Brannaghan v Australian Security and Investigations (Tas) Pty Ltd
[2015] FCA 415
•10 March 2015
FEDERAL COURT OF AUSTRALIA
Brannaghan v Australian Security and Investigations (Tas) Pty Ltd [2015] FCA 415
Citation: Brannaghan v Australian Security and Investigations (Tas) Pty Ltd [2015] FCA 415 Parties: DAVID TRISTAN BRANNAGHAN v AUSTRALIAN SECURITY AND INVESTIGATIONS (TAS) PTY LTD (ACN 040 959 701), BRUCE TOWNSEND and STEPHEN JOHN CONRAD
File number: VID 242 of 2012 Judge: NORTH J Date of judgment: 10 March 2015 Legislation: Federal Court of Australia Act 1976 (Cth) ss 33V,33ZB(a), 33ZF, 37AF(1)(B)(iv) Date of hearing: 10 March 2015 Place: Melbourne Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 20 Solicitor for the Applicant: Mr T Finney of Slater & Gordon Solicitor for the Second, Third and Fourth Respondents: Ms L Forde of Cornwall Stodart
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 242 of 2012
BETWEEN: DAVID TRISTAN BRANNAGHAN
ApplicantAND: AUSTRALIAN SECURITY AND INVESTIGATIONS (TAS) PTY LTD (ACN 040 959 701)
Second RespondentBRUCE TOWNSEND
Third RespondentSTEPHEN JOHN CONRAD
Fourth Respondent
JUDGE:
NORTH J
DATE OF ORDER:
10 MARCH 2015
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The terms ‘Employee Private Information’, ‘Employee Confidential Information’ and ‘Employee Surveillance Information’ used in the following Orders and any associated terms, are as defined in Schedule A annexed to this minutes of proposed orders.
THE COURT ORDERS BY CONSENT THAT:
1.Pursuant to section 33V of the Federal Court of Australia Act 1976 (Cth) (Act), the proposed settlement of these proceedings as against the Respondents, in accordance with the Deed of Release at annexure MRC-1 of the confidential affidavit of Marcus Rogers Clayton affirmed on 21 March 2014 (the Settlement Agreement), be approved.
2.Pursuant to section 33ZB(a) and/or section 33ZF of the Act, the persons affected and bound by the settlement of the proceedings be the Applicant, the Respondents and the group members (as defined in the Amended Originating Application filed by the Applicant on 26 September 2013).
3.Pursuant to section 33ZF of the Act or otherwise, the Applicant be authorised nunc pro tunc on behalf of group members to enter into and give effect to the Settlement Agreement on behalf of those group members.
4.Pursuant to section 37AF(1)(B)(iv) of the Act, and on the ground that the order is necessary to prevent prejudice to the proper administration of justice, the confidential affidavit of Marcus Rogers Clayton affirmed on 21 March 2014 and its annexures be made confidential, forbidden from publication, and be sealed on the Court file in an envelope marked “Confidential - Not to be opened except by leave of the Court or a Judge.”
5.Paragraph 2 of the order made in this proceeding on 16 March 2012 (as varied by paragraph 2 of the order made in this proceeding on 22 March 2012) be varied as follows:
a.by deleting the comma after the words “Save for complying with order 1” and inserting in its place “and the orders of this Court made 10 March 2015,”; and
b.by deleting the words “until further order”.
so that the order finally reads:
“Save for complying with order 1 and the orders of this Court made on 10 March 2015, the Second Respondent, whether by itself, its directors, employees, servants, agents, or any of them, and the Third and Fourth Respondents, or any of them, be restrained from using, disclosing, publishing or sending in electronic form, or otherwise communicating to any person other than a lawyer for the purpose of obtaining legal advice or for the purposes of the conduct of this proceeding or the conduct of Supreme Court of Victoria proceeding number S CI 2011 04865, the Employee Private Information, the Employee Confidential Information and the Employee Surveillance Information.
6.Within seven days of this order, the Third Respondent or an authorised agent of the Second Respondent or Third Respondent will arrange for the destruction of any Employee Private Information, Employee Confidential Information or Employee Surveillance Information currently held anywhere in the world by or on behalf of the Second, Third or Fourth Respondent, or otherwise under their power, authority or control, other than documents retained for the purposes of the conduct of Supreme Court of Victoria proceeding number S CI 2011 04865.
7.Within twenty-eight days of the conclusion of Supreme Court of Victoria proceeding number S CI 2011 04865, the Third Respondent or an authorised agent of the Second Respondent or Third Respondent will arrange for the destruction of any Employee Private Information, Employee Confidential Information or Employee Surveillance Information retained by or on behalf of the Second or Third Respondent for the purposes of the conduct of Supreme Court of Victoria proceeding number S CI 2011 04865.
8.Within thirty-seven days of this order, the Applicant and Respondents jointly apply to the Court to make the following orders:
a.dismissing the Proceeding with no order as to costs;
9.There be no order as to the costs of the proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SCHEDULE A
DEFINITIONS
‘Employee Confidential Information’ means Employee Private Information that is in law or in equity confidential information.
‘Employee Private Information’ means information collected and held by the First Respondent in its records concerning a specific Employee or Prospective Employee, in which the identity of the employee is apparent and includes:
(a)the information provided to the First Respondent by an Employee or Prospective Employee for the purpose of enabling the First Respondent to determine whether to employ the Employee or Prospective Employee; and
(b)any resumes, medical records, psychological profiles, drug screen results, wages, salaries, tax file information driver’s license details and industry certifications provided to the First Respondent in relation to the Employee or Prospective Employee.
‘Employee Surveillance Information’ means information concerning specific Employees and Prospective Employees collected or held at any time by, or in the possession, custody or control of the First, Second, Third or Fourth Respondents which was obtained as a result of the Surveillance Conduct.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 242 of 2012
BETWEEN: DAVID TRISTAN BRANNAGHAN
ApplicantAND: AUSTRALIAN SECURITY AND INVESTIGATIONS (TAS) PTY LTD (ACN 040 959 701)
Second RespondentBRUCE TOWNSEND
Third RespondentSTEPHEN JOHN CONRAD
Fourth Respondent
JUDGE:
NORTH J
DATE:
10 MARCH 2015
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
Before the Court is an application for approval of a settlement under s 33V of the Federal Court of Australia Act 1976 (Cth). The applicant seeks approval of a settlement arrived at with the second, third and fourth respondents.
The proceedings were filed on 16 March 2012 against Thiess Proprietary Limited (ACN 010 221 468) and Degremont Proprietary Limited (ACN 051 950 068) trading as the Thiess-Degremont Joint Venture (first respondent), and against Australia Security and Investigations (Tas) Proprietary Limited (ACN 040 959 701) (second respondent), Mr Bruce Townsend (third respondent), who is a director of the second respondent, and Mr Stephen Conrad (fourth respondent), who was a contractor engaged by the second respondent.
Proceedings against the first respondent have been resolved, and the settlement between the applicant and the first respondent have been approved by the Court by Orders made on 17 July 2013.
The first respondent was engaged in the construction of the desalination plant in Victoria and for that purpose sought to engage a workforce. People interested in working for the joint venture provided information to the joint venture for the purpose of their employment applications. The first respondent was engaged by the joint venture in order to deal with the joint venture’s industrial interests. The second respondent conducted a business of providing industrial security.
In the proceedings, it was alleged that the information provided by applicants for employment by the joint venture was passed on to the second respondent.
It was alleged that the information was used or might be intended to be used for purposes other than purposes for which it was provided and in order to advance the industrial interests of the first respondent, potentially contrary to the interests of the employees or applicants for employment.
On 24 March 2014 the applicant filed an interlocutory application seeking orders for the approval of a settlement arrived at between the applicant and the second, third and fourth respondents.
The settlement in general terms provides that any information provided by the employees which falls within the definition in the Settlement Agreement will be destroyed. Within seven days of the order, defined information will be destroyed, other than documents retained for the purposes of the conduct of a Supreme Court proceeding, number SCI (2011) 04865.
In relation to that information, the settlement provides for the destruction of that information by the second, third and fourth respondents within 28 days of the conclusion of the Supreme Court proceedings. The settlement also provides for the applicant and the second, third and fourth respondents to consent to an order dismissing the proceeding with no order as to costs.
Two affidavits in support of the interlocutory application have been filed. The confidential affidavit of Marcus Rogers Clayton sworn on 21 March 2014 explains the details of the Settlement Agreement and provides his view of the reasonableness of the settlement.
The relief which is provided by the settlement addresses the potential unjustified use of the information provided by the applicants for employment, but makes no provision for damages for group members resulting from the alleged wrong committed by the second, third and fourth respondents.
Mr Clayton sets out the reasons why there is advantage in resolving the matter without pursuing those claims.
Quite apart from the potential legal issues which might arise in relation to those claims, he says that the amounts which individuals might anticipate receiving as damages would be small. Mr Clayton explains in his affidavit that the Settlement Agreement does not provide that the respondents pay any costs of the proceedings.
The important aspect is that the applicants’ costs have been paid, and there will be no claim on the group members for the cost of the proceeding. Thus it can be seen that the group members by the Settlement Agreement achieve the primary outcome which they were seeking without the necessity for any of the group members to pay the costs of the proceeding, either their own or those of the respondents.
The result for group members is a satisfactory and reasonable outcome.
An affidavit was filed by Timothy Michael Finney on 6 March 2015 to address the requirements of the Court made on 28 April 2014 that the terms of settlement be notified to group members. In conformity with those requirements, the terms of the settlement were notified on or about 12 December 2014 in the Journal of the Victorian-Tasmanian branch of the Construction and General Division of the Construction, Forestry, Mining and Energy Union. The journal was mailed to about 30,000 members of the branch, and a copy of the notice is exhibited to the affidavit of Mr Finney. Similarly, on 20 November 2014, notice of the settlement was published in the journal of the Victorian branch of the Electrical Trades Union sent by post to 15,980 members, and, on 14 January 2015, the journal of the Victorian branch of the Australian Manufacturing Workers Union was mailed to 17,082 members of the branch, also containing a notice of the settlement. In addition, on 3 February 2015, notice of the settlement was published in The Australian.
Mr Finney’s affidavit indicated that no group member has contacted the solicitors for the applicant raising any objection to the settlement or seeking to opt out of the proceeding.
Furthermore, on 5 March 2015, Mr Graeme Stafford spoke to Mr Finney by phone and said that he had reviewed the notice of settlement and did not intend to object to or opt out of the settlement. This had a particular significance because earlier in the proceedings Mr Stafford had appeared by legal representatives to seek information about the settlement in order to determine whether to object or opt out. He was given access to that information, and the phone contact with the solicitors for the applicant indicate that he has decided not to do so.
Consequently, notification has been undertaken in accordance with the requirements fixed by the Court. The steps taken should have given notice to any of the group members interested in taking steps to oppose the approval. No group members appeared at the hearing to oppose. Consequently, the Court will make the orders sought in the short minutes included as annexure TMF-6 to Mr Finney’s affidavit.
Paragraph 8B of the minutes of orders proposes an order that the applicant and group members have liberty to apply for the enforcement of certain clauses of the Settlement Agreement. An order in this form is unnecessary because the making of the other orders sought provide a basis for enforcement by contempt proceedings if the second, third and fourth respondents fail to comply with them. The form of the order granting liberty to apply to enforce clauses 5.2 and 5.4 of the Settlement Agreement adds nothing to the making of the orders in paragraphs 6 and 7 of the short minute of orders. Consequently, paragraph 8B of the short minutes of orders will not be made.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North. Associate:
Dated: 5 May 2015
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