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

1. 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.

2. 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.

3. 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 lot owner or any other person (including any Owners Corporation) to terminate or not renew any contract they may have with the plaintiff;

(d)   using or disclosing any information obtained by the defendant because of his employment with the plaintiff;

(e)   communicating any false or misleading information regarding the plaintiff or its related entities to any lot owner or occupier in any strata scheme managed by the plaintiff, or to any other person.

(Collectively the Restraints).

11.   An order that the defendant destroy the copies of the Letter in his possession or under his custody or control within one business day and that he file and serve an affidavit within five business days swearing or affirming to his compliance with this order.

12.   An order that the defendant file and serve an affidavit within five business days swearing or affirming to:

(a)   any persons to whom he disseminated or distributed the Letter; and

(b)   locations and addresses of the letterboxes into which he delivered the Letter, or instructed someone else to deliver the Letter.

4. The plaintiff also sought an order under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) (the Act), or alternatively in the Court’s inherent jurisdiction, and on the grounds referred to in s 8(1)(a) of the Act, a suppression order, applying under s 12 of the Act until further order of the Court, prohibiting the disclosure by publication or otherwise of information defined as follows: “the information contained in Confidential Exhibit JK-2 to the affidavit of Joseph Khodeir sworn [on] 14 November 2023”. That information consisted of a bundle of building management agreements between the plaintiff and a series of owners corporations, which included commercially sensitive information concerning the terms upon which the plaintiff made those agreements.

5. At the time these proceedings were commenced, I made an interim order under the Act to operate until 4pm on 16 November 2023, or until further order of the Court, that the information in Confidential Exhibit JK-2 not be disclosed by publication or otherwise because I was satisfied on an interim basis that the ground referred to in s 8(1)(a) of the Act was satisfied.

6. The hearing of the interlocutory application took place on 16 November 2023. The plaintiff was represented by senior and junior counsel. The defendant appeared in person.

7. As the hearing finished late in the day, and as the application raised issues that could not conveniently be dealt with ex tempore in the time available, I reserved judgment and made interim orders pending the publication of the Court’s reasons for judgment that (paraphrased) restrained the defendant from disseminating or distributing any copies of the Letter (as defined in prayer 10(a) of the summons), encouraging or inducing any lot owner (including any owners corporation) to terminate or not renew any contract with the plaintiff, and disparaging the plaintiff in any communication with any person with whom the plaintiff does business.

8. The plaintiff is engaged in the business of providing building management services to different strata schemes. At present, those services are provided to approximately 1,763 individual lot properties throughout this State. About 1,000 of those lots are properties within the Schofield Gardens complex, which comprises six separate strata schemes.

9. On 28 April 2022, the defendant commenced employment with the plaintiff in accordance with a contract of employment dated 26 April 2022. The defendant worked as the building manager at two of the strata schemes at Schofield Gardens.

10. The plaintiff terminated the defendant’s employment on 31 October 2023. The plaintiff’s position is that the termination was justified by serious misconduct on the defendant’s part. The validity of the plaintiff’s claim that the defendant had engaged in serious misconduct is not an issue that requires determination in these reasons, and in the circumstances, there is no need to publish the grounds for termination relied upon by the plaintiff.

11. The defendant responded to the termination of his employment by sending emails to employees of the plaintiff on 31 October 2023 and 1 November 2023, in which he challenged the basis of the termination and, of particular relevance to the present application, made an allegation that the plaintiff had engaged in a serious fraud in its dealings with the owners corporations of the strata schemes by which it was engaged to provide building management services. The defendant made threats to the plaintiff, including that: “I will contact any, and every, relevant party in relation to any alleged misconduct, even if those allegations are made against myself. I am well within my rights to contact every single Aland property owner with my concerns, and plan to do just that. Regardless of what happens from this point forward, I will be putting a one page document into every Aland mailbox, addressed to the owner, with my concerns about Aland Care, and a step by step guide to changing maintenance companies at the AGM if they so choose.” A later text message sent by the defendant on the same day included: “I am putting an envelope in every Aland mailbox addressed to the owner, as is my right under 1317AAA, 1317AAC, and 9.4AAA of the Corporations Act 2001 +… I am just waiting for the letters to finish printing, then will put in envelopes. I am starting with 4,000 and if that doesn’t cover all Aland properties I will continue until every owner is notified.” (The reference to “9.4AAA” is apparently intended to be to the Part of the Corporations Act 2001 (Cth) that contains the sections identified).

12. The plaintiff has received communications from lot owners in strata schemes serviced by the defendant while in the plaintiff’s employment that demonstrates that the defendant has to some extent carried out his threat and that the result has been to cause disquiet among some lot owners, who appeared to be concerned that there may be some truth in the claims made by the defendant against the plaintiff.

13. As the understandable object of the plaintiff in seeking the present interlocutory relief against the defendant is to prevent the further publication of the disparaging claims made by the defendant, it would be counterproductive for the Court to set out the terms of the document described in prayer 10(a) as the “Letter”. The Letter is part of Annexure C to the affidavit of Fadi Saleam sworn on 14 November 2023 that was read by the plaintiff on the application. It is notable that the email by which a lot owner forwarded the Letter to the plaintiff as an attachment started by saying: “Please see attached all the residents received one in all the buildings.” It is sufficient in the circumstances to note that the defendant made claims in the letter concerning what the defendant described as the plaintiff’s “misconduct.” The defendant provided some support for that claim by making various assertions that were allegations based on information that the defendant could only have learned as a result of having been informed of matters by representatives of the plaintiff, or otherwise as a result of his employment. The letter included an assertion that: “Disclosure to strata committee members and body corporate officers are protected by law. If you are a property owner, you are an officer for the purposes of the Corporations Act 2001.” That assertion was supported by information in a footnote that referred to the sections of the Corporations Act that have been listed above. The footnote also contained a reference to a case law authority concerning the meaning of the term “officer.” The only significance that I attribute to the information in the footnote is that it supports the inference that the preparation of the letter involved a concerted effort on the defendant’s part. The letter also contained instructions as to the steps that lot owners in an owners corporation could take to remove a building manager.

14. The defendant’s contract of employment included the following terms:

25.1   You agree to respect the confidentiality of information and documents to which you have access in the course of or arising from your employment with the Employer or any of its related entities.

25.2   You must not, during your employment or after the termination of your employment, directly or indirectly use or disclose (or attempt to use or disclose) any confidential information for any unauthorised purpose, including any benefit to you or any other person.

25.3   You must ensure secure custody of confidential information in your control or possession, and use your best endeavours to prevent the use or disclosure of confidential information by any person.

…

27.3   You agree that having regard to the circumstances set out in this clause you will not, directly or indirectly, either as a principal, employee, agent, director, officer, partner, consultant, contractor, advisor or otherwise, for your own benefit or the benefit of any other person, directly or indirectly, engage in any of the activities specified in the clause without the prior written consent of the Employer. The activities are:

…

induce or encourage any Client (or attempt to do any of the foregoing), with whom you or a Person reporting to you have performed work or had dealings with, during the 12 months following the Termination Date, to terminate or to not renew or maintain or alter, any business relationship, contract or arrangement, that Client has with the Employer or disclose any Confidential Information;

…

15. The contract of employment contained an extensive definition of “Confidential Information” in clause 28(iv). Clause 28(iii) contained a definition of “Client of the Employer,” which would extend to lot owners of owners corporations who had a contractual arrangement with the plaintiff, as the lot owners would be persons “to whom [the plaintiff]…provided…services at any time during the 12 months prior to the Termination Date.”

16. The plaintiff submitted that the Letter disclosed the plaintiff’s confidential information, in that it disclosed the defendant’s salary, which was financial information and data of the plaintiff, and in that it disclosed operational information and methods of the plaintiff with respect to the allocation of building managers across strata schemes. The plaintiff further submitted that the general tenor of the information in the Letter and the instructions that were included as to how an owners corporation could terminate its contract with the plaintiff constituted a breach of clause 27.3 of the contract of employment.

17. In addition to its claim that the defendant had breached the terms of his employment contract, the plaintiff submitted that certain statements made by the defendant in the Letter were misleading or deceptive and made in trade or commerce in contravention of s 18 of the Australian Consumer Law. The statements complained of by the plaintiff involved assertions by the defendant concerning the number of managers employed by the plaintiff to provide the building management services required by the contracts entered into between the plaintiff and owners corporations. The plaintiff provided evidence in the form of statements made by its general manager in his affidavit as to why the claims made by the defendant were false.

18. The plaintiff also submitted that the defendant’s conduct constituted a breach of the duty imposed by s 183(1) of the Corporations Act not to improperly use information obtained as an employee to cause detriment to the corporation.

19. Finally, the plaintiff submitted that the defendant’s conduct involved the commission of the tort of injurious falsehood, because he had made false statements concerning the plaintiff’s business, he had published those statements to a third person, he had done so with malice, and he had caused actual damage by publishing the statements.

20. The plaintiff relied upon the fact that the defendant had, on 12 November 2023, disputed the assertions made in a letter of demand by the plaintiff’s solicitors dated 10 November 2023, and failed to give the undertakings sought in that letter concerning the cessation of his conduct in disclosing the plaintiff’s confidential information and disparaging the plaintiff.

21. It is sufficient for the purposes of the determination of this interlocutory application for the Court to record that the plaintiff’s evidence establishes to my satisfaction that there is a serious question to be tried at the final hearing that the defendant has disclosed the plaintiff’s confidential information, and in further breach of his contract of employment, has attempted to induce or encourage a significant but unknown number of lot owners (who are arguably “Clients” for the purposes of the contract of employment) to act through their owners corporations to terminate or not renew or maintain their contracts with the plaintiff. There is also a serious question to be tried that some statements in the Letter are misleading or deceptive or likely to mislead or deceive lot owners within the meaning of s 18 of the Australian Consumer Law.

22. That being the case, I consider that it is not necessary on this interlocutory application for the Court to consider the somewhat more doubtful issues as to whether there are serious questions to be tried that the defendant has contravened s 183(1) of the Corporations Act, or whether he has committed the tort of injurious falsehood.

23. The defendant responded to the plaintiff’s evidence by his affidavit sworn on 16 November 2023. The defendant made a semantic point that his conduct that was submitted to be the making of threats should in context be treated as only “polite notifications.” I do not think this submission is valid, as the defendant informed the plaintiff that he would make accusations against it of the type conveyed in the Letter, and he acted accordingly by delivering an unknown number of copies of the Letter to lot owners in strata schemes in respect of which the plaintiff has contracts to supply building management services.

24. The defendant claimed that his own statement in his threat to the plaintiff that he would publish at least 4,000 copies of the Letter was a typographical error and he instead meant to say 400 copies. The Court cannot resolve this issue on the present evidence, but it is fair to observe that the distribution of even 400 copies could cause injury to the plaintiff.

25. The defendant then made a number of unsubstantiated assertions to support a claim that his conduct of which the plaintiff had complained could not cause it serious injury because it already had a bad reputation. As the evidence did not support such a claim, it would be unfair to the plaintiff for the Court to repeat the basis of the claim as alleged by the defendant.

26. The defendant said that he had not disseminated any of the Letters recently “having exhausted all envelopes at the beginning of November.” He also said that he has no intention of distributing any more Letters, “having long since stopped.”

27. The defendant also responded to a number of the grounds upon which the plaintiff had relied to terminate his employment. Most of the oral submissions made by the defendant at the hearing were directed at this issue. As the validity of the termination and the legitimacy of the grounds upon which the plaintiff acted are not material issues on this application, I will not consider this aspect of the defendant’s evidence and submissions further.

28. The defendant made a brief attempt to justify the claim that he had made in the Letter that the plaintiff had acted fraudulently in its dealings with the owners corporations that were relevant to the defendant’s employment. The assertions made by the defendant are not sufficient to dispel the effect of the plaintiff’s evidence that justify a finding by the Court that, at this interlocutory stage of the proceedings, there are serious questions to be tried that the defendant’s conduct has involved breaches of the employment contract in the manner summarised above, as well as contraventions of s 18 of the Australian Consumer Law.

29. As indicated in the footnote to the Letter to which reference has been made above, the defendant relied upon the provisions in Pt 9.4AAA of the Corporations Act, which is headed “Protection for Whistleblowers”. In short, the defendant claims that the effect of s 1317AB(1) is that he is not subject to any civil liability at the suit of the plaintiff and no contractual or other remedy may be enforced against him because the disclosure of the information that the plaintiff complains of in these proceedings is “a disclosure that qualifies for protection under this Part.” Under s 1317AAA(b), the defendant will be an “eligible whistleblower” if he is an employee of a regulated entity, and the plaintiff, as a company, is a regulated entity under s 1317AAB(a). The disclosures made by the defendant will only qualify for protection under Pt 9.4AAA in this case if the following aspects of s 1317AA are satisfied:

…

(2)   A disclosure of information by an individual (the discloser) qualifies for protection under this Part if:

(a)   the discloser is an eligible whistleblower in relation to a regulated entity; and

(b)   the disclosure is made to an eligible recipient in relation to the regulated entity; and

(c)   subsection (4) or (5) applies to the disclosure.

…

Disclosable matters

(4)   This subsection applies to a disclosure of information if the discloser has reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances, in relation to:

(a)   the regulated entity; or

…

(5)   Without limiting subsection (4), this subsection applies to a disclosure of information if the discloser has reasonable grounds to suspect that the information indicates that any of the following:

(a)   the regulated entity, or an officer or employee of the regulated entity;

…

has engaged in conduct that:

(c)   constitutes an offence against, or a contravention of, a provision of any of the following:

(i) this Act;

(ii) the ASIC Act;

…

or

(d)   constitutes an offence against any other law of the Commonwealth that is punishable by imprisonment for a period of 12 months or more; or

(e)   represents a danger to the public or the financial system; or

(f)   is prescribed by the regulations for the purposes of this paragraph.

30. This provision is only capable of application if the disclosures made by the defendant were made to “an eligible recipient” in relation to the plaintiff. That term in the present case is governed by s 1317AAC(1), which provides:

(1)   Each of the following is an eligible recipient in relation to a regulated entity that is a body corporate:

(a)   an officer or senior manager of the body corporate or a related body corporate;

(b)   an auditor, or a member of an audit team conducting an audit, of the body corporate or a related body corporate;

(c)   an actuary of the body corporate or a related body corporate;

(d)   a person authorised by the body corporate to receive disclosures that may qualify for protection under this Part.

31. The reference to the eligible recipient being “in relation to a regulated entity that is a body corporate” is a reference to a relationship with the plaintiff itself, which, being a company, is a regulated entity that is a body corporate. Each of the categories of persons described in in paragraphs (a) to (d) of subsection (1) are persons associated in particular ways with the plaintiff itself. The lot owners to whom the defendant made disclosures in this case are not associated with the plaintiff in the way that is necessary for them to be eligible recipients in relation to the plaintiff. Pt 9.4AAA does not provide whistleblower protection to employees of companies who disclose matters to persons who fall within the descriptions in s 1317AAC(1) in relation to third party body corporates. Consequently, the disclosures made by the defendant in this case, do not qualify for protection under Pt 9.4AAA. It is therefore not necessary for the Court to consider the question whether the disclosures that were made are “disclosable matters” within the meaning of s 1317AA(4) or (5).

32. The question of whether the Court should issue a further interlocutory injunction against the defendant to operate until the final hearing of these proceedings or further order depends upon whether the Court is satisfied that there are serious questions to be tried that the defendant has committed the breaches of duty or contraventions of law alleged by the plaintiff, and, if it is so satisfied, whether the balance of convenience favours the issue of the injunction or not. These principles are well-established and uncontroversial.

33. I have already made findings that the plaintiff has established to my satisfaction that there are serious questions to be tried in relation to the breaches of the employment agreement alleged against the defendant and the claim that he has contravened s 18 of the Australian Consumer Law, by making assertions in the Letter that he has distributed to lot owners that are misleading or deceptive or likely to mislead or deceive in a manner that is prohibited by that Law.

34. I am also satisfied that the balance of convenience favours the issue of an interlocutory injunction couched in appropriately clear and restricted terms to provide the plaintiff with an adequate measure of protection, without imposing on the defendant the obligation to comply with an indefinitely worded injunction that would put him at an unfair risk of committing contempt of court without appreciating what he is doing. I am satisfied that the plaintiff has established that there is a real risk that the defendant’s allegations that have been made to lot owners will poison the relationship between the plaintiff and the owners corporations with which it has contracts to provide building management services. There is a real risk that allegations of the type made against the plaintiff by the defendant will have serious and long-term consequences in relation to the reputation of the plaintiff, and that they may damage the plaintiff’s commercial prospects in a way that will not be transparent to the plaintiff and which will be difficult for the plaintiff to counter. I consider that it is also relevant to the exercise of the Court’s discretion that there appears to be a significant element of revenge in the defendant’s conduct in response to the termination of his employment by the plaintiff. That factor gives rise to a greater than usual likelihood that the defendant will act in a manner inimical to the plaintiff’s interests, if he is not restrained from doing so.

35. I will set out the terms of the orders that I will make below. The orders will include restraints generally as claimed in prayers 10(a), 10(c) and 11 of the summons. The order sought in prayer 10(b) is too broad, as it is based on an extremely wide and indefinite description of “Confidential Information”. I will give the plaintiff leave to apply to seek a further more specific restraint on the disclosure of confidential information if the future conduct of the defendant justifies a further order that can be formulated by reference to some specific category of information. I will not make orders in terms of prayers 10(d) and 10(e), as I consider those orders to have been formulated in too broad and general terms.

36. As to the order sought in prayer 12, the plaintiff relies upon the following statement of principle by Williams J in Nexgen Sydney Pty Ltd v Barakat [2020] NSWSC 1169, where her Honour said:

[39] A Norwich order is an order made by a court requiring a third party who has been involved in a transaction in which another person has allegedly wrongfully used the applicant’s confidential information to give information to the applicant by way of discovery concerning the identity and location of the alleged wrongdoer. A Norwich order is made if the court is satisfied that the plaintiff will probably suffer irreparable damage if there is any delay in ordering discovery. A Norwich order can be used in order to identify the party alleged to have misused the applicant’s confidential information, but in certain circumstances it can also be used by requiring an existing defendant to proceedings to disclose information that will allow the applicant to trace what has happened to its confidential information: Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at [28]; Computershare Ltd v Perpetual Registrars Ltd (2000) 1 VR 626; [2000] VSC 139 at [15] –[19].

37. The plaintiff relies upon that part of her Honour’s observations in which she says that the order may be made in certain circumstances against an existing defendant. I am satisfied that an order for disclosure by the defendant should be made, as this is not simply a case where the defendant has disclosed some information that is confidential to the plaintiff. In this case, there is a commercial necessity for the plaintiff to attempt to correct the consequences of the disclosure, and that will most conveniently and safely be done if the plaintiff is able to approach the individuals to whom the Letter was published. The plaintiff should not be put at risk of having to implement a program whereby it attempts to dispel the consequences of the publication of the Letter by making some unnecessarily extensive approach to lot owners, who might not have received the Letter in the first place, because that would put the plaintiff at risk of having to disclose the substance of the defendant’s allegations more widely than is necessary, as a first step in the process of dispelling the effect of those allegations. However, I will not make the order in the specific terms sought in prayer 12. That is because I am not satisfied that the defendant will be able to identify specifically the persons to whom he has distributed the Letter, or that he will be able to ascertain their identity without undue effort. It should be sufficient if the defendant is required to depose to the addresses to which he distributed the Letter, either specifically or by reference to recipients described generally, such as if the defendant placed the Letter in the letterboxes of all lot owners or occupiers in a particular strata scheme.

38. It is also necessary for the Court to deal with the continuation of the order under the Act prohibiting the disclosure by publication or otherwise of the information that is the subject of the interim order. I do not propose to continue the order under the Act, but instead I will make an order of the type conventionally made by this Court to ensure the confidentiality of evidence tendered in proceedings before it. That will avoid the difficulty of having to address the issues of the duration of the order and its territorial effect, as is required by the Act.

39. As the plaintiff has substantially succeeded on this interlocutory application, which was resisted by the defendant, the appropriate costs order is that the costs of the application be the plaintiff’s costs in the cause.

40. The orders of the Court are:

1. On the plaintiff by its counsel giving to the Court the usual undertaking as to damages, order that the defendant, by himself, his servants and agents be restrained until the hearing of these proceedings or further order from:

1. 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 on 14 November 2023 or any other oral or written communication containing substantially the same allegations;

2. disclosing by any other means to any person the information contained in the Letter concerning the arrangements made by the plaintiff for providing services to the owners corporations and lot owners and occupiers to whom the plaintiff provides building management services; or

3. persuading, procuring, encouraging or inducing any lot owner or any other person (including any owners corporation) to terminate or not renew any contract they may have with the plaintiff.

2. Order the defendant to destroy any copies of the Letter in his possession or under his custody or control within one business day and that he file and serve an affidavit within five business days swearing or affirming to his compliance with this order.

3. Order that the defendant file and serve an affidavit within five business days swearing or affirming to the addresses to which he has published or distributed the Letter by specific address or by general description of the addresses sufficient to enable the plaintiff to make contact with the lot owners or occupiers who have received a copy of the Letter from the defendant.

4. Grant leave to the plaintiff to apply on two days’ notice for any further interlocutory order to restrain the defendant from wrongfully disclosing the plaintiff’s confidential information if it becomes known to the plaintiff that the defendant has further disclosed specific confidential information of the plaintiff.

5. Order that Confidential Exhibit JK-2 to the affidavit of Joseph Khodeir sworn on 14 November 2023 remain confidential and be placed in a sealed envelope marked: “Not to be disclosed to any party without an order of a judge of the Court after five days' notice having been given to the plaintiff”, and placed on the Court’s file.

6. Order that the defendant:

1. deliver to the plaintiff within five days any copy of Confidential Exhibit JK-2 in his possession, custody or control; and

2. be permanently restrained by himself, his servants and agents from disclosing to any person all or any part of the contents of Confidential Exhibit JK-2.

7. Order that the costs of this application be the plaintiff’s costs in the cause.

8. Stand the proceedings into the Registrar’s list on 6 December 2023 for directions.

**********

Decision last updated: 30 November 2023