BrisConnections Finance Pty Limited (Receivers and Managers appointed) v Arup Pty Limited

The case before the court involved BrisConnections Finance Pty Limited (Receivers and Managers appointed) and Arup Pty Limited. The dispute centred around a claim for legal professional privilege and whether it had been waived by Arup. The matter was heard in the Federal Court of Australia. Macquarie Bank sought to argue that Arup had waived the privilege by virtue of its pleadings in the cross-claim.

The legal issues that the court needed to decide included whether the pleadings in the cross-claim constituted a waiver of privilege and if there was conduct by Arup that was inconsistent with maintaining the confidentiality of the privileged communications. The court needed to determine if a mere pleading of reliance on privileged information was enough to constitute a waiver of privilege and whether the conduct of Arup was inconsistent with maintaining the confidentiality of the privileged communication.

The court rejected the claim by Macquarie Bank that Arup had waived legal professional privilege by reason of its pleadings in the cross-claim. The court found that there was no reason why a costs order should not be made in respect of the discrete issues raised by the interlocutory application and that costs should follow the event. The court also noted that although liberty was reserved to any of the parties to vary the order to be made, it was considered that the costs to be paid by Macquarie Bank should be confined to the costs incurred by Arup.

The orders of the court were that the interlocutory application filed by the First Cross-Respondent on 21 March 2016 was dismissed, and the First Cross-Respondent was to pay the costs of the Cross-Claimant. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.