The question which Campbell JA considered to arise in the present case, in relation to whether injunctions could have been granted, was whether the circumstances in which the privileged documents were communicated to or obtained by the Armstrong parties were such as to impose an obligation of conscience upon them Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348 at 386-387 [165]- [167]. The test applied by his Honour to determine that question was whether "a reasonable solicitor in the position of Ms Marshall should have realised that the documents had been disclosed by mistake." Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348 at 387 [166]. That test, his Honour observed, had been applied in Guinness Peat Properties Ltd v Fitzroy Robinson Partnership and other cases. It seemed appropriate to permit the exception of an obvious mistake from the general rule that discovery may be relied upon.
Campbell JA concluded that the test was not satisfied and no obligation of confidence could be brought home to the Armstrong parties concerning the documents. The injunctions should have been refused Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348 at 389 [172]. In his Honour's view, the manner of discovery would have conveyed that it had been conducted with some care and the Lists of Documents were accompanied by the requisite affidavits and solicitor's certificate. His Honour observed that the documents on their face contained some legal advice relating to matters in issue and discussions between various of the defendants concerning that advice. However, he considered that little weight could be placed upon Ms Marshall's failure to realise there had been any mistaken discovery, since she only read the documents in question after Norton Rose filed the notice of motion Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348 at 388-389 [171(i)].
His Honour also found that privilege in the documents had, in any event, been waived. His Honour's reasons for this conclusion were that: Norton Rose's sending of the documents was an intentional act carried out with knowledge that privileged documents may be withheld from production; that act was done in the context of a court-ordered discovery process, where the parties' Lists of Documents were verified and certified; there was a lapse of time between the disclosure of the documents and the claim of mistake; and the mistake was not obvious. In all these circumstances, his Honour thought it would be inconsistent for the ERA parties to contend that the documents were privileged Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348 at 390-391 [179]- [180].
...
In relation to the final factor identified by his Honour as relevant to waiver, his Honour conceded that if it had been obvious that the documents had been disclosed by mistake, it may well be harder, in an individual case, to show inconsistency of conduct between handing over the documents and later claiming privilege Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWCA 430; (2012) 295 ALR 348 at 391 [179(f)].
According to its strict legal connotation, waiver is an intentional act done with knowledge whereby a person abandons a right (or privilege) by acting in a manner inconsistent with that right (or privilege) Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; (1920) 28 CLR 305 at 326; [1920] HCA 64; Grundt v Great Boulder Pty Gold Mines Ltd [1937] HCA 58; (1937) 59 CLR 641 at 658; [1937] HCA 58. It may be express or implied. In most cases concerning waiver, the area of dispute is whether it is to be implied. In some cases waiver will be imputed by the law Goldberg v Ng [1995] HCA 39; (1995) 185 CLR 83 at 95-96; [1995] HCA 39. with the consequence that a privilege is lost, even though that consequence was not intended by the party losing the privilege. The courts will impute an intention where the actions of a party are plainly inconsistent with the maintenance of the confidentiality which the privilege is intended to protect Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 13 [29]; [1999] HCA 66.
In Craine v Colonial Mutual Fire Insurance Co Ltd [1920] HCA 64; (1920) 28 CLR 305 at 326, it was explained that "'[w]aiver' 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 Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at 13 [29], it was said that it is considerations of fairness which inform the court's view about an inconsistency which may be seen between the conduct of a party and the maintenance of confidentiality, though "not some overriding principle of fairness operating at large."
Those considerations, articulated in relation to waiver at common law, apply with equal force in relation to the statutory question posed by s 122(2) of the Evidence Act, and made applicable by s 131A of that Act to the determination of a question of waiver of client legal privilege arising in the context of pre-trial discovery. That question is whether the client or party concerned "has acted in a way that is inconsistent with the client or party objecting to" the production of a document.
The primary judge's findings point to an inconsistency in the Lists of Documents, but not one which clearly suggests abandonment of the privilege. The fact that the nine documents the subject of her Honour's order were listed in both the privileged and non-privileged sections of the Lists of Documents was apt to create confusion about the position taken by the ERA parties and is strongly indicative of mistake in what was otherwise a careful process of discovery. Ms Marshall's letter of 25 November 2011 to Norton Rose confirms that it was unclear to her what the Lists of Documents conveyed with respect to privilege.
Whatever doubts Marque Lawyers had about the claims for privilege were dispelled by the letter from Norton Rose of 6 December 2011 advising that some privileged documents had been incorrectly listed as non-privileged. This action by Norton Rose was not identified in the reasons of Campbell JA as relevant, yet it was important to convey the true position of the ERA parties. The letter was sent promptly once Norton Rose became aware that mistakes had been made. It was given before Ms Marshall had fully inspected the documents. The disks containing the documents remained with Mr Armstrong, although they should have been retrieved upon notification of the mistake. It is not evident that he came across the 13 documents in question himself.
These circumstances are not indicative of an inconsistent position being taken by the ERA parties' lawyers such that waiver should be imputed to those parties. The issue of waiver should never have been raised.
...
In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at 211 [92]- [93], 213 [98]; [2009] HCA 27, it was pointed out that case management is an accepted aspect of the system of civil justice administered by the courts in Australia. It had been recognised some time ago by courts in the common law world that a different approach was required to tackle the problems of delay and cost in the litigation process. Speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution of proceedings. The achievement of a just but timely and cost-effective resolution of a dispute has effects not only upon the parties to the dispute but upon the court and other litigants. The decision in Aon Risk Services Australia Ltd v Australian National University was concerned with the Court Procedures Rules 2006 (ACT) as they applied to amendments to pleadings. However, the decision confirmed as correct an approach to interlocutory proceedings which has regard to the wider objects of the administration of justice.
...
In addition to the general powers it gives to courts, the CPA also provides some more specific powers. The relevant power here is to be found in s 64 of the CPA, entitled "Amendment of documents generally", which appears in Div 3 of Pt 6 ("Other powers of court"). Section 64(1)(a) empowers the court, at any stage in the proceedings, to order that any document in the proceedings be amended. Section 64(2) then provides that, subject to s 58 (the dictates of justice) It is to be observed that O 20 r 8 of the Rules of the Supreme Court 1965 (UK), which was referred to in Guinness Peat Properties Ltd v Fitzroy Robinson Partnership [1987] 1 WLR 1027; [1987] 2 All ER 716, conferred similar powers, although they were not linked to express case management powers and duties: