H Stanke & Sons Pty Ltd & Cape Banks Processing Company Pty Ltd v Von Stanke, O'MEARA

In the case of H Stanke & Sons Pty Ltd & Cape Banks Processing Company Pty Ltd v Von Stanke, O'MEARA, the dispute involved claims by the first defendant to restrain the second defendant from using, in these and other proceedings, documents said to be privileged or confidential. The second defendant had sought production of documents pursuant to section 84B of the Trustee Act 1936 (SA), which led to the first defendant's solicitors providing their file and a copy of their predecessor's file. The second defendant's solicitors inspected and used these documents before returning them to the first defendant. The key legal issues the court needed to address were whether there was an equitable jurisdiction to protect confidential information or whether the Court's supervisory jurisdiction over legal practitioners should be exercised, and if all the documents fell under section 84B of the Trustee Act, and if so, whether special principles applied to documents with legal professional privilege.

The court held that the documents were not provided to the second defendant in circumstances importing an obligation of confidence. The court reasoned that a reasonable solicitor in the position of the second defendant's solicitor would not have thought it obvious that a mistake had been made in the disclosure of the documents. Furthermore, the court found that any privilege in the documents had been waived. The circumstances did not indicate that an exercise of the Court's supervisory jurisdiction over solicitors was required. Consequently, the application for injunctions was dismissed.

The court found that Ms Nelson’s argument that it should have been obvious to Lipman Karas, on receipt of the files from Strachan Carr, that a mistake had been made was not accepted. The court held that there was no discretion to refuse to exercise the equitable jurisdiction according to the materiality of the communication or the justice of admitting or excluding it. While authorities suggested that the court should not weigh the materiality of the document and the justice of admitting it in the context of protecting privileged documents, issues of materiality and proportionality were relevant to the application. The factual findings made by the court indicated that the documents were not provided under an obligation of confidence, and any privilege had been waived. Therefore, the application for injunctions was dismissed.