Trackcorp Adrenalin Pty Ltd v Bathurst Regional Council

In the case of Trackcorp Adrenalin Pty Ltd v Bathurst Regional Council, the appellant, Trackcorp, sought to appeal a decision made by the Land and Environment Court of New South Wales. The primary dispute involved the admissibility of evidence concerning instructions given to lawyers, with Trackcorp arguing that the evidence was protected by client legal privilege and therefore should not have been admitted. The Bathurst Regional Council, on the other hand, contended that the privilege had been waived due to Trackcorp's inconsistent behaviour in objecting to the evidence.

The key legal issue before the court was whether Trackcorp's conduct amounted to a waiver of the client legal privilege. Specifically, the court needed to determine whether Trackcorp's objections to the evidence, while simultaneously seeking to use the very same evidence to support their case, constituted an inconsistent act that implied a waiver of the privilege. The relevant statutory provision was section 122(2) of the Evidence Act 1995, which deals with the waiver of legal professional privilege.

The court held that Trackcorp had indeed waived its legal professional privilege. It reasoned that by objecting to the evidence on the grounds of privilege while simultaneously attempting to use that evidence to bolster their case, Trackcorp had acted inconsistently. This inconsistency implied that they did not truly wish to maintain the privilege, thus resulting in a waiver. Consequently, the court upheld the original decision to admit the contested evidence. The appeal was dismissed, and the lower court's judgment was affirmed.