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 DISCOVERY AND INTERROGATORIES - discovery and inspection of documents - legal professional privilege - waiver of privilege - whether disclosing parties have acted in a way inconsistent with the maintenance of their privilege - privilege belongs to client and can thus only be waived by client - engaged solicitors nonetheless hold ostensible authority to act as agent for client all matters that might reasonably be thought to arise in the conduct of a litigation including waiver of privilege - where certificate of advice provided by solicitor and verifying affidavit provided by client with list of documents - assertion of privilege inconsistent with earlier disclosure - privilege waived WORDS AND PHRASES - "client legal privilege", "legal professional privilege", "confidential information", "obvious mistake" Legislation Cited: Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth) Australian Securities & Investment Commission Act 2001 Civil Procedure Act 2005 Corporations Act 2001 Evidence Act 1995 Evidence Amendment Act 2007 Federal Court of Australia Act 1976 (Cth) Suitors Fund Act 1951 Supreme Court Rules 1970 Trade Practices Act 1974 Uniform Civil Procedure Rules 2005 Cases Cited: ABC v Lenah Game Meats (2001) 208 CLR 199 AG Australia Holdings Ltd v Burton [2002] NSWSC 170; (2002) 58 NSWLR 464 Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570 Al Fayed v Commissioner of Police for the Metropolis [2002] EWCA Civ 780; [2002] All ER (D) 450 Armstrong Strategic Management and Marketing Pty Limited v Expense Reduction Analysts Group Pty Ltd [2011] NSWSC 704 Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWSC 393 Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 Australian Competition and Consumer Commission v Cathay Pacific Airways Ltd [2012] FCA 1101 Australian Securities and Investments Commission v Lindberg [2009] VSCA 234; (2009) 25 VR 398 Baker v Campbell (1983) 153 CLR 52 Bunning v Cross (1978) 141 CLR 54 Calcraft v Guest [1898] 1 QB 759 Campbell v MGN Ltd [2004] UKHL 22; 2 AC 457 Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 Coco v A N Clark (Engineers) Ltd [1969] RPC 41 Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 Commissioner of Inland Revenue v West-Walker [1954] NZLR 191 Council of the NSW Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236 Cowell v British American Tobacco Services Ltd [2007] VSCA 301 Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543 Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172; (2007) 73 IPR 326 Derby & Co v Weldon (No 8) [1991] 1 WLR 73 Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468 Douglas v Hello! Ltd (No 3) [2006] QB 125 DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 English and American Insurance Co Ltd v Herbert Smith & Co [1987] 137 NLJ 148 Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403 Franklin v Giddens [1978] Qd R 72 Goddard v Nationwide Building Society [1987] 1 QB 670 Grace v Grace [2010] NSWSC 1514 Grant v Downs (1976) 135 CLR 674 Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529 Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538 In re Briamore Manufacturing Ltd (in liquidation) [1986] 1 WLR 1429 Johns v Australian Securities Commission (1993) 178 CLR 408 Kurama v R [1955] AC 197 Lord Ashburton v Pape [1913] 2 Ch 469 Mann v Carnell (1999) 201 CLR 1 Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 75 FCR 511 Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 Nasr v State of New South Wales [2007] NSWCA 101; (2007) 170 A Crim R 78 Northern Territory v GPAO (1999) 196 CLR 553 O'Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1 Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 Pizzey v Ford Motor Company Ltd (Court of Appeal of England and Wales, 26 February 1993, unreported) R v Derby Magistrates Court ex parte B [1996] 1 AC 487 R v Ireland (1970) 126 CLR 321 R v White (1989) 18 NSWLR 332 Richards v Kadian [2005] NSWCA 328; (2005) 64 NSWLR 204 Spedley Securities Ltd v Bank of New Zealand (1991) 26 NSWLR 711 Sullivan v Sclanders (2000) 77 SASR 419 Telstra Corp Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 Telstra Corp v Australis Media Holdings (No 1) (1997) 41 NSWLR 277 The Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 Tipping v Clarke (1843) 2 Hare 383; [1843] 67 ER 157 Trade Practices Commission v Port Adelaide Wool Co Pty Ltd (1995) 132 ALR 645 Trevorrow v State of South Australia (No 4) [2006] SASC 42; (2006) 94 SASR 64 Waterford v The Commonwealth (1987) 163 CLR 54 Webster v James Chapman & Co [1989] 3 All ER 939 West Australian Newspapers v Bond [2009] WASCA 127; (2009) 40 WAR 164 Wilson v Rastall (1792) 4 Durn & E 753 Texts Cited: A R Emmett, "Reforming Discovery" in M Legg (ed) The Future of Dispute Resolution (2012) Cross on Evidence, 8th Australian edition, (2010) Australian Law Reform Commission, "Managing Justice: A Review of the Federal Civil Justice System" (Report 89, 2000) Australian Law Reform Commission, Managing Discovery: Discovery of Documents in Federal Courts (Report 115, 2011) Category: Principal judgment Parties: Armstrong Strategic Management and Marketing Pty Ltd (First Appellant/First Cross-Respondent) Armstrong Consulting Pty Ltd (Second Appellant/Second Cross-Respondent) Ken Armstrong (Third Appellant/Third Cross-Respondent) Expense Reduction Analysts Group Pty Limited (First Respondent/First Cross-Applicant) ERA Insurance Services Pty Ltd (Second Respondent/Second Cross-Applicant) Expense Reduction Analysts Australasia Pty Ltd (Third Respondent/Third Cross-Applicant) Stuart Roy Michael (Fourth Respondent/Fourth Cross-Applicant) Ronald Clucas (Fifth Respondent/Fifth Cross-Applicant) Charles Frederick Marfleet (Sixth Respondent/Sixth Cross/Applicant) ERAGICS Ltd (Seventh Respondent/Seventh Cross-Applicant) Expense Reduction Analysts International Ltd (Eighth Respondent/Eighth Cross-Applicant) Keith John Chapman (Ninth Respondent/Ninth Cross-Applicant) Anthony Frederick Dormer (Tenth Respondent/Tenth Cross-Applicant) Representation: Counsel: IR Pike SC; CN Bova (Applicants/Cross-Respondents) DJ Fagan SC; EA Hyde (Respondents/Cross-Applicants) Solicitors: Marque Lawyers (Applicants/Cross-Respondents) Norton Rose Australia (Respondents/Cross-Applicants) File Number(s): 2012/165374 Decision under appeal Citation: Armstrong Strategic Management and Marketing Pty Limited v Expense Reduction Analysts Group Pty Ltd [2012] NSWSC 393 Date of Decision: 2012-04-26 00:00:00 Before: Bergin CJ in Eq File Number(s): 2011/76919 Judgment 1CAMPBELL JA; Nature of the Case 2The Applicants ("the Armstrong Parties") are suing the Respondents ("the ERA Parties") in the Commercial List of the Equity Division of the Supreme Court of New South Wales. The Armstrong Parties consist of Mr Ken Armstrong, and two companies of which he is the chief executive officer. Five of the ERA Parties are corporations ("the Corporate Defendants") while the other five ERA Parties are natural persons ("the Individual Defendants"). The Individual Defendants had been at relevant times directors of one or more of the Corporate Defendants. The litigation concerns the circumstances in which a commercial relationship between one or more of the Armstrong Parties and one or more of the Corporate Defendants came to an end. 3The ERA Parties were required to give discovery of documents. 4Verified lists of documents were completed and served, and the documents produced by the Individual Defendants were made available for inspection. This was not done in the manner in which inspection of documents had traditionally been carried out before the advent of personal computers, when documents almost invariably consisted of writing on paper, by permitting the papers to be read by the party to whom inspection is granted. Instead, it was done by delivering compact disks containing electronic images of all the relevant documents: cf Council of the NSW Bar Association v Archer [2008] NSWCA 164; (2008) 72 NSWLR 236 at [54]-[56]. 5The solicitors for the Individual Defendants later contended that there were some privileged documents amongst the documents that had been listed as ones concerning which no claim for privilege had been made, and of which images had been supplied. The solicitors for the Individual Defendants requested the solicitor for the Armstrong Parties to return those documents and undertake not to use their contents. The solicitors for the Armstrong Parties declined to do so. 6The primary judge heard, over three hearing days, an Amended Notice of Motion filed by the ERA Parties. It sought an order that the Armstrong Parties be restrained from making any further use of thirty documents that were identified in a schedule to the Amended Notice of Motion, and an order that the Armstrong Parties deliver up all copies of those documents. 7In the course of the hearing before the primary judge the ERA Parties narrowed their claim in one respect, to seeking relief concerning eleven of the documents that had been identified in the Schedule to the Notice of Motion. They also widened the claim in another respect, to seek relief concerning an additional two documents. I will refer to these thirteen documents collectively as "the Disputed Documents". 8The primary judge granted the relief that the ERA Parties sought concerning nine of those documents ("the Nine Withheld Documents"), and declined it concerning the remaining four ("the Four Released Documents"): Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWSC 393. 9Her Honour held that all the Disputed Documents had been privileged or (concerning some of the Four Released Documents), privileged in part. She held that that privilege had been lost so far as the Four Released Documents were concerned, but had not been lost so far as the Nine Withheld Documents were concerned. She made orders restraining the Armstrong Parties from using the Nine Withheld Documents, and requiring all copies of those documents to be delivered up. 10The Armstrong Parties seek leave to appeal against the primary judge's decision concerning the Nine Withheld Documents. The ERA Parties seek leave to cross-appeal against her Honour's refusal to grant relief concerning the Four Released Documents. If leave to cross-appeal is granted concerning the Four Released Documents, the Armstrong Parties seek to support her Honour's conclusion by a Notice of Contention that contends that her Honour was mistaken in holding the Four Released Documents to be privileged at all. All applications were argued on the basis that the parties presented all arguments they would wish to present if leave to appeal, or to cross-appeal, were granted. 11I have reached the conclusion that leave to appeal should be granted (though not to argue all of the proposed grounds of appeal), the orders below should be set aside, and the Amended Notice of motion should be dismissed. The application for leave to cross-appeal should be dismissed, and in that circumstance the Notice of Contention does not arise. The Circumstances of Giving Discovery 12The Individual Defendants were the fourth, fifth, sixth, ninth and tenth defendants in the proceedings. At the time when discovery of documents was given, Norton Rose were the Sydney lawyers instructed by the Individual Defendants. Some of the Corporate Defendants are in administration or have taken no part in the litigation. The remaining Corporate Defendants had instructed Dormers Commercial Lawyers and Consultants ("Dormers") as their solicitors. Marque Lawyers were the Sydney solicitors with carriage of the matter for the Armstrong Parties. 13On 8 July 2011, shortly before the making of the orders for discovery that had led to the present disputes, Ball J had given judgment on an application brought by various of the ERA Parties to strike out certain paragraphs of the Amended Commercial List Statement: Armstrong Strategic Management and Marketing Pty Limited v Expense Reduction Analysts Group Pty Ltd [2011] NSWSC 704. As mentioned previously, the litigation in the Commercial List arose from some of the Corporate Defendants terminating certain agreements between one or more of the Armstrong Parties and one or more of the Corporate Defendants. The Armstrong Parties contended that that termination involved those Corporate Defendants in a breach of contract. The Armstrong Parties also contended that the Individual Defendants had legal liability for inducing breach of contract, for knowing participation in breaches of fiduciary duty on the part of the Corporate Defendants, for conspiracy, and as accessories to breaches by the Corporate Defendants of the Trade Practices Act 1974. One of the bases upon which Ball J declined to strike out the inducing of breach of contract claims was that it was arguable that a director may be personally liable for inducing breach of contract if he or she has not acted bona fide and has acted outside the scope of his or her authority as a director. 14On 22 July 2011, the Court had made an order for the Individual Defendants to give general discovery by 21 September 2011. Collecting, categorising and listing all relevant documents proved to be an extensive task. On 22 September 2011, the Court, by consent, extended the time for exchange for verified lists of documents to 7 October 2011. 15Norton Rose reviewed approximately sixty thousand documents for the purpose of the Individual Defendants giving discovery. Six solicitors and paralegals were involved in the review. Documents selected from that review were then loaded into an electronic database known as "Ringtail". Each document that was loaded into Ringtail was then categorised by being displayed on a computer screen, and a reviewer making an entry in the database to indicate whether the document was relevant, and another entry to indicate whether the document was privileged. If no entry was made to state that the document was privileged, the default setting of the programme was that it was classified as being non-privileged. 16The partner overseeing the discovery process at Norton Rose was Mr Stephen Klotz. He gave undisputed evidence that none of the reviewers had any authority to waive any claims for privilege over any of the documents. It was accepted that none of the ERA Parties had instructed Norton Rose to waive privilege. 17Ms Harriet Dymond-Cate, one of the solicitors at Norton Rose involved in the discovery, gave uncontested evidence that in connection with the consent order made on 22 September 2011 to extend the time for exchange for verified lists of documents: "... it was agreed that the defendants would provide informal discovery of the documents that had as at late September been reviewed ..." (emphasis added) 18On 29 September 2011, before any lists of documents have been verified or served, Norton Rose wrote to Marque Lawyers saying: "As requested we enclose a CD containing a tranche of documents provided to you by way of informal discovery. We note that the enclosed documents (as well as additional documents not yet available for inspection), will be listed and verified in a list of documents. You will see that each document contained on the CD is identified by a document identification number which will correspond with the number given to each document in the list of documents." The letter did not identify which of the Individual Defendants were giving the informal discovery. The CD enclosed with Norton Rose's letter of 29 September 2011 had images of over 1,000 documents. An image of each of the Disputed Documents was on the CD. 19Records of Norton Rose retained on Ringtail indicate that Ms Dymond-Cate spent about two and a half hours on 29 September 2011 accessing documents relevant to the Armstrong matter. Her timesheet for that day showed that she spent five hours and twenty minutes on tasks concerning the Armstrong matter, one of which was "reviewing privilege calls for informal discovery provided to Marque". 20Once draft lists of documents were prepared they were reviewed by a more senior solicitor employed by Norton Rose. There was uncontested evidence that the review: "... was undertaken by an audit type process. Due to the fact that the auditing of the other defendants' lists of documents had identified no areas of concern as to how discovery had been given (including the methodology of privilege claims made in those lists), a more general audit was undertaken of the fourth defendant's list of documents. ... during the audit of the [fourth defendant's] draft list, there was not a physical inspection of all documents listed and not every document in the list was checked. As the nature of some of the documents meant that Ringtail did not code all the relevant fields, some of the documents are not described in the list itself in such a way as to identify whether they may be potentially privileged." 21On 7 October 2011, Norton Rose served on Marque Lawyers a verified list of documents of the fifth and ninth defendants. On 11 October 2011, Norton Rose served verified lists of documents of the sixth and tenth defendants. It had proved impossible, in the process of compiling the lists of documents of the fifth, sixth, ninth and tenth defendants, to segregate which documents were discoverable by which of those Individual Defendants, so the lists served by all of them were identical. Those lists included documents that had been provided to Norton Rose by the solicitors for the Corporate Defendants. The Corporate Defendants did not give discovery by preparing separate lists of documents. 22Norton Rose prepared a separate list of documents for the fourth defendant, Mr Stuart Michael. It comprised some 2,155 documents, and was served on 13 October 2011. Part 1 of the list was divided into three separate tables, the second and third of which identified the documents concerning which a claim for privilege was made. The list was accompanied by a certificate from Mr Klotz, which stated he had advised Mr Michael as to the obligations arising under the order for discovery, and (in substance) that he was not aware of any of the documents that should have been discovered but had not been discovered. It was also accompanied by an affidavit of Mr Michael, affirmed on 13 October 2011, which stated that he had made reasonable searches as to the existence of location of the documents referred to in the order. It stated his belief that the only documents relevant to a fact in issue in proceedings that had been in his possession in the previous six months were those in Part 1 of the list of documents. It stated the bases upon which he claimed that the documents in the second table were privileged. The third table listed some redacted documents, concerning which Mr Michael's affidavit asserted that the redacted parts were privileged. All thirteen of the Disputed Documents were listed in the first (non-privileged) table in that list of documents. 23The first (non-privileged) table in the fourth defendant's list of documents was 154 pages long, and listed individually 1,577 documents. It had eight columns. Those columns identified each document by number, and gave its main date, the type of document it was (email, email attachment, agreement, financial statement, etc), the title of the document, who it was to, who it was from, and any recipients to whom it was copied. Concerning some of the items in the first table, details did not appear for the title of the document, to whom and from whom it passed, and who were the copied recipients, but instead a bold type entry "email removed for privilege" appeared in the "title" column. 24On 13 October 2011, Marque Lawyers wrote to Norton Rose concerning the lists of documents of the fifth, sixth, ninth and tenth defendants: "We note that you have sought to claim privilege over documents numbered 725 to 1162 in the respective verified lists on the grounds of legal advice privilege, litigation privilege and without prejudice privilege. Upon review of the documents over which privileged [sic] is claimed we are concerned that some of the documents would not on their face appear to attract privilege. Specifically, please explain the bases for which your clients claim privilege over the following types of documents." 25The letter went on to give four examples of documents for which privilege was claimed, when the basis for the claim was said to be not apparent. The first such document was a communication between two directors of the Corporate Defendants, concerning which 'without prejudice' privilege had been claimed. The second example was a communication between two directors of Corporate Defendants, concerning which 'legal advice privilege' had been claimed. The third example was a communication between directors of the Corporate Defendants, on a date two months before the termination of a licence agreement that the Armstrong Parties alleged in the proceedings had been wrongfully terminated. Concerning that document, 'litigation privilege' had been claimed. The fourth example was of a document that from its description might well contain legal advice, but that appeared in the list of documents of someone who was not a director or other officer of the companies that had obtained the legal advice. 26Marque Lawyers advised that their clients 'reserved their rights' to challenge the privilege claims. 27On 19 October 2011, Norton Rose wrote to Marque Lawyers saying that they: "... enclose 4 CDs enclosing our client's discovery as follows: 1. Fourth Defendant general discovery; 2. Fourth Defendant redacted documents; 3. Fifth, Sixth, Ninth and Tenth Defendants general discovery; and 4. Fifth, Sixth, Ninth and Tenth Defendants redacted documents." The CDs provided for the Fourth Defendant included images of all the Disputed Documents. On 20 October 2011, Marque Lawyers forwarded these disks to the third plaintiff, Mr Armstrong, for inspection. 28On 21 October 2011, Dormers provided to Marque Lawyers an affidavit by the sole director of each of the two Corporate Defendants who had an ongoing involvement in the litigation. The affidavits were in common form. Each said: "I understand the company's obligations under an order for discovery. I have made reasonable searches as to the existence and location of any documents relevant to a fact in issue in the proceedings. I have reviewed the lists of documents and accompanying affidavits served by the fourth, fifth, sixth, ninth and tenth defendants. I believe that there are no further documents (other than excluded documents) relevant to any fact in issue in the proceedings that are, or that within the last 6 months before the commencement of proceedings have been in the company's possession, other [than] the documents listed in the fourth, fifth, sixth, ninth and tenth defendants verified lists of documents." 29On 24 October 2011, Norton Rose replied to Marque Lawyers' letter of 13 October 2011. Norton Rose stated that legal advice privilege was claimed over Documents 737, 742 and 746, but that the claim for privilege over Document 823 was no longer maintained. Norton Rose advised that the claim for 'without prejudice' privilege had been a mistake, and that the claim should have been for 'legal advice' privilege. It explained that the communication between the directors of the Corporate Defendants was an email chain, part of which was legal advice. So far as the disclosure of legal advice in the list of documents of a defendant who was not a director of the company that had obtained the legal advice was concerned, Norton Rose asserted that that disclosure occurred in his list of documents only because of the inability to distinguish between which documents had been received by which of the fifth, sixth, ninth and tenth defendants, and in any event if it had been disclosed to that director he would have been entitled to claim a common interest privilege concerning it. 30Ms Hannah Marshall, a senior associate at Marque Lawyers, had the ordinary carriage of the matter for the Armstrong Parties. She was cross-examined about her state of mind at the time of receiving that letter: "Q. Wasn't it apparent to you from that response to your letter in which you had queried the extent of privilege claimed, apparent that Norton Rose intended to be claiming the privilege widely? A. What was apparent was that they had given careful consideration to the question of privilege." 31Though the judge did not make a finding to this effect, there was uncontested evidence that on 7 November 2011, Mr Armstrong provided Marque Lawyers with his comments on some of the documents produced by Mr Michael, including "a number of" the thirty documents listed in the Amended Notice of Motion of the ERA Parties. It was not established precisely which of those documents were the subject of Mr Armstrong's comments at that stage. Thus, it is not shown that at that stage he had made comments concerning any of the Disputed Documents. 32Marque Lawyers did not reply to Norton Rose's letter of 24 October 2011 until 21 November 2011. The reply included: "Neither of these documents [Documents 737 and 742] is a lawyer-client communication. Please identify how your clients maintain their claim for legal advice privilege in circumstances where these communications do not include correspondence with a legal representative. Absent a reasonable basis for any claim for legal advice privilege, we may seek instructions to file an application for production of these documents." 33Concerning Norton Rose's acknowledgment that privilege had been incorrectly claimed concerning one of the documents, Ms Marshall asked for confirmation that all other privileged documents had been correctly stated as privileged. 34On 25 November 2011, Ms Marshall commenced inspection of the defendants' discovered documents. She approached that task by first referring to the annotations that Mr Armstrong had prepared concerning Mr Michaels' discovery. She observed that a number of documents appeared to record communications between one or more of the directors of the Corporate Defendants and legal professionals. That was the first occasion on which she saw any such documents in the documents that had been provided for inspection. Indeed, it was the first time she had looked at any of those documents, as opposed to considering the way in which they had been described in the lists of documents. 35On 25 November 2011, Marque Lawyers wrote to Norton Rose in terms that included: 'We have today identified a number of documents in Mr Michael's verified list of documents that appear to relate to one or more of the defendants obtaining legal advice and over which your clients make no claim of privilege. By way of example we refer you to items 867, 868, 901, 903, 904, 907, 909. This is not an exhaustive list. Can you please explain the basis on which your client maintains its claims for legal professional privilege in light of the disclosure of the types of documents identified in Mr Michael's verified list.'" Ms Marshall agreed in cross-examination that the documents she enumerated in that letter were documents she had read at the time she wrote the letter. Those documents were all ones that were listed in the schedule to the Amended Notice of Motion, but none of them is a Disputed Document. Two of them (numbers 904 and 909) were identified in the list of documents as having the title "commercial and in confidence - PRIVILEGED". 36Ms Marshall's attention was directed in cross-examination to two of the documents she had identified in the letter, copies of which were at tabs 6 and 7 of the bundle of documents used at the trial: "Q. And on looking at those, it was immediately apparent to you that these were two copies of legal advice communicated directly from the firm of Truman Hoyle to directors of defendant companies? A. It appears so on its face. Q. And it was immediately apparent to you that there was an inconsistency between that being provided to you, documents of that nature, compared to the extended claims for privilege which you had received up to that point? A. Yes. Q. And that inconsistency I suggest demonstrated to you that there had been a mistake made in handing over to you these documents at Tabs 6 and 7 which constituted the disclosure directly of advice. A. No. ... Q. Given the inconsistency that you identified in your letter and the fact that Norton Rose had confirmed in their correspondence to you that they intended to claim the privilege widely by their reaction to particular documents, wasn't it apparent to you that this was a mistake to have released these documents? A. No. Q. Could you think of any reason why it would be that the solicitors for these defendants would be releasing these documents that were advices whereas claiming privilege so extensively elsewhere? A. I could speculate that there may have been some kind of decision to disclose the documents. I had no reason to think that the question of privilege and disclosure had not been considered." "Q. Wasn't it apparent to you from that response to your letter in which you had queried the extent of privilege claimed, apparent that Norton Rose intended to be claiming the privilege widely? A. What was apparent was that they had given careful consideration to the question of privilege. Q. But given that they had, in a disclosure discovery of documents that involved in one list over 2000 and in another list over 1100, didn't it appear to you that the explanation of these patently privileged documents at 6 and 7 being released to you was an inadvertent release? A. No. Q. Did it not occur to you that somebody in this firm's office who had been given the task of identifying documents had made a mistake? A. There was no obvious mistake to me. ... Q. Did you think about whether there was a mistake at all? A. I accepted that it was a possibility but there was no obvious reason for me to reach that conclusion. Q. You accepted it was possibly a mistake in the nature of releasing a document for which it had been intended to claim privilege but for which the entitlement to claim privilege had been overlooked or misapprehended in some manner? Is that a possibility you entertained? A. Yes." She discussed that possibility with Mr Michael Bradley, the partner on the record. That discussion did not cause her to form the view that those documents had been produced inadvertently or by mistake. 37There was uncontested evidence that on 5 December 2011, Mr Armstrong provided Marque Lawyers with further comments on all of the discovery documents that had been produced by the Individual Defendants. 38On 6 December 2011, Norton Rose wrote to Marque Lawyers saying: "Thank you for bringing to our attention the mistaken production of privileged documents 867 (DIR.001.001.3572 [No 4]), 868 (DIR.001.001.3473 [No 5]), 901 (DIR.001.001.4024 [No 6]) and 903 (DIR.001.001.3889 [No 7]) (the privileged documents). During the review process, through inadvertence on the part of one of the reviewers, the privileged documents were not marked as privileged, when clearly they ought to have been so marked. That resulted in the failure to claim privilege in respect of the privileged documents and their inadvertent disclosure. As you know the list itself comprises 2155 documents and most of the privileged documents you have referred to are not described in the list itself in such a way as to disclose the potential waiver. Further Mr Michael did not inspect the documents listed, but rather relied on our review. Mr Michael did not intend to waive privilege over the privileged documents and Mr Michael maintains his claim of privilege over the privileged documents. We trust that you will return to us all copies that you have of the privileged documents (and any other privileged documents you have identified) and that you will also retrieve from your client and counsel and return to us any copies of the privileged documents which you may have already sent them. We also seek an undertaking from you that you will not use or rely on the inadvertently disclosed privileged documents in these proceedings or otherwise." 39The letter went on to say that Norton Rose were undertaking a further review of discovery, and that they would advise whether they required any further documents to be returned. It threatened proceedings seeking an injunction for the return of the documents and restraining Marque Lawyers and the Armstrong Parties from using or relying on the documents. The request for "return" of the allegedly privileged documents did not take account of the fact that the documents had been provided in electronic form on a disc containing all the discovered documents. 40Ms Marshall accepted that, when she received that letter, she realised that Mr Klotz was claiming there had been a mistake in relation to those four documents. 41None of the documents identified in that letter is a Disputed Document. 42On 12 December 2011, Marque Lawyers wrote to Norton Rose in terms that included: "In your letter of 6 December, you requested the return of four documents (referred to below as the 6 December Documents), on the basis that those documents had been mistakenly produced. In our view, our client has no obligation to return the 6 December Documents. Any privilege that might have attached to the 6 December Documents has been waived." 43The letter identified five matters that it asserted "are inconsistent with any assertion of privilege over the 6 December Documents." It continued: "In relation to the other three documents identified in our letter of 25 November, being items 904, 907 and 909 of Mr Michael's verified list, we assume that to the extent that any privilege might have attached to those documents, it is waived." ([7]-[15]) 44The Notice of Motion by which the ERA Parties sought return of certain discovered documents, and an injunction against any further use of them, was filed on 23 December 2011. Apart from the individual documents that she had reviewed for the purpose of writing the letter of 25 November 2011, Ms Marshall did not review any of the other documents that had been provided on the CD until after the Notice of Motion was filed. The Judgment Below 45Entries in the database created using the Ringtail program enable one to identify who had reviewed any particular document, and the date and precise time at which each reviewer had accessed the document. There was evidence from each of the reviewers of the Disputed Documents. None of them claimed that he or she had a recollection of forming the view that any particular document was privileged. Rather, the evidence of all of them was, in substance, that having seen again those of the Disputed Documents that he or she had reviewed, it was apparent that each of the documents was privileged. Each of them deposed that it must have been an error on their part to fail to include an entry in the database that showed the document as being privileged. The judge found, at [54]: "I am satisfied that they honestly believed that they must have failed to manipulate the Ringtail system properly and that this was the only reason for the failure to claim privilege over the documents. I am also satisfied that they honestly believed that they would not have fallen into error in deciding that the documents were not privileged." 46The judge found that "the reviewers were instructed that any document that was privileged was to be the subject of a claim for privilege" ([55]). The judge regarded a critical question as being whether the defendants had demonstrated that: "... the reviewers intended to claim privilege over the Documents but that by inadvertence or mistake the Documents were included in the non-privileged section of the List of Documents and inspection was allowed." ([55]) 47A critical passage in the reasoning in the court below is: "The untested claims in the reviewers' affidavits are no higher than a "belief" that they would not have formed the view that the document was not privileged. This is not sufficient to show that the defendants intended to claim privilege over the specific Documents that are the subject of the Notice of Motion. However, the fact that duplicates of some of the Documents were categorised by other (or the same) reviewers as privileged in whole or in part, is a basis from which an inference may be drawn that there was an intention to claim privilege over those Documents." ([56]) 48Concerning each of the Nine Withheld Documents, a duplicate had been listed in the privileged or redacted parts of the lists of documents of the fourth defendant or other defendants. Because of that, her Honour inferred that "a decision was made to claim privilege over [those] documents", and that: "... they were inadvertently listed in the open, non-privileged section of the fourth defendant's Verified List of Documents and were inadvertently produced to the plaintiffs for inspection. The defendants have not waived their claim of privilege in these documents." 49Her Honour rejected a submission that there would be unfairness in requiring those documents to be returned. 50The Four Released Documents were ones in relation to which there was no claim of privilege in the fourth defendant's list, and no duplicates had been listed in the privileged or redacted sections in any of the defendants' Verified Lists of Documents. Concerning those documents, her Honour was not prepared to infer that there was any intention to claim privilege. 51To give effect to her Honour's decision, the Armstrong Parties have returned the disks that they obtained containing images of the Disputed Documents. They have been provided instead with disks that contain images of the discovered documents concerning which no claim of privilege was made, other than the Disputed Documents. For the purposes of the appeal lawyers for the Armstrong Parties have been provided with copies of the Disputed Documents, on the basis of undertakings concerning the use that can be made of them. However the appeal must be decided by considering whether her Honour's decision was correct - ie, by considering whether at the time of her Honour's decision the ERA parties had an entitlement to have the Disputed Documents returned to them, and to prevent any use being made of the Disputed Documents. The Legal Principles 52Identification of the correct legal principles to apply in the present case requires a consideration of how three different areas of the law interact. The first of them is the law relating to the privilege that attaches to legal advice and to communications made for the purpose of litigation. The second of them is the law relating to confidential information. The third of them concerns the court procedures for compulsory disclosure of documents, through discovery. 53Further, in the last 60 or so years there have been some fundamental changes in the way in which the law concerning privilege and rights of confidentiality attaching to legal advice is understood as operating. Some of those changes have arisen from the introduction of the Evidence Act 1995, some from amendments made to the Evidence Act, some from changes that the High Court has made to the common law concerning legal professional privilege, some from clarification of how privilege arising under the Evidence Act interacts with the common law of legal professional privilege, and some from development of the law relating to confidential information. In assessing the present persuasive force of any previous court decision concerning these topics it is very important to be alert to whether there has been any relevant change, in any of the respects I have just identified, to any of the principles in accordance with which that case was decided. 54It is convenient to set out first the provisions of statutes and court rules that are relevant. Privilege 55Part 3.10 of the Evidence Act provides some of the law concerning the availability of various privileges in court procedures. That Part runs from s 117 to s 134 inclusive. Division 1 runs from s 117 to s 126. 56Section 117(1) provides: "confidential communication means a communication made in such circumstances that, when it was made: (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law." 57Client legal privilege arises under ss 118 and 119: "Legal advice Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication made between the client and a lawyer, or (b) a confidential communication made between 2 or more lawyers acting for the client, or (c) the contents of a confidential document (whether delivered or not) prepared by the client, lawyer or another person, for the dominant purpose of the lawyer, or one or more of the lawyers, providing legal advice to the client. Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of: (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party." 58The presently relevant section that concerns loss of client legal privilege is s 122, which provides: (1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120. (3) Without limiting subsection (2), a client or party is taken to have so acted if: (a) the client or party knowingly and voluntarily disclosed the substance of the evidence to another person, or (b) the substance of the evidence has been disclosed with the express or implied consent of the client or party. (4) The reference in subsection (3) (a) to a knowing and voluntary disclosure does not include a reference to a disclosure by a person who was, at the time of the disclosure, an employee or agent of the client or party, or of a lawyer of the client or party, unless the employee or agent was authorised by the client, party or lawyer to make the disclosure. (5) The client or party is not taken to have acted in a manner inconsistent with the client or party objecting to the adducing of the evidence merely because: (a) the substance of the evidence has been disclosed: ... (iii) under compulsion of law ..." 59From the time the Evidence Act first came into effect in 1995, ss 118 and 119, which confer the client legal privilege, have been expressed in terms of when "evidence is not to be adduced". Thus, in terms they have not applied outside a context where evidence is being adduced. Pursuant to s 4(1) Evidence Act, and the definition of "NSW court" in the Dictionary to that Act, those provisions apply in the Supreme Court, any other court created by the NSW Parliament, and when any person or body (other than a court) is exercising a function under the law of NSW and is required to apply the laws of evidence. 60However, ss 118 and 119 have now been given an extended operation by s 131A Evidence Act. Section 131A(2) defines "disclosure requirement" as including pre-trial discovery. Section 131A(1) provides: "If: (a) a person is required by a disclosure requirement to give information, or to produce a document, which would result in the disclosure of a communication, a document or its contents or other information of a kind referred to in Division 1, ... and (b) the person objects to giving that information or providing that document, the court must determine the objection by applying the provisions of this Part (other than sections 123 and 128) with any necessary modifications as if the objection to giving information or producing the document were an objection to the giving or adducing of evidence." 61Section 131A was first introduced into the Evidence Act by the Evidence Amendment Act 2007. That Act also completely replaced a previous version of s 122. Both of those amendments took effect from 1 January 2009. Discovery 62The Uniform Civil Procedure Rules concerning discovery are drafted using a convention whereby party B is ordered to give discovery to party A. Uniform Civil Procedure Rule 21.3 provides: "(1) Party B must comply with an order for discovery by serving on party A a list of documents that deals with all of the documents (other than excluded documents) referred to in the order. (2) The list of documents: [requirements for form and substance of the list] (d) must identify any document that is claimed to be a privileged document, and specify the circumstances under which the privilege is claimed to arise." 63The Dictionary at the end of UCPR states: "privileged document means a document that contains privileged information." 64The definition of "privileged information" in that Dictionary includes within that expression: "(a) information of which evidence could not, by virtue of the operation of Division 1 of Part 3.10 of the Evidence Act 1995, be adduced in the proceedings over the objection of any person." 65Through those definitions, it is the Evidence Act principles for the existence of client legal privilege that are applied concerning obligations and rights that arise under the UCPR concerning discovery. 66Uniform Civil Procedure Rule 21.4(1) requires that the list of documents be accompanied by a supporting affidavit. UCPR 21.4(2) identifies the matters that such an affidavit must address. One requirement is that the deponent must state that he or she "has made reasonable inquiries as to the documents referred to in the order". Another of them is that the affidavit "must state, in respect of any document that is claimed to be a privileged document, the facts relied on as establishing the existence of the privilege". The affidavit of Mr Michael that accompanied his list of documents was made under the requirements of that rule. 67Uniform Civil Procedure Rule 21.4(1) also requires that the list of documents be accompanied "if party B has a solicitor, by a solicitor's certificate of advice". UCPR 21.4(3) requires that that certificate of advice must state that the solicitor: "(a) has advised party B as to the obligations arising under an order for discovery (and if party B is a corporation, which officers of party B have been so advised)." The certificate of Mr Klotz that accompanied Mr Michael's list of documents, was made in accordance with the requirements of that rule. 68Uniform Civil Procedure Rule 21.5 provides, so far as relevant: "(2) Within 21 days after service of the list of documents, or within such other period or at such other times as the court may specify, party B must, on request by party A: (a) produce for party A's inspection the documents described in Part 1 of the list of documents (other than privileged documents), and ... (d) provide photocopies of, or facilities for the photocopying of, such of the documents as are capable of being photocopied ..." Common Law Legal Professional Privilege - An Immunity from Obligations of Disclosure 69The concept of "client legal privilege" that the Evidence Act introduced was similar, but far from identical, to the pre-existing common law concept of legal professional privilege. 70From the second half of the twentieth century onwards, there have been some significant alterations in the way that the common law of legal professional privilege has been understood. In the first half of the twentieth century the privilege was commonly understood as operating only in connection with litigation. The subject matter that the privilege protected was any written or oral confidential communication that a person made to his or her lawyer, whether that communication was made for the purpose of litigation then on foot or reasonably anticipated, or for the purpose of obtaining legal advice; and a confidential communication that anyone (even if not a client) made to a lawyer for the purpose of litigation then on foot or reasonably anticipated. The only circumstances in which the privilege provided that protection was in connection with the procedures in litigation that could require the disclosure of documents or the substance of communications. 71The privilege entitled a witness in court to refuse to answer a question that would reveal such a communication, entitled a party to litigation to decline to produce upon discovery a document containing such a communication, entitled a party to litigation to refuse to answer an interrogatory that would disclose such a communication, and entitled the recipient of a subpoena duces tecum to refuse to produce a document that contained such a communication. However, a party to litigation was not excused from revealing, in a list of documents produced for discovery, that a document containing such a communication existed. 72The possibility of legal professional privilege having a role to play outside litigation was brought to attention by Commissioner of Inland Revenue v West-Walker [1954] NZLR 191, which recognised the possibility of legal professional privilege providing a ground upon which a person might decline to produce a document to a government official who had exercised a statutory power to serve a notice compelling the production of certain documents. It was only when Baker v Campbell (1983) 153 CLR 52 held that legal professional privilege might provide a ground for resisting production of a privileged document pursuant to a search warrant (reversing the High Court's decision to the opposite effect earlier in the same year in O'Reilly v The Commissioners of the State Bank of Victoria (1983) 153 CLR 1) that the ability of legal professional privilege to operate outside the context of litigation became clearly established in Australia. 73However, even with this wider scope of operation, legal professional privilege remains a principle of the law that entitles someone to decline to obey a requirement to disclose documents or to answer questions that, in the absence of that privilege, would be a legally binding requirement. As Gibbs CJ said in Baker v Campbell at 70: "The rule as to legal professional privilege is not a rule which governs admissibility. The privilege entitles a party to refuse to produce a privileged document, but it does not render such document inadmissible ..." 74Mason J, at 83, recognised "the traditional distinction between the concepts of admissibility and privilege". Murphy J at 86 said that the privilege: "... protects from disclosure any oral or written statement, or other material, which has been created solely for the purpose of advice, or for the purpose of use in existing or anticipated litigation." (emphasis added) 75Deane J at 111 said: "A person is obliged to disclose or yield his information or property only to the extent that he is compelled so to do by some applicable common law principle or statutory provision. Where no such compulsion exists, there is no need for any special privilege protecting particular types of information or property from disclosure or seizure. The ordinary entitlement to remain silent and to retain one's information or property only constitutes a special privilege where it is preserved as an exception in circumstances where disclosure or cession would otherwise be compelled. In the absence of any such general compulsion, that entitlement represents no more than the ordinary position of the ordinary citizen under the common law." 76Dawson J at 127 said: "The law came to recognize that for its better functioning it was necessary that there should be freedom of communication between a lawyer and his client for the purpose of giving and receiving legal advice and for the purpose of litigation and that this entailed immunity from disclosure of such communications between them." (emphasis added) 77Similarly in Attorney-General for the Northern Territory v Maurice (1986) 161 CLR 475 at 487 Mason and Brennan JJ said that the privilege "protected from disclosure", and "enables the client to keep the communication from disclosure". Deane J at 490 said that it: "... extends to protect the citizen from compulsory disclosure of protected communications or materials to any court or to any tribunal or person with authority to require the giving of information or the production of documents or other materials." 78In Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, Gummow J, at 565, said that legal professional privilege: "... is not to be characterised as a rule of law conferring individual rights, breach of which gives rise to an action on the case for damages, or an apprehended or continued breach of which may be restrained by injunction." His Honour went on, at 566, to refer to "the character of the privilege as a bar to compulsory process for the obtaining of evidence rather than as a rule of inadmissibility." 79In Daniels Corporation International Pty Ltd v ACCC (2002) 213 CLR 543, Gleeson CJ, Gaudron, Gummow and Hayne JJ said at 553 [11]: 'Legal professional privilege is not merely a rule of substantive law. It is an important common law right, or, perhaps, more accurately, an important common law immunity." (emphasis added) 80Similarly, in Daniels McHugh J said at 563 [44]: "Australian courts have classified legal professional privilege as a fundamental right or immunity: Baker v Campbell (1983) 153 CLR 52; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501). Accordingly, they hold that a legislature will be taken to have abolished the privilege only when the legislative provision has done so expressly or by necessary implication: Baker v Campbell (1983) 153 CLR 52; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121; Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501. Legal professional privilege describes a person's immunity from compulsion to produce documents that evidence confidential communications about legal matters made between a lawyer and client or between a lawyer and a third party for the benefit of a client: Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 550." (emphasis added, footnotes expanded) 81Cross on Evidence, 8th Australian edition, (2010) LexisNexis at [25005] says: "Doctrines of privilege in the context of the law of evidence are to be understood as an exemption which is conferred by the law upon a party to litigation or upon a witness in litigation. The exemption is one from the normal obligation of a citizen to provide the judicial arm of the state with the information and documents which are required for the determination of the litigation...[t]he immunity to be considered in this chapter concerns the right of a party to refuse to disclose certain confidential communications to a tribunal or other person; not the right to refuse to appear before that tribunal ad to give any evidence whatsoever." (emphasis added) 82English courts have also recognised that legal professional privilege is an entitlement to resist what would, absent the privilege, be a legal obligation to disclose documents or information. In Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027 at 1044, Slade LJ (Woolf LJ and Sir George Waller agreeing) accepted a submission that "privilege is essentially privilege from compulsory disclosure". See similarly Webster v James Chapman & Co [1989] 3 All ER 939 at 943 per Scott J. 83Even though a confidential communication for the purpose of litigation or legal advice is essential for the existence of legal professional privilege, it is not the confidentiality of the communication that provides the rationale for the existence of the privilege. There are many relationships in which communications are made in confidence, but the existence of that obligation of confidence provides no basis under the common law for a person who owes the obligation of confidence to decline to answer a question or produce a document in the course of legal proceedings. Rather, the rationale for the existence of the privilege lies in public policy recognising that there is a particular importance in making immune from compulsory disclosure confidential communications that are made for the purpose of obtaining legal advice, or in connection with litigation: Baker v Campbell at 65-66 per Gibbs CJ, 74-75 per Mason J, 85 per Murphy J, 93-94 per Wilson J, 113-115 per Deane J, 127-128 per Dawson J. Relationship of Client Legal Privilege and Legal Professional Privilege 84Questions of whether legal professional privilege exists had routinely arisen, before 1995, concerning the operation of court procedures like discovery and interrogatories that did not involve adducing evidence before a court or tribunal in the course of a hearing. Such questions also came to arise concerning various forms of compulsory disclosure out of court, like search warrants: Baker v Campbell. Thus, the limited scope of client legal privilege introduced by the Evidence Act did not cover the whole of the ground that had previously been covered by the common law of legal professional privilege. 85At the time of introduction of the Evidence Act 1995 it was thought that the decision in Grant v Downs (1976) 135 CLR 674 had established that at common law legal professional privilege was confined to confidential communications and documents brought into existence for the sole purpose of being submitted to legal advisers for advice or for use in legal proceedings. One of the objects of ss 118 and 119 was to replace this "sole purpose" test by a "dominant purpose" test. In Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49 the High Court revealed that the previous understanding of Grant v Downs was incorrect, and that in truth the common law continued to have a "dominant purpose" test for the existence of legal professional privilege, rather than a "sole purpose" test. 86Even after Esso had removed the difference between the common law and the Evidence Act concerning whether a "sole purpose" test or a "dominant purpose" test applied for the existence of the privilege, other differences continued to exist between the circumstances in which the common law would recognise that legal professional privilege attached to a communication, and the circumstances in which the Evidence Act would recognise client legal privilege as attaching to such a communication. One such difference, to which I will return later, concerned the circumstances in which the privilege could be lost. 87After the introduction of the Evidence Act, some judges took the view that there was an undesirable lack of coherence in a court applying the common law test of legal professional privilege to its pre-trial procedures, but then applying the Evidence Act test of client legal privilege to decide, at a trial, what evidence was admissible. There were various attempts by court decisions to resolve that perceived lack of coherence and find a way in which the Evidence Act tests for the existence of client legal privilege could be applied in pre-trial procedures, either by giving a wide construction to the terms of the Evidence Act which stated when the Evidence Act provisions apply, or by treating the common law as having been altered in consequence of the introduction of the Evidence Act: eg, Telstra Corp v Australis Media Holdings (No 1) (1997) 41 NSWLR 277; Trade Practices Commission v Port Adelaide Wool Co Pty Ltd (1995) 132 ALR 645. The High Court brought those attempts to an end in 1999, when it decided that the Evidence Act test of client legal privilege does not apply outside the context of adducing evidence, and does not result in any alteration of the common law: Northern Territory v GPAO (1999) 196 CLR 553 at [16]-[17], [199], [254]; Esso at [16]-[17], [28], [64], [149]; Mann v Carnell (1999) 201 CLR 1 at [27], [144]. 88Those lastmentioned High Court decisions led to the enactment of legislation that required the principles in accordance with which privilege is recognised for the purpose of pre-trial procedures to accord with those by which it is recognised in the adducing of evidence at a trial. The Evidence Act concepts of client legal privilege were adopted in the Supreme Court Rules 1970 for privilege from production upon discovery, and privilege from answering an interrogatory, by amendments to Part 23 rule 1 and Part 24 rule 6 that were effective from 1 October 1999 (following the decision in Northern Territory v GPAO in March 1999). When the UCPR were enacted in 2005, as a schedule to the Civil Procedure Act 2005, they contained the definitions of "privileged document" and "privileged information" that I have set out at [63] above, that give content to the provisions of UCPR concerning discovery that I have set out at [62]-[68] above. Those definitions in the UCPR operate by using the Evidence Act concept of client legal privilege to identify the scope within which a party giving discovery is entitled to decline to produce a document on discovery, or to answer an interrogatory. Section 131A Evidence Act made explicit, from 1 January 2009, what would probably have been in any event implicit in the provisions of the UCPR that I am discussing, namely that when a court is deciding whether an objection to providing a document or providing information pursuant to a disclosure requirement is justified, the court is to decide that question by asking whether, if the document or information were to be tendered in evidence, that tender would be prohibited by the Evidence Act provisions concerning client legal privilege. Loss of Legal Professional Privilege 89Attorney-General for the Northern Territory v Maurice recognised that legal professional privilege could be lost through "waiver", and that a waiver could sometimes occur even if the person who had had the privilege did not intend to lose it (at 481, 487-488, 491-492, 497-498). Whether there was such an unintentional or imputed waiver of privilege was said to depend upon whether it was fair to maintain the privilege (482-483, 487-488, 492-493, 497-498). 90Mann v Carnell repeated the long-understood proposition that under the common law legal professional privilege could be lost through "waiver", but altered the explanation for when and why such "waiver" occurred. The joint judgment of Gleeson CJ, Gaudron, Gummow and Callinan JJ stated, at [29]: "Waiver may be express or implied. Disputes as to implied waiver usually arise from the need to decide whether particular conduct is inconsistent with the maintenance of the confidentiality which the privilege is intended to protect. When an affirmative answer is given to such a question, it is sometimes said that waiver is 'imputed by operation of law' (eg, Goldberg v Ng (1995) 185 CLR 83 at 95). This means that the law recognises the inconsistency and determines its consequences, even though such consequences may not reflect the subjective intention of the party who has lost the privilege. Thus, in Benecke v National Australia Bank ((1993) 35 NSWLR 110), the client was held to have waived privilege by giving evidence, in legal proceedings, concerning her instructions to a barrister in related proceedings, even though she apparently believed she could prevent the barrister from giving the barrister's version of those instructions. She did not subjectively intend to abandon the privilege. She may not even have turned her mind to the question. However, her intentional act was inconsistent with the maintenance of the confidentiality of the communication. What brings about the waiver is the inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large." (footnotes explanded) 91That was a reversion to the earlier orthodoxy that Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 at 326 had stated concerning waiver of contractual rights: "'A waiver must be an intentional act with knowledge' .... First, 'some distinct act ought to be done to constitute a waiver'; next, it must be 'intentional,' that is, such as either expressly or by imputation of law indicates intention to treat the matter as if the condition did not exist or as if the forfeiture or breach of condition had not occurred; and, lastly, it must be 'with knowledge' .... 'Waiver' is a doctrine of some arbitrariness introduced by the law to prevent a man in certain circumstances from taking up two inconsistent positions .... It is a conclusion of law when the necessary facts are established. It looks, however, chiefly to the conduct and position of the person who is said to have waived, in order to see whether he has 'approbated' so as to prevent him from 'reprobating'-in English terms, whether he has elected to get some advantage to which he would not otherwise have been entitled, so as to deny to him a later election to the contrary... His knowledge is necessary, or he cannot be said to have approbated or elected." (citations omitted, emphasis added) 92Since Mann v Carnell, the High Court has reiterated the principles there stated: Osland v Secretary, Department of Justice [2008] HCA 37; (2008) 234 CLR 275 at [44]-[45], [49] [93] [131]. The concept of "waiver" has been retained concerning legal professional privilege, notwithstanding the caution that the High Court has expressed concerning its usefulness in some other areas of the law: Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570 at [49]-[55]. 93I respectfully agree with the observations of Allsop J (as His Honour then was) in DSE (Holdings) Pty Limited v Intertan Inc [2003] FCA 384; (2003) 127 FCR 499 at [14] that the subordination by Mann v Carnell of the notion of "fairness" to possible relevance in the assessment of inconsistency between an action and the confidentiality of a communication produces an important change in the pre-existing law. I also agree with his Honour's observation, at [24] that whether such an inconsistency exists should be judged bearing in mind that legal professional privilege is a fundamental common law right or immunity. Loss of Client Legal Privilege 94By contrast with this statement of the common law concerning waiver of legal professional privilege, from the time the Evidence Act was enacted until 31 December 2008, s 122 provided: "(1) This Division does not prevent the adducing of evidence given with the consent of the client or party concerned. (2) Subject to subsection (5), this Division does not prevent the adducing of evidence if a client or party has knowingly and voluntarily disclosed to another person the substance of the evidence and the disclosure was not made: (a) in the course of making a confidential communication or preparing a confidential document, or (b) as a result of duress or deception, or (c) under compulsion of law, or (d) if the client or party is a body established by, or a person holding an office under, an Australian law-to the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held. (3) Subsection (2) does not apply to a disclosure by a person who was, at the time, an employee or agent of a client or party or of a lawyer unless the employee or agent was authorised to make the disclosure. (4) Subject to subsection (5), this Division does not prevent the adducing of evidence if the substance of the evidence has been disclosed with the express or implied consent of the client or party to another person other than: (a) a lawyer acting for the client or party, or (b) if the client or party is a body established by, or a person holding an office under, an Australian law-the Minister, or the Minister of the Commonwealth, the State or Territory, administering the law, or the part of the law, under which the body is established or the office is held. (5) Subsections (2) and (4) do not apply to: (a) a disclosure by a client to another person if the disclosure concerns a matter in relation to which the same lawyer is providing, or is to provide, professional legal services to both the client and the other person, or (b) a disclosure to a person with whom the client or party had, at the time of the disclosure, a common interest relating to a proceeding or an anticipated or pending proceeding in an Australian court or a foreign court. (6) This Division does not prevent the adducing of evidence of a document that a witness has used to try to revive the witness's memory about a fact or opinion or has used as mentioned in section 32 (Attempts to revive memory in court) or 33 (Evidence by police officers)." 95The replacement of s 122 Evidence Act that was effected by the Evidence Amendment Act 2007 is an attempt to reduce the differences of substance between the common law "waiver" test for when legal professional privilege is lost, as laid down by Mann v Carnell, and the tests laid down by the Evidence Act for when client legal privilege is lost. 96The test for loss of privilege under the original and the present versions of s 122 differ from each other, and from the present common law test for waiver, in numerous respects. Without intending to provide a substitute for the statutory tests, the types of difference include: - both versions of s 122 are cast in terms of when "the Division" (s 117-126) does not prevent the adducing of evidence, rather than in terms of a privilege being lost. - the original s 122 provided tests dependent on: (a) whether the evidence is given with consent (subsection (1)), or (b) whether there has been a previous disclosure of the substance of the evidence, that is either knowing and voluntary, or made with consent, in circumstances that s 122(2), (3) and (5) identify with some precision, or (c) whether the evidence is a document that has been used in court in any of the situations mentioned in s 122(6). - the present s 122 provides tests dependent on: (a) whether the evidence is given with consent (subsection (1)) (b) whether the person who had the benefit of the privilege has acted inconsistently with objecting, on the ground that it would disclose the confidential communication to which the privilege had attached, to the evidence being adduced (subsection (2). That is the same as the common law test under Mann v Carnell, subject only to a. subsections (3) and (4) identify some types of action that are deemed to be inconsistent with objecting to the evidence being adduced, and b. subsection (5) identifies some types of action that are deemed not by themselves to be inconsistent with objecting to the evidence being adduced (c) whether the evidence is a document that has been used in court in any of the situations mentioned in s 122(6) 97On a literal reading of the original version of s 122, the requirement for consent, or knowing and voluntary disclosure, would seem to make it difficult for client legal privilege to be lost inadvertently. However, "consent" came to be held to include a consent that the law imputed, regardless of whether there was an express or implied consent, if it would be unfair to the other party, in a way which go to the integrity of the legal process, for the privilege to be maintained: Telstra Corp Ltd v BT Australasia Pty Ltd (1998) 85 FCR 152 at 166, 168 per Branson and Lehane JJ. It is a likely hypothesis that their Honours chose "unfairness" as part of the test for when there was such an imputed consent because that was the test that the High Court, pre-Mann v Carnell, had held was the touchstone for the loss of legal professional privilege at common law. I mention these matters, even though Telstra v BT concerns construction of a now-repealed provision and for that reason is not part of the current law, to illustrate how important it is, when deciding the present usefulness of past decision, to understand what the law was thought to be at the time that decision was given. Confidential Information 98The obligations of confidentiality that are a necessary precondition for either legal professional privilege or client legal privilege will often be ones that arise as a matter of contract between solicitor and client, or between solicitor and someone from whom information is obtained for the purpose of litigation. However, in the situation where once-privileged information has been disclosed to an opposite party in litigation there is usually no contractual obligation between the discloser and the disclosee. In such a situation any obligation of confidentiality that can be imposed on the opposite party must arise pursuant to equitable principles concerning confidential information. 99I venture to repeat what I said (McColl JA agreeing) in Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172; (2007) 73 IPR 326 at [102]-[105]: "The conditions for the existence of an equitable obligation of confidence, independently of contract, were identified by Megarry J in Coco v A N Clark (Engineers) Ltd [1969] RPC 41 at 47: 'First, the information itself ... must "have the necessary quality of confidence about it." Secondly, that information must have been imparted in circumstances importing an obligation of confidence. Thirdly, there must be an unauthorised use of that information to the detriment of the party communicating it.' On Megarry J's account, the information is "of a confidential nature" if it is not "public property and public knowledge", or if it is "constructed solely from materials in the public domain", to which "the skill and ingenuity of the human brain" has been applied (47). This is a fairly undemanding test. Concerning the requirement that "the information must have been communicated in circumstances importing an obligation of confidence", Megarry J says, at 47-48: 'However secret and confidential the information, there can be no binding obligation of confidence if that information is blurted out in public or is communicated in other circumstances which negative any duty of holding it confidential. From the authorities cited to me, I have not been able to derive any very precise idea of what test is to be applied in determining whether the circumstances import an obligation of confidence. ... It may be that that hard-worked creature, the reasonable man, may be pressed into service once more; for I do not see why he should not labour in equity as well as at law. It seems to me that if the circumstances are such that any reasonable man standing in the shoes of the recipient of the information would have realised that upon reasonable grounds the information was being given to him in confidence, then this should suffice to impose upon him the equitable obligation of confidence. In particular, where information of commercial or industrial value is given on a business-like basis and with some avowed common object in mind, such as a joint-venture or the manufacture of articles by one party or the other, I would regard the recipient as carrying a heavy burden if he seeks to repel the contention that he was bound by an obligation of confidence ... I doubt whether equity would intervene unless the circumstances are of sufficient gravity; equity ought not be invoked merely to protect trivial tittle-tattle, however confidential.' This account has been adopted in Australia: The Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39 at 51 (Mason J as a single judge of the High Court); Half Court Tennis Pty Ltd v Seymour (1980) 53 FLR 240 at 255 (Dunn J); O'Brien v Komesaroff (1982) 150 CLR 310 at 326 per Mason J (with whom Murphy, Aickin, Wilson and Brennan JJ agreed); Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443 (Gummow J); Smith Kline & French Laboratories (Aust) Ltd v Department of Community Services and Health (1990) 22 FCR 73 at 86-87 (Gummow J). That adoption might be subject to a question about whether detriment is an element of the cause of action (Smith Kline & French at 111-112; NP Generations Pty Ltd v Feneley (2001) 80 SASR 151 at 157-158; [2001] SASC 185 at [21]), but no question arises in the present case that depends on whether detriment is indeed an element of the cause of action." (citations omitted) 100Coco v A N Clark (Engineers) Ltd [1969] RPC 41 does not provide an exhaustive statement of when equity will hold that an obligation of confidence has arisen. Even if there is no entrusting of confidential information by A to B in circumstances of confidence, there can sometimes be an obligation of confidence that attaches to information that is inherently confidential or private if that information is illegally or surreptitiously obtained, or is come across in the street, or is received unsolicited: ABC v Lenah Game Meats (2001) 208 CLR 199 at [34]-[36] per Gleeson CJ; [123] per Gummow and Hayne JJ (Gaudron J agreeing); [169]-[170] per Kirby J; [223], [306] per Callinan J (dissenting as to the result); Franklin v Giddens [1978] Qd R 72 esp at 79-80; Sullivan v Sclanders (2000) 77 SASR 419 at [50]-[51], Campbell v MGN Ltd [2004] UKHL 22; 2 AC 457 at [14], [47],[85], [166]; Douglas v Hello! Ltd (No 3) [2006] QB 125). In such a case there is "an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained." (Per Deane J, Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 at 438. An obligation of confidentiality can be recognised even if there is no particular relationship between the parties and no deliberate malfeasance, but where a person receives information that, by virtue of the circumstances in which it is received, he or she knows or ought to know is confidential (see Attorney-General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 at 281; Campbell at [14]; Trevorrow v State of South Australia (No 4) [2006] SASC 42; (2006) 94 SASR 64 at 74 [39] (Doyle CJ), 80-81 [80] (Debelle J) and 90 [118] (White J); West Australian Newspapers v Bond [2009] WASCA 127; (2009) 40 WAR 164 at [42]). The basis upon which equity intervenes in such circumstances is by deciding whether, in all the circumstances, it would be unconscientious for the recipient of the information to decline to respect the confidentiality of the information: ABC v Lenah at [45] per Gleeson CJ; [172]-[175] per Kirby J. That can depend not only on what the recipient knew at the time of receiving the information, but also on what the recipient has come to know by the time the court is considering whether or not to grant the remedy: ABC v Lenah at [46]; Johns v Australian Securities Commission (1993) 178 CLR 408 at 459-460 per Gaudron J. The Legal Principles to Apply 101There is no High Court decision that makes clear the principles that should be applied when deciding whether privileged documents that have been provided on discovery, by what is said to be mistake, should be returned, or whether any restriction should be placed on the use that can be made of information contained in them. Thus I will first consider as a matter of principle what legal tests ought to apply, and only later turn to cases in other jurisdictions that have considered the problem. 102The application made in the present case seeks an order that requires specific action, and an order requiring refraining from action, on the part of the Armstrong Parties. In other words, it seeks a mandatory injunction, and a prohibitory injunction. Even if the Disputed Documents were privileged, the common law concerning legal professional privilege would not provide a foundation for making any such orders. All the common law concerning legal professional privilege does is to provide a ground on which a person with the benefit of the privilege is entitled to resist what would otherwise be a legal demand for the disclosure of the privileged material. 103Nor is this a situation where client legal privilege under the Evidence Act would provide the ERA Parties with an entitlement to the injunctions that they seek. Sections 117 and 118 Evidence Act deal only with the circumstances in which "evidence is not to be adduced" in a court or other tribunal. If the Disputed Documents were privileged, and continued to be privileged, those sections might provide a basis upon which, at any eventual trial, the ERA Parties could prevent the documents from being received in evidence. However, those provisions of the Evidence Act do not give the ERA Parties any entitlement to receive the documents back now, well in advance of any trial, or indeed to ever receive the documents back. Nor do those sections provide any basis upon which the ERA Parties can prevent the Armstrong Parties from using the documents in the meantime. (I express no opinion about whether there might be an exception to that broad proposition concerning whether it would be an abuse of process to use the documents to amend the pleading, in a way that would be justifiable only if the documents were ultimately admissible at a hearing. The injunction that the ERA Parties seek is one that prevents the Armstrong parties from making any use at all of the Disputed Documents, not some specific type of use like amendment of a pleading. I will return later, at [174] ff below, to mention some matters relevant to whether, in any event, the Disputed Documents would be inadmissible at any trial.) 104Nor can any entitlement of the ERA Parties to the injunctions that they now seek be found in the extended operation that s 131A Evidence Act and the definition of "privileged document" in UCPR give to the applicability of s 118 Evidence Act. Section 131A only comes to be applied in a situation where a court must determine whether an objection to the production of a document, pursuant to a "disclosure requirement", is well founded. That is not the task that the Court is engaged in when it decides whether the ERA Parties are entitled to the injunctions that they sought from the primary judge. The definition of "privileged document" in UCPR has direct application only in the rules concerning the form of a list of documents and supporting affidavit, production of documents, and obligations of continuing discovery that I have identified at [62]-[68] above. It would also inform the content of the advice that the solicitor of party giving discovery must certify that he or she has given. It does not provide a basis on which the ERA Parties can obtain an order in the nature of a prohibatory injunction restraining the use that the Armstrong Parties can make of the Disputed Documents, or an order in the nature of a mandatory injunction requiring that the Armstrong Parties return the Disputed Documents. 105The only basis of principle on which the injunctions sought could be obtained is, in my view, the law of confidential information. Relevant Previous Decisions 106I now turn to consider previous decisions that bear upon the principles to apply in the present case. 107It is convenient to discuss some of the relevant cases by adapting what I said in AG Australia Holdings Ltd v Burton [2002] NSWSC 170; (2002) 58 NSWLR 464 at [141] ff. 108In Calcraft v Guest [1898] 1 QB 759 the English Court of Appeal had dealt with the admissibility of copies of privileged documents. Mr Calcraft sued for trespass to a fishery. The substantial question concerned the upper boundary of that fishery. Mr Calcraft succeeded at trial. On appeal, the appellant wished to rely on some documents of which she had obtained possession since the trial. The documents in question were proofs of witnesses, and rough notes of evidence used in defence of an earlier action, heard in 1787, for trespass to that fishery. Mr John Calcraft, a predecessor in title of the plaintiff in the 1898 action, had financed the defence of the 1787 action. (Thus, though the report does not expressly say so, it seems a reasonable inference that Mr John Calcraft was one of the persons entitled to the legal professional privilege in those proofs of witnesses and notes of evidence.) The proofs of witnesses and notes of evidence had remained with Mr John Calcraft's solicitor, until that solicitor's practice was wound up. The documents were then placed in storage. It was from that storage that the appellant had obtained the proofs of witnesses and rough notes of evidence. She made copies of the documents. The plaintiff (the 1898 Mr Calcraft) threatened legal action, and the originals of the documents were thereupon handed over to him. The question for the court was whether the copies were admissible in evidence. Lindley MR (with whom Rigby and Vaughan Williams LJJ agreed) held that the copies were admissible, notwithstanding that the originals were privileged. 109Calcraft had been decided at a time when it was understood that there was no principle of the law of evidence that restricted the admissibility of illegally or improperly obtained evidence. Since 1898 the common law has altered by the recognition of a judicial discretion to reject such evidence if it is unfair to an accused in a criminal trial, eg Kurama v R [1955] AC 197; R v Ireland (1970) 126 CLR 321; Bunning v Cross (1978) 141 CLR 54. The admissibility of such evidence is now also subject to the discretion that arises under ss 135, 136 and 138 Evidence Act (which apply in both criminal and civil proceedings). That would require qualification of Lindley LJ's suggestion at 764 that a copy made of even a stolen document would be admissible. However, subject to this possibility of discretionary rejection, it remains the law that the fact that documents are the subject of legal professional privilege (as opposed to client legal privilege) is no bar to their admissibility. The result in Calcraft v Guest is consistent with legal professional privilege being nothing more than the right to resist what would otherwise be an obligation to disclose. 110In Lord Ashburton v Pape [1913] 2 Ch 469, an injunction was granted to restrain the publication or use of privileged documents and the information contained in them, when those documents had been obtained improperly from a solicitor's clerk who had been entrusted with them. 111Mr Pape was a bankrupt. Lord Ashburton was a creditor of Pape, who opposed Pape's discharge from bankruptcy. Lord Ashburton had, previously, written letters to his former solicitor, Mr Nocton, which were privileged. Pape served on one of Mr Nocton's clerks a subpoena requiring him to produce the letters in the bankruptcy court. The clerk took the letters to the court, and, before the subpoena was called on, handed the letters to Pape. Pape's solicitors, Langford and Redfern, took copies of the letters, and returned the originals to Pape. Lord Ashburton commenced litigation against Pape, Langford, Redfern, and Nocton, seeking an injunction restraining the defendants from, in effect, disclosing the contents of the letters, or parting with them, otherwise than to the plaintiff or by deposit in court. An interlocutory injunction was granted by Neville J, requiring Pape to hand over to Nocton all original letters from Lord Ashburton to Nocton in his possession or control. There was also an order restraining Pape, Langford and Redfern, their servants and agents, "... until judgment or further order from publishing of making use of any of the copies of such letters or any information contained therein except for the purpose of the pending proceedings in the defendant ... Pape's bankruptcy and subject to the direction of the Bankruptcy Court." 112Lord Ashburton appealed, successfully, against the inclusion of the exception in the interlocutory injunction. 113The argument for the appellant started out by giving a précis of the principle in Calcraft v Guest, namely (at 471): "Communications which have passed between a client and his solicitor before any dispute has arisen between the client and his opponent are privileged from production, so the original letters cannot be used. If, however, an instrument in the hands of a solicitor which is privileged from production comes improperly into the hands of a stranger who makes a copy of it, the secondary evidence so obtained is admissible in case of notice to produce the original being duly given, and the production resisted on ground of privilege." 114The argument then went on: "But in this case there has been a breach of confidence on the part of Nocton. Pape obtained the letters from him, and a person who obtained privileged letters from anyone who is in a fiduciary position is in no better position than the trustee himself. The equity prevails against persons deriving under the breach of contract or duty (Tipping v Clarke (1843) 2 Hare 383; Morrison v Moat (1851) 9 Hare 241)." (footnotes expanded) 115Thus, the argument pointed to an essential difference between Calcraft v Guest, and Lord Ashburton v Pape. In Calcraft v Guest, while the documents in question were privileged, that privilege was one that could have been asserted by Mr John Calcraft, and in 1898 could have been asserted by whoever had succeeded to the obligations of confidence that were owed to Mr John Calcraft. All the report tells the reader about the relationship between Mr John Calcraft, and the 1898 Mr Calcraft, is that Mr John Calcraft was a predecessor in title of the 1898 Mr Calcraft, so far as the fishery was concerned. There is no basis in the report of Calcraft v Guest for finding that any obligations of confidence, which might have been owed by Mr John Calcraft's solicitor to Mr John Calcraft (and also, presumably, by the people into whose hands the proofs of witnesses and rough notes of evidence had come), were owed to the 1898 Mr Calcraft. Thus, a difference between Calcraft v Guest and Lord Ashburton v Pape was that in Lord Ashburton v Pape Lord Ashburton was a plaintiff who was owed an equity of confidence, in relation to the papers in question. 116The Court of Appeal allowed the appeal, striking out the exception which had been contained in Neville J's interlocutory injunction. Cozens-Hardy MR said, at 472: "Now, the question is raised that that exception is wrong, and that the injunction ought to go to the full extent until the trial of the action, namely from publishing or making use of any of the copies of letters or information contained therein. In my opinion the contention of the appellant is right." 117He said that the clerk: "... had no right whatever to hand over the originals to Pape nor to make any copies of any sort or kind and Pape, who was really a party to this transaction, was quite clearly under the same obligation, and liable to precisely the same jurisdiction as has long been exercised by this Court." 118He immediately went on to refer to authorities to show that a recipient of confidential information can be restrained from using it, even if the confidential information has been surreptitiously copied and passed on to the eventual recipient. Cozens-Hardy MR went on, at 472-3: "Apart, therefore, from these pending or threatened proceedings in bankruptcy, it seems to me to be perfectly clear that the plaintiff can obtain the unqualified injunction which he asks for. Now, can it make any difference that Pape says "I want, by means of these copies, to give secondary evidence in the bankruptcy proceedings?" In my opinion that is no ground for making any distinction. The rule of evidence as explained in Calcraft v Guest ([1898] 1 QB 759) merely amounts to this, that if a litigant wants to prove a particular document which by reason of privilege or some circumstance he cannot furnish by the production of the original, he may produce a copy as secondary evidence although that copy has been obtained by improper means and even, it may be, by criminal means. The court in such an action is not really trying the circumstances under which the document was produced. That is not an issue in the case and the court simply says "Here is a copy of a document which cannot be produced; it may have been stolen, it may have been picked up in the street, it may have improperly got into the possession of the person who proposes to produce it, but that is not a matter which the court in the trial of the action can go into." But that does not seem to me to have any bearing upon a case where the whole subject matter of the action is the right to retain the originals or copies of certain documents which are privileged. It seems to me that, although Pape has had the good luck to obtain a copy of these documents which he can produce without a breach of this injunction, there is no ground whatever in principle why we should decline to give the plaintiff the protection which in my view is his right as between him and Pape, and there is no reason whatever why we should not say to Pape in pending or future proceedings, "You shall not produce these documents which you have acquired from the plaintiff surreptitiously, or from his solicitor, who plainly stood to him in a confidential relation." For these reasons I think the appeal ought to be allowed so far as it asks, and only so far as it asks, to strike out the exception." (footnote expanded) 119When Cozens-Hardy MR said, "without a breach of this injunction", I take him to be meaning, "without a breach of the injunction granted by Neville J". Further, while the case before the court concerned an interlocutory injunction, in this passage Cozens-Hardy MR seems to be stating principles which would apply even on a final hearing. If that is so, then to that extent the remarks are obiter dicta; even so, they are, in my respectful view, a correct application of principle. 120Kennedy LJ said, at 474, that the principle that had been stated by Cozens-Hardy MR, "upon which a person would be restrained from dealing with documents or using information and documents which he had obtained wrongly and knows he has obtained wrongly, is clear." 121He continued: "I agree that the better view seems to me to be that although it is true that the principle which is laid down in Calcraft v Guest ([1898] 1 QB 759) must be followed, yet, at the same time, if, before the occasion of the trial when a copy may be used, although a copy improperly obtained, the owner of the original can successfully promote proceedings against the person who has improperly obtained the copy to stop his using it, the owner is nonetheless entitled to protection, because, if the question had arisen in the course of a trial before such proceedings, the holder of the copy would not have been prevented from using it on account of the illegitimacy of its origin. If that is so, it decides this case. There is no question here as to the facts, and on them it is quite clear that these copies ought never to have got into Mr Pape's possession in any shape or form." (footnote expanded) 122I confess I have difficulty in understanding the first sentence that I have just quoted. My difficulty arises from the use of the word "because". If, however, "because" were replaced with "notwithstanding that", the sentence is readily intelligible, and consistent with the views of Cozens-Hardy MR. Further, it is clear from the final sentence that Kennedy LJ regards it as important that these copies should never have been in Mr Pape's possession at all. 123Swinfen Eady LJ said, at 475, that the act of Mr Nocton's clerk in handing over the letter was a gross breach of his duty of confidentiality, and that by that means Pape had obtained possession of the letters and had proceeded to copy them, and still kept the copies. He continued. "The principle upon which the Court of Chancery has acted for many years has been to restrain the publication of confidential information improperly or surreptitiously obtained or of information imparted in confidence which ought not to be divulged. Injunctions have been granted to give effectual relief, that is not only to restrain the disclosure of confidential information, but to prevent copies being made of any record of that information and, if copies have already been made, to restrain them from being further copied, and to restrain persons into whose possession that confidential information has come from themselves in turn divulging or propagating it." 124Swinfen Eady LJ then, at 475-476 quoting Wigram VC in Tipping v Clarke (1843) 2 Hare 383; [1843] 67 ER 157 at 393, said: "'If the defendant has obtained copies of books, it would very probably be by means of some clerk or agent of the plaintiff and if he availed himself surreptitiously of the information, which he could not have had except from a person guilty of a breach of contract in communicating it, I think he could not be permitted to avail himself of that breach of contract.' That is Pape's position here. If he is allowed to retain possession of these copies or to divulge the contents, he is availing himself of the breach of contract by Brooks the clerk, by means of which these letters have come into his hands." 125His Lordship continued, at 476: "Then objection was raised in the present case by reason of the fact that it is said that Pape, who now has copies of the letters, might wish to give them in evidence in certain bankruptcy proceedings, and although the original letters are privileged from production he has possession of the copies and could given them as secondary evidence of the contents of the letters, and, therefore, ought not to be ordered either to give them up or be restrained from divulging their contents. There is here a confusion between a right to restrain a person from divulging confidential information and the right to give secondary evidence of documents where the originals are privileged from production, if the party has such secondary evidence in his possession. The cases are entirely separate and distinct. If a person were to steal a deed, nevertheless in any dispute to which it was relevant the original deed might be given in evidence by him at the trial. It would be no objection to the admissibility of the deed in evidence to say that you ought not have possession of it. His unlawful possession would not affect the admissibility of the deed in evidence if otherwise admissible. So again with regard to any copy he had. If he was unable to obtain or compel production of the original because it was privileged, if he had a copy in his possession it would be admissible as secondary evidence. The fact, however, that a document, whether original or copy, is admissible in evidence is no answer to the demand of the lawful owner for the delivery up of the document, and no answer to an application by the lawful owner of confidential information to restrain it from being published or copied." 126The decision in Ashburton v Pape has been referred to in the High Court without any adverse comment: The Commonwealth of Australia v John Fairfax & Sons Ltd (1980) 147 CLR 39 at 50 per Mason J; Baker v Campbell at 68, per Gibbs CJ, 112 per Deane J; ABC v Lenah at [34] per Gleeson CJ, [169] per Kirby J, [223] per Callinan J; Johns v Australian Securities Commission at 474 per McHugh J. 127In Goddard v Nationwide Building Society [1987] 1 QB 670, the English Court of Appeal considered another case where a document to which legal professional privilege attached (being legal professional privilege of the plaintiffs alone - 678G) came to be in the hands of the defendant. The plaintiffs had purchased a house, financed by a mortgage provided by the defendant. The house proved to be defective, to a much greater extent than had been disclosed in a survey report that had been commissioned by the defendant, and on which the plaintiffs claimed to have relied. The one solicitor acted for the plaintiffs concerning the purchase, and the defendant concerning the mortgage. That solicitor voluntarily sent to the defendant a copy of a note of a conference he had had with the plaintiffs. The plaintiffs were in the process of suing the defendants. The defendants used the privileged note as the basis for an amendment to their defence. The plaintiffs applied to have those portions of the defence struck out, and sought an injunction restraining the defendant from using or relying on the copied note, and requiring the defendant to deliver up the note and any further copies which it might have made of that note. That application succeeded. May LJ, at 680, expressed the view (with which I respectfully agree) that the ratio of Ashburton v Pape was founded on the confidential nature of the content of the letters, and the equitable jurisdiction to protect confidential information. (This Court came to a similar conclusion in Richards v Kadian [2005] NSWCA 328; (2005) 64 NSWLR 204 at [83].) May LJ, at 683, said: "I confess that I do not find the decision in Lord Ashburton v Pape logically satisfying, depending as it does upon the order in which applications are made in litigation. Nevertheless I think that it and Calcraft v Guest [1898] 1 QB 759 are good authority for the following proposition. If a litigant has in his possession copies of documents to which legal professional privilege attaches he may nevertheless use such copies as secondary evidence in his litigation; however, if he has not yet used the documents in that way, the mere fact that he intends to do so is no answer to a claim against him by a person in whom the privilege is vested for delivery up of the copies or to restrain him from disclosing or making any use of any information contained in them. 128Nourse LJ, at 684D, agreed with this proposition. Nourse LJ also stated some propositions in which he contrasted the rule of evidence established by Calcraft v Guest, and the equitable jurisdiction reaffirmed in Lord Ashburton v Pape. He says, at 685: "Second, although the equitable jurisdiction is of much wider application, I have little doubt that it can prevail over the rule of evidence only in cases where privilege can be claimed. The equitable jurisdiction is well able to extend, for example, to the grant of an injunction to restrain an unauthorised disclosure of confidential communications between priest and penitent, or doctor and patient. But these communications are not privileged in legal proceedings and I do not believe that equity would restrain a litigant who already had a record of such a communication in his possession from using it for the purposes of his litigation. It cannot be the function of equity to accord a de facto privilege to communications in respect of which no privilege can be claimed. Equity follows the law ... Fourth, once it is established that a case is governed by Lord Ashburton v Pape [1913] 2 Ch 469 there is no discretion in the court to refuse to exercise the equitable jurisdiction according to its view of the materiality of the communication, the justice of admitting or excluding it or the like. The injunction is granted in aid of the privilege which, unless and until it is waived, is absolute. In saying this, I do not intend to suggest that there may not be cases where an injunction can properly be refused on general principles affecting the grant of a discretionary remedy, for example on the ground of inordinate delay." 129I would prefer to reserve for another day consideration of whether the proposition that Nourse LJ identified as "second" is correct. When privilege is nothing more than the right of a person who is entitled to confidentiality concerning certain types of confidential documents or information to decline to disclose those documents and that information, it is not immediately apparent to me that to injunct, for example, someone who had stolen a doctor's notes from using those notes in litigation would be to accord the notes a "de facto privilege". 130Leaving aside the statutory protections that are sometimes accorded to confidential communications other than those involving lawyers under ss 126A to 127 Evidence Act, it is quite clear that if a party to litigation obtains a confidential document by legitimate means, such as issuing a subpoena, the confidentiality is no bar to the use of that document in litigation. That is because the circumstances of obtaining the document are such that are such that equity would not recognise an obligation of confidence that precluded the use of the document in litigation as arising from the obtaining of a document in such circumstances. However it is not immediately clear to me that the situation would be the same if the only reason the litigant had the confidential document was because he had stolen it. 131The statement in the paragraph commencing "Fourth" that the "injunction is granted in aid of the privilege" does not sit well with the statement of Gummow J in Propend that a privilege is not the sort of right "an apprehended or continued breach of which may be restrained by injunction". Nor does it sit well with the repeated theme in High Court cases that privilege is a means of resisting what would otherwise be an obligation to give disclosure. It is clear that in those circumstances where legal professional privilege exists the public policy favouring maintaining the confidentiality of the communications involved is unqualified, and thus there is no occasion for the court to engage in any exercise of balancing the importance of upholding the privilege against any competing interest: Waterford v The Commonwealth (1987) 163 CLR 54 at 64-65; Carter v Northmore Hale Davy & Leake (1995) 183 CLR 121 at 128, 133-134, 161. It may be that if a person who has come to have possession of confidential documents to which privilege continues to attach at the time the matter comes before the court is subject to an obligation of confidentiality concerning those documents the court would be guided by the public policy that underlies the privilege in deciding whether to grant an injunction to protect the confidentiality, and in that sense the "injunction is granted in aid of the privilege" (cf Derby & Co v Weldon (No 8) [1991] 1 WLR 73 at 99). However, even if that is right, it is still necessary to establish that the holder of the documents is subject to an obligation of confidentiality before an injunction will issue. Further, it is hard to see how the absolute nature of the privilege can be reconciled, as Nourse LJ accepts it can be, with the availability of discretionary defences. I would prefer to leave the correctness of the propositions in the paragraph commencing "Fourth" for another day. 132None of the cases that I have considered so far under this heading has been one in which the privileged documents in question were obtained through the operation of the court's procedures for discovery. Some English decisions have considered whether there was what the judges referred to as a waiver of legal professional privilege when privileged documents were mistakenly included in a list of documents for which no privilege was claimed, in the course of giving discovery in court proceedings. In In re Briamore Manufacturing Ltd (in liquidation) [1986] 1 WLR 1429 Hoffmann J (as his Lordship then was) considered a situation where not only had the privileged documents been mistakenly included in a list of document for which no privilege was claimed, but those documents had been inspected, notes made of their contents, and a photocopy taken of one of them. 133Though the judgment does not refer to it, the report of Briamore makes clear that Calcraft v Guest [1898] 1 QB 759 had been cited in argument to Hoffmann J. 134As Hoffmann J recorded at 1431, counsel accepted, apparently on the authority of Calcraft v Guest: "... that [the solicitor who had inspected the documents] could give secondary evidence of the contents of those documents, that he could produce the photocopy which he had made and that the liquidator could be cross-examined on them. That, on the face of it, suggests that unless an order for the production of copies is made the court will be in the position of receiving evidence about the contents of the documents and being able to act on that evidence but not have access to the best evidence, which is the documents themselves. That seems to me to be an illogical position. If the policy of the conduct of litigation requires that the privilege relating to those documents should be preserved, then it would seem that it should be right that nothing at all about the documents should be put before the court. On the other hand, if, as is conceded, secondary evidence is going to be admissible, there seems to me to be no logic in the court not seeing the documents themselves." 135Further, he held at 1432: "It would seem to me illogical that having carried out the inspection, but not gone through the physical process of making copies at the time, he should now be disentitled from obtaining the best evidence of the documents which he has seen." 136He concluded, at 1432, that "once inspection has taken place it is too late to correct the mistake and that the respondent is entitled to his copies." That decision was based solely upon considerations of privilege, and the English rules. Ashburton v Pape was not cited, and the decision did not take into account any role that equities of confidence might have. When later cases have taken those matters into account, his Lordship's conclusion has been made subject to an important qualification. 137English and American Insurance Co Ltd v Herbert Smith & Co [1987] 137 NLJ 148 is a decision of Sir Nicolas Browne-Wilkinson VC. It arose when, by mistake, a barrister's clerk delivered counsel's brief in pending litigation to Herbert Smith, the solicitors acting for the opposite side. Herbert Smith read the brief, then sent it to the solicitors who had briefed the barrister. Sir Nicholas had no difficulty in deciding that Herbert Smith must hand over any documents containing information derived from it, and not use that information. He rejected a submission that such an injunction could be granted only if the recipient of the confidential information had been in some way wrongfully implicated in obtaining that information. He noted, at 148, that there was "no dispute that the documents are legally professionally privileged." He found that Herbert Smith "only read the documents after becoming well aware that they were privileged documents" (149). 138In Guinness Peat Properties Ltd v Fitzroy Robinson Partnership, a builder had sued architects claiming damages for an alleged design error in a building. The architects wrote a letter to their insurers expressing their view about the prospects of being held liable on the claim ("the McLeish letter"). By mistake that letter was left in a correspondence file that the architects' solicitor produced for inspection by the solicitor and experts of the builder, at a time when no list of documents had been produced. They made a copy of it, without letting the architects' solicitors know that they had done so. Though they placed tags on various of the documents that had been inspected, no tag was placed on the McLeish letter. Later, the solicitors for the architects produced a supplementary list of documents, which made no claim for privilege concerning the McLeish letter. The solicitor for the builder inspected the documents identified in the list, which by this time had been paginated. This time, the solicitor for the builder wrote requesting a copy of the McLeish letter. His evidence "was that his purpose was to obtain a copy with the page number and to 'test the reaction' of [the architects'] solicitors" (1032). That letter produced no response. It was only when reports of the builder's experts were served, referring to the letter in question, that the solicitors for the architects realised that a copy of the letter had been produced by mistake. An official referee gave leave to the architects to amend their list of document to claim privilege for the letter in question, granted an injunction restraining the builders from using the information contained in it, and ordered delivery up of all copies of the letter. That decision was upheld in the Court of Appeal. 139The decision of the Court of Appeal should be understood in light of the questions that were argued before it, namely: "(A) was the McLeish letter ever entitled to privilege? and (B) if so, have the plaintiffs lost their right to claim privilege in respect of the letter or should they be granted injunctions in aid of that right?" 140Slade LJ (Woolf LJ and Sir George Waller agreeing) answered both those questions in the affirmative. His conclusion concerning issue (A) was, at 1039: "Thus, in my judgment, the McLeish letter was at least originally privileged in the hands of the defendants. It is now necessary to consider whether for one reason or another their right to claim privilege has been lost." 141After referring to the decision in Briamore, Slade LJ observed that Lord Ashburton v Pape had not been cited in that case. He discussed Goddard v Nationwide Building Society, and English and American Insurance Co v Herbert Smith and Co. 142Slade LJ found as a fact that there was never any intention on the part of the architects' solicitors to abandon the privilege which they regarded as attaching to the McLeish letter. However, in reliance on Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529, he accepted that inadvertence by itself is not necessarily enough to enable a party to litigation to avoid a loss of privilege. At 1044, Slade LJ referred to an argument of Mr Burnton QC, counsel for the builder, that "privilege is essentially privilege from compulsory disclosure". Slade LJ's finding was: "With one important reservation, I would entirely accept the submission summarised in the immediately preceding paragraph. Care must be taken by parties to litigation in the preparation of their lists of documents and no less great care must be taken in offering inspection of the documents disclosed. Ordinarily, in my judgment, a party to litigation who sees a particular document referred to in the other side's list, without privilege being claimed, and is subsequently permitted inspection of that document, is fully entitled to assume that any privilege which might otherwise have been claimed for it has been waived. Let there be no doubt about that. My one reservation is this. I do not think that after inspection has taken place in the course of discovery, the court is inevitably and invariably powerless to intervene by way of injunction in exercise of the equitable jurisdiction exemplified by the Ashburton, Goddard and Herbert Smith cases if the particular circumstances warrant such intervention on equitable grounds. I do not doubt, for example, that the court would be prepared so to intervene where one party to litigation had obtained inspection of a privileged document by fraud, albeit in what purported to be the normal course of discovery." 143He found, as a matter of fact, that the experts and solicitor of the builders must have realised that the McLeish letter had been provided for inspection by mistake. He held, at 1045: "... that they were in all the circumstances seeking to take advantage of what they must have known was an obvious error on the part of [the architects'] solicitors in permitting them on two occasions to inspect this letter and in including it in Part 1 of Schedule 1 of the supplemental list." 144At 1045-6 he summarised the relevant principles as: "(1) Where solicitors for one party to litigation have, on discovery, mistakenly included a document for which they could properly have claimed privilege in Part 1 of Schedule 1 to a list of documents without claiming privilege, the court will ordinarily permit them to amend the list under RSC, Ord 20, r 8, at any time before inspection of the document has taken place. (2) However, once in such circumstances the other party has inspected the document in pursuance of the rights conferred on him by RSC, Ord 24, r 9, the general rule is that it is too late for the party who seeks to claim privilege to attempt to correct the mistake by applying for injunctive relief. Subject to what is said in (3) below, the Briamore decision [1986] 1 WLR 1429 is good law. (3) If, however, in such a last mentioned case the other party or his solicitor either (a) has procured inspection of the relevant document by fraud, or (b) on inspection, realises that he has been permitted to see the document only by reason of an obvious mistake, the court has the power to intervene for the protection of the mistaken party by the grant of an injunction in exercise of the equitable jurisdiction illustrated by the Ashburton, Goddard and Herbert Smith cases. Furthermore, in my view it should ordinarily intervene in such cases, unless the case is one where the injunction can properly be refused on the general principles affecting the grant of a discretionary remedy, for example, on the ground of inordinate delay: see Goddard v Nationwide Building Society [1986] 3 WLR 734 at 745E-F per Nourse LJ." 145Notwithstanding that, no doubt in deference to Nourse LJ's "second" proposition in Goddard, the question posed was framed in terms of whether injunctions should be granted "in aid of" the legal professional privilege, the conclusion arrived at is, as I read it, not dependent on whether the documents were privileged. Rather, it is dependent on it being appropriate to grant an injunction to protect the confidentiality of the information that has been disclosed by mistake, in circumstances where the inspection has been obtained by fraud, or it is apparent that inspection has been permitted by mistake, and there is no equitable discretionary defence available. English and American Insurance v Herbert Smith is to be explained in the same way. 146Hooker Corporation Ltd v Darling Harbour Authority (1987) 9 NSWLR 538 involved another situation where privileged material had been discovered by mistake. The case pre-dated enactment of the Evidence Act, so the privilege involved was legal professional privilege. The document in question was made available for inspection, copied by the opposite party, and referred to by the opposite party in the course of opening the case at trial. Only when counsel for the opposite party tried to use the document later in the case to cross-examine a witness was objection taken to that course. It appears (though the report contains no specific order) that Rogers J upheld that objection. However, his Honour's legal analysis was all in terms of whether privilege had been waived. In light of legal professional privilege being a right to resist what would otherwise be a requirement to disclose a document or information, and the discussion in Calcraft v Guest, the question of whether a party was entitled to use a document it already had in its possession did not depend upon whether the document was privileged. Further, Hooker Corp v Darling Harbour Authority was decided at a time when the "fair in all the circumstances" test that the High Court laid down in Maurice was understood to be the correct test for whether there had been a waiver of privilege. Applying that test, his Honour held that the fact that there had been an accelerated discovery process, involving a very large number of documents, did not make it unfair to maintain the privilege. For both these reasons, Hooker Corp v Darling Harbour Authority does not provide a guide to the current state of the law. 147In Director of Public Prosecutions (Commonwealth) v Kane (1997) 140 FLR 468, some defendants who were charged with Commonwealth offences applied to the DPP for a discontinuance of committal proceedings against them. Hunt CJ at CL granted orders restraining the defendants from using information contained in some legal advice that the DPP had sent to them in error, and requiring delivery up of all copies of that information. The legal advice in question was some thirty-seven pages long. It was sent enclosed in a letter that stated, comparatively briefly, that the DPP had decided that the committal proceedings against the defendants should continue. The letter made no reference to there being any enclosure with the letter. While Hunt CJ at CL said at 476 that it was unnecessary to make any "specific findings" about the state of mind of the solicitor for the defendants upon receiving the document, he expressed the view that the solicitor's "initial action of seeking advice from counsel is more consistent with a belief on his part that the document may well have been sent to him in error." He found, at 485, that a hypothetical reasonable solicitor would have realised that the document had been sent to him by mistake. 148Importantly, as Hunt CJ at CL recognised at 486, DPP v Kane did not concern a confidential document that came into the hands of the opposite party to litigation in the course of the apparently regular operation of the court's discovery procedures. Though Hunt CJ at CL also went on to hold that privilege in the document had not been lost, for the reasons I have already given that was irrelevant to entitlement to the injunctions his Honour granted. 149Meltend Pty Ltd v Restoration Clinics of Australia Pty Ltd (1997) 75 FCR 511 was extensively relied on by the Armstrong Parties both in the court below and on the appeal. It concerned a document that had been included in the unprivileged part of a list of documents served pursuant to a requirement to give discovery. The document in question had been inspected, and some notes dictated concerning it. Only when a copy of the document was requested was a claim made that the document was privileged. Goldberg J held, at 516, that the document in question was not patently privileged, in the way an advice from counsel might be. He did not accept that the solicitor who had inspected it was seeking to take advantage of what she must have realised was an obvious error or mistake. Goldberg J held that there had been either an express waiver or an imputed waiver of such privilege as existed in relation to the letter. 150As the order sought in Meltend was an order that a copy of the document be provided, it was, with respect, appropriate for his Honour to consider the question in terms of whether any privilege still attached to the document. However, the different, injunction-like orders, sought in the present case provide an important ground for distinguishing it from Meltend. 151In Meltend at 524, Goldberg J said: "But once documents have been disclosed to an opposite party as part of the formal process of discovery and inspection, in circumstances involving no criticism of that party, I consider that fairness requires that that party not be disadvantaged in the use it can make of those documents." 152I would be reluctant to endorse a proposition as unqualified as that one. Meltend was decided before Mann v Carnell, and at a time when "fairness" was thought to be the touchstone for whether there had been a waiver of privilege. In the present state of the law, questions of waiver must be decided by reference to whether a party seeking to maintain a privilege has acted inconsistently with preserving the privilege. I would prefer to make that decision by reference to the facts of each individual case, not by reference to any broad proposition about when such inconsistency must always exist. 153At 526-7, Goldberg J said: "The obligation is on the party giving discovery to determine what documents are discoverable and what documents are able to be inspected. Any claim for legal professional privilege should be taken at the time an affidavit or list in relation to discovery is filed. A party seeking inspection should be entitled to assume that the discovering party has carried out the process of discovery properly and in accordance with relevant principles. Otherwise parties will be placed in difficult situations if documents can be withdrawn from inspection after an initial inspection with the result that there is an inability to use information properly obtained on discovery. If parties are to be able to change their mind about the privilege attaching to a document after it has been inspected the process of discovery has the potential to become unworkable. In the absence of obvious mistake apparent to an inspecting party and fraud I consider that the appropriate principle to apply is that once inspection has been allowed of a document listed in that part of an affidavit or list in which privilege from inspection is not claimed, any privilege attaching to that document is to be regarded as waived by being included in that part of the affidavit or list and by being made available for inspection." 154Those remarks contain some cogent observations about practicalities that arise concerning the giving of discovery, which could bear upon whether legal professional privilege had been waived in accordance with the Mann v Carnell test. However, the reasons I have given at [153] above make me reluctant to accept his Honour's statement of "the appropriate principle". 155Trevorrow v State of South Australia (No 4) is a decision of the Full Court of the Supreme Court of South Australia (Doyle CJ, Debelle and White JJ). The plaintiff was an Aborigine who had been removed by State authorities from his parents at the age of one, and thereafter brought up by foster parents and in institutions. He sued the State, alleging various breaches of statutory duty, torts, and breaches of fiduciary duty. The State gave discovery, but claimed legal professional privilege in respect of (relevantly) ten documents. Notwithstanding that claim of privilege, the plaintiff already had complete copies of the documents. He had obtained those copies from the State Archives, after the plaintiff's solicitor had written requesting access to them. The plaintiff's solicitor had explained to the Archives staff that the purpose of seeking access was that the plaintiff had instructed her to act on his behalf in relation to his separation as a child from his family, and he was preparing information to be submitted to the inquiry that later came to be known as the "stolen generation" inquiry. The copies were provided, upon payment of a photocopying fee, without any claim of privilege. The appeal was conducted on the basis that all the documents that were in dispute had once been the subject of legal professional privilege. The relevant appeal was from a decision of a trial judge who permitted the documents to be tendered notwithstanding an objection based upon the documents being privileged, and who refused an injunction to restrain any use of the documents by the plaintiff on the ground that they were subject to an equitable duty of confidence [114]. White J held that a reasonable solicitor in the position of the plaintiff's solicitor would have been entitled to conclude that the documents were not regarded as confidential, or at least that no conditions of confidentiality were being imposed (at [147]), and thus that no equity of confidence could be asserted against the plaintiff. White J also held, that, in those circumstances, any questions of whether the documents were privileged "lacked utility" [171]. He said, at [172]-[173]: "Legal professional privilege, where it exists, serves to protect the confidentiality of communications made in connection with the giving or obtaining of legal advice: (Esso Australian Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at 64 [35], per Gleeson CJ and Gummow and Gaudron JJ; Mann v Carnell (1999) 201 CLR 1 at 13 [28] per Glesson CJ, Gaudron, Gummow and Callinan JJ). Legal professional privilege operates to relieve a party to a communication, or a holder of a document recording the communication, from being compelled to disclose the communicational document to a third party. '[P]rivilege operates to protect certain confidential information from compelled disclosure. It is only when a legitimate authority is trying to compel production of confidential information that the question of whether some of the information is privileged arises. In the compelled disclosure situation, privilege acts like an automatic barrier which closes around lawyer-client communications to prevent the compeller, who is by definition outside the relationship, from obtaining access from that confidential information which privilege protects. But this automatic barrier is automated only by an outside request to disclose confidential information, under legal compulsion. If no legitimate authority is trying to compel production of the confidential information there is no need for the privilege barrier to be operational because there is no outside party from the [sic] whom the information must be withheld (A L E Newbold, "Inadvertent Disclosure in Civil Proceedings", (1991) 107 LQR 99 at 100).' Where the confidential communications have already been disclosed to a third party, it is the law relating to the protection of confidences which provides a remedy (Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501 at 565-6 and 570 per Gummow J)." (footnotes expanded) 156Doyle CJ agreed with White J, but gave some supplementary reasons. At [11], he held that the claim of legal professional privilege was irrelevant to whether the documents could be tendered. He accepted, at [41], that whether an obligation of confidentiality bound the plaintiff would depend upon whether a reasonable solicitor in the position of the plaintiff's solicitor would realise that the documents were confidential. He concluded, on the facts, that a reasonable solicitor would not realise that. 157Debelle J agreed with the conclusion reached by the other judges concerning the ten documents, though there was an eleventh document concerning which he took a different view of how the principles should be applied. He said, at [79]: "Where a document is privileged but that document or a copy has come into the possession of a party to litigation, the court will in an appropriate case prevent the use of the document, not because it is privileged, but because it is a confidential document: ISTIL Group Inc v Zahoor [2003] 2 All ER 252 at 274. A document the subject of legal professional privilege is a form of confidential document. A privileged communication which has come into the possession of a third party can no longer be subject to privilege. The privilege by then has been lost: Guinness Peat Properties Ltd v Fitzroy Robinson Partnership (a firm) [1987] 1 WLR 1027 at 1044 per Slade LJ. It is, therefore, more appropriate that the question whether a privileged document which has been disclosed can be used should be determined according to the principles of equity relating to confidentiality of documents: Newbold. Given that the plaintiff has possession of copies of 11 documents for which legal professional privilege is claimed, it is necessary therefore to determine this appeal by reference to the equitable principles protecting the use of confidential documents or confidential information." 158As Trevorrow is a decision of another Australian intermediate appellate court, I am required to apply the principles in it unless they are plainly wrong: Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 at [135]. I do so with no reluctance, because in my view its statement of principle is right. 159Australian Securities and Investments Commission v Lindberg [2009] VSCA 234; (2009) 25 VR 398 arose when ASIC brought a civil penalty proceeding against an officer of AWB Ltd. ASIC had conducted an investigation under s 19 Australian Securities & Investment Commission Act 2001 into certain activities of AWB, concerning alleged contraventions of the Corporations Act 2001 that had occurred relating to AWB's wheat trade with Iraq under the United Nations Oil-for-Food Programme. The trial judge ordered ASIC to discover witness statements and transcript concerning that inquiry. AWB then obtained an order from the trial judge requiring ASIC to produce to external lawyers for AWB, copies of the discovered statements and transcripts. The purpose of that production was so that AWB could review the documentation, to see whether it wished to claim legal professional privilege concerning any part of it. The Victorian Court of Appeal set aside the order requiring ASIC to produce the documents to the external lawyers for AWB. 160The legal basis for the orders that were set aside was the decision of the Full Federal Court in Federal Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403. That case held that when officers of the Australian Taxation Office conducted a search of business premises of the bank, in exercise of a statutory power to search and seize documents that the bank held for various clients, it was necessary to give the bank the opportunity to make claims of legal professional privilege on behalf of those clients. In Lindberg, Mandie JA (Warren CJ and Neave JA agreeing) distinguished FCT v Citibank. They held that, because the documents in question were already in the possession of ASIC, any privilege that might have attached to them "is lost or cannot be asserted except in the context of a claim in equity to protect confidentiality" (at [51]). As Mandie JA had put it at [43]: "... the legal position derived from the decision in Calcraft v Guest is that, even if the witness statements and transcripts contain or refer to communications that were the subject of legal professional privilege, that privilege was lost once the statements or the evidence recorded in them and the transcripts were supplied to ASIC. (emphasis in original) 161As Lindberg is a decision of the Victorian Court of Appeal, I must follow it unless it is plainly wrong. As with Trevorrow, I agree that the principles it has stated are correct. 162In Lindberg, Mandie JA referred, at [47], to an earlier decision of the Victorian Court of Appeal in Cowell v British American Tobacco Australia Services Ltd [2007] VSCA 301, where it was decided that once information in a privileged document has come into the hands of a party to litigation, the fact that the document "was and remains privileged" (at [32]) does not prevent that party from making use of the information, but that equity would intervene to protect the confidentiality in the information. The reference in that decision that the document "was and remains privileged" should be understood in the light of the case being concerned with a situation where a trial judge had overruled a claim of privilege and ordered documents to be disclosed, but the trial judge's order was itself overturned on appeal. In such a situation the duty of an appellate Court to take steps to ensure that an earlier erroneous first instance decision causes no injustice (from which arises, for example, the obligation to order restitution of money that has been paid under a judgment that is reversed on appeal) might lead to the conclusion that the privilege is still notionally treated as in existence, notwithstanding that the documents have been disclosed. However, as Cowell did not concern a situation where documents had allegedly been disclosed by mistake upon discovery, it is not necessary to come to a final view about that. 163After judgment was reserved in this matter, the parties drew our attention to Australian Competition and Consumer Commission v Cathay Pacific Airways Ltd [2012] FCA 1101. It concerned some legal advice contained in a chain of emails that had been inadvertently produced for inspection. It does not appear, from the reasons for judgment, whether those documents had been included in the unprivileged portion of a list of documents. The argument was conducted solely in terms of whether privilege had been waived, at common law. The outcome depended to a large extent upon factual considerations of the particular case. I do not find it of assistance in resolving the present case. Whether the Injunctions Should Have Been Granted 164The decision in the court below proceeded in the basis of a wrong principle, in two respects. One was by regarding a central question as being whether the privilege had been waived. The other was by regarding whether there had been a waiver as depending on whether there had been an intention to claim privilege that had inadvertently miscarried. 165Rather, whether the injunctions should have been granted depended upon whether the circumstances in which the Disputed Documents were communicated to or obtained by the Armstrong Parties were such as to impose an obligation of conscience on the Armstrong Parties. One way in which such an obligation might arise is if the documents had been obtained by fraud, but there is no question of that having happened. Alternatively, if either Ms Marshall or Mr Armstrong realised that the documents were confidential and had been disclosed by mistake, that might suffice to impose such an obligation: Al Fayed v Commissioner of Police for the Metropolis [2002] EWCA Civ 780; [2002] All ER (D) 450 at [16] (vii) (a). However, it is not established that either of them had any such realisation. 166Another way in which it might be imposed is if a reasonable solicitor in the position of Ms Marshall should have realised that the documents had been disclosed by mistake. The test of whether a reasonable solicitor would have realised that the documents had been disclosed by mistake has been applied in Herbert Smith at 149, Guinness Peat at 1045, DPP v Kane at 485, Meltend at 516, Trevorrow at [41], [147] and Al Fayed at [16] (vii). Even though that test had been referred to in the submissions of both sides, her Honour did not apply it. 167The fullest explanation for why that is an appropriate test appears in Pizzey v Ford Motor Company Ltd (Court of Appeal of England and Wales, 26 February 1993, unreported). Mann LJ (Stuart-Smith and Nourse LLJ agreeing) upheld the refusal of a primary judge to grant an injunction restraining the respondent from using two documents. Those documents had been included, by mistake, in a bundle of documents that were supposed to be of a type that the court ordered to be disclosed. Mann LJ said: "It is of the utmost importance in the context of litigation that a party should be able to rely on the discovery of his adversary. Exceptions to that ability must not extend beyond fraud and mistake. Cases of mistake are stringently confined to those which are obvious, that is to say those which are evident. This excites the questions: Evident to whom? The answer must be to the recipient of the discovery. If the mistake was evident to that person then the exception applies, but what of the case where it was not evident but would have been evident to a reasonable person with the qualities of the recipient? In this context the law ought not to give an advantage to obtusity, and if the recipient ought to have realised that a mistake was evident then the exception applies." 168In applying those principles, Mann LJ said that the relevant quality of the recipient of the discovery, in that particular case, was that she was a solicitor. Thus, he enquired whether "the hypothetical solicitor would have realised that privilege had not been waived". 169I respectfully agree with that approach. However, it is not as though there is a rule of law that, in all circumstances, when there is a mistaken production for inspection upon discovery of privileged documents, whether an obligation of confidentiality can attach to the recipient depends upon whether a hypothetical reasonable solicitor would realise that a mistake had been made in disclosing the documents: Al Fayed at [24], [25]. In the present case, the Disputed Documents were all sent to Ms Marshall, a solicitor. If an obligation of confidence attached to them in her hands, because a reasonable solicitor would have realised they had been disclosed by mistake, that obligation would likewise attach to them in the hands of her principals, Mr Armstrong and the corporate Armstrong Parties. It is unnecessary to consider what the test would be for when an obligation of confidentiality attached to a litigant in person who received documents on discovery. 170As Brereton J correctly pointed out in Grace v Grace [2010] NSWSC 1514 at [15]: "... the question is not whether the disputed documents were 'obviously privileged', but whether their disclosure was an 'obvious mistake'. These are quite distinct concepts, because a party may voluntarily disclose a privileged document for a myriad of reasons." 171In my view, that test has not been satisfied: (a) When the CD containing the Disputed Documents was provided by way of informal discovery on 29 September 2011, the documents so provided were understood on both sides to be less than the totality of the documents that would ultimately be provided upon discovery, but to be those that had, by that stage, been reviewed. The fact that the CD of documents was provided for inspection on 29 September 2011, was itself indicative of a selection having been made of those documents that would be provided for inspection. (b) When lists of documents were provided, the length and detail of Mr Michael's list, where each document was individually identified and analysed by reference to the topics of each of the columns of the table, was indicative of considerable care having been taken in compiling the list. In that respect the present case is far removed from other cases of mistake in providing privileged documents for inspection upon discovery, where the listing was by reference to files each containing numerous documents (eg Guinness Peat at 1032 ("Correspondence file No 3 numbered 1 - 321"), Derby & Co v Weldon (No 8) at 94). Other signs of care having been taken in compling the list were the occasional entries in the list that said "email removed for privilege" ([23] above), and the occasional entry where a document that was entitled "commercial and in confidence - PRIVILEGED", is not subject to a claim of privilege and it is not alleged the document was disclosed by mistake ([35] above). (c) The list came accompanied by an affidavit by Mr Michael, of the type required by UCPR 21.4(2) ([66] above). (d) It came accompanied by the solicitor's certificate, of the type required by UCPR 21.4(3) ([67] above). (e) When CDs of documents, differently organised to the CD of 29 September 2011, were provided for inspection on 19 October 2011, that was likewise indicative of a deliberate selection having been made of those documents that could be inspected. (f) The affidavits provided by the directors of the two Corporate Defendants on 21 October 2011, each asserted that the deponents of those affidavits had made an independent check of the discovery that had been made by the Individual Defendants. Further, the affidavits provided on 21 October 2011 stated that they were filed by Dormers, not by Norton Rose. That provided an added basis for a reasonable solicitor to conclude that an independent check had been made concerning the scope of the documents that would be provided for inspection. (g) The responses that Norton Rose gave to the various letters that Marque Lawyers sent, querying claims for privilege that had been made, were also consistent with the discovery having been conducted with care. (h) We have inspected, for the purposes of this hearing, the Disputed Documents. While those documents contain some lawyer's advice relating to possible termination of agreements with the Armstrong Parties, and discussions amongst various of the defendants concerning that advice, it should be remembered that the discovery was given comparatively soon after the decision of Ball J of 8 July 2011 ([13] above). One of the bases upon which Ball J had permitted the inducing breach of contract claims to remain in the pleading was that he regarded it as possible that a director be personally liable for inducing breach of contract if he or she had not acted bona fide. The Disputed Documents might arguably be relevant to whether the Individual Defendants had acted bona fide in the role they played concerning the termination of the agreements with the Armstrong Parties. For example, it might be argued that they show that there was dissatisfaction with Mr Armstrong's performance, and lawyers were consulted for advice about what steps were open to deal with that dissatisfaction, within the limits of the law. (i) In general, while the understanding of a solicitor who receives documents on discovery about whether any documents had been disclosed by mistake is far from conclusive of whether a reasonable solicitor should have realised that there had been a disclosure by mistake, the failure of that solicitor to realise that there had been any such mistake is relevant to whether a reasonable solicitor would have realised there was a mistake. However, in the present case, little weight can be placed on Ms Marshall's failure to realise there had been any mistaken discovery because she only read any of the Disputed Documents after the Notice of Motion was filed. 172For these reasons, no obligation of confidence could be brought home to the Armstrong Parties concerning the Disputed Documents. The injunctions should have been refused. Loss of Privilege 173If, contrary to my view, the availability of the injunctions that the ERA Parties sought depended upon whether the privilege had been waived, I would hold that it had been waived. 174Any question of whether client legal privilege has been waived would be decided in accordance with the version of s 122 Evidence Act that is now in effect. Even though the ERA Parties were acting under a compulsion of law in giving discovery at all, they were not subject to any compulsion of law to disclose privileged documents, so s 122(5) does not apply to their disclosure of the Disputed Documents. That leaves one way of establishing waiver as whether, under s 122(2), the relevant ERA Parties have acted in a way inconsistent with objecting to the adducing of the evidence on the ground it would result in a disclosure of the kind referred to in (relevantly) section 118 or 119. That is indistinguishable from the current common law test for waiver of legal professional privilege. 175It might appear that a problem for a conclusion that privilege has been waived arises from the statement in Phipson on Evidence, 15th ed (2003) Sweet & Maxwell at [20-07], that legal professional privilege: "... is established for the protection of the client, not the lawyer. It follows from this that the privilege can be waived by the client but not the lawyer." It is, presumably, this principle that led the ERA Parties to give evidence that none of the reviewers had any authority to waive any claims for privilege, and none of the ERA Parties instructed Norton Rose to waive privilege. 176However, the content of that principle is revealed by the statements that immediately follow it in Phipson: "The lawyer is under a professional obligation to assert the privilege until it is waived by the client. Thus the lawyer has no locus to assert the privilege in his own right or commence proceedings in his own name for that purpose. Nor can the lawyer invoke the privilege or use it for his own benefit if the client waives it. Nor can the person to whom a litigant communicates under the cloak of litigation privilege claim to rely on it." (citations omitted) 177In R v Derby Magistrates Court, ex parte B [1996] 1 AC 487, Lord Taylor of Gosforth referred, at 504, to Wilson v Rastall (1792) 4 Durn & E 753, in which a solicitor was prevented, at the trial of his former client for bribery, from giving evidence of what he had learned while acting as the client's attorney. Lord Taylor said, at 504-5: "The case is thus clear early authority for the rule that the privilege is that of the client, which he alone can waive, and that the court will not permit, let alone order, the attorney to reveal the confidential communications which have passed between him and his former client. His mouth is shut forever. 178However, the principle does not restrict the ostensible (and probably also implied) authority of a lawyer, engaged to act for a client concerning a particular matter, to act as the agent of the client concerning all matters that may reasonably be expected to arise for decision concerning that matter. That includes waiving privilege in the course of running the matter: Great Atlantic Insurance Co v Home Insurance Co at 539-540 per Templeman LJ (Dunn LJ agreeing); Hooker Corporation v Darling Harbour Authority at 543 per Rogers J; Spedley Securities Ltd v Bank of New Zealand (1991) 26 NSWLR 711 at 729-730 per Cole J; Meltend at 523 per Goldberg J; Al Fayed v Commissioner of Police for the Metropolis at [16] (ii). 179Both legal professional privilege and client legal privilege have been waived because: (a) The action of the solicitors of the Individual Defendants in sending images of the Disputed Documents, on two separate occasions, was an intentional act. (b) Because it was done by a solicitor, I would infer that it was carried out with knowledge that it is possible to withhold privileged documents from inspection upon discovery. (c) It was done in the formal context of the discovery process that the court had ordered, and was accompanied by the affidavit and solicitor's certificate that the rules required. (d) The affidavits of the directors of the Corporate Defendants, prepared with the assistance of a different firm of solicitors to that advising the Individual Defendants adopted the correctness and completeness of the discovery that had been given by the Individual Defendants. (e) Time went by, from 29 September 2011 so far as the informal discovery was concerned and from 19 October 2011 so far as the provision of documents pursuant to the formal discovery was concerned, before there was any assertion that privileged documents had been provided by mistake. The first such assertion, on 6 December 2011, related to only four documents, none of which was a Disputed Document. Thus, the first claim that the Disputed Documents had been produced by mistake was in the Notice of Motion filed on 23 December 2011. Thus, nearly three months elapsed between the first provision of images of the Disputed Documents, and a claim that those documents had been produced by mistake. As it happens, in that time, Mr Armstrong had read the Disputed Documents. However, I do not think that that fact can enter into consideration of whether there has been a waiver, as that question focuses on the conduct of the ERA Parties. The relevance that the lapse of time has is that, in litigation in the Commercial List, it is to be expected that documents that are made available for inspection on discovery will be read and considered fairly promptly after they are made available. Once a party has read the documents it will frequently be impossible to disregard what has been learned in the subsequent running of the case. Once a lawyer has read the documents it will likewise often be impossible for the lawyer to disregard what has been learned, and often the only way in which one can be sure that what has been learned will not influence the lawyer's running of the case is for the lawyer to cease to act. It would often be a serious imposition on the client to have a change of lawyers thrust upon him because of a mistake by the other side. (f) That it would not be obvious to a reasonable solicitor that a mistake had been made also bears upon whether it is inconsistent to disclose the documents on discovery and then seek to uphold the privilege: if it had been obvious the documents had been disclosed by mistake, it may well be harder, in the facts of the individual case, to show inconsistency of conduct between handing over the documents and later claiming the privilege. 180In all these circumstances, it is would be inconsistent for the ERA Parties now to contend that the Disputed Documents are privileged. No Disclosure? 181Quite apart from any question of waiver of the privilege, there is a question concerning whether it would be open to the ERA Parties to object to the tender of any of the Disputed Documents at a trial on the ground of client legal privilege. It will be recalled that the prohibition on adducing privileged material created by ss 118 and 119 forbids the adducing of evidence if "adducing the evidence would result in disclosure of" certain confidential matters. 182Section 117 Evidence Act fixes whether a communication is a "confidential communication" by reference to the circumstances at the time when it was made. However, under ss 118 and 119 inadmissibility arises only if an adducing of evidence results in disclosure of a confidential communication. The requirement that there would be a disclosure before there is inadmissibility caters for the possibility of the subject matter of a communication having ceased to be confidential after it was first made. 183In Nasr v State of New South Wales [2007] NSWCA 101; (2007) 170 A Crim R 78, Campbell JA (with whom Beazley and Hodgson JJA agreed) said at [127]: "The essence of disclosure of information is making known to a person information that the person to whom the disclosure is made did not previously know: R v Skeen & Freeman (1859) Bell 97; 169 ER 1182 ("uncovering ... discovering ... revealing ... imparting of what was secret ... [or] telling that which had been concealed"); Foster v Federal Commissioner of Taxation (1951) 82 CLR 606 at 614-5 ("... a statement of fact by way of disclosure so as to reveal or make apparent that which (so far as the "discloser" knows) was previously unknown to the person to whom the statement was made"); R v Gidlow [1983] 2 Qd R 557 at 559 ("telling that which has been kept concealed"); Dun & Bradstreet (Australia) Pty Ltd v Lyle (1977) 15 SASR 297 at 299; A-G v Associated Newspapers Ltd [1994] 2 AC 238 at 248 ("to open up to the knowledge of others"); Real Estate Opportunities Limited v Aberdeen Asset Managers Jersey Limited [2007] EWCA Civ 197 at [78] ("the revelation of information for the first time")." To similar effect is R v White (1989) 18 NSWLR 332 at 340 per Gleeson CJ, Carruthers and Badgery-Parker JJ. 184The information contained in the Disputed Documents has already been provided to the Armstrong Parties without any restriction on the use that they could make of it for the purposes of the litigation (though subject to the implied legal obligation to use it only for the purposes of the litigation until such time as it was tendered or otherwise made public in the litigation: Hearne v Street [2008] HCA 36; (2008) 235 CLR 125). The information had already been assimilated mentally by Mr Armstrong before any claim of privilege or mistake was made. In those circumstances, it may be that tender of the documents would not result in any "disclosure" of confidential communications. However, in light of the conclusions to which I have come concerning other matters, it is not necessary to decide the appeal on this basis. Leave to Appeal 185So far I have been discussing the third and fourth grounds of appeal that the Armstrong Parties seek to raise, namely: "Her Honour erred in law in failing to consider whether the production of the Documents by the fourth respondent was an obvious mistake apparent to the applicants. Her Honour erred in law in failing to find that the production of the Documents by the fourth respondent was not an obvious mistake apparent to the applicants." 186Leave to appeal should be granted concerning questions three and four in the draft Notice of Appeal. Both parties in the court below referred to cases that upheld the applicability of a test of whether it was obvious that there had been a mistaken disclosure of the documents, yet the primary judge did not apply that test. There are some significant questions of principle involved, and it is preferable to have the question of whether the Armstrong Parties are entitled to have access to the Nine Withheld Documents and entitled to use them decided at this stage of the litigation. The undesirable alternative would be to permit what seems likely to be a complex and lengthy trial occur, and for the Armstrong Parties to challenge the decision from which leave to appeal is now sought at the stage of an appeal from whatever final orders might be made at that trial. 187Another of the grounds of appeal that the Armstrong Parties seek to raise is that her Honour was mistaken in finding that the Disclosed Documents were protected by legal professional privilege. I would not grant leave to appeal concerning that question for several reasons. Her Honour's reasons concerning the documents being privileged, at [18] in the reasons for judgment, are terse in the extreme and do little more than state the conclusion that certain documents were privileged and others were not. The passages of the transcript (page 15 ff) referred to in that paragraph of the judgment take the form of a dialogue between her Honour and counsel, from which it is difficult to extract the principles that are relied upon. Thus, granting leave to appeal on the question of whether the documents were privileged is unlikely to elucidate any questions of principle. In any event, even if the documents were at one time privileged, that does not, for the reasons already given, provide a ground for the injunctions that the ERA Parties seek. 188A second topic concerning which leave to appeal is sought is whether the primary judge erred in holding that a decision was made to claim privilege over the Disclosed Documents. That argument depended upon the manner in which her Honour had reached the conclusion (expressed in the passive voice) that "a decision was made to claim privilege" concerning the documents. The basis of that decision was that one reviewer had classified a document as privileged, and either the same or a different reviewer had classified a different copy of the same document as not privileged. Sometimes the one reviewer had classified a Disputed Document as non-privileged on two or three different occasions. While the reviewer who had classified each Disputed Document as not privileged was identified, the reviewer who had classified a copy of the same Disputed Document as privileged was not identified. Whether some unidentified person who worked for Norton Rose had made a decision to claim privilege concerning a different copy of the same document goes some way towards determining whether the Disputed Documents were provided by mistake, but is not determinative of the question. In any event, in circumstances where it was not obvious to a reasonable solicitor receiving them that the Disputed Documents have been provided by mistake, whether there actually was a mistake leads nowhere so far as entitlement to the injunctions is concerned. Whether there was a mistake in delivering the Disputed Documents might arguably assist in a conclusion that the documents had not been "knowingly and voluntarily disclosed", within the meaning of the present s 122(3) Evidence Act, but when the role of s 122(3) is to act as a provision that deems certain conduct to be inconsistent with maintaining the privilege the question still remains of whether there has been inconsistent conduct within the meaning of s 122(2). Whether there is inconsistent conduct within the meaning of s 122(2) is a matter of the objective conduct that has been engaged in, and whether there had been a disclosure by mistake could affect that question only if the mistake was one that should have been obvious. For these reasons, when any mistake was not an obvious one, whether there had been an intention to claim privilege leads nowhere concerning whether there has been a waiver of privilege. Thus, I would not grant leave to appeal concerning this second topic. 189The ERA Parties seek leave to appeal concerning findings made by the primary judge that led to her conclusion that a case had not been made out for injunctions relating to the Four Disclosed Documents. The questions that are formulated in the Draft Notice of Appeal of the ERA Parties appeal are closely tied to the manner in which the primary judge reasoned. They relate to whether her Honour erred in failing to conclude that there was an intention to claim privilege concerning the Four Disclosed Documents, and in concluding that there had been a waiver of privilege concerning those documents. When that manner of reasoning was not itself in accordance with the applicable principles, and her Honour reached the correct conclusion concerning whether to grant the injunctions that were sought in relation to the Four Disclosed Documents, I would not uphold the cross-summons seeking leave to cross-appeal. In those circumstances the Notice of Contention of the ERA Parties does not arise for consideration. 190Even though I would decline leave to appeal concerning two of the proposed Grounds of Appeal of the Armstrong Parties, the outcome of the appeal is that in substance the Armstrong parties have succeeded. The costs at first instance and of the appeal should follow the event. The Orders Below 191Copies of the orders made below were not included in the papers for the present application. However, as the terms of the orders made below must be known to enable the orders in the present appeal to be formulated, we have ascertained the terms of the orders below from the Court's own records. 192At the time of delivering judgment on 26 April 2012, the primary judge made orders: "... in respect of documents in Exhibit A Confidential excluding documents numbered 9, 10, 11 and 19. 1. that the plaintiffs, by themselves, their servants and agents, be restrained from making any further use of any of the documents identified in the schedule attached to this notice [of] motion (the privileged documents). 2. that the plaintiffs deliver up all copies of the privileged documents in their possession, custody or power to the solicitors for the fourth, fifth, sixth, ninth and tenth defendants." Those orders should be set aside. 193On 4 May 2012, the primary judge made orders that (by order one) gave greater specificity to the way in which the orders made on 26 April 2012 should be carried out. Broadly, those orders set out a regime for returning the disks that had been provided by way of informal discovery and formal discovery, return of any hard copies of the Nine Withheld Documents, the plaintiffs' undertaking to delete any electronic copies of the Nine Withheld Documents, and the solicitors for the fourth defendant providing a disk containing images of the documents discovered, other than the Nine Withheld Documents. That order should be set aside. Order two set aside an order that her Honour had made on 1 March 2012, requiring the Respondents to pay the costs thrown away by reason of an adjournment that the Respondents requested to supplement their evidence. It is appropriate to set aside that order, so that the costs that the Respondents are liable to pay are assessed as a single bill rather than in two bills. Her Honour ordered, by order three, that each party pay their own costs of the application. That order should also be set aside. Orders 194I propose the following orders: (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). 195MACFARLAN JA: I agree with Campbell JA 196SACKVILLE AJA: I agree with the orders proposed by Campbell JA. I agree generally with his Honour's reasons, but I wish to reserve my position on some questions. In what follows, I adopt the abbreviations employed in his Honour's reasons. 197In 2000, the Australian Law Reform Commission ("ALRC") observed that: "In almost all studies of litigation, discovery is singled out as the procedure most open to abuse, the most costly and the most in need of court supervision and control." ALRC, "Managing Justice: A Review of the Federal Civil Justice System" (Report 89, 2000), at [6.67]. The problems associated with discovery have been compounded by the modern practice of storing communications and information in digital form. Parties required to make discovery, particularly in large-scale commercial litigation, have faced the burden of retrieving and scrutinising vast quantities of documents stored in this manner. 198Since 2000, much attention has been paid by law reform bodies, courts and legislatures to limiting the opportunities for inappropriate use or misuse of the discovery process. The ALRC made detailed recommendations in 2011 for managing discovery in federal courts and some of its recommendations have been implemented: ALRC, Managing Discovery: Discovery of Documents in Federal Courts (Report 115, 2011); Federal Court of Australia Act 1976 (Cth), s 43(3)(h), inserted by the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth), Sch 1; A R Emmett, "Reforming Discovery" in M Legg (ed), The Future of Dispute Resolution (2012), ch 6. In New South Wales, the so-called Peruvian Guano "train of inquiry" test for the discoverability of documents has been replaced by a more restrictive test, limiting discovery to documents "relevant to a fact in issue": Uniform Civil Procedure Rules 2005 ("UCPR"): r 21.1(2). In some classes of litigation, a party must show "special reasons" before the court will make an order for discovery: UCPR, r 21.8. 199In general, the greater the burden of providing discovery in a case, the greater the opportunities for both mistakes and disputation. The present satellite litigation arises out of what are said to be mistakes committed by the legal representatives of the ERA Parties in examining and classifying many hundreds, if not thousands, of discoverable documents. The attempt by the ERA Parties to obtain injunctive relief to maintain confidentiality over the Disputed Documents has generated a three day hearing in the Equity Division (including two contested applications for adjournment) and a summons and cross-summons seeking leave to appeal from the decision of the primary Judge. 200The Armstrong Parties recognise that they seek leave to appeal on a question of practice and procedure. But they say that their application raises important issues because they wish to rely on the Disputed Documents in order to replead a cause of action in conspiracy which Ball J struck out: Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2011] NSWSC 704. 201In argument before this Court, Mr Pike SC, who appeared with Mr Buva for the Armstrong Parties, acknowledged that his clients might confront difficulties in making out a case that the Individual Defendants conspired to injure them or cause them damage. This is because, in order to succeed on the conspiracy cause of action, the Armstrong Parties would have to prove that any agreement among the Individual Defendants to terminate contracts with one or more of the Armstrong Parties was entered into with the intention of inflicting harm. Mr Pike submitted, however, that the use to which the Disputed Documents might or might not be put is not relevant to the question of whether the Armstrong Parties are entitled to resist the claim for injunctive relief. 202It is not obvious that if the Armstrong Parties are permitted to plead a cause of action in conspiracy, the additional claims will add anything of substance to the existing pleadings (which include allegations that the Individual Defendants induced breaches of contract and knowingly participated in breaches of fiduciary duty). Nor is it clear that permitting the Armstrong Parties to use the Disputed Documents in the proceedings (including tendering the Disputed Documents in evidence) will materially bolster the Armstrong Parties' case. 203For these reasons, I have entertained doubts as to whether any substantial injustice would be caused if the Armstrong Parties were refused leave to appeal against the decision of the primary Judge. Those doubts have not been diminished by the nature of the arguments advanced by the Armstrong Parties in opposition to the claim by the ERA Parties to injunctive relief. It is true that the Armstrong Parties directed the primary Judge's attention to the principles stated by Slade LJ in Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027, at 1045-1046 (reproduced at [144] above). However, Guinness Peat appears to have been cited in support of a submission that the ERA Parties had waived client legal privilege in the Disputed Documents. The Armstrong Parties' submissions do not seem to have clearly distinguished between the principles governing waiver and those governing the grant of injunctive relief to preserve confidentiality in documents. Moreover, the argument as to waiver of privilege proceeded before the primary Judge without reference to the terms of s 122 of the Evidence Act 1995, as substituted by the Evidence Amendment Act 1997. Indeed, the construction of s 122 in its current form was addressed in the Court only in supplementary written submissions filed by the parties. 204I agree with Campbell JA that the critical question that her Honour should have addressed was not whether the ERA Parties had waived client legal privilege in the Disputed Documents. It was whether the Disputed Documents were provided to the Armstrong Parties in circumstances imposing an obligation on them to preserve confidentiality in the Documents. For the reasons given by Campbell JA (at [171]), in the circumstances of this case no such obligation was imposed on the Armstrong Parties. 205It follows that the primary Judge did not address the correct question and that her Honour should have concluded that the ERA Parties were not entitled to injunctive relief. However, the parties seem to have contributed to the primary Judge falling into error by not identifying clearly the precise issue requiring determination. 206Since the primary Judge should not have granted injunctive relief, I have concluded, not without some hesitation, that the Armstrong Parties should be granted leave to appeal. The other orders proposed by Campbell JA should be made. 207I do not think it is necessary to express an opinion as to whether the ERA Parties have waived privilege in the Disputed Documents. The occasion for resolving that issue has not yet arrived and may never arrive. Perhaps more significantly, the parties did not direct attention to the proper construction of the current version of s 122 of the Evidence Act until the issue was identified on the hearing of the appeal. Although the parties filed supplementary written submissions on the question of construction, the Court has not had the benefit of full oral argument. I prefer to leave the question of construction until it is necessary to decide. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2012