Watson and Anor. v McLernon and 26 Ors.Watson v McLernon and 27 Ors

The case involved a legal professional privilege dispute between Watson and Anor. against McLernon and others, heard in the Federal Court of Australia. The dispute centred around the inadvertent production of privileged documents during the discovery process and whether this amounted to a waiver of privilege. The plaintiffs sought to have the privilege reinstated after it was inadvertently waived by their solicitor, who admitted to reviewing a privileged file to make an affidavit.

The primary legal issues before the court were whether the inadvertent production of privileged documents constituted a waiver of privilege and, if so, whether the privilege could be reinstated. The court needed to determine the extent to which the solicitor's actions led to a waiver and assess the criteria for reinstating privilege after a potential waiver.

The court held that the solicitor's admission of reviewing the privileged file to make an affidavit did not constitute a waiver of privilege. The court reasoned that the solicitor's actions were an inadvertent mistake and did not involve an intentional disclosure of privileged information. The court emphasised the importance of distinguishing between inadvertent and intentional waivers, noting that an inadvertent disclosure does not necessarily lead to a waiver. Additionally, the court found that the plaintiffs had taken prompt action to rectify the mistake and limit the disclosure, which supported the argument for reinstating the privilege. Therefore, the court concluded that the privilege was not waived and was reinstated.

In conclusion, the court's decision provided clarity on the inadvertent production of privileged documents during the discovery process and the conditions under which privilege can be reinstated. The court's ruling underscored the necessity of distinguishing between inadvertent and intentional disclosures and highlighted the importance of prompt remedial actions in preserving privilege.