Cowell & Ors v British American Tobacco Australia Services Ltd & Ors

[2007] VSCA 301

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Discovery
3. › Confidential information
4. › Restraining wrongful use of confidential information in litigation against owner
5. › Whether objection by owner to use of confidential information in one proceeding is inconsistent with consent in related proceeding
6. › Cross-use of documents in related proceedings
1. Practice and Procedure
2. › Harman undertaking
3. › Release from Harman undertaking
4. › Special circumstances
5. › Whether relaxation inconsistent with earlier appellate orders
6. › Whether information derived from privileged documents may be used to challenge privilege
1. Evidence
2. › Privilege
3. › Legal professional privilege
4. › Exceptions to legal professional privilege
5. › Crime or fraud exception
6. › Whether prima facie case of privilege exclusion must be established before use of information
7. › Whether doctrine of clean hands applicable to privileged communications
1. Equity
2. › Injunctions
3. › Interlocutory injunctions
4. › Restraint of use of privileged information
5. › Whether prima facie case of privilege must be established
6. › Balance of convenience
7. › Whether injunction would inflict disproportionate injury

Quick Take

Once information in a privileged document has come into the hands of a party to litigation, even as a result of compulsive process which is later reversed, the fact that the document was and remains privileged does not of itself prevent that party from making use of the information; equity may restrain use based on confidentiality but the remedy of injunction for privileged communications should not be withheld for unclean hands or iniquity unless it falls within the established exceptions to legal professional privilege (crime/fraud, abuse of power, concealment of ward, frustration of court orders). Where a party's objection to cross-use of confidential documents in related proceedings is artificial and inimical to the proper administration of justice, the court will not permit the party to pick and choose which documents may be used in which defence.