Most Read Contributor in Australia, September 2016
The High Court has considered the inadvertent disclosure of
privileged documents in the matter of Expense Reduction
Analysts Group Pty Ltd & Ors v Armstrong Strategic Management
and Marketing Pty Limited & Ors. The judgment is
particularly significant considering the nature of modern
litigation, which often entails large teams of lawyers reviewing
volumes of electronic and hard copy documents.
A number of privileged documents were inadvertently
discovered amongst some 60,000 others. The receiving party did not
dispute that the disclosure was inadvertent, but argued that
privilege had been waived. The High Court held the actions by
the disclosing party were not inconsistent with an intention to
claim privilege, and rather were strongly indicative of mistaken
disclosure. The actions included: confusion of documents listed as
both privileged and non-privileged, and a prompt letter of
correction by the delivering party once the inadvertent disclosure
was brought to light. The High Court stated that there was
"no question of waiver sufficient to be agitated before the
Court" and that any allegation of waiver would turn on "a
legal, technical argument tangential to the main proceedings, and
should not have been made".
In a joint judgment, their Honours Chief Justice French and
Justices Kiefel, Bell, Gageler and Keane held that
"courts of New South Wales should actively engage in case
management in order to achieve the purposes of the CPA,"
being the achievement of a just but timely and cost-effective
resolution of the real issues. It was emphasised that a Court must
give effect to this overriding purpose when exercising any powers,
and that "unduly technical and costly disputes about
non-essential issues are clearly to be avoided."
Of what had occurred in the Courts below their Honours noted
it "could hardly be suggested that the pursuit of satellite
interlocutory proceedings of the kind here in question in any way
fulfils the overriding purpose of the CPA," rather the
pursuit of the interlocutory proceedings had not benefited either
party, and simply encouraged "considerable expense and
squandered the resources of the Court."
The High Court held that the Courts below should simply have
permitted the mistake to be corrected, by allowing an amendment of
the List of Documents and consequential orders for the return of
the privileged documents. Under section 64 of the CPA, the
Court may order any document in the proceedings to be amended to
correct any defect or error. Such action would have diffused the
dispute, and allowed the parties to continue with their preparation
for the trial.
Accordingly, the High Court ordered the return or deletion of
the inadvertently disclosed documents.
The pragmatic approach of the High Court sends a strong message
that parties and their lawyers should facilitate the overriding
objective of the CPA and concern themselves with litigating the
real issues in dispute in proceedings rather than creating and
pursuing satellite disputes. The High Court could send no clearer
message about the receiving party's conduct than the costs
orders in favour of the disclosing party including the costs of
first instance, the appeal to the Court of Appeal, the applications
for special leave to appeal and to cross appeal and of the appeal
to the High Court.
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 Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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”
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).