Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd; Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited [2012] NSWCA 430

Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd; Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited [2012] NSWCA 430

No injunction or return order is available to restrain the use of privileged documents disclosed in discovery unless the recipient knew or ought to have known that disclosure was a mistake; privilege in the disclosed documents was also waived because it was not obvious to a reasonable solicitor that their production was mistaken, and conduct was inconsistent with maintaining the privilege.

Parties
First Appellant/first Cross Respondent: Armstrong Strategic Management and Marketing Pty Ltd; Second Appellant/second Cross Respondent: Armstrong Consulting Pty Ltd; Third Appellant/third Cross Respondent: Ken Armstrong; First Respondent/first Cross Applicant: Expense Reduction Analysts Group Pty Limited; Second Respondent/second Cross Applicant: ERA Insurance Services Pty Ltd; Third Respondent/third Cross Applicant: Expense Reduction Analysts Australasia Pty Ltd; Fourth Respondent/fourth Cross Applicant: Stuart Roy Michael; Fifth Respondent/fifth Cross Applicant: Ronald Clucas; Sixth Respondent/sixth Cross Applicant: Charles Frederick Marfleet; Seventh Respondent/seventh Cross Applicant: ERAGICS Ltd; Eighth Respondent/eighth Cross Applicant: Expense Reduction Analysts International Ltd; Ninth Respondent/ninth Cross Applicant: Keith John Chapman; Tenth Respondent/tenth Cross Applicant: Anthony Frederick Dormer
Jurisdiction
Australia
Judgment Date
18 December 2012
Procedural Posture
Principal Judgment; Interlocutory Motion; Leave to Appeal; Cross Appeal / Appellate Decision on Leave to Appeal and Substantive Appeals
Outcome
Appeal allowed. Leave to appeal granted on specific grounds. Orders below set aside. Application for injunctive relief dismissed. Cross-appeal dismissed.
Legal Topics
Discovery and Inspection of Documents, Legal Professional Privilege, Waiver of Privilege, Confidential Information, Injunctive Relief
Civil Procedure Equity Evidence Discovery and Inspection of Documents Legal Professional Privilege Waiver of Privilege Confidential Information Injunctive Relief

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Parties

Armstrong Strategic Management and Marketing Pty Ltd

First Appellant/first Cross Respondent

Armstrong Consulting Pty Ltd

Second Appellant/second Cross Respondent

Ken Armstrong

Third Appellant/third Cross Respondent

Expense Reduction Analysts Group Pty Limited

First Respondent/first Cross Applicant

ERA Insurance Services Pty Ltd

Second Respondent/second Cross Applicant

Expense Reduction Analysts Australasia Pty Ltd

Third Respondent/third Cross Applicant

Stuart Roy Michael

Fourth Respondent/fourth Cross Applicant

Ronald Clucas

Fifth Respondent/fifth Cross Applicant

Charles Frederick Marfleet

Sixth Respondent/sixth Cross Applicant

ERAGICS Ltd

Seventh Respondent/seventh Cross Applicant

Expense Reduction Analysts International Ltd

Eighth Respondent/eighth Cross Applicant

Keith John Chapman

Ninth Respondent/ninth Cross Applicant

Anthony Frederick Dormer

Tenth Respondent/tenth Cross Applicant

Procedural Posture

Principal Judgment; Interlocutory Motion; Leave to Appeal; Cross Appeal / Appellate Decision on Leave to Appeal and Substantive Appeals

Legal Issues

  1. 1 Whether privileged documents disclosed under discovery and claimed to have been produced by mistake must be returned and use of them restrained
  2. 2 Whether legal professional or client legal privilege was waived in respect of privileged documents disclosed in discovery due to mistake
  3. 3 What legal principles govern injunctive relief for return/restraint of documents disclosed on discovery in error

Ratio Decidendi

No injunction or return order is available to restrain the use of privileged documents disclosed in discovery unless the recipient knew or ought to have known that disclosure was a mistake; privilege in the disclosed documents was also waived because it was not obvious to a reasonable solicitor that their production was mistaken, and conduct was inconsistent with maintaining the privilege.

Court Disposition

Appeal allowed. Leave to appeal granted on specific grounds. Orders below set aside. Application for injunctive relief dismissed. Cross-appeal dismissed.

Orders

  • Grant leave to appeal on grounds 3 and 4 in the Draft Notice of Appeal contained in the White Book.
  • Otherwise dismiss the summons seeking leave to appeal.