Federal Court of Australia

Arnold Bloch Leibler (a Firm) v Slater & Gordon Limited (No 2) [2020] FCA 1744

ORDERS

THE COURT ORDERS THAT:

1.    The Applicant pay the costs of the proceeding of the Respondent, on a party party basis, to be assessed if not agreed.

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 Court delivered reasons in this proceeding on 16 October 2020: Arnold Bloch Leibler (a firm) v Slater & Gordon Limited [2020] FCA 1496 (‘Judgment’). The defined terms used in the Judgment are adopted in the following reasons.

2    The proceeding arose because Slater & Gordon refused to grant its consent to ABL using material for the purposes requested by ABL in connection with its defence of the Hall v ABL Proceedings. ABL sought declaratory relief in relation to this material, primarily focusing on the potential for a breach of confidence owed by ABL to Slater & Gordon.

3    On 8 May 2020, I made a declaration in relation to due diligence files of the DDC (‘8 May Declaration’). On 16 October 2020, I dismissed the remainder of this proceeding, although made the following findings at [108] of the Judgment:

(a)    “to the extent that documents relate to ABL as a member of or its role for the DDC, the documents are or should be available for inspection … [and] that information can be used without limitation in the Hall v ABL Proceedings by ABL”;

(b)    “[t]he solicitors for ABL who may be asked for instructions to defend the Hall v ABL Proceedings, who were involved directly in the retainer with Slater & Gordon in relation to the due diligence process, need have no concern in giving instructions in relation to information and communications relevant to the due diligence process and what basis ABL had for the Opinion Letter based on that due diligence process”; and

(c)    this was so regardless of whether the documents or information were in the Project Malta Legal Files Documents in respect of which the Court declined to make the declarations sought in prayers 1(a) and (b) of the Originating Application,

(together, ‘[108] Findings’).

CONSIDERATION

4    ABL submits that the costs of this proceeding should abide the result in the Hall v ABL Proceedings or, alternatively, that there should be no order as to costs in this proceeding.

5    Slater & Gordon seeks its costs of this proceeding on a party party basis.

6    Slater & Gordon’s position prior to the commencement of this proceeding was as follows:

(a)    on 20 November 2019, it indicated that it would consent to documents held in connection with ABL’s retainer in the Hall v SGL Proceedings (not the due diligence process) being provided to ABL’s legal representatives but not otherwise disclosed;

(b)    on 5 December 2019, it indicated that it did not object to ABL providing its legal representatives “with a copy of [Slater & Gordon’s] file held by ABL” but not otherwise disclosed;

(c)    on 16 December 2019, it indicated that it would also permit documents to be provided to ABL’s legal representatives so that ABL could comply with the order made on 6 December 2019 requiring ABL to serve a discovery list, provided that Slater & Gordon was first given the opportunity to assert any privilege claims;

(d)    on 30 January 2020, it indicated that Slater & Gordon asserted confidentiality over “all documents, information, advice and communications which passed between our respective clients” other than the small number of documents discovered by Slater & Gordon in the Hall v SGL Proceedings.

7    Slater & Gordon’s position prior to the commencement of the proceedings was therefore effectively that ABL could not use any communications between Slater & Gordon and ABL in the Hall v ABL Proceedings, except the small number of documents discovered by Slater & Gordon in the Hall v SGL Proceedings. Slater & Gordon opposed the granting of any of the declaratory relief sought by ABL at all times, including opposing the 8 May Declaration that was ultimately made.

8    The Court has a broad discretion to award costs under s 43 of the Federal Court of Australia Act 1976 (Cth), with the “guiding principle by reference to which the discretion is to be exercised … is that the successful party is generally entitled to his or her costs by way of indemnity against the expense of litigation that should not, in justice, have been visited upon that party”: see, in a different statutory context, Northern Territory v Sangare (2019) 265 CLR 164 at [25] (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ). Undoubtedly, other factors “may have a significant claim on the discretion of the Court” and “[t]he disposition which is ultimately to be made in any case where there are competing considerations will reflect a broad evaluative judgment of what justice requires”: see Gray v Richards (No 2) (2014) 315 ALR 1 at [2] (French CJ, Hayne, Bell, Gageler and Keane JJ).

9    The general discretion must be exercised according to established principles. The usual rule is that costs follow the event. A successful litigant normally will receive its costs in the absence of some circumstance justifying the making of some other order. The fact that the successful party unsuccessfully contested a particular issue or inquiry does not necessarily mean that it should be penalised for supporting its case in a reasonable way.

10    Despite the fact that the Court only made the 8 May Declaration, I accept ABL’s submission that the [108] Findings provide guidance similar to that sought in part of the Originating Application. ABL had sought declaratory relief in respect of communications between ABL and Slater & Gordon “in connection with … the [DDC] and the due diligence process”, and the [108] Findings confirm that ABL can use documents that relate to ABL as a member of or its role for the DDC. Further, even though the Court declined to make a declaration in respect of the Project Malta Legal Files Documents, the Court’s expectation was that “the available documents will be expected to be coextensive with that in the Project Malta Legal Files Documents” (Judgment, [108]).

11    It is thus true that by bringing this proceeding, ABL has obtained the benefit of the 8 May Declaration and the [108] Findings which would indicate that ABL could use Slater & Gordon’s documents in a manner that goes beyond the terms of the consent that Slater & Gordon was willing to provide prior to the commencement of the proceeding.

12    However, the proceeding was brought to obtain the full extent of the Declaration sought and in this ABL failed. The making of the 8 May Declaration did not prevent the proceeding from progressing further, as ABL sought the full extent of the Declaration. The real contest concerned ABL’s assertion that confidentiality had been lost in respect of its legal files. In respect of that contest — notwithstanding the observation at [108] of the Judgment that the available documents were expected to be coextensive with the Project Malta Legal Files Documents — Slater & Gordon was successful and the proceeding was dismissed.

13    The 8 May Declaration made in relation to the Due Diligence Files did not comprise any substantial part of the contest between the parties. Its making does not justify a departure from the usual orders as to costs. Nor is there any other circumstance justifying a departure from the usual order.

14    This proceeding is finalised. There is no reason for the making of costs orders to be delayed.

15    I will order that the Applicant pay the costs of the proceeding of the Respondent, on a party party basis, to be assessed if not agreed.

Associate:

Dated:    4 December 2020