Further to our article in Weekly Brief on 15 May 2013, special leave has been granted by their Honours Chief Justice French and Justice Kiefel in the matter of Expense Reduction Analysts Group Pty Ltd & Ors v Armstrong Strategic Management and Marketing Pty Limited & Ors, which concerns the accidental production of privileged documents.
The transcript of the special leave application which was heard on 7 June 2013 indicates that the High Court will be asked to consider whether the law of confidential information properly holds the answer (as was held by the Court of Appeal), and if it doesn't whether equity can intervene to prevent the use of confidential information innocently received.
The Chief Justice commented: "I suppose there is a practical problem thrown up by this, which is an incident of the nature of modern litigation and particularly the huge volume of electronic communications that have to be, as it were, trawled through and searched. ... It seems to me you have layers of paralegals, legals, senior associates and people signing off on it. The possibilities for error are manifold."
The appeal is expected to be heard later this year.
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