Trackcorp Adrenalin Pty Ltd v Bathurst Regional Council (No 2)

The court heard a case between Trackcorp Adrenalin Pty Ltd and Bathurst Regional Council. The dispute centred on the admissibility of evidence pertaining to legal advice given to Trackcorp Adrenalin. The matter was before the Federal Court of Australia. The pivotal issue was whether the client legal privilege attached to the advice had been waived by the voluntary disclosure of the substance of the advice. This disclosure occurred in the context of a separate proceeding, where Trackcorp Adrenalin had objected to evidence of instructions and other documents related to the legal advice.

The court was required to determine if the voluntary disclosure constituted an act inconsistent with the objecting party maintaining that the advice was privileged. This required an analysis of the nature and extent of the disclosure, and whether it was voluntary and made in circumstances that indicated the party did not intend to rely on the privilege. The court also had to consider the provisions of the Evidence Act 1995, specifically section 122(2), which deals with the circumstances in which privilege may be lost.

In its reasoning, the court found that the voluntary disclosure of the substance of the legal advice was inconsistent with maintaining the privilege. The disclosure was made in the context of another proceeding, where the party had an opportunity to assert the privilege but chose not to do so. The court concluded that this amounted to a waiver of the privilege. Consequently, the evidence in question was deemed admissible. The court held that the party's actions were inconsistent with maintaining that the advice was privileged, leading to the loss of privilege as per the statutory provisions.