Trackcorp Adrenalin Pty Ltd v Bathurst Regional Council [2013] NSWSC 1699

Supreme Court New South Wales

Medium Neutral Citation: Trackcorp Adrenalin Pty Ltd v Bathurst Regional Council [2013] NSWSC 1699 Hearing dates: 18 November 2013 Decision date: 19 November 2013 Jurisdiction: Equity Division Before: Darke J Decision: Order that the defendant is not required to produce documents in answer to paragraph 1 of the Notice to Produce dated 21 October 2013 insofar as the paragraph calls for the production of documents to which client legal privilege attaches. Catchwords: EVIDENCE - client legal privilege - waiver - whether party acted inconsistently with objecting to evidence of instructions given to lawyers - Evidence Act 1995, s 122(2) Legislation Cited: Evidence Act 1995 Uniform Civil Procedure Rules 2005 Cases Cited: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 Category: Procedural and other rulings Parties: Trackcorp Adrenalin Pty Ltd (Plaintiff) Bathurst Regional Council (Defendant) Representation: Counsel: G A Sirtes SC with S Lawrance (Plaintiff) B W Rayment QC with J Thomson (Defendant) Solicitors: Whittens & McKeough (Plaintiff) McIntosh McPhillamy & Co (Defendant) File Number(s): SC: 2010/76709 Publication restriction: Nil

Judgment 1By Notice to Produce dated 21 October 2013 and filed the following day, the plaintiff seeks various documents from the defendants. The defendant filed a Notice of Motion on 29 October 2013 seeking to have the Notice to Produce set aside pursuant to Uniform Civil Procedure Rules 2005 r 33.4. 2The Notice to Produce was called upon yesterday afternoon by the plaintiff. Following some discussion it was accepted by the defendant that the documents which fell within paragraphs 2 to 4 of the notice should be produced, and it was agreed that every effort would be made for that to occur during the course of today. 3There remained a controversy concerning paragraph 1 which seeks documents falling within the following description: All documents evidencing, recording or constituting instructions: (a) given by you [the defendant] to your solicitors, McIntosh McPhillamy & Co; and/or (b) given by you, or by McIntosh McPhillamy & Co, to Mr James Thomson of counsel, which led to Mr Thomson submitting to the Court in written submissions dated 6 November 2012 and in oral submissions on 12 November 2012 that there was no track hire fee.... . 4The submissions referred to were made in the context of a Notice of Motion filed by the defendant and the third party recipient of a subpoena, namely, Yeehah Pty Ltd ("Yeehah"), to set aside the subpoena and Notice to Produce. Both the subpoena and the Notice to Produce sought documents including certain agreements under which Yeehah conducted motor racing events at the Mount Panorama Racing Circuit, and documents which evidence amounts paid by Yeehah for the use of the circuit. 5In his written submissions dated 6 November 2012 Mr Thomson stated that: (1)the defendant's solicitors had explained in a letter dated 2 October 2012 that the Yeehah event did not involve track hire; (2)redacted copies of two agreements Yeehah had for the conduct of events at the circuit showed that the events did not involve Yeehah hiring the track from the defendant; and (3)rather, in each case the event was conducted as a joint venture undertaken through a management committee and there was no "track hire" as that term is defined in the Amended Statement of Claim or otherwise. 6Ultimately, the Notice of Motion to set aside the subpoena and Notice to Produce was not pressed, but an issue as to costs remained to be dealt with when the Notice of Motion came before Registrar Musgrave on 12 November 2012. In his submissions to the Registrar on that day, Mr Thomson stated in effect that his instructing solicitors had in correspondence with the plaintiff's solicitors pointed out that there was no hiring of the circuit for a fee in relation to the Yeehah events, that the redacted agreements showed that there was no track hire associated with them, and that an earlier letter from his instructing solicitors (of August 2011) which suggested that there was track hire for one event was clearly the result of "confused communications or errors" 7The issue of whether, and if so to what extent, track hire fees have been paid by Yeehah remains a live issue in the proceedings (see, for example, the report prepared by Mr Campbell Jackson of Deloitte dated 21 August 2013 at paragraph 5.38; see also the affidavit sworn by Mr Robert Roach on 22 August 2013 and the invoices annexed to it). There is certainly material which suggests that there may well have been track hire fees paid by Yeehah, but the plaintiff wishes to test this material. 8There was further correspondence between the respective solicitors in September and October of this year in relation to the submissions made by Mr Thomson. 9In a letter dated 1 October 2013 (written in response to a letter which was not put in evidence on the application) the solicitors for the defendant stated (in paragraph 3) that the submissions were "self evidently and expressly made on the basis of the agreement between Yeehah and the Council" which covered the relevant events, and further stated (in paragraph 4) that after the Notice of Motion in opposition to the Notice to Produce was "withdrawn" more specific instructions were sought and documents located which showed that invoices for track hire had in fact been issued. 10On 11 October 2013 the solicitors for the plaintiff responded, stating that the plaintiff intended to contend that the invoices to Yeehah attached to Mr Roach's affidavit, expressed to relate to track hire fees are "mischaracterised purposefully for creating obfusfication in these proceedings" and that: The instructions upon which Mr Thomson and your firm relied when trenchantly putting to the Court that there was no tack hire fee paid by Yeehah will be directly relevant to a matter which Mr Roach deals with in his affidavit. 11A draft Notice to Produce, substantially in the form now being called upon, was foreshadowed unless the defendant in the meantime made an admission that Yeehah paid no track hire fee. 12The plaintiff submits that the documents sought by paragraph 1 of the Notice are, or may be, relevant to the track hire fee issue, particularly as the plaintiff wishes to test the authenticity of the invoices. So much may be accepted. 13The plaintiff further submits that insofar as paragraph 1 would capture privileged documents, any such privilege has been lost by reason of the operation of s 122(2) of the Evidence Act 1995. In particular, it was put that the defendant's solicitors letter of 1 October 2013 (notably paragraph 3 thereof) contained an explanation as to how Mr Thomson's submissions came to be made and what lay behind them, and that Mr Thomson himself submitted to the Registrar that the earlier position put forward by the defendant was the product of confusion and error, such that the defendant has acted in a way that is inconsistent with the maintenance of confidentiality in the instructions which led to those submissions. 14However, I do not think that, by such conduct, the defendant has acted in a way that is inconsistent with it objecting to the production of documents evidencing instructions which led to Mr Thomson's submissions because it would result in disclosure of privileged communications or documents. 15Neither the letter of 1 October 2013 nor the submissions themselves refer to any such instructions or sought to explain or justify the submissions on the basis of particular instructions. As stated in the 1 October 2013 letter, the submissions were (aside from the reference to the solicitors' letter of 2 October 2012, which was not put in evidence on this application) evidently grounded upon the terms of the redacted agreements between the defendant and Yeehah, and did not seek to further advance the position put by reference (whether express or implied) to other sources of information. 16I do not regard Mr Thomson's statement that the earlier letter was the product of confusion or error, as one based upon anything more than the bare fact that (as it then appeared to him) the letter was inconsistent with the true position as shown by the agreements. 17The plaintiff submits that the 1 October 2013 letter advances a reason as to how the submissions (which are now said to have been erroneous) were made, and hence the defendant is acting inconsistently with maintaining that the instructions underlying the submissions remain confidential. It seems to me that, insofar as the 1 October 2013 letter refers to the basis upon which the submissions were made, it is restricted to the outward and express basis for the submissions, not to any underlying and unexpressed basis. Even if there was such a basis, I do not think that the defendant has acted inconsistently with the maintenance of any confidentiality in any instructions which formed part of such basis. 18The defendant has not, in my view, been approbating and reprobating in relation to any such underlying material, and I do not think that, in the circumstances, seeking to maintain confidentiality in relation to any such material gives rise to any unfairness (see Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46 at [31]-[32]). 19Accordingly, there has been no loss of client privilege as asserted by the plaintiff. 20I order that the defendant is not required to produce documents in answer to paragraph 1 of the Notice to Produce dated 21 October 2013 insofar as the paragraph calls for the production of documents to which client legal privilege attaches.