Care Legion Pty Ltd v Addo
[2025] VCC 634
•23 May 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMERCIAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-23-05023
| CARE LEGION PTY LTD (ACN 642 869 136) | Plaintiff |
| V | |
| FLORENCE ADDO (FORMERLY KNOWN AS SATA FAHNBULLEH) | Defendant |
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JUDGE: | Her Honour Judge Burchell | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19-21 March 2025 and 11 April 2025 | |
DATE OF JUDGMENT: | 23 May 2025 | |
CASE MAY BE CITED AS: | Care Legion Pty Ltd v Addo | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 634 | |
REASONS FOR JUDGMENT
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Subject:EMPLOYMENT – CONTRACT
Catchwords: whether defendant’s employment per terms of written contract – whether post contractual restraints are enforceable – whether defendant breached restraints by soliciting or enticing or interfering with plaintiff’s clients – whether defendant breached restraints by interfering with the plaintiff’s clients to its detriment – whether defendant breached express or implied duties by soliciting or enticing or interfering with plaintiff’s clients – whether defendant breached express or implied duties by interfering with the plaintiff’s clients to its detriment – whether defendant breached her fiduciary duty by using confidential information and knowledge – whether plaintiff suffered any compensable loss
Legislation Cited: County Court Act 1958 (Vic), s49; Fair Work Act 2009 (Cth), s340
Cases Cited:McMahon v National Foods Milk Limited (2009) 25 VR 251; Fightvision Pty Ltd v Onisforou (1999) 47 NSWLR 473; Bi v Touvanna [2025] VSC 153; Fu Tian Fortune Pty Ltd v Park Cho Pty Ltd [2018] NSWSC 528; Vickery v Woods (1952) 85 CLR 336; Steadfast IRS Pty Ltd v Latchmi Mesuria [2020] NSWSC 947; Tullett Prebon (Australia) Pty Ltd v Purcell [2008] NSWSC 852; Concut Pty Ltd v Worrell [2000] HCA 64; Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 55; Robb v Green [1895] 2 QB 315; Actrol Parts Pty Ltd v Coppi (No 2) [2015] VSC 694; Weldon & Co v Harbinson [2000] NSWSC 272; Victoria University of Technology v Wilson [2004] VSC 33; Nottingham University v Fishel [2000] ICR 1462; Digital Pulse Pty Limited v Harris [2002] NSWSC 33; Forkserve Pty Ltd v Pachiaratta (2000) 40 IPR 74; Lifeplan Australia Friendly Society Ltd v Woff [2016] FCA 248; Breen v Williams (1996) 186 CLR 71; Pilmer v Duke Group Ltd (In Liq) (2001) 207 CLR 165; Lehrmann v Network Ten Pty Limited (Cross-Claims) [2024] FCA 102; Secure Logic Pty Ltd v Paul William Noble (No 3) [2021] NSWSC 675; Ramsay v BigTinCan Pty Ltd [2014] NSWCA 324; March v E & M Stramere Pty Ltd [1991] 171 CLR 268; New South Wales Court of Appeal in O’Halloran v RT Thomas & Family Pty Ltd (1998) 45 NSWLR 262; GM & AM Pearce & Co Pty Ltd v Australian Tallow Producers & Ors [2005] VSCA 113; Maguire v Makronis (1998) 188 CLR 449
Publications: Barnett, K (2022) “Damages for Breach of Contract” 2nd Ed, Sweet & Maxwell
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | C Thompson | Stephens Lawyers & Consultants |
| For the Defendant | In person |
HER HONOUR:
Introduction
1The plaintiff (the employer, “Care Legion”) claims that the defendant (the employee, “Ms Florence Addo”)[1] breached her employment contract by misusing her employer’s confidential information, including by disclosing it to competitors and enticing away (or attempting to) her employer’s clients before and immediately after her employment ceased. At trial, Care Legion abandoned the claim that Ms Addo said words that were false and were published maliciously, in that she intended to injure the business of Care Legion without just cause, with knowledge of the falsity of the words.
[1] Ms Addo provided a change of name certificate dated 23 July 2024 from Sata Fahnbulleh to Florence Addo on the first day of trial. For the purposes of this judgment, I refer to her new name, Ms Addo.
2Ms Addo denies the allegations made against her, specifically the claim that there is an employment contract between her and Care Legion, as Guiding Care Pty Ltd (“Guiding Care”) and Care Legion are separate and distinct entities with different Australian Company Numbers (“ACNs”); denies that the employment contract with Guiding Care was transferred to Care Legion; denies that she was hired by Care Legion on the same terms as Guiding Care; denies that the information pertaining to specific clients was confidential; and denies that she poached Care Legion’s clients.
3In my judgment, Care Legion has made out its grounds. My reasons in respect of each ground are set out below.
4Accordingly, I order that there is judgment for the plaintiff in the proceeding in the sum of $109,929.80, together with declarations and injunctive relief. I also order that the defendant pay the plaintiff’s costs of and incidental to the proceeding on the standard basis, in default of agreement, unless either party has a basis for seeking a different order as to costs, and if so, I will determine any issue concerning costs on the papers.
5This judgment is a public document and accordingly, the names of Care Legion’s clients, who are National Disability Insurance Scheme (“NDIS”) participants, have been replaced in these reasons by pseudonyms to maintain the privacy of their personal information.
Factual Background
6Care Legion provides disability and aged care services, including NDIS support coordination, NDIS plan management, disability services, respite housing, disability support housing and aged care services.
7Ms Addo is a disability care worker who was continuously employed by Care Legion from 9 August 2021 until she was dismissed for misconduct on 8 June 2023.
8On 29 January 2021, Ms Addo signed a written employment contract with Guiding Care (the “Employment Contract”). In May and June 2021, Guiding Care’s employees were informed that Care Legion would be taking over that company’s business from 1 July 2021 and, thereafter, they would be employed by Care Legion. Ms Addo continued to work for the business until 31 July 2021, when she resigned by email with immediate effect. This was in circumstances where there was uncertainty as to when Ms Addo would receive her NDIS worker’s training due to delays with her NDIS screening check and approval being received by Care Legion, due to Ms Addo’s prior police criminal record.
9Dr Adebukola Juliana Ojediran, Chief Executive Officer and sole director and shareholder of Care Legion, offered Ms Addo the chance to continue her employment nine days later when Ms Addo’s NDIS screening check came through. At around that time, Care Legion claims Ms Addo was told by Dr Ojediran that the terms of her employment would not change.
10Under the Employment Contract, Ms Addo was under express duties:
(a) to show loyalty and to do nothing to compete with or denigrate Care Legion;
(b) to promote Care Legion’s interests and to use her best efforts to protect and promote Care Legion’s reputation;
(c) to refrain from acting in conflict with Care Legion’s interests;
(d) not to work for another company without Care Legion’s prior written consent; and
(e) to maintain the strict confidentiality of Care Legion’s Confidential Information (as defined), to not use such information in a manner which may injure or cause loss to Care Legion, and to not disclose such information except as directed by Care Legion or as required for the performance of her duties as an employee.
11As an employee of Care Legion, Ms Addo was subject to a duty of good faith, which carried with it an obligation not to divulge confidential information or to use it in a way that could be detrimental to Care Legion. Such a duty also carries with it a duty of fidelity. The duty of good faith and fidelity requires loyalty, which would be broken, for example, by taking preliminary steps to establish or join a competing business in a way that is not loyal, such as by canvassing Care Legion’s existing clients to bring their business over to another company, new or otherwise.
12Further, as an employee of Care Legion, Ms Addo was also under fiduciary duties, relevantly, not to improperly make a profit or gain a benefit or an advantage for herself or someone else, by reason of her position as an employee or by reason of taking advantage of an opportunity or knowledge derived in consequence of her employment, and to protect and keep confidential the confidential information of Care Legion.
13From about February 2022 until April 2023, without Care Legion’s knowledge and despite typically being paid for between 30 – 50 hours a week of support work by Care Legion, Ms Addo was also employed as a casual disability support worker by at least two competitor organisations: first, Respite Australia Care Pty Ltd (“Respite”) and subsequently, Infinity Support Services Australia Pty Ltd (“Infinity”).
14Care Legion alleges that, shortly after ceasing her employment with Infinity, but while still employed by Care Legion, Ms Addo sought to refer several Care Legion clients, as well as several Infinity clients, to Respite.
15On 13 June 2023, Client A gave notice to terminate her services with Care Legion and entered into a service agreement with Infinity.
16On 16 June 2023, the nominee of Clients B and C changed their service provider to Infinity.
17Clients A, B and C are no longer clients of Care Legion. Ms Addo continues to be their care worker.
Issues
18The issues for determination are set out as follows:
(a) Whether Ms Addo’s employment with Care Legion as a care support worker from 1 July 2021 until 31 July 2021, and again from 9 August 2021 until 8 June 2023, was on and subject to the terms of the written contract Ms Addo signed with Guiding Care in or about February 2021?;
(b) If so, whether the post-contractual restraints in clause 26.1a and/or clause 26.1d of the written contract are enforceable?;
(c) If so, whether Ms Addo breached either of those restraints by:
(i)soliciting or enticing away to a different NDIS service provider, or otherwise interfering with any of Care Legion’s clients (or attempting to do any of these things), and in particular, Clients A to G, referred to in Care Legion’s further amended statement of claim (“FASOC”); or
interfering, to Care Legion’s detriment, with the relationship between Care Legion and any of its clients, in or around June and July 2023 after her employment was terminated?;
(d) Further, and in any event, whether Ms Addo breached her express or implied duties under her Employment Contract and/or her fiduciary duties by:
(i)soliciting or enticing away to a different NDIS service provider, or otherwise interfering with any of Care Legion’s clients (or attempting to do any of these things); or
(ii)interfering, to Care Legion’s detriment, with the relationship between Care Legion and any of its clients –
while she was employed by Care Legion?
(e) Further, or alternatively, whether Ms Addo, during or after the period of her employment with Care Legion, breached her fiduciary duties and/or the duties of confidence she owed to Care Legion by using information and knowledge she gained about any of Care Legion’s clients by reason of her employment to entice (or endeavour to entice) those clients to change their service provider from Care Legion?; and
(f) Whether Care Legion suffered any compensable loss (and if so, how much) attributable to any breach by Ms Addo of any of her contractual or fiduciary duties, particularly by reason of losing the business of particular clients – namely, Clients A, B and C – and losing the opportunity to provide further services to them?
Care Legion’s submissions
19Care Legion submits that, before and after her employment ended, Ms Addo breached her contractual and fiduciary duties as an employee by enticing (or attempting to entice) Care Legion clients away to a different NDIS service provider, and by using confidential information about those clients to that end. Care Legion contends that Ms Addo’s conduct contributed to Care Legion losing three of its long-term clients.
20Dr Ojediran says that that Ms Addo received the same wage and superannuation entitlements from Care Legion as were provided for under the signed Employment Contract and her role remained the same. In the circumstances, Care Legion concludes, as an objective matter, that Ms Addo and Care Legion intended to contract with each other on the terms of the Employment Contract which governed the terms of her ongoing employment.
21In addition to the common law duties set out above, Care Legion relies on clause 26.1a and/or clause 26.1d of the Employment Contract that contains express restraints on Ms Addo, for a period of 12 months following termination of her employment:
(a) not to solicit, entice away or interfere with (or endeavour to do so) any past or former client with whom Ms Addo had dealings in the last 12 months of her employment with Care Legion; and
(b) not to interfere, to Care Legion’s detriment, with its relationship with any of its clients.
22Care Legion contends that each of these restraints, which are separate covenants, are reasonable in the circumstances and go no further than what is reasonably necessary to protect their interests.
23Care Legion submits that it has a legitimate commercial interest in protecting its confidential information and goodwill, including its client connections. Care Legion contends that “front line” care workers, such as Ms Addo, are the human face of Care Legion’s business. They commonly build trust and rapport, and develop close personal connections to the clients that they have supported, many of whom may have significant physical, neurological or cognitive disabilities or mental health issues. Moreover, Care Legion claims that care workers can gain considerable private information about a client and their circumstances that would be valuable to a competitor and, absent a restraint, difficult to protect.
24Care Legion states that, by reason of her employment, Ms Addo obtained confidential and sensitive information about many of Care Legion’s clients, including their names, addresses and contact details, the type and nature of their disabilities (including health information), familial supports and relationship dynamics, and the details of the supports and services supplied to them, including the allocated hours of support by Care Legion and other providers, such as allied health, medical doctors, community and welfare organisations. Care Legion argues that such information was not in the public domain and had significant value to an actual or prospective competitor of Care Legion. It was received and obtained by Ms Addo in confidence and subject to the duties referred to above.
25Care Legion claims that, shortly after ceasing her employment with Infinity in April and May 2023, but whilst still employed by Care Legion, Ms Addo sought to refer several clients of Care Legion (namely, Clients A, B and C), as well as several clients of Infinity, to Respite. Care Legion asserts that at the time, Ms Addo spent money on at least some of those clients to try to win their business, and she also sought to reach a revenue sharing agreement for those clients with Respite’s CEO, her friend, Mr Mark Harris Saydee (“Mr Saydee”).
26Care Legion claims that, on or about 23 May 2023, another of Care Legion’s clients (Client D) informed Care Legion that he was thinking of changing companies. Client D subsequently confirmed orally to Care Legion, during an internal investigation into the matter, that he had been told by Ms Addo that he was paying too much for rent.
27Ms Addo’s employment with Care Legion was terminated for misconduct on 8 June 2023. Care Legion states that Ms Addo continued to contact Client D after her termination.
28Care Legion submits that, on 13 June 2023, Client A gave notice to terminate her services agreement with Care Legion before entering into a services agreement with Infinity.
29On 14 June 2023, Care Legion claims Ms Addo forwarded Client A’s services agreement to Infinity. Clients B and C’s mother (as their nominee), after speaking to Infinity’s CEO, Mr Fred Kenyi (“Mr Kenyi”), on 16 June 2023, also changed their service provider to Infinity, and Ms Addo continued to be their care worker.
30Care Legion claims that Ms Addo has also been in contact with several other Care Legion clients. Care Legion contends that Ms Addo tried to persuade Client E to change providers and invited her to Ms Addo’s house. Further, Care Legion submits Ms Addo visited Client G on 5 July 2023 and tried to persuade her to change NDIS providers. Care Legion says Ms Addo also offered to take Client G out to dinner.
31Between 13 and 15 June 2023, Care Legion received communications from Client F’s family members purporting to terminate Client F’s services agreement with Care Legion. On 15 June 2023, Dr Ojediran left a message with Client F’s mother stating that Client F needed to make this decision.
32Care Legion submits that the following day, an email, apparently from Client F’s account, was sent to Care Legion, giving notice of termination and that Client F had signed a services agreement with Infinity. Subsequently, in or about June 2023, Care Legion claims Ms Addo obtained and spent vouchers for games and other goods for Client F. On 4 July 2023, Client F’s mother texted Dr Ojediran stating:
“…I have some concerns in regards to Sarta (sic) and wish to talk to you as the emails that were sent from mine and my mum’s emails was sent from Sarta (sic) I also have other concerns that I wish to discuss further with you.”
33Care Legion submits that Ms Addo has shown a tendency to:
(a) disregard her contractual obligations to her employers, including to Care Legion;
(b) seek to entice vulnerable NDIS clients, including those of Care Legion, to follow her to a new service provider;
(c) to that end, criticise or denigrate her employers, including Care Legion, and to offer inducements and use confidential information about those clients to whom she had access by reason of her employment;
(d) further, she sought to entice away clients of Care Legion even while still employed by Care Legion, and before being stood down; and
(e) Ms Addo has sought to obtain a direct financial benefit for herself from such actions, and in particular, from facilitating the movement of clients. On at least one occasion, she sought reimbursement or compensation for the incentives that she had spent on clients she sought to move to that provider and also sought from that provider a profit-sharing arrangement for the clients that she tried to move across.
34In light of the above matters, Care Legion seeks the following relief:
(a) declarations that Ms Addo has breached her contractual and fiduciary duties as an employee of Care Legion, including by enticing or endeavouring to entice away certain clients of Care Legion while and after she was employed by Care Legion, and by using confidential information about Care Legion’s clients for that purpose;
(b) injunctive relief to restrain Ms Addo from continuing to misuse client confidential information to entice away Care Legion clients;
(c) damages for breach of contract; and/or
(d) equitable compensation for breach of fiduciary duty.
35In closing submissions, Care Legion had no objection to the text message sought to be introduced by Ms Addo in paragraph 14 of her written closing submissions. Care Legion submits that the text message only shows Ms Addo’s ongoing contact with the nominee of Clients B and C, and that Care Legion was looking to recommence core supports for Clients B and C because they had not been using those supports under their services agreement. There was no issue about ongoing contact with the nominee post termination.
36Care Legion clarified with Ms Addo that the present case is not about coercion or control, or forcing clients to do things or clients not having the right to take their services to another NDIS service provider of their choosing. The case before the Court is about whether Ms Addo breached her fiduciary duties and/or her contractual duties by referring clients to Respite while she was employed, and breaching her post-termination restraints by interfering with the relationship between Care Legion and its clients after Ms Addo’s termination.
37Care Legion contended that the nature of the loss of opportunity, in light of the evidence of ongoing contracts with Clients B and C, includes the renewal of the contracts after expiry. There is evidence that it is rare for a client to terminate their support contracts, which are more likely than not to be renewed.
38Care Legion observed that Ms Addo confirmed that, despite the denial in her defence, she retained Care Legion’s confidential information when she admitted that she went through all her case notes since 2021 after the hearing and before closing submissions. Care Legion contends that this supports the grant of injunctive relief sought in the deleted paragraph of the FASOC. As such, prayer for relief in paragraph 3 was re-pressed, seeking delivery up of Care Legion’s confidential information.
39Care Legion submitted that Ms Addo was cross-examined on the retention of messages with Care Legion’s clients and she admitted that she retained Client E’s WhatsApp details because she considered her a friend, which is inconsistent with Ms Addo’s submissions that she could not control what the clients viewed her as and that she did not consider Client E to be her friend, but rather, as a client. Care Legion submits that Ms Addo had a blurred distinction between friendships and professional relationships which is inevitable because of the context of the services being provided.
Ms Addo’s submissions
40Ms Addo submits that Care Legion’s claim against her is baseless. Ms Addo contends that she was employed by Guiding Care and she signed an employment contract with Guiding Care containing their policies.
41Ms Addo contends that an oral contract does not contain clauses. She, therefore, claims that she cannot be found to have breached clauses. Ms Addo concedes that written contracts contain clause. Ms Addo claims that Dr Ojediran was negligent in failing to provide new contracts to Care Legion employees. Ms Addo asserts that it is not unusual for clients to terminate their service agreements with providers.
42Ms Addo submits that Care Legion cannot claim losses in circumstances where the contracts with their clients had expired. She relies on Client A, who said that it was her choice to leave Care Legion. Ms Addo submits that Care Legion cannot claim loss given their clients are allowed to leave.
43In about May or June 2021, Ms Addo received information about a Zoom meeting scheduled for later that day. On 25 June 2021, the employees would be onboarded by Care Legion. Ms Addo submits that they were told by Care Legion that the employees would be given a new employment contract on 28 June 2021. However, that did not happen.
44Ms Addo says that Guiding Care and Care Legion are not the same company as they have different ACNs. Ms Addo submits that the staff did not accept the new policy because they did not sign a new employment contract. Ms Addo contends she could not breach clauses under the contract because there was no contract with Care Legion.
45Ms Addo asserts that Care Legion cannot assume that the staff are automatically under the same contract as they were under Guiding Care. They needed to enter into a new contract with Care Legion.
46Ms Addo submits that under the NDIS, the service is based on client decisions and control. As long as there is no coercion, manipulation or poaching, the clients have the right to seek services from any organisation of their choice. Funding is given to each client so they can seek support and attend to self-care.
47Ms Addo argues that if clients wish to move to a new service provider and there is a mutual service agreement between them, that is acceptable.
48Ms Addo asserts that she felt she was acting in the best interests of her clients – clients who approached her. In relation to Clients B and C, she submits that, with children, they do not cope well with change, so they wanted to stay with her. Ms Addo contends that the nominee was not happy with the new social worker Care Legion had assigned to Client B. Ms Addo claims that because she had worked with Client C at least nine times prior to July 2021, she had built rapport with her which indicates why the mother of Clients B and C (the nominee) wished for Ms Addo to continue working with her daughter.
49Ms Addo submits that the nominee of Clients B and C was told by Care Legion’s manager, Mr Usman Jaiyeola, (“Mr Jaiyeola”) that Ms Addo went to Africa for a long time which was not true – instead, she was dismissed. The nominee saw Ms Addo on the streets of Melton and was shocked to see her because she had been told by Care Legion that Ms Addo was in Africa.
50Ms Addo felt that she was just doing her job. She told the nominee that she did not work with Care Legion anymore. Ms Addo claims that the nominee called her. Ms Addo asserts that Dr Ojediran told the nominee that saying that Ms Addo was dismissed from Care Legion was not a good look, so they provided a different explanation. Ms Addo claims that Care Legion caused its own mess. Ms Addo submits that she did make mistakes, and she learnt and grew.
51Ms Addo contends that Care Legion was ruining her reputation with clients and their families by accusing her of stealing.
52Ms Addo claims that she was working the most hours while at Care Legion and was one of the best workers, but then when she was sacked, she became the worst worker. She was sacked because of misconduct.
53Ms Addo claims that the only witness who is a client called for Care Legion is Client E who is a “Fairy God Auntie” to the Dr Ojediran’s daughter. Ms Addo says that the Client E refers to Dr Ojediran’s children as niece and nephew. And she is an “aunty”. She alleges there is special treatment given to Client E. They are friendly with each other.
54Ms Addo submits that she considered Client E as her client, not her friend. She referred to her phone which noted “Client E – My Client”. She contends that she could not control how the client viewed her.
55Ms Addo claims that she went to the food banks for clients to help them during the COVID-19 lockdown as unpaid work while she was employed by Care Legion.
56Ms Addo submits the NDIS area is competitive, and if clients leave, that is their choice. Ms Addo claims that, to stop Client A from leaving, Care Legion gave money to her by way of two payments, one of $300.00 and the other for $500.00. Ms Addo asserts that Care Legion is not a saint and breached their own policies. Ms Addo contends that Client A was not happy about her gardener. Client A contracted Ms Addo to ask her to take her to the food bank.
57When Ms Addo was dismissed, she claims she was contacted by Client A. Ms Addo submits she continued contact with Client A because she put the wellbeing of her clients before money and continued to see her without payment. She claims she was acting in the best interests of her clients. During the COVID-19 lockdown, she went to the food bank and got the food that her clients needed on many occasions, and did not get paid for that service.
58When she lost her job with Care Legion, Ms Addo submits she was struggling. Ms Addo sys she was contacted by Mr Kenyi at Infinity, but she did not have a company to provide services to him. When he found out Clients A, B and C were Care Legion’s clients, Mr Kenyi did not sign them up.
59In relation to Client D, Ms Addo submitted that he was not called to give evidence by Care Legion. Client D’s sister gave hearsay evidence that Ms Addo contacted her brother. Ms Addo claimed that no call logs were tendered to prove that she contacted Client D as alleged.
60In relation to Client F, Ms Addo concedes that she told him that he was paying too much to Care Legion for rent but denies that it was for the purpose of poaching. She said she was admitting to what Client F was thinking. She was suspended straight away.
61Ms Addo submits that she wanted to be shown the Care Legion contract and wanted to be shown the clause that she breached. She contends that she cannot be shown a copy of the contract because it does not exist.
62Ms Addo contends that she did not accept the affidavit material of Dr Ojediran’s affidavit sworn on 4 April 2025 seeking to explain the differences in the activity statement in relation to Clients B and C. Dr Ojediran identified the document attached to Ms Addo’s email on 1 April 2025, document entitled “[the nominee] second evidence”, which consists of a Guiding Care activity statement for Client C dated 1 June – 30 June 2021 which indicated provision of core services on 10 occasions. The statement that was tendered by Care Legion shows that core supports were provided to Client C on two separate occasions in June 2021.
63It was common ground that those supports were not shown in the activity statement covering the relevant period which was tendered by Care Legion as “All Compiled Activity Statements for Client C 27.11.20 to 15.08.2024” on the second day of trial by email dated 21 March 2025 at 3:24 am and to which the nominee was referred in cross-examination. This activity statement was also included in Care Legion’s Additional Tender Document Bundle.
64Dr Ojediran deposed that both activity statements are authentic business records of Guiding Care and Care Legion. The activity statement tendered by Care Legion covering the relevant period, was automatically generated by the Careview software, which is the software used by Care Legion for client plan management and client support coordination.
65The activity statement that was generated for the relevant period (7 May 2021 to 3 April 2022), erroneously omitted certain supports provided in and prior to July 2021. This omission occurred because in July 2021, Dr Ojediran, when setting up Client C’s NDIS plan on the Careview software, had to change the NDIS code used to record core supports for Client C to align with the instructions of the nominee for Clients B and C, and deactivated all other core support codes. This had the unexpected result that core supports provided to Client C before the change under a different code are not shown in activity statements generated by the Careview software after the code change. Despite Dr Ojediran’s explanation as to the creation of the business records, Ms Addo still questioned the different logos on the statements.
66Ms Addo claims she deleted her former clients’ details from her phone when she was sacked but when the Clients contacted her, all their details came back from the iCloud which retrieved the information.
67Ms Addo observes that all of Care Legion’s witnesses had a common thread – they were all her former employers.
The witnesses
The Employer’s witnesses
Dr Juliana Ojediran (Care Legion)
68Dr Adebukola Juliana Ojediran is the sole director, Chief Executive Officer and shareholder of Care Legion. Dr Ojediran was a witness of truth, whose oral evidence was consistent with contemporaneous records, save for the electronic copies of the automatically generated activity statements tendered, that was rectified by her subsequent affidavit sworn on 4 April 2025 due to an inadvertent clerical error and referred to above. Her cross-examination was marred by repetitive, aggressive questioning to which she understandably did not always react well.
69Guiding Care operated a business providing services in the disability and aged care industry, including NDIS Support Coordination, NDIS Plan Management, disability services, respite housing, disability support housing and aged care services from June 2019 until 30 June 2021.
70The transfer of Guiding Care’s business to Care Legion occurred on 1 July 2021. Dr Ojediran was looking at expanding the business to aged care. She thought Care Legion was a better name.
71The business’ Customer Relationship Management (CRM) software, called ‘Careview’, stores information in the software about clients such as their profiles, disabilities, NDIS plans, case notes, informal (including family) supports, as well as the use of the software to coordinate NDIS support (including corresponding with other service providers), submit NDIS claims on behalf of clients, generate agreements and reports, send plan statements to clients, generate invoices and track client NDIS funding and spending.
72Ms Addo’s employment with Guiding Care from about January 2021 until 30 June 2021 was under a written contract of employment and she was provided with the documents as signed as part of the onboarding process.
73Dr Ojediran said that Guiding Care/Care Legion’s onboarding process, its code of conduct, privacy and confidentiality and the requirement of all employees to sign an Organisational Agreement and Code of Conduct, forms part of their employment conditions.
74Dr Ojediran noted that the “Organisational Agreement & Code of Conduct” dated 13 February 2021 was signed by Ms Addo.
75By email dated 20 May 2021, Dr Ojediran sent an email to employees about Guiding Care being transitioned to Care Legion on 1 July 2021. All staff were present at the meeting.
76Dr Ojediran made an audio recording of the meeting on 17 June 2021 in which she informed the staff about the transition. The audio included the following:
“We are transitioning to Care Legion, and we are doing this internally, meaning that on the outside we are still considered to trade as Guiding Care until we get our NDIS registration for Care Legion … So when we go outside, we still say we are from, we are from Guiding Care. Internally um Care Legion is the one that pays us. So, so I just wanted to make that clear for everyone so that there is no misunderstanding (sic) regarding where (sic) am I, what, what do I do and what now.”
77Dr Ojediran said that she informed Ms Addo of the transfer of Guiding Care’s business to Care Legion on 1 July 2021 and prior notice was given by her to all employees, including by email and via Zoom. She said they were a very small organisation so they had discussions around the transfer.
78Under cross-examination, Dr Ojediran conceded that although employees were told in the email of 17 June 2021 and at the meeting they were onboarding from Guiding Care to Care Legion and new employment contracts were to be issued on 28 June 2021, no new contracts were issued.
79Dr Ojediran said that no employee had any concerns about who they were working for or who employed them, because it was something that the parties knew.
80Dr Ojediran said that regardless of whether an employment contract is verbal, written and implied, there is a duty of care and fiduciary duties. Dr Ojediran said that the allegation of a written contract is only one ground relied on by Care Legion. Care Legion paid Ms Addo’s superannuation and wages. Dr Ojediran said that Ms Addo was “nitpicking” about the clauses on a written contract and any of her concerns were not raised at the relevant time.
81Dr Ojediran said that Ms Addo had already signed up to the Care Legion policies when she was on-boarded, and they contain the Care Legion logo. This included the Care Legion Privacy and Confidentiality agreement. Dr Ojediran said that the Privacy and Confidentiality agreement was part of the written agreement between the parties. The Care Legion agreement dated 1 February 2022 provided as follows:
“The employee acknowledges that in the course of their employment at Care Legion, they may have access or become acquainted with the written materials and other confidential health information, and agrees;
To maintain the confidence of the confidential information and to prevent unauthorized disclosure to or use by any other person, film or company;
To only use confidential information for the purpose of carrying out their duties whether that be during employment or after it has ceased;
Not to remove any part of the confidential information from the premises of the employer without written consent of the employer;
Not for any reason appropriate, copy, memorize or in any manner reproduce or part with any confidential information;
On termination of their employment or else when required to do so by the employer, return any and all of the confidential information including any copy of that information, in whatever form that could be; and
When borrowing manuals/information they will return it wholly and in good condition at the time required by the employer.”
82Dr Ojediran said that the verbal contract was made during the meeting with the staff. Dr Ojediran told the staff that they were transitioning to Care Legion. She said that the verbal contract has an expectation and fiduciary duties not to cause an employer to suffer losses – regardless of whether or not there existed a signed contract. Dr Ojediran said there are expectations under the contracts.
83Dr Ojediran said that Ms Addo never asked for a written employment contract with Care Legion because she was not confused about who she was working for. Dr Ojediran said that during the meeting, it was clear that there was a transition to Care Legion.
84In answer to the proposition put by Ms Addo that any oral discussion that Dr Ojediran has with her staff has to be put in writing and given to her staff to sign, which will show that her staff consent to what was discussed, Dr Ojediran noted that Ms Addo was given an oral warning with Care Legion, and when Dr Ojediran wanted to follow that up with a written warning, Ms Addo asked her not to, and it was the way they communicated with each other.
85Ms Addo referred to clause 38 of the Employment Contract which states that an amendment or variation is not effective unless it is in writing and signed by both parties. Dr Ojediran said that that clause refers to something like changing from casual work to permanent. There was no variation to Ms Addo’s job, however. Dr Ojediran said that the clause does not include the transition from Guiding Care to Care Legion, as it was not a variation to Ms Addo’s employment.
86Dr Ojediran said that Care Legion’s employed Ms Addo as a casual disability support worker in July 2021 and she resigned at the end of that month because she was awaiting NDIS clearance which was compulsory for people to work in the sector, in light of her past criminal convictions. By email dated 31 July 2021, Ms Addo resigned with immediate effect.
87Ms Addo restarted her employment on 9 August 2021, after she was notified by Dr Ojediran that Ms Addo had received a clearance to work as an employee of an NDIS service provider as a disability support worker.
88Dr Ojediran said that Ms Addo did not sign any further written employment contract with Care Legion but was employed by Care Legion on the same terms as she had previously been employed by Guiding Care.
89Dr Ojediran said that the nature of the work that Ms Addo performed for clients of Care Legion and the relationships that she formed with those clients by reason of her role as a care worker, tasked with responsibilities such as companionship, cooking, cleaning and taking clients to appointments organised by Care Legion, was a close personal relationship.
90Dr Ojediran said that Care Legion usually matches one client to one staff member because they have to develop trust and have rapport. In case of unplanned leave, they need a contingency plan to backfill.
91Dr Ojediran said that the kinds of confidential information that Ms Addo received because of her role as a disability support worker of the business whereby the clients are NDIS participants included names, telephone numbers, email, addresses, location of clients and their carers, frequency of support and their specific disability support needs. Such information included but was not limited to what was accessible via the Careview system.
92Dr Ojediran said that the training, feedback, guidance and direction Ms Addo was given as an employee included the need to maintain strict confidentiality of information she received by reason of her employment, and not to use any of that information except for purposes of performing her role, as well as the need to manage private information about clients in accordance with the NDIS Code of Conduct.
93By way of background, Dr Ojediran said that she gave Ms Addo a warning on 23 May 2023 about her unprofessional conduct towards her manager, Mr Jaiyeola and took into account Ms Addo’s apology. Dr Ojediran said that Ms Addo comes across as passionate in the industry and willing to learn when she made mistakes. For example, Ms Addo took money from clients to pay for petrol, she took a client who had suffered a stroke across a highway, took money from a client to buy dinner and she noted that clients like her. Dr Ojediran said that Ms Addo seemed apologetic and promised not to do these things again. In a letter dated 3 May 2021, these matters were identified as a breach of policies and professional conduct. After an internal investigation, Ms Addo’s shift with the impacted client was terminated. Ms Addo was warned that her contract would be terminated immediately if any further complaints were received.
94Dr Ojediran received feedback from her manager that Ms Addo was causing trouble. When Dr Ojediran contacted Ms Addo by telephone, and she was crying on the phone and apologised and begged Dr Ojediran not to be let go.
95Dr Ojediran received a text message from Ms Addo on 23 May 2023 in which she apologised but on the same day went to a long-standing client and attempted to poach Client D. Client D told Mr Michael Bamigbola, Care Legion’s team leader, that Ms Addo told him that he was paying too much to Care Legion.
96By email dated 25 May 2023, Dr Ojediran sent an email to Ms Addo advising that an active investigation had now commenced. Ms Addo was stood down from her shifts while the conducted the investigation by 9 June 2023.
97Ms Addo’s employment was terminated for misconduct on 8 June 2023, after telling Client D that he was paying too much to Care Legion, should change to a different company with Ms Addo, and that she would assist him to change service providers. There was a voice recording made by Dr Ojediran with Client D to this effect. Dr Ojediran said they still wanted to protect Ms Addo about the circumstances of her leaving.
98Dr Ojediran gave a reminder to Ms Addo not to contact any current or previous Care Legion clients, contractors, and providers she had worked directly or indirectly within the last 12 months.
99Ms Addo continued to contact with the Client D after 8 June 2023. Client D texted Care Legion saying that Ms Addo had contacted him after her termination. His sister also reported contacted by Ms Addo with Client D.
100By email dated 13 June 2023, Dr Ojediran informed Ms Addo that she needed to stop contacting Client D and his family. Care Legion reported this as a reportable incident to the NDIS on 16 June 2023.
101By email dated 19 June 2023, Client D’s sister informed Dr Ojediran that post-termination, there had been contact from Ms Addo.
102Dr Ojediran referred to a “record of internal investigation” which sets out a conversation in which Client D was told by Ms Addo that he was paying too much to Care Legion.
103By email dated 13 June 2023, Client F’s mother wrote to Care Legion requesting all NDIS documents. An email dated 16 June 2023 from Client F’s email address was received. Dr Ojediran said she had never received an email from Client F before. Client F came to Care Legion as a ward of the state in about 2019/2020 with an intellectual disability and identifies as a gay man and has a history of abuse. The email again requested his NDIS documents from Care Legion. Dr Ojediran then received a text message from Client F’s late grandmother. Dr Ojediran contacted the family to talk with them. Dr Ojediran stated that Ms Addo was behind the text messages and the email. She said that language sounded like Ms Addo’s texts. Dr Ojediran checked the Internet Protocol (“IP”) of the email address, and they were “pretty similar” with an active Virtual Private Network (“VPN”). Dr Ojediran said that Client F’s family would not know how to use VPN. But Ms Addo did.
104Dr Ojediran said that there were notifications and reports of reportable incidents made to the NDIS in respect of Ms Addo on 18 June 2023, 19 June 2023, 5 July 2023, 17 July 2023, and 15 August 2023.
105Ms Adoo filed a complaint on 29 June 2023 in the Fair Work Commission against Care Legion claiming she had suffered adverse action for exercising her workplace rights under s340 of the Fair Work Act 2009 (Cth), and Care Legion’s response was filed on 25 July 2023.
106Dr Ojediran said she received text messages from the phone number of a relation of Client F on 13 June 2023, about Client F transferring to another NDIS provider for support, and requested copies of all his documents and alleging Care Legion had taken advantage of Client F.
107Dr Ojediran said she received an email on 16 June 2023 from a Yahoo! Mail email address stating Client F’s name, NDIS number and date of birth, advising he had terminated his service agreement with Care Legion, and repeating the allegations referred to above.
108Dr Ojediran received a voicemail message left in June 2023. After the voicemail message was received, the alleged email from Client F was sent. Dr Ojediran said that Mr Bamigbola saw Ms Addo enter Client F’s property on the day of the message.
109Dr Ojediran received a text message from the phone number of Client F’s mother on 3 July 2023 stating that the emails had been sent by Ms Addo. Client F’s mother made complaints about Ms Addo, the subject matter of which is not relevant for the purposes of the present case, although Ms Addo spent a great deal of time cross-examining Dr Ojediran about these matters. Client F’s mother did not complain about Ms Addo during her employment with Care Legion. The complaints came on and after 15 June 2023 and later on 26 June 2023. After termination, Ms Addo was communicating with Client F.
Client A
110Dr Ojediran said that in relation to Client A, who has schizophrenia and a mild intellectual disability, Care Legion provided services to Client A from April 2020. Dr Ojediran said Client A was unhappy with her gardener and asked to get rid of that gardener. This issue was resolved.
111Ms Addo was involved in providing services to Client A for a short period of time and at the time, Client A had complained about Ms Addo as she was forcing her to attend the same church as her. Dr Ojediran removed Ms Addo from the care of Client A as Care Legion is apolitical and areligious.
112Dr Ojediran said that Care Legion provided services to Client A for 3 years. Dr Ojediran explained that Careview is the system that Care Legion uses to store the client’s information and data. The reference to:
(a) “client funding” is the total amount of funding that Client A had and that Care Legion manages, because they also manage Client A’s NDIS funds;
(b) “plan budget” are the categories showing how the client has been funded, how much for and how much is left. It is from this information that Care Legion is able to draw out how many hours of support has been funded for the client over a period of time (usually between 12 or 24 months) and this shows what the funding is and how those fundings are allocated to different service;
(c) “core budget” refers to assistance with daily life, inside and outside of the home;
(d) “assistance with social and community participation” refers to assistance outside of the home;
(e) “transport payment” refers to the automatic payment from the NDIS into Care Legion’s clients’ accounts every fortnight;
(f) “consumables” refers to funding if the client requires health‑related consumables according to their disability;
(g) “improved life choice” is where the client has, for example an accountant, or someone that manages their funding, and Care Legion has coordination of support that is linking clients to various service providers;
(h) “improved daily living skills” is allied health related including, for example, Occupational Therapy and Speech Therapy;
(i) “unallocated” is what is left from the budget; and
(j) “remaining” is the total balance in the account at that specific time.
113Care Legion receives NDIS funding under the categories “assistance in daily life”, “assistance with social and community participation”, “improved life choices” and “coordination of support”.
114Dr Ojediran said that Client A had until 14 July 2023 left on her NDIS plan. Dr Ojediran said that NDIS usually provides a new plan once the NDIS plan ends. In June 2023, the budget under a new plan would not be less than the budget under the existing plan. In order to be accepted into NDIS, the client needs to have a long‑life disability and most of the disabilities gets worse with age. Care Legion collects all of this evidence, especially the functional capacity assessment to show to the NDIS that there have been some changes and advocate for the client for more support. Dr Ojediran said that Client A did not need less support. When Care Legion did Client A’s report, they were advocating for additional funding for her.
115The Careview records about Client A’s services confirm that between 20 April and 13 June 2023, Care Legion received $135,642.09 from Client A from providing supports and services funded by her NDIS plan, and that on 16 June 2023 there was $9,777.97 in allocated but unspent funds to be spent on the type of supports and services provided by Care Legion.
116On the activity statement, there is a code for a support item number, which is a code that can be used with a particular support. Assistance from daily life comes from the codes on the activity statements. It is an hourly rate. The NDIS hourly rate is publicly available on the internet and states that it is $65.00 for a weekday for assistance with daily life and social and community participation. The rate for improved life choices is a monthly charge of $104.45 and has been the same rate for the past six years. Coordination of supports was charged at $100.14 and has been the same since the last four years. Care Legion’s wages were per hour, excluding superannuation.
117Dr Ojediran said that she received a text message from Client A on 13 June 2023 informing Care Legion that she decided to move to another provider and not to come to her house or contact her otherwise she would report them to the NDIS for harassment. After the text message, Dr Ojediran went to visit Client A with Mr Jaiyeola and Mr Bamigbola at her house. Client A welcomed them into her home. She was nervous and made tea for them. Client A said she appreciated everything that Care Legion had done for her and that Ms Addo had asked her to go to another provider because they would assist her son to get onto the NDIS. Dr Ojediran said that Care Legion has previously assisted Client A with getting her son onto the NDIS but had been unsuccessful twice. Client A showed Dr Ojediran a flyer from Infinity. Dr Ojediran said Client A seemed remorseful as Care Legion had not done anything wrong, but she had gone with Infinity because they promised to get her son on to the NDIS. She said that all the text messages were sent by Ms Addo. Dr Ojediran said that Client A did not want to be recorded during the meeting.
118Dr Ojediran contacted Infinity soon after the meeting.
119Dr Ojediran gave evidence that she loaned money to Client A in the sum of $300.00 for the purchase of a couch on Facebook Marketplace because Client A’s disability support pension had not come in yet and Client A subsequently paid her back the first loan of $300.00. The second sum of $500.00 was for Client A to purchase an ornament for her garden. Client A had reached out to Dr Ojediran and asked for support. Dr Ojediran said it is not a breach of policy to advance money. It was not taking money from the client. The policy is not to take money to clients. Dr Ojediran said it was an executive decision by the CEO to advance money to assist one of its clients. In cross-examination, she said that Client A started to repay the $500.00 then stopped repaying because Ms Addo told her to stop repaying the second loan.
Clients B and C
120Dr Ojediran said that Care Legion provided services to Clients B and C since 4 March 2021 under their NDIS plans and the agreements with their nominee under which those services were provided. They came by a referral from an existing client of Care Legion. Clients B and C’s parents have authority to make decisions on their behalf, effectively Clients B and C’s nominees. They came in 2021 and left Care Legion in 2023. Ms Addo was the disability support worker for the Client C. Another care worker, Mr Bamigbola and then Mr John Soares Oyeniyi, gave support to Client B.
121Dr Ojediran received a telephone call on 16 June 2023 from the nominee informing her that Clients B and C would be ending their service agreements with Care Legion.
122Dr Ojediran said that the Careview records about Client B indicated that Care Legion received $118,767.56 in revenue providing supports and services for which he received funding under an NDIS plan between 4 March 2021 and 13 June 2023, and there was still $70,612.98 in allocated but unspent funding under his NDIS plan on 16 June 2023, to be spent on the type of supports and services provided by Care Legion.
123The Careview records about Client C indicated that Care Legion received $108,496.66 in revenue providing supports and services for which she received funding under an NDIS plan between 18 March 2021 and 13 June 2023, and there was still $61,525.29 in allocated but unspent funding under her NDIS plan on 16 June 2023 to be spent on the type of supports and services provided by Care Legion.
Client G
124Dr Ojediran referred to the case note made by Lauren Huggard (“Lauren”), an employee of Care Legion, on or about 6 July 2023, recording that Client G had told Lauren that Ms Addo had approached Client G at her community housing and asked her to change NDIS providers, and that this had upset Client G.
125Dr Ojediran then had a telephone discussion with Client G, in which Client G informed her that Ms Addo had come to her house and asked her to change to a new NDIS service provider, had told her she could provide better services to her and move her to a better home than where she was currently living and offered to give her food, a laptop and a mobile phone if she changed providers.
126The case notes made by Lauren generally described Ms Addo coming to Client G’s house despite a cease and desist order having been issued, but Ms Addo continued to visit.
127Dr Ojediran contacted Client G and she was upset and did not understand why Ms Addo kept visiting her offering her a phone, laptops and dinners. Client G asked to report Ms Addo to the NDIS and needed support to do that.
128There was an incident report by Lauren dated 17 July 2023, which stated as follows:
“[Client G] advised Ms. Sata Fahnbulleh has been approaching her at different times, offering her gifts and promises of mobile phone, laptops and food to switch provider. [Client G] elaborated that Ms. Sata visited the facility where she resides at SRS Footscray on Thursday 6th and repeatedly over the weekend while she was at her children’s. [Client G] advised she communicated to Ms. Sata that she would love to be left alone only for Ms. Sata to turn up at [Client G’s] children’s place at Melton on 16th July, 2023. [Client G] advised she her privacy has been violated as she felt Ms. Sata has been monitoring her movement. [Client G] advised she feels unsafe, and her anxiety is fast raising. [Client G] request Sata should be stopped from visiting it her as she feels her safety is threatened. ..
Ms. Sata has previously supported [Client G] in the capacity of a support worker. It appears Ms. Sata is attempting to have [Client G] change provider at all cost to a provider of Ms. Sata’s choice.”
129Dr Ojediran said she has reviewed Care Legion’s client records for the period of 1 July 2021 to 30 June 2023 and identified that of Care Legion’s approximate 50 clients as at 1 July 2021, apart from the Clients A, B and C, only three to four service agreements were terminated.
130Dr Ojediran said that, in those cases, the service agreement was terminated because either the client had moved residence to where it was no longer convenient to receive services from Care Legion or had commenced end-of-life care and no longer required services of the kind provided by Care Legion, or they had been poached by an external provider.
131Dr Ojediran said that the revenue Care Legion lost on existing contracts with Clients A, B and C includes the amount allocated but left unspent under the clients’ NDIS plan at the date of termination of their service agreement.
132In relation to the issue of Client C’s activity statements, I accept Dr Ojediran’s affidavit evidence dated 4 April 2025 that she was unaware of the omissions in the activity statements tendered at trial until:
(a) she was shown the PDF’s attached to Ms Addo’s email to the Court dated 1 April 2025, as the nominee never shared Clients B and C’s NDIS plans with Care Legion but only provided instructions to Care Legion; and
(b) further investigated the matter with the software provider.
133Dr Ojediran accepted that the further activity statements produced by the Careview software provider in the relevant period show that core supports were provided to Client C on nine separate occasions between 7 May and 4 July 2021, prior to the code change, in addition to the supports shown in the tender document. The submission that Ms Addo had only provided paid care worker supports to Client C on two occasions before July 2021 was retracted.
134Dr Ojediran, on behalf of Care Legion, apologised to the Court for having unknowingly and inadvertently misled the Court. The apology and the reasons for the error are accepted.
Mr Fred Kenyi (Infinity Support Services Pty Ltd)
135Mr Kenyi is the managing director of Infinity. Mr Kenyi presented as a careful and considered witness and was a reliable and credible witness who was ready to make appropriate concessions. Ms Addo attempted to make a considerable attack on his credit, however failed to challenge his substantive evidence.
136Mr Kenyi said that Ms Addo was a former employee of Infinity from 22 August 2022 to 20 April 2023.
137On 20 April 2023, Ms Addo resigned from her position as a casual disability support worker after a misconduct investigation involving three NDIS participants who raised concerns that Ms Addo would turn up for shifts and leave early. The length of the shifts was from five hours to six hours of which Ms Addo would do only 30 minutes to one hour and leave without informing administration staff or her manager. Mr Kenyi said he contacted her many times to log in and log out. Mr Kenyi said Ms Addo was taking advantage of the system.
138Upon her resignation, Ms Addo was reminded of her employment clauses not to retain any participant information and not to contact any of Infinity’s participants and their families as this would be a breach of their participants’ privacy and confidentiality.
139Mr Kenyi said that on 26 April 2023, Ms Addo started calling and going to participants’ homes to advise them to move to Respite, a company that she was working for and promising them services that was not funded for in their plans. For example, Ms Addo promised that they will be rented a house to live in the city and have the money in their plans given to them in cash. Mr Kenyi said Ms Addo was bribing the participants by giving them gift vouchers from Respite.
140On 26 April 2023, one participant called the Infinity office to report that Ms Addo had visited on the weekend and given them gift card worth $100.00 with promises of another one when they sign up with Respite. The participant was distressed that something was not right as she understood how the NDIS funding works and that what Ms Addo told them was not true. This participant refused to sign up with Respite. Mr Kenyi said that the gift vouchers were delivered by Ms Addo.
141By email dated 26 April 2023, Mr Kenyi relevantly wrote to Ms Addo the following:
“We are aware that [Client P] has been contacted with a friend of yours who is running a service and given him a gift voucher. This is bribery and a breach of NDIS guidelines, and should you continue to do this, NDIA commission will be notified and …”
142Fred said that the “friend” was Mr Saydee from Respite but in subsequent emails he refers to Ms Addo and says:
This is unacceptable behaviour and you are turnishing (sic) my reputation and putting our company at risk. We have clear evidence regarding this when you spoke to one of our participasnt (sic) and she is our witness with evidence of business card and gift voucher. This is particioant (sic) bribery and is a breach of NDIS guidelines and procedures and is reportable to the NDIS commission. We have already notified the NDIS commission to investigae (sic) [Mr Saydee] and his company (Respite Australia Care).”
143Mr Kenyi said that Mr Saydee was not promoting himself, but Ms Addo had purchased the gift cards with her own money, and she was the one giving them to the participants.
144Mr Kenyi said that throughout late April and early May 2023, Ms Addo continued poaching Infinity’s participants, but none signed up with Respite because they were aware that what Ms Addo was doing was wrong as a former employee.
145On 26 April 2023, the general manager contacted Ms Addo and cautioned her not to contact any of Infinity’s participants and that legal action will be taken against her and Respite if she continued to contact Infinity’s participants. Ms Addo did not reply or respond, and Mr Kenyi said Ms Addo continued with her activity.
146By email dated 26 April 2023, Mr Kenyi described Ms Addo as:
“a disgruntled former employee who breached our staff code of conduct and was doing less time with our participants while we paid her full shift even when she goes for 30 minutes and when we launch our investigation, she decided to resign. With all that said, Sata has breached our participants privacy and confidentiality by giving you participants contacts with their home addresses. We have reported this issue to police and she will be contacted soon.”
147Mr Kenyi said Ms Addo resigned because she was caught turning up to work late by Mr James Jai, Infinity’s Program Manager, and left early when she was rostered for 6 hours. After receiving an email from James, she resigned 20 minutes later. Ms Addo’s employment was not terminated for poaching clients. Mr Kenyi denied that just because casual workers work for other agencies that they sometimes turn up late for work.
148On 27 April 2023, Mr Kenyi emailed Ms Addo and cautioned her again about what she was doing, and that Infinity had started an internal investigation into misconduct that amounted to not only stealing participants’ time when she was supposed to be with them but also putting them at risk in case something happens to them when they are left without support. Mr Kenyi said this is also considered theft to the company as they were paying her full shifts when she was doing less time with participants and that she will be made to pay back the money she has stolen from the participants for the time she was not providing service to them.
149On 25 May 2023, Mr Kenyi contacted Ms Addo after coming back from holidays because she wanted to take Infinity’s participants and was tarnishing their reputation. Ms Addo responded that she was sorry and that she did this because she had no job and Respite promised to employ her if she brought the participants to them. Mr Kenyi said Ms Addo was crying on the phone saying that she was sorry and could do anything to make it up to Infinity.
150On 19 June 2023, Infinity management had a meeting to discuss about potential participants and realised that the participants were from Care Legion, and Infinity did not know that she was terminated for misconduct. Mr Kenyi agreed that he was happy to meet with the potential participants.
151Mr Kenyi said that Infinity decided not to on-board the participants after realising that Ms Addo was doing what she did to Infinity three days after her resignation and deemed her a danger to participants and NDIS service providers. Mr Kenyi said Ms Addo told him that she could not pay her rent and was upset. Mr Kenyi felt sorry for her and met with the clients because at first, he did not know that they were clients from another company. Mr Kenyi said he was not trying to re-employ Ms Addo at the time to work with those clients. She presented Clients A, B and C and F to him to on-board. He only on-boarded Client X as he was not a client of another agency. He cancelled the service agreements with Clients A, B and C and F because they were Care Legion clients. Infinity then called Dr Ojediran who confirmed that they were her clients. Mr Kenyi formed the view Ms Addo was not referring clients, but rather she was acting in her own interests because she wanted to work with those clients.
152Mr Kenyi said that Client X was referred to Infinity through another agency, Phoenix, and that it was a coincidence that Client X was also with Ms Addo.
153Mr Kenyi said that he sent the Infinity agreement to Ms Addo to give to the nominee of Clients B and C. Ms Addo claimed that Mr Kenyi sent the agreement to the nominee direct.
154Mr Kenyi conceded that at first, Ms Addo’s clients were happy with her but then afterwards they were not happy. Many of them were scared to give feedback because they saw Ms Addo as working for Infinity and they did not want to get her into trouble because they look to her for support and trust. After Ms Addo left Infinity, there was an investigation and then they contacted Ms Addo about the issues.
Mr James Jai (Infinity Support Services Pty Ltd)
155Mr James Jai is a manager of Infinity. He is a program manager, and he looks after community clients and checking with team members and rostering. He was a witness of truth whose unchallenged evidence was consistent with Mr Kenyi’s evidence and available contemporaneous records. He was combative with Ms Addo and was reluctant to answer questions that he felt were irrelevant but to which there was no objection.
156Ms Addo resigned from Infinity in around April 2023. After she resigned, Mr Jai visited a client who told him that Client L was being pressured to leave Infinity by Ms Addo and Mr Saydee of Respite was coming in to sign him up. Client L did not want to leave Infinity because he felt he was getting good supports, and he had built good rapport with his worker at the time.
157Mr Jai asked Mr Saydee how he got to know Client L. Mr Saydee said he knew Client L through Ms Addo. Mr Saydee said he had been told that Client L wanted to move from Infinity by Ms Addo and it was not his will. Client L had been given a $100.00 gift card. While Mr Jai was with Client L, Mr Saydee from Respite arrived. Mr Saydee said to Mr Jai that it looked like the client wants to move to Respite. Mr Jai said that was not what Client L had told him. Mr Saydee said that he had not given Client L a gift card and that maybe it was Ms Addo who had bought it. Mr Jai saw the gift card and Mr Saydee’s business card when he visited Client L. Mr Jai took a photo of the gift card and business card.
158Under cross examination, Mr Jai said that three clients he physically called said that that they had received gift cards. They were clients that Infinity entrusted Ms Addo to work with: Client L, Client P, Client R and Client K. Mr Jai said Client R had a gift card that looked the same as Client L’s. Client R presented the gift card to Mercy Health, a mental health service. After Ms Addo resigned from Infinity, Mercy Health called and said that Client R was very upset and said that Ms Addo had come to visit her on a Saturday, a non-working day, and brought a gift card and a business card was saying a lot of things about Infinity. Ms Addo told Client R she needed to move out of Infinity because whoever was running Infinity had gone overseas and the company was collapsing. Ms Addo was promising her a lot of things that she could do or that Respite could do in terms of supports and some service provision.
159Mr Jai said that Client R did not want to move, and it was Ms Addo who was trying to poach her. It was not brought to Client R’s knowledge that Ms Addo was no longer a staff member. There is no contemporaneous email or text message about the complaint by Mercy Health.
160Mr Jai said Client P was the same. Mr Jai called Ms Addo, and she ended up resigning because of the investigation and she had also given Client P a $100.00 gift card. There was an incident report filed. The investigation is referred to in the email dated 26 April 2023. Ms Addo was not given a copy of the incident report because she was no longer an employee of Infinity.
161Ms Addo took Mr Jai to Mr Kenyi’s email dated 26 April 2023 referring to the passage “'[w]e are aware that Client P has been contacted with a friend of yours who is running the service and then given him a gift voucher…” which should be read as clearly stating that it was Mr Saydee who gave the gift cards to the participants. Mr Jai said that Client P told him that it was Ms Addo who gave him the gift card and he referred to Mr Saydee’s statement that says he never gave any clients a gift card, other than his business card.
162Mr Jai gave evidence that Client L said Ms Addo also gave him a gift card. When the client lodges a complaint the process in place is they document it and do all investigations and due diligence. They have incident reports and a register as part of their processes.
Ms Margaret Andrews (Total Passion Care)
163Ms Margaret Andrews is a director of Total Passion Care and was subpoenaed to give evidence. Total Passion Care provides services to the needs of the community under the NDIS. This includes supports for coordination services. Ms Andrews was also an honest witness whose evidence was unchallenged and is accepted.
164Ms Andrews said the role of support coordination navigates through the client plan to be able to provide other services that they related to the client.
165Total Passion Care employed Ms Addo for 5 months from 15 April 2022. The following year, Ms Andrews had contact with Ms Addo around 1 August 2023. Ms Addo offered her a job as a support coordinator for one of her clients, Client A.
166Ms Andrews met with Client A and Ms Addo was present at the meetings. The first meeting was to introduce her to Client A, and the second was for an Occupational Therapist assessment.
167Ms Andrews said that Client A needed a review and that was why Ms Addo contacted her as a support coordinator to be able to assist. Client A needed some other services to be added to her plan, which was why they involved the Occupational Therapist to obtain a report.
168There are a series of emails dated October 2023 between Ms Andrews and Ms Addo about their mutual client, Client A. Ms Andrews provided services to Client A. After 3 weeks of contact with Client A, Ms Andrews contacted Client A to ask her about her needs and what she wanted to do next after the assessment was completed.
169Client A told Ms Andrews that, “I already have a new support coordinator”. Ms Andrews then contacted Ms Addo who told her, “oh, the client has a choice and control to do so,” which is right, by the NDIS. From that day forward Ms Andrews ceased working with Client A.
170From the time that Ms Andrews worked from 1 August 2023, she sent an invoice for $600.00, which included three hours spend with Client A doing her Occupational Therapist assessment and the other days that she was involved with.
Mr Mark Harris Saydee (Respite Australia Care Pty Ltd)
171Mr Mark Harris Saydee is the Chief Executive Officer of Respite. He presented as a careful, considered witness who was ready to make appropriate concessions. There were gaps in his recollection and his evidence, and his memory lapses were generally explicable by the extensive effluxion of time involved with this case.
172Respite provides disability support services and, respite.
173On 21 February 2022, Ms Addo started working with Respite as a disability support worker, until she was indefinitely stood down 25 July 2022 after breaching a client’s confidentiality and privacy and putting a client at risk with an unknown person. Mr Saydee said he immediately stood Ms Addo down because of the incident.
174On 22 April 2023, Mr Saydee received a phone call from Ms Addo stating that she would like to meet with him. Mr Saydee asked Ms Addo to come to Respite’s office. Ms Addo said she was working and only had free time on Sunday, 23 April 2023 and asked if he could meet her at her residence. The meeting was scheduled for 23 April 2023 at 10.00am at her residence in Melton.
175On 23 April 2023 at 10.00am, Mr Saydee met with Ms Addo. He said Ms Addo stated the names of Client K, Client A, Client L, and Client P as the clients she wanted to bring to Respite.
176Ms Addo stated during the meeting that she had been taking some of those clients shopping in order to win them over to Mr Saydee’s organisation and that she had already spent over a $1,000.00, and she wanted Mr Saydee to reimburse or compensate her the money which she had spent. Mr Saydee declined the request for reimbursement and told Ms Addo that, according to company's bribery policy he cannot pay money to win a client over to Respite, so he could not commit to that request.
177Mr Saydee said that Ms Addo had also demanded that Respite should give 50% share of whatever the company will earns from each of the clients that she brings onboard. Mr Saydee also rejected that request and promised to send Ms Addo to a Support Coordination course so that she could become an independent Support Coordinator by registering with the NDIS.
178During the meeting with Ms Addo, she requested some business cards from Mr Saydee so that she could share them with some new clients she was going to meet the next day. Mr Saydee gave Ms Addo quite a few cards and reiterated to Ms Addo not to spend any more money on clients and that if she does so it will be at her own cost, and she might land herself into trouble.
179On 26 April 2023, Ms Addo and Mr Saydee met with Client A (Care Legion's client) and Client K (Infinity’s client) at Client A’s home. Mr Saydee asked Client A and Client K who their providers were. Mr Saydee said he wanted to have chat with those providers for a proper handover before he could take the clients on-board. They said that their current provider was irrelevant, as they wanted to move, and they will collect the handover documents themselves and pass it on to him. Client A wanted her son to be looked after and wanted to sign up with Respite. Mr Saydee asked if Client A’s son had been registered with the NDIS. He has not been registered. Mr Saydee asked before he could take Client A on, he had to get in touch with a provider. Client A said she would get the documents from the provider and give it to him. Mr Saydee did not receive the information he wanted, and Client A did not sign a service agreement with Respite. Mr Saydee said he only found out that Client A was with Care Legion when Dr Ojediran told him.
180Ms Addo said that Client K was willing to change providers and invited Mr Saydee to her home. Mr Saydee asked for information that he wanted, and she gave him Mr Kenyi’s and Mr Jai’s numbers. Mr Jai said that Client K was his client.
181On that same day, 26 April 2023, Ms Addo and Mr Saydee met with Client L and Client P both of whom are clients of Infinity. Prior to his meeting with those clients, Mr Saydee asked Ms Addo the provider names of the clients that she had taken him to meet, as he was eager to meet with these providers so that he could get more information about what services they required and get a handover note from the provider. Ms Addo did not provide the name of the providers to him.
182During his visit with Client L on the 27 April 2023 at about 9:45am, Mr Jai told Mr Saydee that he had been informed by Client L, that Ms Addo was attempting to manipulate him to move to Respite. Mr Jai said that he was told Respite would buy Client L clothes and take him to football games, he was also given a $50.00 gift card and he was taken shopping by Ms Addo and that she paid for few things for him a week ago. Client L did not have his NDIS plan and Mr Saydee took him to Centrelink to obtain a copy of his plan and a signed consent form. Client L said that he was interested in Mr Saydee’s service.
183During Mr Saydee’s visit with Client L and Mr Jai, Mr Jai also told Mr Saydee that one of his clients was given $100.00 gift card and Mr Saydee’s business card. Mr Jai showed Mr Saydee a photo of the $100 gift card together with his business card. Mr Saydee then requested that the photos be sent to his phone, but he did not receive the photos from Mr Jai. Mr Saydee was also told by Mr Jai that Ms Addo used to work for them at Infinity, and they had parted ways with Ms Addo because of unethical issues.
184With all of the information Mr Saydee received from Mr Jai regarding the fact Ms Addo was trying to move their participant to his organisation, Mr Saydee decided to disengage with all of the clients Ms Addo had taken him to and he expressed his dissatisfaction over her unprofessional behaviour.
185On 5 May 2023 at 5:26pm, Mr Saydee said he received a phone call from the nominee of Client C. The nominee stated that she wanted Mr Saydee’s organisation to provide services for her daughter, Client C. He asked the nominee how she got his details. The nominee told him that his details were given to her by Ms Addo. Mr Saydee promised to call Ms Addo back the next day, however, he did not call back, because he said it was evident that Ms Addo was unethically poaching clients of her employers.
186Under cross examination, Mr Saydee conceded that when Ms Addo first started working for Respite she was a fantastic staff member until she was stood down. Mr Saydee said there was an incident when “Jackie”, Respite’s house manager and Mr Saydee’s ex-wife, and Ms Addo got into a verbal argument at the office and Ms Addo sent a message to Jackie which was not very pleasant, and she was suspended that day.
187Mr Saydee agreed under cross-examination that a client can willingly invite providers into their homes. The client has a right to sign up to a provider of their choice. He agreed that this is not a breach of the NDIS guidelines.
416On the evidence before the Court, I am satisfied that while Ms Addo was employed by Care Legion and subsequently, she engaged in conduct in breach of her contractual and fiduciary obligations, and that was one of the reasons why Clients A, B and C changed providers. On the balance of probabilities, it has been established by Care Legion that Ms Addo’s misconduct was at least one of the reasons why they left Care Legion. Further, Ms Addo used and disclosed to Respite and Infinity confidential information about Care Legion’s clients that she gained by reason of her employment, to facilitate Client A, and Clients B and C to move.
417As referred to above, there is no reliable evidence from Ms Addo, Client A or the nominee of Clients B and C about any of their conversations leading to the referrals to Respite. It is noted that there are no written records about any of those communications. Ms Addo implausibly denied having made the referrals. Client A had no memory at all of the relevant meetings, and the nominee of Clients B and C could not recall which year she spoke to Mr Saydee from Respite, although she did concede she spoke to Respite with a view of moving across support, and that she was referred to Respite by Ms Addo.
418The evidence before the Court establishes that, at a minimum, Ms Addo arranged and participated in Client A’s meeting with Mr Saydee and facilitated contact between the nominee of Clients B and C and Mr Saydee, whilst leading the nominee to believe that she would be available to provide supports to Clients B and C at Respite.
419On this issue, the nominee’s evidence was that she did not know for sure whether if she moved to Respite, Ms Addo would be able to provide care for Client C – however, under cross-examination, she readily accepted that this was her intention.
420I conclude that such disloyal conduct towards Care Legion by a current employee was inherently likely to have irrevocably damaged Client A’s and the nominee’s perceptions of Care Legion as a service provider and as an employer. This would be so even if Ms Addo had not approached them both straight after she resigned from Infinity, but had she only referred them to Respite reactively after they both happened to call her at that time and disclosed their plans to leave Care Legion by sheer coincidence.
421In considering the likely effect of Ms Addo’s conduct in April and May 2023, I take into account the evidence in respect of her relationships with Client A and the nominee. In relation to Client A, the facts clearly establish that she is a vulnerable person. Ms Addo developed and maintained a close relationship with Client A, sufficiently so that they attended church together long after Ms Addo had stopped being Client A’s paid care worker. It is common ground between the parties that Ms Addo also provided other unpaid supports to Client A during the period of her employment, such as going to the food bank during COVID-19 for her. The contents of text messages between them from June 2023 also show their friendly relationship at that time.
422The evidence also demonstrates the close and trusted relationship Ms Addo fostered with the nominee of Clients B and C and with Client C. The close relationship arose from at least ten paid care worker services provided to Client C before July 2021 and the bond Ms Addo was able to form with the nominee’s daughter, together with the informal social contacts and dealings in and around the Melton area after July 2021.
423Ms Addo accepted the general proposition that she had the opportunity, through her employment with Care Legion, to build personal as well as professional relationships with Care Legion clients. This was corroborated by the evidence given by Client E that, even after Ms Addo stopped being her care worker, she maintained a close personal relationship with Ms Addo such that Client E considered her to be a friend.
424I do not accept Ms Addo’s evidence and closing submissions that her relationship with Client E was just about being professional and she could not control if clients perceived her as a friend. Under cross-examination, Ms Addo inconsistently said that the reason why she did not delete her contact details for Client E after her employment had been terminated by Care Legion was because Client E was her friend. Despite the inconsistencies in Ms Addo’s evidence, such as a reference to how she saved Client E’s details in her phone under “[Client E] – My Client”, there is the standalone admission from Ms Addo that the boundaries between the personal and the professional in her role were blurred.
425I further take into account Ms Addo’s interactions with other Care Legion clients, namely Client D, Client E, Client F and Client G, in the April and May 2023 period through to June 2023 during and after her employment with Care Legion as a single course of conduct as follows:
(a) Dr Ojediran gave evidence that Ms Addo sought to entice away Client D while Ms Addo was still an employee of Care Legion. On 25 May 2023, Dr Ojediran said Care Legion started an internal investigation and stood down Ms Addo, after being informed that Client D, to whom Ms Addo was providing support services at the time, was thinking of changing companies on the basis that Care Legion was charging him too much for rent and NDIS services. I refer to the recording of Client D’s interview with Dr Ojediran on 1 June 2023, in which Client D informs Dr Ojediran that he had been told by Ms Addo that he was paying too much for rent, and that he should go through her company because it is cheaper. Ms Addo admitted that she told Client D that he was paying too much for rent at his Care Legion residence, but she claimed she was just providing clients with information and was “was supporting the client to acknowledge his thoughts”. However, Ms Addo submitted that providing Client D with this information “does not determine the act of poaching”;
(b) Ms Addo continued to contact Client D after her termination with Care Legion. Care Legion received communications from Client D and his sister about Ms Addo by text on 10 June 2023 and by email dated 19 June 2023;
(c) Client E gave unchallenged evidence that was compelling and truthful in relation to Ms Addo trying to persuade Client E to change providers both while she was employed by Care Legion and after she was terminated. Client E gave evidence that Ms Addo’s various requests had made her uncomfortable but put it down to “Sata being Sata”;
(d) Between 13 and 15 June 2023, Care Legion received communications from Client F’s family members purporting to terminate Client F’s services agreement with Care Legion. On 15 June 2023, Dr Ojediran left a message with Client F’s mother, relevantly stating that Client F needed to make this decision. On 16 June 2023, an email – apparently from Client F’s account – was sent to Care Legion, giving such notice of termination and that Client F had signed a services agreement with Infinity. Subsequently, in or about June 2023, Ms Addo obtained and spent vouchers for games and other goods for Client F. On 4 July 2023, Client F’s mother texted Dr Ojediran stating:
“I have some concerns in regards to Sarta (sic) and wish to talk to you as the emails that were sent from mine and my mum’s emails was sent from Sarta (sic) I also have other concerns that I wish to discuss further with you”.[33]
(e) Internal case notes from a Care Legion case worker sets out that Ms Addo visited Client G at least on two occasions at her house and at her son’s house and tried to persuade her to change NDIS providers and during Ms Addo’s visit on 5 July 2023, Ms Addo also offered to take Client G out to dinner.
[33] Ms Addo spent much time cross examining Dr Ojediran in relation to the use of the vouchers given to Client F and produced many case notes, photographs and receipts. However, as previously stated, this is not an issue for determination in the present proceeding.
426In light of the above matters, I conclude that Ms Addo was in a position of trust and influence in relation to Client A and the nominee of Clients B and C. The primary evidence provides that Ms Addo helped “poison the well” and sought to entice clients to a competitor in April and May 2023. While Client A and the nominee did not move to Respite in April and May 2023, they did move to Infinity a few weeks later after Ms Addo’s employment was terminated with Care Legion and after she had referred them to Infinity.
427On the balance of probabilities, Ms Addo's disloyal conduct in April and May 2023, and the inevitable damage this did to Client A’s and the nominee’s perceptions of Care Legion, was at least one of the reasons they decided to follow Ms Addo in June 2023. In my view, the earlier misconduct remained an operative factor in the clients’ later decision.
428In addition, the evidence indicates that, at the time Ms Addo referred Client A and the nominee of Clients B and C to Respite, they had already made up their minds to follow Ms Addo to another provider. Had Ms Addo made Care Legion aware of the circumstances, Care Legion might have been in a position to salvage its relationship with the clients. The evidence introduced by Ms Addo in closing submissions indicated that on 22 May 2023, Care Legion intended to reach out to the nominee about the prospect of Ms Addo recommencing support for Client C and expanding the range of supports to be provided to her children.
429In relation to quantum, the tables setting out the calculations of Care Legion’s alleged loss and damage are attached to the FASOC and are exhibited as Annexure A to these reasons. There was no dispute in relation to the accuracy of the inputs for the calculations such as the contract value, NDIS rates, hourly rates and profit margin.
430However, in assessing Care Legion’s loss of opportunity, the Court must consider whether the amount must be discounted by the possibility that the chance or opportunity would not have eventuated.[34] Ms Addo seemed to confuse the basis upon which Care Legion made its claim in relation to its loss and damage. Ms Addo focussed on:
(a) The fact that Clients A, B and C’s Care Legion service agreements expired in June 2023 – however, there was no claim made against those clients for any breach of their service agreements;
(b) Care Legion’s alleged failure to provide evidence that Clients A, B and C had breached their service agreement to give rise to a claim for damages, such as a client breaking their lease six months into a 12-month terms such that they have to pay the rest of the rent for the outstanding period of time;
(c) The NDIS is about client choice and control, such that clients are entitled to break their “lease” whenever they want to based on their own choice, as long as there was not form of bribery or influencing or coercion or manipulation or enticing;
(d) There was no evidence that Ms Addo used any form of bribery or influencing or coercion or manipulation or enticing on Clients A, B and C to terminate their service agreement with Care Legion;
(e) Client A signed an exit form with Care Legion so there was no binding service agreement in place; and
(f) It is not an unusual practice for clients to terminate their service agreements.
[34] Barnett, K (2022) “Damages for Breach of Contract” 2nd Ed, Sweet & Maxwell pages 22, 44-51.
431The present case is based on a loss of opportunity to keep providing services over a period of time which might include in the ordinary course the renewal of a contract after that contract expired. Contrary to Ms Addo’s submissions, the evidence before the Court is that it is very unusual for clients to terminate their support with their provider. I take into account in assessing the loss of opportunity, the likelihood that the contracts with Client A, and Clients B and C would have run their course and/or be renewed but for Ms Addo’s conduct.
432Given my anterior findings that the post-termination restraints are binding on Ms Addo, in assessing Care Legion’s loss of opportunity, I do not give consideration to the prospect that Client A, and Clients B and C might have followed Ms Addo for the 12-month period of the restraint.
433As to damages or equitable compensation, the general principle governing the award of compensatory damages in contract is that the plaintiff should receive the monetary sum which, so far as money is able to do so, represents fair and adequate compensation for the loss or injury sustained by reason of the defendant’s breach. Where a breach of fiduciary duty arises, the remedy of equitable compensation is available. The object of the award is to restore persons who have suffered from loss arising from the breach.
434As with a claim for breach of contract, to obtain equitable compensation, the plaintiff must show a sufficient connection between the breach of duty and the loss sustained. The true inquiry in each case is whether the loss would have occurred had there not been a breach. However, the plaintiff need not show that the breach was the cause of the loss. It is enough that it was a cause of the loss.[35]
[35] Ramsay at [62]
435Ms Addo, while employed by Care Legion and subsequently, engaged in conduct that was calculated and did contribute to several Care Legion clients (Client A, and Clients B and C) changing their service provider, in the sense that it would be inferred that her misconduct was at least one of the reasons why they moved away from Care Legion. Further, I am satisfied that Ms Addo disclosed (at least) to Infinity information about Care Legion clients, that she gained by reason of her employment and that was not publicly known, to facilitate their move.
436Client A had received services from Care Legion or its predecessor since 7 April 2020, under various agreements. Care Legion or its predecessor had provided services to Clients B and C since 4 March 2021 under various NDIS plans and agreements with their nominee.
437Client A, and Clients B and C were clients whose needs would not have been expected to have reduced over time. Care Legion’s case is that it has, as a result of Ms Addo’s actions, lost a substantial opportunity to continue to earn revenue and profits from providing services to Client A, and Clients B, and C.
438In calculating the quantum, there is an assumption that the new contract would be for at least three years, which is no more than the old contract term. The lost profit is, in substance, the lost revenue. The Court is entitled to take into account, when assessing the value of Care Legion’s loss, that the clients might not use all of their supports. I accept that the deduction should be on the low end because the value of the loss could have been higher and could have continued for longer in light of Care Legion’s application to the NDIS for more supports. The NDIS rates could also have increased rather than decreased in the new period. This is likely – particularly for Client A. Clients B and C had some supports unused, but they had been receiving supports from Ms Addo from June 2023.
439In relation to Client A, she has used the majority of her supports and she did not make any complaints about the service provided by Care Legion, save for the gardener which was resolved. Client A would have been likely to utilise more funding than less, given that is the nature of health care assistance. In relation to the prevailing contract, it is assumed that Client A would complete her contract with Care Legion to 14 July 2023. In relation to the prospect of a second term of an additional three years, one takes into account the likelihood that Client A would have entered into the second term and completed it.
440Assuming Client A would enter into a second term, there is justification for adopting a probability that she would remain with the provider for the duration of the contract that is less than 100%. Historically, clients start with a provider, and they do not leave providers, which suggests, at a minimum, the prospect of completing the term is greater than 50%. In the two years prior to the relevant period, the evidence before the Court was that Care Legion lost 4 out of 50 clients for a range of reasons such as end of life, relocation and poaching by another agency, which might conceivably emerge in relation to any client that is serviced by such providers. Therefore, 4 out of 50, or about 8%, of clients were lost over a two-year period which means that 92% of clients were retained.
441If one makes an allowance for unanticipated vicissitudes affecting client retention, at least 90% of clients might reasonably be expected to be retained over a two-year period. However, due to the inherent uncertainties in health care, I have considered an adjustment to reduce the figure claimed by Care Legion in respect of Client A to an 80% retention rate to recognise both the uncertainty in a healthcare environment and the additional term of the claimed contract period which is three years rather than two years. Care Legion has not offered statistics for retention over a historical three-year period. Care Legion’s quantified loss of profit from the loss of Client A is, therefore, 80% of $56,881.00, being the sum of $45,504.80.
442In relation to Clients B and C, they have historically accessed less than their full entitlement and this is the amount claimed by Care Legion. In addition to the above matters, I also take into account:
(a) the prospect that they would access more than they had historically because of the particular requirements of their conditions but not utilised all of their entitlements;
(b) the nominee’s evidence that Care Legion was unable to provide a suitable match for Client B after his initial carer was given another role; and
(c) make an adjustment of 50% of the value of the amounts accessed under their contracts dated 6 April 2022.
(d) Care Legion’s quantified loss of profit from the loss of Client B is therefore 50% of the amount of $70,804.00, being the sum of $35,402.00 and Client C is 50% of the amount of $58,046.00, being $29,023.00.
443Care Legion’s total loss of profit from the loss of Clients A, B and C is therefore the amount of $109,929.80.
Conclusion
444For the reasons set out above, I find that Care Legion is entitled to the declarations sought, injunctive relief to restrain Ms Addo from continuing to misuse client information, an order for delivery up of Care Legion’s confidential information in Ms Addo’s possessions, and judgment in the sum of $109,929.80 plus costs.
445The Court makes the following orders that:
(a) There be judgment for the plaintiff against the defendant.
(b) There be a declaration that the defendant breached her contractual and fiduciary duties to Care Legion by:
(i)soliciting, enticing away, interfering with, and endeavouring to solicit entice away or interfere with, clients of Care Legion while employed by Care Legion and during the post-termination restraint period in her Employment Contract; and
(i)using Confidential Information concerning Care Legion clients obtained in the course of her employment for the purposes referred to in the preceding paragraph.
(c) The defendant be restrained, whether by herself, her servants or agents or howsoever otherwise, from using confidential information concerning any Care Legion client obtained in the course of her employment for the purpose of soliciting, enticing away, interfering with or endeavouring to solicit, entice away or interfere with such client.
(d) The defendant deliver up, on oath to Care Legion, all copies of Care Legion’s Confidential Information or any part thereof in whatever form the same may exist or be found in possession, power or control of the defendant.
(e) The defendant pay the plaintiff the sum of $109,929.80.
(f) The defendant pay the plaintiff’s costs of and incidental to the proceeding, including any reserved costs, to be taxed in default of agreement.
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Certificate
I certify that these 103 pages are a true copy of the judgment of Her Honour Judge Burchell delivered on 23 May 2025.
Dated: 23 May 2025
Alexandria Peck
Associate to Her Honour Judge Burchell
ANNEXURE A
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