Bovogen Biologicals Pty Ltd v O'Dea

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:

1. 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

2. 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

3. 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’).

4. 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.

5. Item 8 of the Schedule to the employment contract states ‘Confidentiality Agreement – refer to attached’.

6. 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.

7. 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…