'Whoops...' Inadvertent disclosure and the test for implied waiver in the discovery context: Australian Competition and Consumer Commission v Cathay Pacific Australia Limited [2012] FCA 1101

The case considered an interlocutory application by Cathay Pacific Australia Limited (Cathay Pacific) to maintain a common law claim for legal professional privilege over communications in certain documents. The documents were inadvertently disclosed to the Applicant, the ACCC, in the course of discovery. The ACCC commenced Federal Court proceedings against Cathay Pacific in 2009. It alleged that Cathay Pacific and other airlines contravened provisions of the Trade Practices Act 1974 (Cth) by engaging in 'price-fixing'. Cathay Pacific has sought to defend the action, and the matter is proceeding to trial.