Supreme Court New South Wales Medium Neutral Citation: Trackcorp Adrenalin Pty Ltd v Bathurst Regional Council (No 2) [2013] NSWSC 1701 Hearing dates: 18 November 2013 Decision date: 19 November 2013 Jurisdiction: Equity Division Before: Darke J Decision: Leave granted to plaintiff to issue subpoena Catchwords: EVIDENCE - client legal privilege - waiver - loss of privilege in legal advice due to voluntary disclosure of substance of advice - whether party acted inconsistently with objecting to evidence of instructions and other documents relating to advice - Evidence Act 1995, s 122(2) Legislation Cited: Evidence Act 1995 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 1The defendant has served and intends to rely on an affidavit sworn by Mr Robert Roach on 30 April 2013. The exhibit to that affidavit contains references to two reports, given by Mr Roach to the defendant, dated 28 January 2010 and 17 February 2010. The reports include material in relation to an event conducted by Festival of Sporting Cars (FOSC) at the Mount Panorama circuit, and reference is made to certain legal advice obtained about the event by the defendant. 2The 28 January 2010 report contains the following: 10. Council was concerned that this proposed event of Festival of Sporting Cars could be in breach of the agreement and could put Council in conflict [with] its other Mount Panorama contractual users e.g. Trackcorp and V8 Supercars. 11. Council's legal advisors have indicated that this event may give rise to V8 Supercars and Trackcorp having cause to take legal action against Council. 3The 17 February 2010 report contains the following: Council's Solicitors have advised that the new format does not comply to the agreement between Bathurst Regional Council and FOSC. 4On 1 November 2013 Registrar Musgrave found that the above disclosures constituted a waiver of privilege in relation to the legal advice referred to, and ordered the defendant to produce documents in answer to paragraph 1 and 2 of a Notice to Produce filed by the plaintiff on 26 September 2013. 5The defendant thereupon produced two documents last Thursday, these being: (1)a letter of advice dated 21 January 2010 from McIntosh, McPhillamy & Co to the General Manager of the defendant; and (2)an email dated 8 February 2010 from Mr Paul Crennan (of McIntosh, McPhillamy & Co) to Mr Robert Roach in which certain information is sought. 6Those two documents became exhibit A on the plaintiff's application for short service of a subpoena addressed to McIntosh, McPhillamy & Co which seeks: a) in relation to the letter of advice - documents recording or referring to an instruction from the defendant supporting the statement in the advice that "The Trackcorp contract is specifically designed for club competitors both as to driver development and racing", and any document recording a response from the defendant to the advice; and b) in relation to the email - any document recording a response from the defendant to the email including any documents provided in response to the email. 7I do not think that there is any doubt that the proposed subpoena seeks documents which are or may be relevant to the issues raised in these proceedings, and I do not understand the defendant to contend otherwise. The defendant's complaint is that the proposed subpoena seeks documents to which client legal privilege attaches. It is submitted that the waiver brought about through the disclosure of Mr Roach's reports went no further than the legal advice to which reference was made in those reports. 8The plaintiff submitted that the waiver did go further. No reliance was placed upon s 126 of the Evidence Act 1995, but it was put that the disclosure of the report of 28 January 2010 meant that the defendant was acting inconsistently with maintaining privilege in relation to the documents sought in paragraphs 1 and 2 of the proposed subpoena within the meaning of s 122(2) of the Evidence Act. In relation to the documents sought in paragraph 3 of the proposed subpoena, the plaintiff submitted that such documents are not necessarily privileged in any event. 9I do not agree that disclosure of the report of 28 January 2010 means that the defendant is acting inconsistently with maintaining privilege in relation to documents which might fall within paragraphs 1 and 2 of the proposed subpoena. I do not think that the waiver goes beyond the letter of advice itself, the substance of which was, as held by the Registrar, voluntarily disclosed by the defendant. The defendant has not, by that disclosure, referred to or sought to rely in any way upon whatever instructions may have been given to its solicitors in connection with the solicitors' opinion concerning the Trackcorp contract, or upon any later communications on the subject of the letter of advice. There is no relevant inconsistency, and to the extent that it is relevant, there is no unfairness inherent in the defendant's position. 10I do not think that the defendant should be required to produce documents in answer to a subpoena containing the proposed paragraphs 1 and 2. Those paragraphs plainly call for documents to which, prima facie, client legal privilege attaches. I am not convinced that an answer to such call would serve any forensic purpose of sufficient substance to warrant the issue of a subpoena in those terms at this stage of the hearing. 11Proposed paragraph 3 is in a different category. It calls for documents which would not be expected to be privileged and, as noted earlier, the documents called for have apparent relevance. 12In these circumstances I grant leave to the plaintiff to issue a subpoena which contains proposed paragraph 3. I direct that the subpoena may be made returnable at 10.00am tomorrow, 20 November 2013. I further direct that the subpoena be served by 1.00pm today. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 November 2013