“In the not too distant past it was understood that acting in this way obviates unnecessary and costly” applications, the High Court of Australia said today, overturning a state appeal court decision that lawyers can’t reclaim rights to confidentiality over inadvertently released documents.
Marque Lawyers, acting for a company suing Norton Rose Fulbright’s clients, refused to return 13 documents they were mistakenly given in 2011. It claimed that attorney-client privilege over the communications in the documents had been waived by being sent to them as part of court-ordered discovery and the state appeal court agreed last year.
“In reality, there was no question of waiver sufficient to be agitated,” the High Court said today in its ruling. “Any allegation of waiver was going to turn on a legal, technical argument tangential to the main proceedings, and should not have been made.”
Michael Bradley, managing partner at Marque, wasn’t immediately available to comment on the ruling.
Australia’s top court, which widened the scope of privileged documents in 1999, hasn’t addressed the issue of them being released by mistake until now.
The case is Expense Reduction Analysts Group Pty v. Armstrong Strategic Management and Marketing Pty. 2013/HCA46 High Court of Australia (Canberra)
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