Arnold Bloch Leibler (A Firm) v Slater & Gordon Limited

• Jurisdiction: Australia Federal only
• Judge: MIDDLETON J
• Judgment Date: 16 October 2020
• Neutral Citation: [2020] FCA 1496
• Date: 16 October 2020
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Arnold Bloch Leibler (A Firm) v Slater & Gordon Limited [2020] FCA 1496

File number:	VID 54 of 2020
Judge:	MIDDLETON J
Date of judgment:	16 October 2020
Catchwords:	PRACTICE AND PROCEDURE – discovery – implied waiver of legal professional privilege – whether former client’s past conduct in producing documents to a third party is inconsistent with the maintenance of confidentiality – where former client refused to grant consent to lawyer to use confidential information for defence of proceedings – where Court released parties in other proceedings from the implied undertaking not to use documents discovered to them or otherwise produced to the applicant in those proceedings to the extent necessary to enable the applicant to commence and prosecute certain permitted claims – whether use of confidential information would constitute a breach of obligation of confidence owed by lawyer to former client – whether right to obligation of confidence waived by reason of inconsistent conduct
Legislation:	Australian Securities and Investment Commission Act 2001 (Cth) Competition and Consumer Act 2010 (Cth) Corporations Act 2001 (Cth) Federal Court of Australia Act 1976 (Cth)
Cases cited:	Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust A4 v Sage Group plc (No 2) (2013) 306 ALR 384 Benecke v National Australia Bank (1993) 35 NSWLR 110 Craine v Colonial Mutual Fire Insurance Co Ltd (1920) 28 CLR 305 DSE (Holdings) Pty Ltd v Intertan Inc (2003) 127 FCR 499 Duncan v Medical Practitioner’s Disciplinary Committee [1986] 1 NZLR 513 Edwards v Santos Ltd (2011) 242 CLR 421 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303 Goldberg v Ng (1995) 185 CLR 83 Hall v Arnold Bloch Leibler (a firm) [2020] FCA 1495 Hearne v Street (2008) CLR 125 Lillicrap v Nalder & Son (a firm) [1993] 1 WLR 94; [1993] 1 All ER 724 Mann v Carnell (1999) 201 CLR 1 National Australia Bank Limited v Nautilus Insurance Pte (No 2) (2019) 377 ALR 627 New South Wales v Betfair Pty Ltd (2009) 180 FCR 543 Paragon Finance Plc v Freshfields [1999] All ER (D) 251 R v Derby Magistrates’ Court Ex p B (1996) AC 487 R v Institute of Chartered Accountants of England and Wales Ex p. Brindle [1994] BCC 297 Richards v Kadian [2005] 64 NSWLR 204 Tournier v National Provincial and Union Bank of England [1924] 1 KB 461
Date of hearing:	26 June 2020
Registry:	Victoria
Division:	General Division
National Practice Area:	Other Federal Jurisdiction
Category:	Catchwords
Number of paragraphs:	112
Counsel for the Applicant:	Mr N Bender with Ms G Coleman
Solicitor for the Applicant:	Norton Rose Fulbright
Counsel for the Respondent:	Mr D Batt QC with Ms C Van Proctor
Solicitor for the Respondent:	Minter Ellison

ORDERS

		VID 54 of 2020
BETWEEN:	ARNOLD BLOCH LEIBLER (A FIRM) Applicant
AND:	SLATER & GORDON LIMITED (ACN 097 297 400) Respondent

JUDGE:	MIDDLETON J
DATE OF ORDER:	16 October 2020

THE COURT ORDERS THAT:

1. The Declaration made on 8 May 2020 be varied by deleting the words ‘subject to further order’.

2. Other than the Declaration made on 8 May 2020 as varied, the proceeding be dismissed.

3. The parties file and serve an agreed position on costs, or in default of agreement, a short written submission on or before 4.00pm on 27 November 2020, which dispute will the determined on the papers.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MIDDLETON J:

INTRODUCTION

1 The Applicant claims in this proceeding the following declaration in paragraph 1 of the Originating Application:

A declaration that no breach of any obligation of confidence owed by the Applicant (ABL) to the Respondent (Slater & Gordon) would arise from or, alternatively, Slater & Gordon would not be entitled to restrain the disclosure and/or use by ABL (including its partners, employees, agents and legal representatives) of:

(a) all documents and communications, and all information contained in the documents and communications, that comprise the ABL legal files bearing nos 011838870 and 011848618;

(b) all communications, oral or written, between:

(i) ABL and Slater & Gordon; and/or

(ii) ABL and Slater & Gordon’s other professional advisors,

in connection with:

(iii) the Entitlement Offer (as defined in the statement of claim filed in Proceeding No VID 1010 of 2019);

(iv) the Acquisition (as defined in the statement of claim filed in Proceeding No VID 1010 of 2019); and

(v) the due diligence committee and the due diligence process (referred to in the statement of claim filed in Proceeding No VID 1010 of 2019); and

(c) all documents, and information contained in the documents, that respond to order 2 of the orders made by the Honourable Justice Middleton in Proceeding No 1010 of 2019 on 6 December 2019

(together, Relevant Material) for the purpose of ABL conducting its defence and prosecuting any cross-claims in Proceeding No VID 1010 of 2019 (Hall v ABL Proceedings), including (without limitation) by ABL:

(d) disclosing the Relevant Material to:

(i) any legal advisors retained by ABL in the Hall v ABL Proceedings;

(ii) any experts retained by ABL for the purposes of the Hall v ABL Proceedings; and

(iii) any witnesses proposed to be called by ABL in the Hall v ABL Proceedings;

(e) considering, pleading and pursuing its Defence and any Cross-claim, including for the purpose of alleging that SGL and/or its directors or officers are liable to the Applicant and other group members in the Hall v ABL Proceedings and/or to ABL;

(f) serving Relevant Material in the Hall v ABL Proceedings that is intended to be adduced into evidence;

(g) adducing Relevant Material into evidence;

(h) otherwise referring to Relevant Material in the course of the hearing of the Hall v ABL Proceedings, including by way of address, cross-examination and/or written submission;

(i) referring to Relevant Material in the course of any mediation and other settlement negotiations (in writing or orally) in respect of the Hall v ABL Proceedings; and

(j) otherwise using the Relevant Material for the purpose of defending or negotiating the settlement of the Hall v ABL Proceedings.

2 From the outset, I note that the Declaration is wide-ranging in its terms and primarily focuses on the potential for a breach of confidence owed by ABL to...