Restraining a solicitor from acting for a client: an extraordinary power with a high hurdle

In the recent decision of Solve Legal Pty Ltd v All is 1 Pty Ltd (t/as Banga Legal) [2026] NSWCA 55, the New South Wales Court of Appeal overturned a decision that had restrained a law firm from acting for a litigant.

The decision reinforces the fundamental principle that parties should be able to choose their own lawyers absent a compelling reason to the contrary and held that general observations of senior solicitors by junior solicitors will not be considered “confidential information.”

Background

From December 2021, Cameron Shamsabad was employed by Banga Legal as a consultant solicitor. The terms of his employment contract restrained him from disclosing confidential information obtained while employed with Banga Legal.

On 8 August 2022, Mr Shamsabad commenced work as a solicitor at Solve Legal.

After Mr Shamsabad had left Banga Legal, Jessica Townsend commenced employment as a solicitor at Banga Legal. She was later dismissed for disclosing details of a “sensitive private matter” on which she was working for Samir Banga, the firm’s principal, to other employees of Banga Legal. She then contacted Mr Shamsabad for employment law advice and retained Solve Legal to commence proceedings in the Federal Circuit and Family Court of Australia challenging her dismissal (Fair Work Proceedings).

In March 2025, Banga Legal commenced proceedings in the Supreme Court against Ms Townsend alleging, relevantly, that she had disclosed confidential information acquired in the course of her employment and sought a restraint of such disclosure (Supreme Court Proceedings). Solve Legal again acted for Ms Townsend.

Banga Legal subsequently sent an email to Solve Legal requesting it refrain from acting for Ms Towsend due to an alleged conflict of interest. That request was denied.

Banga Legal then filed a motion in the Supreme Court Proceedings to restrain Solve Legal from acting based on an alleged conflict of interest arising from “confidential information” Mr Shamsabad had obtained about Mr Banga and his wife in the course of his own employment at Banga Legal.

Solve Legal was not joined as a party to Supreme Court Proceedings or the motion. It appeared on the motion in its capacity as Ms Townsend’s legal representative only

First instance decision

At first instance, Justice McGrath, granted orders restraining Solve Legal from acting for Ms Townsend. His Honour held that:

• even though Solve Legal was not a party, no injustice arose from the making of orders affecting it because Solve Legal had been put on notice of the application by way of email and participated in the application through its employed solicitor, Mr Brozek
• while employed at Solve Legal, in social settings, Mr Shamsabad acquired confidential information about Mr Banga and his wife pertaining to their personalities, vulnerabilities and litigation strategies. Such settings included dinners, drinks and an engagement party Mr Shamsabad attended at Mr Banga’s home;
• the Court should restrain its officers such as Mr Shamsabad from acting when they possess confidential information that places them in conflict and that there was a serious risk that the confidential information about Mr Banga and his wife could have been used by Solve Legal to Ms Townsend’s forensic advantage; and
• balanced against Ms Townsend’s right to choose her own legal representation, the risk of that conflict warranted orders restraining Solve Legal form acting for Ms Townsend.

Application in Fair Work Proceedings

Banga Legal then filed an interlocutory application seeking to restrain Solve Legal from acting for Ms Townsend in the Fair Work Proceedings. That application was dismissed.

Appeal

Solve Legal sought leave to appeal to Supreme Court decision to the Court of Appeal on the basis that Justice McGrath erred in finding that there was a conflict of interest in Mr Shamsabad acting for Ms Townsend and in Solve Legal continuing to act for her.

Assessment of power to restrain a solicitor

In overturning the Supreme Court decision, the Court of Appeal emphasised thatit is fundamental to our system of justice that, absent a compelling reason to the contrary, parties should be able to choose their own lawyers. The legal test as to whether the jurisdiction to restrain a lawyer from acting for a party is enlivened was clarified as being:

what a fair minded, reasonably informed member of the public would conclude as to what the proper administration of justice requires.

The Court held Justice McGrath’s conclusions that a relevant member of the public would conclude as much in this case could not be justified. In cases where confidential information is said to be the basis of restraining a solicitor from acting, there is a need for precise identification of that confidential information. The “confidential information” relied on to assert the existence of a risk of conflict must be identified to invoke the jurisdiction to restrain a solicitor.

In this case:

• observations of Mr Banga and his wife in social settings was held not to merit the description “confidential information”; and
• discussions in the course of employment regarding “appropriate litigation strategy in the preparation and execution of legal matters” are confidential only in the sense that employees cannot unlawfully use it during their employment for their own purposes or disclose it to a competitor.

This kind of information is not “confidential information”; rather, it is not “know-how”, being information that necessarily remains in the servant’s head and becomes part of their own skill and knowledge applied in the course of the master’s business once it is learned.

The Court considered that information about senior lawyers gained by junior lawyers was part of the ordinary processes of professional legal training and development. It was not information of a kind dealt with in previous authorities invoking the jurisdiction to restrain a solicitor, such as information about forensic or strategic decisions made by clients for which the solicitors in those authorities were proposing to act.

To invoke the extraordinary jurisdiction to restrain a solicitor from acting in order to protect against use of such information is unwarranted.

Failure to join Solve Legal as a party

Banga Legal’s failure to join Solve Legal to the motion seeking to restrain Solve Legal from acting was held to be enough of an error of legal principle on its own to successfully appeal Justice McGrath’s orders.

The Court held that joinder to an application, not simply notice of that application, is the default position in litigation. The joinder of a party directly affected by an order is not a matter of discretion. It is a matter of obligation. A party that is affected, but not joined, is prejudiced.

Implications

The jurisdiction to restrain a solicitor from acting is an extraordinary one and cannot be invoked to enforce, what would in substance be, a restraint of trade. The test as to whether the jurisdiction is invoked has been clarified as being whether a fair minded, reasonably informed member of the public would conclude that invocation would be required for the proper administration of justice.

Courts will not consider just any information obtained during the course of solicitor’s employment to be confidential. Observations made in a social setting regarding personalities and information about litigation strategy and preparation that is shared among employed solicitors rises no higher than “know-how” accrued during the course of employment necessary for the employee’s development.

Parties to litigation are obliged to join any third party to the action whose rights or liabilities in respect of the subject matter of the proceedings will be directly affected by any orders that are sought from the Court. Failure to do so will be fatal to any attempt to obtain those orders.