Macquarie Bank Limited v Arup Pty Limited

Macquarie Bank Limited sought leave to appeal a decision of the primary judge in the Supreme Court of Queensland, which involved a complex dispute regarding legal professional privilege and the disclosure of privileged documents. The dispute arose out of a larger proceeding where BrisConnections Finance Pty Limited alleged that Arup Pty Limited engaged in misleading or deceptive conduct or was negligent in preparing traffic forecasts for the Airport Link toll road. Arup, in turn, cross-claimed against the Sponsor Group, alleging that they engaged in misleading or deceptive conduct that affected Arup’s liability under the Engagement Agreement. The core issue in the appeal was whether Arup had impliedly waived its legal professional privilege over certain documents by pleading reliance on the Sponsor Group’s alleged conduct.

The court needed to determine if the primary judge erred in not finding a waiver of privilege. Macquarie argued that the primary judge failed to apply the correct legal principles and authorities concerning circumstances where a party puts its understanding of the legal effect of a contract or document in issue, and incorrectly applied considerations of fairness in determining whether an implied waiver of privilege had arisen. The court examined the primary judge’s reasoning and found no such errors. The court held that the pleading of reliance by Arup did not constitute an implied waiver of privilege. The court emphasised that merely pleading reliance on certain conduct does not come perilously close to, or amount to, a waiver of privilege. As the primary judge correctly found, such a pleading alone was not sufficient to constitute a waiver.

The court dismissed the application for leave to appeal, concluding that the primary judge was correct in finding that Arup had not impliedly waived privilege. The applicant was ordered to pay the respondent’s costs of the application. This decision reinforced the principle that legal professional privilege is not waived merely by pleading reliance on certain conduct, and that such privilege remains intact unless explicitly waived.