Ingot Capital v Macquarie Equity

In the matter of Ingot Capital v Macquarie Equity, the Federal Court of Australia was called upon to consider the extent of client legal privilege in the context of witness evidence. Ingot Capital, the plaintiff, sought to call a witness to provide evidence in their case against Macquarie Equity, the defendant, regarding the alleged failure to provide proper advice on investments. The dispute centred around the production of documents relating to the witness's availability and willingness to give evidence, and whether these documents were subject to privilege and therefore not required to be disclosed.

The court needed to determine whether the documents were protected by client legal privilege and if this privilege was waived by Ingot Capital when they served a statement of the evidence the witness would provide. Additionally, the court examined whether it was unfair or inconsistent for Ingot Capital to withhold the documents, and whether the privilege could be considered waived by their actions. The court had to interpret sections 118, 119, and 122 of the Evidence Act 1995 in determining the scope of privilege and the circumstances under which it may be lost.

The Federal Court found that the documents in question were indeed subject to client legal privilege, as they related to the preparation for potential litigation. However, the court also held that by serving a statement of the witness's proposed evidence, Ingot Capital had effectively waived the privilege. This was due to the nature of the statement, which detailed the evidence the witness would give, thereby rendering the privilege inapplicable to those specific documents. The court concluded that it was not unfair or inconsistent for the documents to be inspected, as the privilege had been waived. Consequently, the court ordered the production of the documents for inspection by Macquarie Equity.