Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46

Today the High Court unanimously held that the Supreme Court of New South Wales should have ordered that the respondents (Armstrong) return 13 privileged documents which had been inadvertently disclosed to them by the appellants' (Expense) solicitors during a court-ordered process of discovery.

The parties have been involved in commercial proceedings in the Supreme Court since 2010.

In 2011, the Supreme Court ordered that the parties give general discovery and during this process, a number of documents, which were subject to client legal privilege, were mistakenly listed in the non-privileged section of the Expense's verified Lists of Documents and electronic copies were inadvertently disclosed.

The Lower Courts

Expense sought orders in the Supreme Court to the effect that Armstrong return 13 of the inadvertently disclosed documents.  The Supreme Court ordered the return of nine documents, but considered that privilege in the four remaining documents had been waived, and so declined to order the return of those documents.

The Court of Appeal overturned the Supreme Court's decision.  It held that the Supreme Court did not have power to order the return of any of the 13 documents.

The High Court Decision

In today's decision, the High Court unanimously allowed the appeal.  The Court held that the issue of waiver should never have been raised.  If a privileged document is inadvertently disclosed during discovery, the Supreme Court ordinarily has all powers necessary to permit the correction of that mistake and to order the return of the documents.

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