme Court New South Wales

Medium Neutral Citation: 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 Hearing dates: 31 March 2022 Date of orders: 31 March 2022 Decision date: 01 April 2022 Jurisdiction: Equity - Commercial List Before: Rees J Decision: Privilege waived, plaintiffs granted access to material produced on subpoena. Catchwords: CIVIL PROCEDURE – subpoena to defendants' former solicitor – privilege claimed – waiver – counsel in expert determination formally instructed by plaintiffs but briefed by defendants – common law test in Mann v Carnell applied – privilege waived. Legislation Cited: Evidence Act 1995 (NSW) s 122(2) Cases Cited: Cantor v Audi Australia Pty Ltd [2016] FCA 1391 Commissioner of Taxation v Rio Tinto Limited (2006) 151 FCR 341; [2006] FCAFC 86 DSE (Holdings) Pty Ltd v InterTAN Inc (2003) 135 FCR 151; [2003] FCA 1191 Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303; [2013] HCA 46 Hastie Group Limited (in liq) v Moore (t/as Deloitte Touche Tohmatsu) [2016] NSWCA 305; (2016) 339 ALR 635 In the matter of Northern Energy Corporation Ltd [2020] NSWSC 1073 Mann v Carnell (1991) 201 CLR 1; [1999] HCA 66 Category: Procedural rulings Parties: WCX M4-M5 Link AT Pty Ltd in its personal capacity and in its capacity as trustee of the WCX M4-M5 Link Trust (First Plaintiff) WCX State Works Contractor Pty Ltd (Second Plaintiff) Acciona Infrastructure Projects Australia Pty Ltd (First Defendant) Samsung C&T Corporation a duly organised company under the laws of the Republic of Korea (Second Defendant) Bouygues Construction Australia Pty Ltd (Third Defendant) Resolution Institute (Fourth Defendant) Representation: Counsel: Mr DT Miller SC/Mr S Puttick (Plaintiffs) Mr JC Giles SC/Mr DA Hughes/Dr SH Hartford Davis (First to Third Defendants) Mr ND Hopkins QC (Mr Wood, Subpoenaed Witness)