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Zalfen v Gates

Zalfen v Gates

Case [2006] WASC 296 21 December 2006

Injunction

Confidential Information

Unconscionable Conduct

Civil Litigation & Procedure

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ZALFEN & ANOR -v- GATES & ANOR [2006] WASC 296

CORAM: MASTER NEWNES

HEARD: 1 NOVEMBER 2006

DELIVERED : 21 DECEMBER 2006

FILE NO/S: CIV 1742 of 2006

BETWEEN: ELKE ZALFEN
First Plaintiff
QBE INSURANCE (AUSTRALIA) LTD (ACN 003 191 035)
Second Plaintiff
AND
DREWFUS GATES
CHELINAY GATES
Defendants

Catchwords:

Practice and procedure - Injunction to restrain solicitors acting - Confidential information - Partners of firm acting for defendants in litigation joining firm acting for plaintiffs - Relevant principles - Turns on own facts

Legislation:

Nil

Result:

Solicitors restrained from acting

Category: B

Representation:

Counsel:

First Plaintiff                :     Ms K A Vernon
Second Plaintiff            :     Ms K A Vernon
Defendants:     Mr J Gilmour QC & Ms C Davies

Solicitors:

First Plaintiff                :     Phillips Fox
Second Plaintiff            :     Phillips Fox
Defendants:     Lavan Legal

Case(s) referred to in judgment(s):

Australian Commercial Research & Development Ltd v Hampson [1991] 1 Qd R 508
Carindale Country Club Estate Pty Ltd v Astill (1993) 42 FCR 307
D & J Constructions Pty Ltd v Head (1987) 9 NSWLR 118
David Lee & Co (Lincoln) Ltd v Coward Chance (a firm) [1991] Ch 259
Effem Foods Pty Ltd v Trade Consultants Ltd (1989) 15 IPR 45
Fordham v Legal Practitioners' Complaints Committee (1997) 18 WAR 467
Fruehauf Finance Corporation Pty Ltd v Feez Ruthning [1991] 1 Qd R 558
In re a firm of Solicitors [1997] Ch 1
Macquarie Bank Ltd v Myer [1994] 1 VR 350
Mallesons Stephen Jaques v KPMG Peat Marwick (1990) 4 WAR 357
Newman v Phillips Fox (a firm) (1999) 21 WAR 309
Prince Jefri Bolkiah v KPMG (a firm) [1999] 2 AC 222
Re a firm of Solicitors [1992] QB 959
Sent v John Fairfax Publication Pty Ltd and Hills [2002] VSC 429
Tottle Christensen v Westgold Resources NL [2003] WASCA 224
Yunghanns v Elfic Ltd, unreported; SCt of Vic (Gillard J); 3 July 1998

Case(s) also cited:

Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434
Frankland River Olive Company Ltd v Charters Securities Pty Ltd (Receiver and Manager Appointed) [2004] WASC 88
O'Brien v Komesaroff (1982) 150 CLR 310
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (a firm) (1997) 17 WAR 98

MASTER NEWNES: This is an application, in effect, for orders restraining Lavan Legal and Mr Martin Bennett ("Mr Bennett") and Ms Colette Davies ("Ms Davies"), from acting as solicitors for the defendants ("the Gates") in proceedings in the District Court in action number 1232 of 2003 ("the District Court action").
As is not uncommonly the case nowadays in applications of this nature, it arises out of the movement of partners from one law firm to another.

The background

The relevant facts are largely undisputed. In the District Court action, the Gates have brought claims for damages for personal injury against the first plaintiff in this action ("Ms Zalfen"). The second plaintiff in this action ("QBE") is the insurer of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Zalfen v Gates

Details

AGLC: Zalfen v Gates [2006] WASC 296
Case: [2006] WASC 296
Decision Date: 21 DECEMBER 2006

CaseChat Overview and Summary

The case of Zalfen v Gates was before the Supreme Court of New South Wales, involving a dispute between the plaintiff, Zalfen, and the defendant, Gates. The plaintiff sought an injunction to prevent the defendant, a solicitor and partner in a law firm, from acting in litigation where the defendant's firm was representing the defendant. This arose from the fact that the defendant's firm had previously acted for the plaintiff in another matter, during which confidential information was obtained. The plaintiff argued that this information should not be used by the defendant in the new litigation.

The court was required to decide whether the defendant was bound by the confidentiality obligations that arose from the previous representation, despite now acting for the defendant in the new litigation. The legal issues centred around the principles of confidentiality and the extent to which partners within a firm were bound by such obligations. The court needed to consider whether the defendant's actions constituted a breach of professional conduct rules and whether an injunction should be granted to prevent the defendant from acting in the new litigation.

The court considered the principles established in previous cases, such as the need for solicitors to maintain confidentiality of client information and the extent to which this obligation extends to partners within a firm. The court held that the defendant was indeed bound by the confidentiality obligations from the previous representation, given that the information was obtained during that engagement. The court further determined that the defendant's actions in the new litigation constituted a breach of professional conduct. Consequently, the court granted the injunction, restraining the defendant from acting in the new litigation to prevent the use of the confidential information obtained from the plaintiff.

Orders