Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd

Armstrong Strategic Management and Marketing Pty Ltd (the appellant) sought to appeal a decision of the primary court concerning the recovery of documents that had been inadvertently disclosed during discovery. The appellant had been provided with a verified list of documents by Expense Reduction Analysts Group Pty Ltd (the respondent), and inspection had been granted. However, after disclosure, the respondent asserted that its solicitors had mistakenly failed to claim legal professional privilege over certain documents. The appellant sought to restrain the respondent from using these documents and to have them returned.

The central legal issue before the Court of Appeal was whether the respondent was entitled to recover documents that had been disclosed in accordance with court discovery processes, despite the assertion that privilege had been mistakenly omitted from the initial claim. This involved determining the principles governing the recovery of privileged documents once disclosure had been made, and whether the circumstances of the disclosure indicated an "obvious mistake" that would warrant equitable intervention. The court also considered whether the respondent had waived its privilege through its conduct in the discovery process.

The Court of Appeal held that legal professional privilege is primarily a means of resisting compulsory disclosure, not a basis for seeking injunctive relief to recover documents once disclosure has occurred. In such circumstances, recovery must rely on the equitable protection of confidential information, which intervenes only where it would be unconscientious for the recipient to use the information. The court reasoned that disclosure made in accordance with court processes will generally not be reversed unless the mistake in disclosure was, or ought to have been, obvious to the recipient. Applying an objective test, the court found that the evidence did not demonstrate that it would have been apparent to a reasonably competent solicitor acting for the appellant that an obvious mistake had been made by the respondent in producing the documents. Furthermore, the court concluded that the respondent had waived its privilege by its conduct, particularly by providing a certificate of advice and a verifying affidavit with the list of documents, which was inconsistent with an earlier assertion of privilege.

The appeal was allowed, and the orders made in the court below were set aside. The Amended Notice of Motion filed by the respondent was dismissed, and the respondent was ordered to pay the appellant's costs of that motion. The court also made directions regarding the filing of a Notice of Appeal, the dismissal of a cross-summons for leave to appeal, and the provision of copies of the withheld documents to the appellant.