Aland Care Pty Ltd v Pollard - [2023] NSWSC 1466

Supreme Court

New South Wales

Medium Neutral Citation: Aland Care Pty Ltd v Pollard [2023] NSWSC 1466
Hearing dates: 16 November 2023
Date of orders: 30 November 2023
Decision date: 30 November 2023
Jurisdiction: Equity
Before: Robb J
Decision:
See [40]

Catchwords:
EQUITY – equitable remedies – injunctions – interlocutory injunctions – where defendant is former employee of plaintiff – where defendant has disseminated material disparaging of plaintiff to plaintiff’s clients – where defendant has threatened to disseminate further materials – where the Court has made interim orders restraining the defendant from disseminating or distributing any copies of the disparaging materials or inducing any client of the plaintiff to terminate or not renew any contract with the plaintiff – whether the Court should issue a further interlocutory injunction against the defendant to operate until the final hearing of these proceedings or further order
CIVIL PROCEDURE – suppression and non-publication – whether orders should be made pursuant to the Court Suppression and Non-publication Orders Act 2010 (NSW) prohibiting the disclosure by publication or otherwise of building management agreements between the plaintiff and a series of owners corporations

Legislation Cited:
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 18
Corporations Act 2001 (Cth), ss 183(1), Pt 9.4AAA, ss 1317AB(1), 1317AAA, 1317AAC
Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8(1)(a), 12

Cases Cited:
Nexgen Sydney Pty Ltd v Barakat [2020] NSWSC 1169

Category: Procedural rulings
Parties: Aland Care Pty Ltd (Plaintiff)
Max Pollard (Defendant, in person)
Representation:
Counsel:
G A Sirtes SC and B Le Plastrier (Plaintiff)
Solicitors:
Swaab (Plaintiff)

File Number(s): 2023/00361670
Publication restriction: Nil

JUDGMENT

The plaintiff, Aland Care Pty Ltd, commenced these proceedings against the defendant, its former employee Max Pollard, by summons filed in the Duty List on 14 November 2023.
The plaintiff was given an order for short service of its summons, which was made returnable in the Duty List on 16 November 2023 at 2pm.
The objective of the plaintiff’s application was to obtain the interlocutory relief claimed in prayers 10 to 12 of the summons, which were in the following terms:

10.   Upon the usual undertaking for damages being given by Counsel for the Plaintiff, an order that the defendant be restrained until further order of the court from:
(a)   disseminating or distributing any copies of the letter addressed “To the owner of this property only” (Letter) written by the defendant and referred to in the affidavit of Joseph Khodeir sworn 14 November 2023 or any other written communication containing substantively [sic] the same allegations.
(b)   disclosing any confidential information of the plaintiff or the plaintiff’s related entities in breach of the defendant’s Contract of Employment with the plaintiff dated 26 April 2022 (Employment Contract) (For the purposes of this order, “Confidential Information” includes (but is not limited to) the following, [The prayer then repeats the definition of confidential information in the Contract of Employment].
(c)   persuading, procuring, encouraging or inducing any…

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.

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Details

Case: [2023] NSWSC 1466
Decision Date: 30 November 2023

CaseChat Overview and Summary

In the matter of Aland Care Pty Ltd versus Pollard, the plaintiff, a company engaged in the management of building facilities, sought to restrain the defendant, a former employee, from disseminating disparaging materials about the plaintiff to its clients. The proceedings took place in the Supreme Court of New South Wales, with the plaintiff alleging that the defendant had breached a non-disparagement clause in his employment contract and was threatening to distribute further defamatory content. The plaintiff further contended that the defendant had already circulated disparaging materials that risked damaging the plaintiff's reputation and client relationships.

The court had to determine whether an interlocutory injunction should be issued to prevent the defendant from disseminating or distributing any copies of the disparaging materials or from inducing any client to terminate or not renew any contract with the plaintiff. Additionally, the court considered whether suppression and non-publication orders should be made under the Court Suppression and Non-publication Orders Act 2010 (NSW) to prevent the disclosure of building management agreements between the plaintiff and various owners corporations. The plaintiff argued that the confidentiality of these agreements was essential to protect its business interests and that disclosure could cause significant harm.

The court found that the plaintiff had demonstrated a serious question to be tried regarding the alleged breaches of the non-disparagement clause and the potential for ongoing harm to the plaintiff's business. The court also accepted that the building management agreements contained confidential information that should be protected from disclosure. As such, the court granted the plaintiff's application for an interlocutory injunction and made suppression and non-publication orders to prevent the defendant from disseminating the disparaging materials and to protect the confidentiality of the building management agreements until the final hearing of the proceedings. The court emphasised the need to balance the interests of both parties and the importance of maintaining the integrity of the plaintiff's business operations.

Orders