Players Pty Ltd (in liquidation) (receivers appointed) v Clone Pty Ltd

Players Pty Ltd (in liquidation) (receivers appointed) (the appellants) appealed to the Full Court of the Supreme Court of South Australia against an interlocutory order refusing their application for liberty to disclose and use documents. These documents were in the possession of the respondent's solicitors and had been inspected by one of the appellants during the taxation of costs in the proceeding. The respondent claimed legal professional privilege over a number of these documents.

The Full Court was required to determine whether the primary Judge erred in law and fact by refusing the appellants' application. Specifically, the Court considered whether there had been an intentional or imputed waiver of legal professional privilege in respect of the documents, whether the collateral use rule precluded their use, and whether the appellants' intended use constituted an abuse of the processes of the Court.

The Full Court allowed the appeal, setting aside the primary Judge's orders. The Court held that any legal professional privilege previously claimed over the documents had been waived. It reasoned that even if privilege had existed and there was no intentional waiver, an imputed waiver arose due to the intended use of the documents in related proceedings. Furthermore, the Court found that the collateral use rule did not prevent the use of the documents, and that any privilege that might otherwise have existed could not be claimed because the documents disclosed a colourable case of abuse of process.