The NSW Supreme Court has upheld a judgment that initial contact with a client by a lawyer before a contractual agreement has been entered into should not be classified as confidential information.
Therefore, found the Court, a law firm has the right to act for a party to a dispute even if it has previously been contacted by the opposing party.
The decision involved a long running defamation case between two former neighbours (both couples) in Emerald Beach on the mid north-coast of NSW.
It is alleged that the defendants posted signs on their property that defamed the plaintiffs, and published a letter distributed to nearby residents making further defamatory statements.
The plaintiffs at one time sought to have the current solicitor for the defendants, Barrie Goldsmith from Goldsmiths Lawyers, barred from taking further instruction on the matter because Goldsmith had previously responded to their email and phone call in the early stages of proceedings in 2007.
No contractual arrangement was ever entered into, and the plaintiffs later used a different firm - Gerard Malouf & Partners.
Goldsmith was hired by the defendants on the matter in 2009.
The plaintiffs initially claimed Goldsmith discussed "the strengths and weaknesses" of their claim, and that the initial email they sent and the subsequent phone conversation covered "confidential aspects of the instructions".
The plaintiffs later withdrew this action, but in a judgment handed down on 29 April 2010, were ordered to pay the defendants' costs.
Justice Harrison found that the communication was "limited and uncontroversial".
Justice Harrison said there was "no confidential information given by the plaintiffs to that solicitor in the email in question" and that the plaintiffs ultimately recognised that such a challenge was "ill founded and belatedly withdrew it".
Justice Harrison found the plaintiffs should bear the costs incurred by the defendants in resisting the application.
The plaintiffs then filed a further notice of motion against that decision based on "misapprehended facts".
In a further judgment by Justice Harrison last week (13 August), this notion by the plaintiffs was dismissed. It was found that the plaintiffs "never provided any reasonable or rational basis for contesting Mr Goldsmith's ability to continue to act for the defendants" and that "the plaintiffs must look to themselves for the cause as to the costs that were incurred".
Justice Harrison dismissed the plaintiffs' notice of motion with costs.