Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd; Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited [2012] NSWCA 430

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd; Expense Reduction Analysts Group Pty Limited v Armstrong Strategic Management and Marketing Pty Limited [2012] NSWCA 430 Hearing dates: 16 July 2012 Decision date: 18 December 2012 Before: Campbell JA at [1]; Macfarlan JA at [195]; Sackville AJA at [196] Decision: (1) Grant leave to appeal on grounds 3 and 4 in the Draft Notice of Appeal contained in the White Book. (2) Otherwise dismiss the summons seeking leave to appeal. (3) Direct the Armstrong Parties to file a Notice of Appeal, substantially in the form of the Draft Notice of Appeal contained in the White Book but omitting grounds 1 and 2, within 28 days of delivery of these reasons for judgment. (4) Dismiss the Cross-summons seeking leave to Cross-Appeal. (5) Appeal allowed. (6) Set aside the orders made in the court below on 26 April 2012 and 4 May 2012, and in lieu order: (a) the Amended Notice of Motion filed 24 February 2012 be dismissed; (b) the defendants pay the costs of the plaintiffs of that notice of motion. (7) The Respondents to the application for leave to appeal pay the costs of the Applicants of: (a) the application for leave to appeal; and (b) the cross-summons seeking leave to appeal. (8) The Respondents to the application for leave to appeal to have a certificate under the Suitors Fund Act 1951, if qualified. (9) The Respondents to the application for leave to appeal provide to the Applicants within 7 days of the date of these orders copies of the Nine Withheld Documents. (10) Release the lawyers of the Armstrong parties from any undertaking given concerning the use they may make of the Nine Withheld Documents (though not from their obligations under Hearne v Street). [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: DISCOVERY AND INTERROGATORIES - discovery and inspection of documents - legal professional privilege - where verified list of documents produced in required form and inspection granted - producing party asserted before trial that its solicitors had mistakenly failed to claim privilege over certain documents over which no privilege was claimed in the list of documents - motion to restrain Appellant from making use of any of the allegedly privileged documents and to return the documents - legal professional privilege is a means of resisting compulsory disclosure of confidential information by process of law but not a basis on which to seek injunctive relief - once disclosure has been made the party seeking recovery of the documents must rely on the equity protecting confidential information - equity will intervene where it would be unconscientious in the circumstances for the recipient to make use of the confidential information - application of principle to disclosure of privileged documents in accordance with the courts' discovery processes means disclosure will not be reversed except in the case of fraud or mistake that is or ought to be obvious to the recipient - whether it was apparent to the solicitors for the Appellant that the producing party had made an obvious mistake in producing the documents in question - objective evidence of care and deliberation taken in selection of documents and claims of privilege - would not have been obvious to a reasonably competent solicitor that a mistake had been made - motion dismissed