The High Court has made clear that inadvertent
disclosure of privileged material does not amount to a waiver,
where it occurs in a court-ordered process and is responded to
promptly.
In the high-pressure context of litigation, errors can occur,
but now the High Court has ruled on whether a party can undo an
inadvertent disclosure of privileged material made during
discovery.
High Court decision on privilege
The High Court has handed down a decision which took a pragmatic
approach to dealing with inadvertent disclosure by ordering the
return of the privileged documents. In Expense Reduction Analysts
Group Pty Ltd v Armstrong Strategic Management and Marketing Pty
Limited [2013] HCA 46, the High Court made it clear that the
pursuit of "satellite interlocutory proceedings" of the
kind before it was a distraction from resolving the real issues in
dispute between the parties, which also incurred considerable costs
and squandered the resources of the courts.
