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

In the case of Arnold Bloch Leibler (A Firm) v Slater & Gordon Limited, the primary issue was whether the former client's conduct in producing documents to a third party constituted an inconsistency that would allow the law firm to use confidential information for the defence of the proceedings. Slater & Gordon had previously discovered certain documents and provided them to a third party, Mr Hall, which subsequently led to legal proceedings against the law firm. The law firm argued that the former client's actions were inconsistent with maintaining confidentiality, which would allow them to use the confidential information for their defence.

The court examined the nature of the confidential information and the circumstances surrounding its production. The court found that Slater & Gordon had indeed assisted Mr Hall in commencing and prosecuting the legal proceedings against the law firm by discovering the relevant documents in the first place. However, the court also noted that the production of the documents alone was not sufficient to amount to any inconsistency or unfairness. The court further considered the Harman Release Order, which allowed the parties in the Hall v Slater & Gordon Proceedings to use the discovered documents to the extent necessary for the permitted claims.

The court concluded that the obligation of confidence owed by the lawyer to the former client was not waived by the inconsistent conduct of the client. The court found that the restriction imposed on lawyers goes beyond any equitable principle of confidence, arising from the privileged nature of the information. Therefore, it was necessary to apply the principles in Mann and show a plain and relevant inconsistency. The court found that the conduct of Slater & Gordon did not amount to a relevant inconsistency.

As a result, the court dismissed the proceeding, with the exception of varying the Declaration made on 8 May 2020 by deleting the words'subject to further order'. The parties were instructed to 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 would be determined on the papers.