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

The High Court has unanimously allowed an appeal against the decision of the New South Wales Court of Appeal relating to discovery procedures. During the discovery phase of proceedings between Expense Reduction and Armstrong, Expense Reduction’s lawyers sent Armstrong several documents that should have been marked privileged and not sent. The primary judge made orders to protect some, but not all, of those documents. The NSWCA allowed an appeal against that decision on basis that circumstances did not create any obligation on Armstrong to preserve confidentiality in the documents. As noted in the special leave hearing and NSWCA judgment, the High Court had the opportunity to clarify the principles relating to the return of mistakenly provided privileged documents, or possible restrictions on their use. A unanimous Court held that there had been no waiver of privilege by Expense Reduction’s lawyers. The NSWCA, faced with the mistaken delivery, should have made orders for the return of the discs containing the documents, for the deletion of the material by Armstrong’s lawyers, and to allow Expense Reduction’s lawyers permission to amend the List of Documents to remove reference to them. The High Court issued those orders and set aside various orders of the NSWCA.

High Court Judgment [2013] HCA 46 6 November 2013
Result Appeal allowed
High Court Documents Expense Reduction
AV Recording Full Court Hearing
Full Court Hearing [2013] HCATrans 233  4 October 2013
Special Leave Hearing [2013] HCATrans 137 7 June 2013
Appeal from NSWCA [2012] NSWCA 430  18 December 2012
Trial Judgment
[2012] NSWSC 393 26 April 2012