| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S ECI 2020 01568
| BOVOGEN BIOLOGICALS PTY LTD (ACN 164 150 403) | Plaintiff |
| v | |
| PETER O’DEA | Defendant |
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JUDGE: | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 April 2020 Determined on the papers |
DATE OF RULING: | 2 April 2020 |
CASE MAY BE CITED AS: | Bovogen Biologicals Pty Ltd v O’Dea |
MEDIUM NEUTRAL CITATION: | [2020] VSC 157 |
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EMPLOYMENT – Employment contract – Confidentiality agreement – Disclosure of confidential information – Interim injunction – Australian Broadcasting Commission v O’Neill (2006) 227 CLR 57 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Wheelahan | FCB Workplace Lawyers & Consultants |
| The Defendant represented himself |
HER HONOUR:
The plaintiff employer says that the defendant employee has unlawfully disclosed its confidential information. The plaintiff seeks orders to restrain the defendant from disclosing its confidential information, delivery up of its confidential information and deletion of any electronic copies held by the defendant. The plaintiff seeks a list of third parties to whom the defendant has disclosed such information. The defendant opposes the relief sought.
Summary
For the reasons below, and subject to the plaintiff providing the usual undertaking as to damages,[1] I will make orders restraining the defendant from disclosing confidential information for a four week period. I will make orders requiring him to deliver up the plaintiff’s confidential information and delete any electronic copies that he holds. The proposed orders are discussed in more detail below. At this time, I decline to make the orders sought concerning the list of third parties.
[1]Sharp v Conroy [2020] NSWSC 271 [25] (Cavanagh J).
Contract of Employment
The written contract of employment between the parties is dated 26 October 2016 and executed by the plaintiff on 31 October 2016 (‘the employment contract’).[2]
[2]Exhibit ‘DS-1’ to the affidavit of Ms Dani Salinger, solicitor for the plaintiff, sworn on 30 March 2020 (‘Salinger affidavit’).
Clause 15 of the employment contract follows.
Protection of Bovogen Biologicals Business Interests
The Confidentiality Agreement set out in Item 8 of the Schedule must be signed by you and forms part of your contract of employment with Bovogen Biologicals.
Item 8 of the Schedule to the employment contract states ‘Confidentiality Agreement – refer to attached’.
A confidentiality agreement between the parties is dated 31 October 2016 and executed by the plaintiff on 31 October 2016 (‘the confidentiality agreement’).[3]
[3]Exhibit ‘DS-2’ to the Salinger affidavit.
Clause 3 of the confidentiality agreement follows.
3.The Receiving Party [the defendant] must;
(i)keep all Confidential Information of the Disclosing Party [the plaintiff] confidential unless strictly required otherwise by law;
(ii)limit access to those of its employees or agents reasonably requiring the Confidential Information on a strictly need to know basis for the Purpose;
(iii)not use Confidential Information in any way which would be harmful to the best interests of the Disclosing Party;
(iv)immediately notify the Disclosing Party of any disclosure required by law;
(v)not use any Confidential Information in any…
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- Case
- [2020] VSC 157
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether Dr O'Dea had breached the confidentiality agreements and whether an interim injunction should be granted to prevent further breaches. The court considered whether the agreements were enforceable, the nature and extent of the confidential information, and whether the plaintiff would suffer irreparable harm without the injunction.
The court found that Dr O'Dea had indeed breached the confidentiality agreements by disclosing confidential information. It was noted that the confidentiality agreements were clear, specific, and enforceable. The court emphasised the importance of protecting confidential business information and the need to prevent irreparable harm to the plaintiff's business interests. In applying the principles from Australian Broadcasting Commission v O'Neill, the court concluded that the balance of convenience favoured granting the interim injunction.
The court issued an interim injunction restraining Dr O'Dea from disclosing any further confidential information and from using or disclosing any confidential information obtained during his employment. The injunction was intended to protect the plaintiff's business interests until the matter could be fully heard and determined.
Orders
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
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Legal Principle Established
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