Ingot v Macquarie

Ingot brought an application to the Supreme Court of New South Wales against Macquarie, seeking a declaration that legal professional privilege had not been waived in relation to certain documents. The documents in question were part of a larger dispute concerning the management and control of an investment scheme. The court was tasked with determining whether Macquarie had effectively waived the privilege over the documents by referencing advice from counsel in an affidavit.

The central legal issue was whether the act of referring to advice from counsel in an affidavit amounted to a waiver of privilege under section 122(1) of the Evidence Act 1995 (NSW). The court considered whether the state of mind expressed in the affidavit was so integral to the dispute that the reference to the advice from counsel, which contributed to forming that state of mind, constituted a waiver of privilege. The court applied the common law test for waiver of privilege to the statutory concept of consent in the Evidence Act.

The court concluded that the reference to advice from counsel in the affidavit did not constitute a waiver of privilege. The state of mind expressed in the affidavit was not so central to the issue in dispute that the reference to the advice amounted to a consent to waive privilege. The court found that the reference to advice from counsel was incidental and did not disclose the substance of the privileged communication or the advice given. The application was dismissed, and the court held that legal professional privilege had not been waived.

The court did not make any further orders beyond dismissing the application and finding that privilege had not been waived.