Australia: High Court steps in to correct inadvertent discovery of privileged documents in litigation

Last Updated: 20 November 2013

The thought of inadvertently disclosing privileged documents to an adversary in litigation has often sent a chill up a lawyer's spine. Would such inadvertent disclosure result in the client's privilege being waived? Will the courts assist and order the documents be returned? Today the High Court confirmed that where privileged documents are mistakenly disclosed, the Courts have the power to correct the mistake. However, lawyers cannot shirk their responsibilities; they must take reasonable steps to ensure mistakes do not occur and must promptly act to correct a mistake once it becomes apparent. We consider the High Court's decision below.

The High Court was given an opportunity to consider issues of inadvertent disclosure in the case of Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited[2013] HCA 46. The case concerned parties in a commercial dispute that were ordered to give general discovery. The appellants' solicitors used an electronic database to review and code thousands of documents. Documents that were subject to client legal privilege were mistakenly coded as "non-privileged" in the lists of documents that were given to the respondents' solicitors. The documents were also inadvertently disclosed on disks that were given to the respondents' solicitors.

As soon as a partner became aware of the mistake, he wrote to the respondents' solicitors claiming that several documents had inadvertently been disclosed contrary to the clients' instructions. He requested that the documents be returned and that the solicitors undertake not to rely on them in the legal proceedings. At no stage was there any dispute that a mistake had been made; however, the request to return the documents was refused on the basis that privilege had been waived.

The appellants sought equitable relief from the Supreme Court of New South Wales and a judge of that Court found that nine documents had been inadvertently disclosed and the respondents' solicitors were effectively ordered to return the disks containing those documents. The Court of Appeal overturned that decision and held that in the circumstances, it would not have been obvious to a reasonable solicitor that the documents had been mistakenly disclosed. The appellants then successfully appealed to the High Court.

The Supreme Court's supervisory powers

The High Court held that the Supreme Court of New South Wales has the necessary supervisory powers to ensure that a party be permitted to correct a mistake in the discovery process. In New South Wales, legislation imposes rules on Supreme Court proceedings that primarily aim to facilitate the just, quick and cheap resolution of disputes.

The Supreme Court's supervisory powers should have been exercised in this case because the circumstances were strongly indicative of a mistake having been made. After the respondents' solicitors received the lists of documents, a senior associate noticed that communications between the appellants and their solicitors were on the list. Some of those communications were marked "privileged" while others were "non-privileged". The senior associate wrote to the respondents' solicitors seeking clarification. The Court found that the inconsistent coding on the lists was a strong indication of a mistake, despite a careful process of discovery.

Although discovery is an intrusive process, the High Court said that it does not affect a litigant's right to maintain confidentiality of documents where the law provides that protection. If a privileged document is inadvertently disclosed, the mistake should ordinarily be corrected and the document returned.

In this case, the Supreme Court was faced with a mistake made during the course of discovery and should have ordered the mistake be corrected. This would have allowed the parties to continue preparing for trial and would have facilitated the just, quick and cheap resolution of the dispute.

Was privilege waived?

The issue of whether privilege was waived in the case should not have been raised, according to the High Court. A mistake was apparent in the circumstances and the respondents' solicitors never disputed that a mistake had been made. They had also been notified swiftly of the mistake. The Court unanimously held that this conduct was not indicative of the appellants having taken a position that was so inconsistent with privilege as to have waived it.

It was important for the outcome of this case that the appellants' solicitors had acted promptly to try and correct their mistake. When an explanation of the mistake was sought, a partner at the appellants' solicitors replied explaining that some of the communications had been mistakenly coded as "non-privileged". Privilege would only have been waived if the solicitors had committed an intentional act knowing that conduct inconsistent with a claim for privilege would result in the claim being abandoned. In this instance, the mistake was apparent and swift action had been taken to redress it; privilege was not waived.

There are limits on when courts will correct mistakes in discovery

While the Court confirmed that a mistake in disclosing a privileged document should ordinarily be corrected and the document returned, it was careful to place some limitations on this relief. Lawyers must still make every reasonable effort to ensure the accuracy of lists of documents that form the basis for inspection of documents by the other side. Mistakes that result from taking shortcuts may not benefit from the courts' assistance. In the case before it, the High Court commented that whilst the appellants' discovery process had been thorough, mistakes still occurred.

The Court also observed that in large commercial cases, mistakes during discovery are more likely to occur. However, an error will only be corrected by the Courts if a party has acted promptly to try and correct the mistake. Assistance may be refused if it would be unfair to the other party to order the return of the privileged documents.

Encouragement Offered To The Legal Profession

The High Court observed that judicial assistance will not be needed to correct inadvertent disclosure mistakes unless a dispute between the parties arises. The Court's decision offered a thinly disguised hint to the legal profession not to allow such disputes to arise. In the High Court's view, parties should privately agree to return documents that have been disclosed inadvertently.

The Court also offered a sobering caution for lawyers involved in disclosure. Conduct rules applying to the legal profession in Queensland and South Australia require a solicitor to return material that is, or appears to be, confidential where the solicitor is aware that the disclosure was inadvertent. The High Court commented that the rule should not even be necessary. Such conduct should be the norm because it permits parties to focus on the real issues in dispute and avoid complications arising from disputes about returning such material. This conduct provides an example of professional and ethical obligations that support the objectives of the proper administration of justice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.