FEDERAL COURT OF AUSTRALIA
Broadband Solutions Pty Ltd v Ramirez [2024] FCA 1009
File number(s): NSD 1164 of 2024 Judgment of: THAWLEY J Date of judgment: 30 August 2024 Catchwords: CORPORATIONS – application for interlocutory relief – employment contract – restraint and confidentiality clauses – alleged breaches of contract – prima facie case established – balance of convenience favours granting of injunction Legislation: Corporations Act 2001 (Cth) s 183 Cases cited: Australian Broadcasting Corporation v O’Neill [2006] HCA 46; 227 CLR 57
Bullock v Federated Furnishing Trades Society of Australasia (No 1) [1985] FCA 258; 5 FCR 464
GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 102; 305 ALR 363
Samsung Electronics Co v Apple Inc [2011] FCAFC 156; 217 FCR 238
Warner-Lambert Co LLC v Apotex Pty Ltd [2014] FCAFC 59; 106 IPR 218
Division: Fair Work Division Registry: New South Wales National Practice Area: Employment and Industrial Relations Number of paragraphs: 39 Date of hearing: 30 August 2024 Counsel for the Applicant: Mr D Ratnam Solicitor for the Applicant: Memcorp Law Counsel for the Respondent: There was no appearance from the Respondent ORDERS
NSD 1164 of 2024 BETWEEN: BROADBAND SOLUTIONS PTY LTD (ACN 114 405 248)
Applicant
AND: ANDRES JULIAN HERNANDEZ RAMIREZ
Respondent
ORDER MADE BY:
THAWLEY J
DATE OF ORDER:
30 AUGUST 2024
THE COURT ORDERS THAT:
1.The respondent be restrained from using, accessing, disclosing, deleting or reproducing any:
(a)Confidential Information belonging to the applicant;
(b)Intellectual Property belonging to the applicant; and
(c)documents, files or written materials, whether in hard copy or electronic form, in his possession, custody or control, concerning the business or financial affairs of the applicant, its clients, and employees, its trade secrets, information technology resources and protocols, customer lists, databases and interfaces operated by the applicant, system passwords to access any software, systems or encryptions used or operated or licensed by the applicant and any information obtained, accessed or acquired by the respondent from the applicant’s records including its database for the applicant’s Managed Services division during and after his employment with the applicant.
2.On and from 16 September 2024, the respondent be restrained for a period of six months and within the Geographic Area from, directly or indirectly, engaging, alone or jointly with or on behalf of anybody else in any capacity, carrying on, operating or being engaged, interested or employed in a business that competes with the division of the applicant in which the respondent worked during the last 12 months of his employment.
3.Reserve liberty to the respondent to apply in relation to Order 2 on 24 hours’ notice with the intention that such liberty be exercised should the respondent wish to challenge Order 2 before that order comes into effect.
4.The respondent be restrained:
(a)for the Restraint Period from, either directly or indirectly, approaching, soliciting or enticing away (or attempting to approach, solicit or entice away), any person or entity who was a client with whom the respondent, or personnel…
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- Case
- [2024] FCA 1009
- Decision Date
CaseChat Overview and Summary
The Court found that Broadband had established a prima facie case for interlocutory relief based on the evidence provided. The Court was satisfied that Mr Ramirez had access to confidential information and intellectual property and had breached clauses in his employment agreement by accessing this information post-employment. The Court also found that the balance of convenience favoured granting interlocutory relief to prevent further breaches and to protect Broadband's confidential information and intellectual property. The Court considered the potential harm to Broadband if the relief was not granted, as well as the potential harm to Mr Ramirez if the relief was granted. The Court concluded that the potential harm to Broadband outweighed the potential harm to Mr Ramirez.
The Court granted the relief sought by Broadband, including an injunction restraining Mr Ramirez from using, accessing, disclosing, deleting or reproducing any confidential information or intellectual property belonging to Broadband. The Court also restrained Mr Ramirez from engaging in any business that competes with Broadband's Managed Services division and from approaching or soliciting any clients of Broadband. The Court ordered Mr Ramirez to deliver up any documents, files, or written materials in his possession that contain confidential information or intellectual property. The Court further ordered Mr Ramirez to file an affidavit disclosing any use, access, disclosure, or transfer of confidential information or intellectual property.
Orders
Orders of the court
1. The respondent be restrained from using, accessing, disclosing, deleting or reproducing any:
(a) Confidential Information belonging to the applicant;
(b) Intellectual Property belonging to the applicant; and
(c) documents, files or written materials, whether in hard copy or electronic form, in his possession, custody or control, concerning the business or financial affairs of the applicant, its clients, and employees, its trade secrets, information technology resources and protocols, customer lists, databases and interfaces operated by the applicant, system passwords to access any software, systems or encryptions used or operated or licensed by the applicant and any information obtained, accessed or acquired by the respondent from the applicant’s records including its database for the applicant’s Managed Services division during and after his employment with the applicant.
2. On and from 16 September 2024, the respondent be restrained for a period of six months and within the Geographic Area from, directly or indirectly, engaging, alone or jointly with or on behalf of anybody else in any capacity, carrying on, operating or being engaged, interested or employed in a business that competes with the division of the applicant in which the respondent worked during the last 12 months of his employment.
3. Reserve liberty to the respondent to apply in relation to Order 2 on 24 hours’ notice with the intention that such liberty be exercised should the respondent wish to challenge Order 2 before that order comes into effect.
4. The respondent be restrained:
(a) for the Restraint Period from, either directly or indirectly, approaching, soliciting or enticing away (or attempting to approach, solicit or entice away), any person or entity who was a client with whom the respondent, or personnel reporting to the respondent, had work-related dealings during the last 12 months of the respondent’s employment; and
(b) providing a service or services or products to any person or entity who was a client with whom the respondent dealt during the last 12 months of the respondent’s employment, that are the same as or substantially similar to those provided by the applicant.
5. The respondent deliver up to the applicant all documents, files or written materials, whether in hard copy or electronic form, in his possession, custody or control, which:
(a) were downloaded from, or otherwise accessed using, the applicant’s database for the applicant’s Managed Services division by the respondent during and/or after his employment with the applicant; and
(b) contain information about the applicant’s business or customers which the respondent acquired:
(i) during or as incidental to his employment with the applicant;
(ii) by reason of the respondent accessing the applicant’s Broadband’s database for the applicant’s Managed Services division during and/or after his employment with the applicant.
6. That the respondent file and serve an affidavit by 4:00pm on 13 September 2024 identifying:
(a) if he has used, accessed and/or otherwise disclosed to any person (individual or corporation) any of the matters referred to in Order 1(a) - (c);
(b) if he has transferred to any storage device and/or person (individual or corporation) or deleted any of the matters referred to in Order 1(a) - (c);
(c) the names of the individual(s) or corporation(s) that he has disclosed any of the matters referred to in Order 1(a) - (c),
and in doing so disclose particulars of,
(i) when and how he used, accessed or transferred any of the matters referred to in Orders (1) – (c) above;
(ii) when and how (method) he disclosed to any party the matters referred to in Order 1(a) - (c) above;
(iii) the date, time and means of every communication of any matter encompassed by Order 6(c);
(iv) the identity and location of every electronic device on which any such information has ever been stored; and
(v) where any such information is currently stored or kept in any form.
7. The words Confidential Information, Intellectual Property, Restraint Period and Geographic Area have the meanings set out in the Employment Agreement executed between Broadband Solutions Pty Ltd (ACN 114 405 248) and Andres Julian Hernandez Ramirez which appears at pages 8 to 22 of Exhibit MB-1 (Employment Agreement).
8. Unless the respondent applies for a different order as to costs on or before 4:00pm on 16 September 2024, the respondent pay the applicant’s costs of this application for interlocutory relief.
9. These orders together with the three affidavits read in Court today be served on the respondent, by email, by 5:00pm today using the same email address set out in order 4(a)(i) of Cheeseman J’s orders dated 23 August 2024.
10. These orders together with the three affidavits read in Court today be served personally at the respondent’s residential address as soon as reasonably practicable but in any event by 5:00pm on 6 September 2024.
11. The reasons for decision on the application for interlocutory relief be served on the respondent by email as soon as reasonably practicable after those reasons become available in written form.
12. The Originating Application be stood over to the General Duty Judge at 10:00am on 16 September 2024.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Broadband alleges that a former employee, Mr Andres Julian Hernandez Ramirez, has recently breached a number of clauses in his employment agreement and contravened s 183 of the Corporations Act 2001 (Cth). The proceedings were commenced by originating application dated 23 August 2024, which included an application for interlocutory relief in the following form:Claim for interlocutory reliefThe Applicant also claims interlocutory relief.Procedural Interlocutory Orders1.Upon the undertaking of the solicitor for the Applicant to pay any filing fees, leave be granted to the Applicant to file in Court:(a)this Originating Application dated 23 August 2024;(b)the affidavit of Mohsen (Sam) Bashiry sworn 23 August 2024; and(c)Exhibit MB-1, being an exhibit in support of the affidavit of Mohsen (Sam) Bashiry sworn 23 August 2024.2.An order that the Originating Application dated 23 August 2024 be returnable and heard instanter as to the orders sought in paragraphs 1, 3, 4, 5, 6 & 7 (of the Procedural Interlocutory Orders).3.An order that the time for service of the documents referred to in paragraph 1 above and a sealed copy of these orders be abridged to 5pm on 26 August 2024.4.An order that service of the documents referred to in paragraph 1 above and a sealed copy of these orders be effected by serving:(a) Andres Julian Hernandez Ramirez:(i)via his email address at: ohernand51@me.com; and(ii)at his residential address at: 51 Excelsior Circuit, Mulgrave VIC 3170.5.Stand over the Originating Application before the Duty Judge at 1 0am on 30 August 2024 for hearing of the interlocutory orders sought in paragraphs 8 to 15.6. Costs of today reserved.7. These orders be taken out forthwith.Interlocutory Orders8.Upon Counsel for the Applicant giving the usual undertaking as to damages, order, until further order of the Court, that the Respondent be restrained from using, accessing, disclosing and reproducing any:(a) confidential information belonging to the Applicant;(b) Intellectual Property belonging to the Applicant; and(c)documents, files or written materials, whether in hard copy or electronic form, in his possession, custody or control concerning the business or financial affairs of the Applicant, its clients, and employees, its trade secrets, information technology resources and protocols, customer lists, databases and interfaces operated by the Applicant, system passwords to access any software, systems or encryptions used or operated or licensed by the Applicant and any information obtained, accessed or acquired by the Respondent from the Applicant’s records including its database for the Applicant’s Managed Services division during and after his employment with the Applicant.9. Upon Counsel for the Applicant given the usual undertaking as to damages, an order that the Respondent be restrained from:(a)for the Restraint Period and within the Geographic Area from, directly or indirectly, engaging, alone or jointly with or on behalf of anybody else in any capacity, carrying on, operating or being engaged, interested or employed in a business that competes with the division of the Applicant in which the Respondent worked during the last 12 months of his employment;(b)for the Restraint Period from, either directly or indirectly, approaching, soliciting or enticing away (or attempting to approach, solicit or entice away), any person or entity who was a client with whom the Respondent, or personal reporting to the Respondent, had work-related dealings during the last 12 months of the Respondent’s employment; and(c)providing a service or services or products to any person or entity who was a client with whom the Respondent dealt during the last 12 months of the Respondent’s employment, that are the same as or substantially similar to those provided by the Applicant.10. Upon counsel for the Applicant giving the usual undertaking as to damages, order the Respondent:(a)deliver up to the Applicant all documents, files or written materials, whether in hard copy or electronic form, in his possession, custody or control, which:i.were downloaded from , or otherwise accessed using, the Applicant’s database for the Applicant’s Managed Services division by the Respondent during and/or after his employment with the Applicant; andii.contain information about the Applicant’s business or customers which the Respondent acquired:A.during or as incidental to his employment with the Applicant;B.by reason of the Respondent accessing the Applicant’s Broadband’s database for the Applicant’s Managed Services division during and/or after his employment with the Applicant.11. Order that, the Respondent deliver up to Court:(a)all personal computers (whether desktop hard-drive and/or laptop) and other electronic devices, hard drives, external hard drivers, USBs and other electronic storage devices in his possession, custody or control for inspection by the Applicant’s nominated forensic analyst; and(b)details of all addresses, accounts, login details, passwords and access credentials, in respect of each and every:i.device delivered up;ii.email account held, controlled or otherwise accessible by the Respondent;iii.electronic storage account (such as a “cloud” account or any like facility) held, controlled or otherwise accessible by the Respondent,for inspection by the Applicant’s nominated forensic analyst.12.Upon Counsel for the Applicant giving the usual undertaking as to damages, order that access be granted to a forensic computer/IT specialist of the Applicant’s nomination to uplift from the Registry and inspect any documents, computers and/or devices produced by the Respondent in answer to order 10 and 11 above, for the purpose of that expert preparing a report for the Applicant as to the Respondent’s use, disclosure of, or access to Confidential Information and/or Intellectual Property.13.If any Confidential Information or Intellectual Property is found in any document, computer and/or device produced by the Respondent in answer to order 10 and 11 above, the Applicant (via its nominated IT specialist) is granted leave to transfer such material to a hard drive to be kept confidential and destroy such material from the Respondent’s computers and/or devices.14.Order that, the Respondent file and serve an affidavit identifying:(a)if he has used, accessed and/or otherwise disclosed to any party (individual or corporation) any of the matters referred to in paragraph 8 (a) - (c) of the Originating Application;(b)if he has transferred to any storage device and/or party (individual or corporation) any of the matters referred to in paragraph 8 (a) - (c) of the Originating Application;(c)the names of the individual(s) or corporation(s) that he has disclosed any of the matters referred to in paragraph 8 (a) - (c) of the Originating Application,and in doing so disclose particulars of,i.when and how he used, accessed or transferred any of the matters referred to in paragraph;ii.when and how (method) he disclosed to any party the matters referred to in paragraph 8 (a) - (c) above;iii.the basis upon which the Respondent retained any of the matters referred to in paragraph 8 (a) - (c) above;iv.each person to whom it or any of it has been provided or to whom any of the matters referred to in paragraph 8 (a) - (c) above has been communicated;v.the date, time and means of every communication referred to in the preceding paragraph;vi.the identity and location of every electronic device on which any such information has ever been stored; andvii.where any such information is currently stored or kept in any form.15. Costs.