Brink's v Kane

[2007] NSWSC 62

CITATION:	Brink's v Kane [2007] NSWSC 62
HEARING DATE(S):	25 January 2007
JUDGMENT DATE :	25 January 2007
JUDGMENT OF:	McDougall J at [1]
EX TEMPORE JUDGMENT DATE:	25 January 2007
DECISION:	See paras [53] to [56] of judgment
CATCHWORDS:	RESTRAINT OF TRADE - employment contract - application for interlocutory injunction - whether serious question to be tried - whether enforcement of restraint necessary to protect "legitimate interests" of employer in its confidential information - nature of interest sought to be protected - whether restraint is contrary to public policy - whether exploitation of a connection built up in the course of former employment - balance of convenience and discretion - whether hardship would be suffered if restraint enforced - no question of principle
CASES CITED:	Foulkes Pty Limited v Jack [2000] NSWSC 1064 John Fairfax Publications Pty Ltd v Birt [2006] NSWSC 955 Kearney v Crepaldi & Ors [2006] NSWSC 23 Kolback Securities Limited v Epoch Mining NL [1987] 18 NSWSC 533 Mid-City Skin Cancer & Laser Centre v Zahedi-Anarak [2006] NSWSC 844 Ridgeway International Ltd & Anor v McCullum (Bryson J, 9/4/98, unreported; BC9801178) Woolworths Limited v Mark Konrad Olson [2004] NSWCA 372
PARTIES:	Brink's Australia Pty Ltd (Plaintiff) Melville Francis (Defendant)
FILE NUMBER(S):	SC 50003/07
COUNSEL:	K M Richardson (Plaintiff) B Spinks (Solicitor) (Defendant)
SOLICITORS:	Blake Dawson Waldron (Plaintiff) ERA Legal (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
COMMERCIAL LIST

McDOUGALL J

25 January 2007 Extempore (revised 2 February 2007)

50003/07 BRINK’S AUSTRALIA PTY LTD v MELVILLE FRANCIS KANE

JUDGMENT

1 HIS HONOUR: This is an application for an interlocutory injunction to enforce a restraint of trade contained in a service agreement.

2 The plaintiff (Brink’s) provides what is called a "cash logistics" service for customers: substantially, the transport and security of cash and valuables.

3 On 13 February 2006, Brink’s employed the defendant (Mr Kane) as a business development executive. The terms of that employment are set out in a letter dated 24 January 2006 and attached standard terms and conditions (together, the service agreement).

4 In substance, Mr Kane's role was to attract new business and customers to Brink’s, and to service and maintain relationships with existing customers. Until about July 2006, Mr Kane shared those responsibilities with another employee, Mr Stephen Leary. Brink’s restructured its operations in July 2006 and after that time, and up until the termination of his employment, Mr Kane alone had responsibility for the business development of Brink’s cash logistics business in Sydney.

5 Although Mr Kane's responsibilities extended to the gaining of new business and the maintaining of existing business, it appears to be accepted that there were other employees within Brink’s who had responsibility for servicing contracts once the business had been garnered and an appropriate contract made. Nonetheless, it is Brink’s case that, at least for the last six months of his employment, Mr Kane was the "human face" of Brink’s so far as its cash logistics customers were concerned. Without going into the detail of the affidavit evidence (not all of which was controversial), I am satisfied that there is a serious question to be tried that this is so.

6 On about 8 December 2006, Mr Kane informed his superior at Brink’s, Mr Fitzgerald, that he (Mr Kane) had decided to resign. Thereafter, there were discussions and e-mails between Messrs Kane and Fitzgerald in which Mr Fitzgerald asked Mr Kane to reconsider his position, and sought to encourage him not to resign. Those entreaties were unsuccessful. By the terms of his contract, Mr Kane was required to give one month's notice. That was ultimately done on 11 December (after further entreaties) and became effective (after yet further entreaties) on 12 January 2007.

7 There is a significant body of evidence - to a substantial extent, uncontroverted - that during the period from 8 December 2006 until 12 January 2007, Mr Kane undertook a number of activities that were quite inconsistent with the express and implied obligations owed by him to Brink’s pursuant to the service agreement. Those activities fall into a number of categories. For example, there is evidence that he sought to divert business opportunities from Brink’s to a group of companies that for present purposes may be grouped under the name "MDS." There is evidence that he sought to solicit clients of Brink’s to take their business with him to MDS; I will return in a moment to the circumstances in which Mr Kane went to MDS. There is evidence that Mr Kane sought to entice employees of Brink’s to leave it and go to MDS. There is evidence that Mr Kane obtained and provided to MDS or took with him when he left, records and information of Brink’s that Brink’s claims were confidential, and that a reasonable person might think deserve that description.

8 Whilst all this was happening, Mr Kane put it about to his superiors and colleagues at Brink’s that he was not leaving to work for a competitor in the cash logistics industry, but that he was taking a break, and was going to work in an entirely different field.

9 There is at least a serious question to be tried - indeed, having regard to the substantial amount of uncontroverted evidence, it is difficult to avoid the conclusion - that during the last six weeks of his employment, Mr Kane acted quite improperly in seeking to divert or entice customers away and to solicit fellow employees away. There is also a substantial basis for concluding that he sought to do so in an underhand and deceitful way.

10 The principal of what I have called MDS is a person known as Mr Lou Raskovic. The evidence discloses that Mr Kane had very substantial e-mail and telephone contact with Mr Raskovic over the period from 8 December 2006 to 12 January 2007. Mr Kane sought to delete these and other e-mails from his computer, but a number of them have been retrieved from the server and put in evidence.

11 Mr Kane's explanation of his having acted in what, on the face of it, was an underhand way in concealing from his superiors and colleagues at Brink’s his intention to work with MDS is less than convincing. He says that in late November 2006 he had had a conversation with a fellow employee, Mr Plant. Mr Kane says that he asked Mr Plant if he had heard of MDS, and Mr Plant, referring to its principal, Mr Raskovic, said he is "a crook ... a straight crook." That, according to Mr Kane, caused Mr Kane "to feel I must not let anyone in Brink’s learn that I was considering moving to MDS." I have to say that I regard that explanation, even on an interlocutory application, as less than convincing. Certainly, to the extent it is relevant to consider Mr Kane's activities and nature, I do not regard it as sufficient to persuade me from the tentative view that his activities were deceitful and underhand.

12 It is necessary to pay attention to the relevant terms of the service agreement. There was a "restraint of trade" in the following terms:

“ Restraint of Trade
In the event that your employment is terminated, you shall not (without the prior written approval of Brink’s) for a period of 3 months after the date of termination of employment:
a) canvass, solicit, interfere with or entice away any person, firm or company who shall at any time during your employment have been in the habit of being a client or employee of Brink’s; and or
b) be an employee of, contractor to, advisor to, or consultant to any person, firm or company who shall at any time during your employment have been in the habit of being a client of Brink’s.
c) be an employee of a person, firm or company where you are performing substantially similar functions or duties with Brink’s.

You agree that the restraints set out in this clause are reasonable as to the extent, area and duration, go no further than is required to protect Brink’s business interests and investment in its employees, and do not restrict your right to carry on your profession or trade.”

13 There was also an obligation of confidentiality in the following terms:

“ CONFIDENTIALITY
During the course of your employment with Brink’s, you may become aware of information that is confidential to Brink’s, its’ [sic] related entities or operations and or their current, past or prospective customers. This confidential information includes, but is not limited to:
Customer lists, contact persons and client details
Sales and marketing information
Product specifications and new product or service details
Financial and accounting information
Terms of business and financial arrangements or contracts between Brink’s and its’ [sic] customers, employees, Licensees, contractors and other parties
Security requirements of Brink’s and customers and their security systems.
In consideration of Brink’s employing you, you shall not, and expressly agree to not, either during your employment with Brink’s or thereafter, to [sic] directly or indirectly divulge to any person firm or company any confidential information.”

14 There was also an obligation to return all property and confidential information on termination in the following terms:

“RETURN OF PROPERTY AND CONFIDENTIAL INFORMATION ON TERMINATION
On termination you must return all Brink’s property then in your possession custody or control, including but not limited to, all confidential information, any drawings or information relating to the Brink’s products designs or manufacture, any other records relating to the Brink’s business, access cards, mobile telephones, computers, vehicles and uniforms.”

15 Brink’s case, in support of the application for an interlocutory injunction, is that Mr Kane has breached, and unless restrained will continue to breach, the terms to which I have referred. It submits that the restraint of trade is no more than is reasonable and necessary to ensure protection, in particular, of the confidential information, and to restrain solicitation of its customers, for whom, as I have said, its case is that Mr Kane "was the human face" of Brink’s.

16 The submissions for Mr Kane have conceded that there is a serious question to be tried. However, it has been put for him that the case is not a strong case, and that the strength of the case is a matter that may be taken into account in considering, as a matter of discretion, whether or not to grant interlocutory relief. The latter proposition - as to the principle - may be accepted. See Kolback Securities Limited v Epoch Mining NL [1987] 18 NSWSC 533 at 535-536, 539; and see also John Fairfax Publications Pty Limited v Birt [2006] NSWSC 955. However, for reasons that I shall explain, I do not accept the first proposition - as to the position in fact.

17 There is also a question as to whether Mr Kane is employed (or was to be employed) by MDS in a role similar to that performed by him at Brink’s. It will be recalled that para (c) of the restraint of trade would prevent him from being an employee of a person or firm or company "performing substantially similar functions or duties with Brink’s". Although the syntax is far from perfect the meaning is clear enough.

18 Mr Kane gave evidence that the functions to be undertaken by him at MDS were different to those undertaken by him at Brink’s. He says that he was offered employment to work for MDS in what are called "venue services" defined as including "fraud and theft investigation, camera installation, security guarding, training, (responsible service of alcohol, responsible conducted gambling), armed-holdup training, risk auditing, recruitment and so on."

19 Mr Kane said that he was able to perform those duties by reason of his prior service as a police officer, and that he enjoyed the work. He said that Brink’s did not, except to a limited extent, operate in the area of venue services.

20 Unfortunately, so many of the e-mails passing between Messrs Kane and Raskovic during the period 8 December 2006 to 12 January 2007 as have been put in evidence give the very strong impression that the attraction to MDS of securing Mr Kane's services was that he would enable them to build up their business in the cash logistics area. A perusal of those e-mails creates the very strong impression that Mr Kane was offering his services in the cash logistics field, and that the offer of those services in that field was one attractive to MDS.

21 Of course, this being an interlocutory application, there has been no cross-examination of Mr Kane on the apparent discrepancy between the clear inference from the e-mails and the evidence in his affidavit. Nonetheless, there is a serious question to be tried as to whether Mr Kane, if not restrained, would perform a substantially similar function or duty at MDS as he had when at Brink’s.

22 There was also a dispute as to whether Brink’s and MDT were, relevantly, in competition. There is no doubt that both offered cash logistics services. However, it appears, Brink’s does so through armoured vans, whereas MDS utilises what are called in the trade soft-skin vehicles (unmarked, unidentified, unarmoured vans).

23 Although there is some conflict in the evidence, even Mr Kane (and I do not intend this to be read in a derogatory fashion) conceded there is some overlap or competition between the cash transport services offered by the two companies. On that basis, I think, there is a serious question to be tried on this issue.

24 I return to the question of evidence of likelihood of breach. I have referred to some of this in summary. I do not intend to refer to it in enormous detail, because this is an interlocutory hearing, conducted during the vacation as a matter of some urgency.

25 In summary, there is evidence:

(1) that Mr Kane solicited customers of Brink’s to follow him to MDS. That solicitation culminated in the sending of a broadcast e-mail to all the relevant customers on or shortly before the day of termination of his employment. That e-mail stated that he would no longer be employed with Brink’s, had decided to move to a similar industry but in a national role, and proposed to contact all of them on and from the following Monday (and he gave his new mobile telephone number).

(2) that Mr Kane sought to solicit employees of Brink’s to leave their employment and follow him to MDS. That evidence is substantially uncontroverted.

(3) in relation to confidential (or allegedly confidential) information, which requires somewhat more detailed consideration.

26 Before I turn to the question of confidential information, I will simply mention that the e-mail of 12 January referred to in subpara (1) above is scarcely consistent with what Mr Kane would now say as to the nature of his employment with MDS.

27 It is uncontroverted that in early December 2006, Mr Kane obtained from a colleague at Brink’s, Ms Symes, a document called "The Sydney Customer List". Mr Kane needed to speak to Ms Symes to get that document because it was kept confidential in Brink’s computer system, and most employees (including Mr Kane) did not have access to it. He gave Ms Syme an explanation for needing the list that was false; and he has not sought in his affidavit to suggest that the explanation was anything other than false.

28 On 11 December 2006, Mr Kane sent an e-mail to Mr Raskovic of MDS forwarding the list to him. The list identifies all Brink’s current customers, and some past customers.

29 Mr Fitzgerald and Ms Symes assert that the list is confidential; and Mr Kane does not suggest otherwise. His affidavit gives no explanation for his actions.

30 About a month earlier, on 15 November 2006, Mr Kane had sent an e-mail to Mr Raskovic giving Mr Raskovic revenue information of a particular customer of Brink’s. That is clearly confidential information (and Mr Kane does not suggest otherwise).

31 A few weeks later, on 28 November 2006, Mr Kane gave Mr Raskovic details of a contract about to be made between Brink’s and Hermes. The information given set out some financial details of that contract. It suggested that knowing that information would allow Mr Raskovic "to quote them $40 collection and re-carry the money". It was suggested that this was a customer for whom Brink’s did not wish to carry out business. That suggestion - not supported by any evidence - is scarcely consistent with the wording of the e-mail.

32 The evidence suggests that the Royal Agricultural Society at Homebush (frequently known as the Royal Easter Show) is a customer of Brink’s. On 11 December 2006, Mr Kane sent an e-mail to Mr Raskovic forwarding to Mr Raskovic the entire list of those who normally exhibit at the Royal Easter Show. The evidence was that Brink’s contacts such people, and frequently undertakes business for them. Presumably (Mr Kane does not deal with this) the reason for sending the document to Mr Raskovic was either to show Mr Raskovic the contacts and business-getting abilities that Mr Kane had; or, perhaps, to permit Mr Raskovic to approach those exhibitors and seek to do business for them.

33 After Mr Kane finished his employment at Brink’s, a large number of copies of contracts made between Brink’s and its customers were found in his office, the volume of which was substantial - about three boxes. There was no reason for Mr Kane to have had those documents, and they were not something, that in the ordinary course of his employment at Brink’s, he was permitted to retain. He has given no explanation of why it was he had those documents in his possession.

34 In all the circumstances, I think, there is a serious question to be tried as to whether Mr Kane, unless restrained, will use confidential information obtained by him in the course of his employment by Brink’s for the benefit of his new employer, MDS.

35 The strength of that case appears not just from the matters to which I have referred, but also from the circumstances in which Mr Kane sought to conceal from Brink’s his true intentions between 8 December 2006 and 12 January 2007.

36 In this regard, it might be noted that there was correspondence between Brink’s solicitors and Mr Kane's solicitors once Brink’s learnt that Mr Kane had gone to MDS. The correspondence from Brink’s solicitors charged Mr Kane with breach of duty, and requested appropriate undertakings. The responses given, one would assume on Mr Kane's instructions, are in some cases inaccurate. In my view, it is at least an available inference that in this way Mr Kane sought to employ the cloak of deception that he had worn for the last six weeks or so of his employment at Brink’s.

37 There was little debate as to the relevant authorities and principles. I dealt with the position, at common law, in my judgment in Kearney v Crepaldi & Ors [2006] NSWSC 23 at paragraphs [47] to [54]:

“47 The primary position is that a restraint of trade is void. That applies not just to the classical restraint of trade purporting to prevent a person from working for a particular employer, but also to a restraint of the kind presently sought to be enforced. That is because of the public interest in competition. It follows that a person seeking to enforce a restraint of trade must show that the restraint is no wider than is reasonably necessary to protect its legitimate interests. The test immediately directs attention to the nature of the interest that is sought to be protected. This issue was considered by Gillard J in Hartleys Ltd v Martin [2002] VSC 301. At para [91], his Honour stated (in my respectful opinion correctly) that “[i]t is well-recognised that an employer is entitled to impose a restrictive covenant to reasonably protect his business against ex-employees taking customers with them to a business in competition with their former employer.”

48 At para [92] and following, his Honour discussed the decision of the High Court in Lindner v Murdoch’s Garage (1950) 83 CLR 628. In that case Latham CJ who dissented, but whose statement of the principles was endorsed by Webb J (at 647), said at 634:
“ … the covenant in restraint of trade is not a covenant against mere competition but is a covenant directed to securing a reasonable protection of the business interest of the employer, and in the circumstances is not unjust to the employee. The interest which can validly be protected is the trade connection, the goodwill of the business of the employer.”

49 In the same case, Fullagar J at 649 focused on the need to characterise the interest that the employer claimed to have and claimed legitimately to protect. Kitto J at 654 characterised the interest as being:
“… protection for their business connection against the possibility of its being affected by the personal knowledge of and influence over the customers which the appellant might acquire in their employment.”

50 His Honour continued by saying that:
“The knowledge which, because its use may deprive the employer of the business connection which he is entitled to preserve as his own, he may require his employee to abstain from using, is objective knowledge of customers, their peculiarities, their credit and so forth … .”

51 This reflects the approach taken in earlier English cases. Thus, in Herbert Morris Ltd v Saxelby [1916] 1 AC 688, the covenant was against the employee being engaged either as principal, agent or servant or otherwise in the same kind of business as that in which he had been employed. It was in that context that Lord Atkinson, speaking of a case of employer and employee, said that:-
“In all such cases as this, one has to ask oneself what are the interests of the employer that are to be protected, and against what is he entitled to have them protected.
He is undoubtedly entitled to have his interest in his trade secrets protected, such as secret processes of manufacture which may be of vast value. And that protection may be secured by restraining the employee from divulging these secrets or putting them to his own use. He is also entitled not to have his old customers by solicitation or some other means enticed away from him. But freedom from all competition per se apart from both these things, however lucrative it might be to him, he is not entitled to be protected against. He must be prepared to encounter that even at the hands of a former employee.”
52 In a similar vein, Lord Parker said (at 710):-
“… The reason, and the only reason, for upholding such a restraint on the part of an employee is that the employer has some proprietary right, whether in the nature of trade connection or in the nature of trade secrets, for the protection of which such a restraint is – having regard to the duties of the employee – reasonably necessary. Such a restraint has, so far as I know, never been upheld, if directed only to the prevention of competition or against the use of the personal skill and knowledge acquired by the employee in his employer’s business.”


53 In summary, then, restraints of trade (including both restraints against competition and restraints on solicitation of customers) may be valid where they are reasonably necessary to prevent disclosure of confidential information garnered by the former employee in the course of his or her former employment, or the exploitation of a connection built up by that employee with the former employer’s customers in the course of that employment.

54 There are three other matters to note. The first is that the onus of showing that a contract in restraint of trade is reasonable as between the parties lies on the party alleging that this is so: North Western Salt Co. Ltd v Electrolytic Alkali Co Ltd [1914] AC 461, 470 (Viscount Haldane LC). Secondly, the onus of showing that a contract in restraint of trade is injurious to the public interest likewise lies on the party alleging that this is so: Attorney-General of Australia v Adelaide Steamship Co [1913] AC 781, 797. The third is that the question of the validity of a covenant in restraint of trade (or, for that matter, a covenant against solicitation of employees) is not really a question of law. The principles (at least in the former case) are relatively clear. The application of the principles depends on the terms of the particular covenant and the factual circumstances: see Dawnay Day & Co Ltd v De Braconier d’Alphen [1998] ICR 1068 at 1111-1112 (Evans LJ, with whom Nourse and Ward LJJ agreed).”

38 To that may be added a reference to the decision of the Court of Appeal in Woolworths Limited v Mark Konrad Olson [2004] NSWCA 372. In that case, Mason P (with whom McColl and Bryson JJA agreed) set out the relevant common law principles as follows:

“37 The restraint operates within a classical area, namely a fixed period after termination of employment. A restraint of trade is justifiable only if the restriction is reasonable in reference to the interests of the parties and of the public ( Nordenfelt v Maxim Nordefelt Guns & Ammunition Co Ltd [1894] AC 535 at 565). If it is not, the restraint will be contrary to public policy and invalid ( Buckley v Tutty (1971) 125 CLR 353 at 376).
38 The courts in general take a stricter and less favourable view of covenants in restraint of trade entered into between employer and employee than of similar covenants in commercial agreements ( Geraghty v Minter (1979) 142 CLR 177 at 185). The reasons are explained in J D Heydon, The Restraint of Trade Doctrine 2nd ed, 1999 at pp68-9. It is nevertheless well established that an employer may have interests capable of protection by a restraint covenant. These interests go beyond protection of goodwill and retention of customers and extend to trade secrets (Heydon, op cit , pp87-8, Knogo Corporation v Halligan (1984) ATPR ¶40-460, Kone Elevators Pty Ltd v McNay & Anor (1997) ATPR ¶41-564). This was the trigger for the Service Agreement (see the covering letter of 7 February 2003). Merely because the law offers a degree of protection against the unauthorised use or dissemination of trade secrets by former employees does not mean that contractual protection is necessarily unreasonable or unavailable.

39 The court gives considerable weight to what parties have negotiated and embodied in their contracts, but a contractual consensus cannot be regarded as conclusive (see eg Queensland Co-operative Milling Association v Pamag Pty Ltd (1973) 133 CLR 260 at 268), even where (as in the present case) there is a contractual admission as to reasonableness.

40 The validity of the restraint is to be tested at the time of entering into the contract and by reference to what the restraint entitled or required the parties to do rather than what they intend to do or have actually done ( Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 at 344).”

39 The submissions for Mr Kane accepted, as I have said, that there was a serious question to be tried. To the extent that they submitted that it was not a strong case, I reject that submission for the reasons that I have given.

40 The submissions dealt with questions of balance of convenience and discretion. They pointed to the fact that there was no evidence of damage, in the sense that there was no evidence that Brink’s had lost any customers due to Mr Kane's alleged activities.

41 Of course, Mr Kane has been with MDS for about a week, so one would perhaps not expect whatever activities he was there performing to have borne fruit, in the shape of enticing customers. Nonetheless for the reasons that I have given, I think there is a strong case to be tried that it is likely that he will seek to entice customers away; and also a strong case to be tried, that in doing so, he may use confidential information that came to him in the course of and for the purposes of his employment with Brink’s.

42 The submissions pointed to the hardship that Mr Kane would suffer if restrained. I acknowledge that if he is deprived the opportunity to earn income for the period of the restraint (which would expire on 11 April 2007) then that would be some hardship. However, there are a number of things that one can say about this. The first is that it is perhaps something that Mr Kane should have considered when he accepted Brink’s offer of employment, including as he did, the clauses to which I have referred. The second is that he should have thought of it when, as in my view there is strong reason for thinking, he sought to deceive his colleagues and superiors as to his intention from 8 December 2006 to 12 January 2007. The third, and related point, is that he should have considered this before, as I think there is a strong case, he sought to misuse confidential information of Brink’s.

43 In all the circumstances, I think, there are strong reasons for suggesting that such hardship as Mr Kane will suffer is self-induced. Although self-induced hardship cannot be put to one side entirely, the fact that it is self-induced diminished the strength of the bar to the granting of relief.

44 There were a number of submissions put as to whether the information in question was truly confidential. For example, it was submitted for Mr Kane that the customer lists were not. However, the material that was relied upon to support that submission was advertising, promotional or marketing material that sought to impress prospective customers of Brink’s by pointing to the solid nature of existing customers. That is a very long way removed from the customer list that Mr Kane secured under a false pretext and sent to Mr Raskovic. It is clear on the authorities that a customer list may be confidential. See the decision of Santow J in Foulkes Pty Limited v Jack [2000] NSWSC 1064 at [78] and the decision of Campbell J in Mid-City Skin Cancer & Laser Centre v Zahedi-Anarak [2006] NSWSC 844 at 140, 144-149. I am satisfied that there is a serious case to be tried on this point.

45 It was also submitted that pricing information was not confidential, because, of necessity, each customer of Brink's would know the price that it was paying for Brink's services. It may be conceded that Brink's and its customers know what the one is charging and the other is paying for particular services, but it does not follow from this that the information is not confidential as regards third parties.

46 In this context, there was some dispute in the evidence as to the extent of Mr Kane's knowledge of relevant matters. Mr Fitzgerald's evidence was that Mr Kane's duties required him to prepare quotations for prospective customers by working up the quotations from a basis that involved costs, profit margins and the like. Mr Kane's evidence was simply that he found out what the prospective customer was paying, sought authority to better it, and if he could, offered to do so.

47 Again, that dispute has not been resolved (nor could it have been resolved) on an interlocutory hearing. It is sufficient to say that I think that there is a serious question to be tried that Mr Kane is in possession of detailed pricing information of Brink's. It is established that such information may be confidential. See Ridgeway International Ltd & Anor v McCullum (Bryson J, 9 April 1998, unreported; BC9801178.) At page BC9801178 at 43, Bryson J said that:

“It has long been recognised that prices and the basis on which prices are calculated can be trade secrets and confidential information.

…

Pricing information is characteristically ... of such a highly confidential nature as to require the same protection as a trade secret."

48 If I may say so, with respect, the authorities to which his Honour referred make those propositions plain beyond doubt.

49 Thus, as I have said, I am satisfied that there is a serious question to be tried on this point.

50 When one balances the various considerations to which I have referred, I think that this is a clear case for the grant of interlocutory relief. I am fortified in that conclusion by the conduct of Mr Kane, to which I have referred more than once. I think that conduct (and I include in this the correspondence that passed between the respective solicitors) gives rise to a very significant apprehension that Mr Kane will, unless restrained, abuse the obligations that he still owes to Brink's in respect of confidential information.

51 It is plain, as Mason P said in Woolworths v Olson at paragraphs 57 and 58, that an injunction to enforce a restraint of trade may be granted if there is made out a serious question that not to do so would expose the claimant to the risk of loss or abuse of its confidential information. That was a case where the actions of the respondent gave rise to an apprehension that he would misuse confidential information in his possession for the benefit of a competitor of the claimant. In my view, the facts in this case suggest the same conclusion, but even more strongly.

52 The injunction sought is in terms of prayer eight of the summons filed on 19 January 2007. There were no submissions put as to the precise form of the injunctive relief sought, although subparagraph (a) went to some extent beyond the terms of the relevant provision of the restraint of trade clause. The justification for this, I think, is that it will be in effect impossible for Brink's to police, or see to the enforcement, of its rights unless relief in the form of that subparagraph is granted. But in any event, as I have said, there were no submissions put to the precise form of that subparagraph.

53 I note that the plaintiff by counsel gives to the Court the usual undertaking as to damages. I make an order in terms of prayer 8 (a) to (d) of the summons up until and including 11 April 2007, or the further order of the Court.

54 I make an order in terms of prayer 8 (e) of the summons until the further order of the Court.

55 I stand the proceedings over to the Registrar's list on 8 February 2007 at 9.30 am. I reserve liberty to apply on 48 hours’ notice. I reserve the question of costs.

(Mr Spinks sought an order that the document at page 14 of the exhibit of Mr Kane's affidavit remain confidential.)

56 HIS HONOUR: I order that the document at page 14 of exhibit DX1 be kept confidential and not be disclosed without the leave of the Court other than to the parties and their legal representatives.

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