Data Processor Pty Ltd v Launtel Pty Ltd

[2023] NSWSC 422

Supreme Court

New South Wales

Medium Neutral Citation:

Data Processor Pty Ltd v Launtel Pty Ltd [2023] NSWSC 422

Hearing dates:

19 April 2023

Date of orders:

19 April 2023

Decision date:

19 April 2023

Jurisdiction:

Equity - Commercial List

Before:

Ball J

Decision:

Preliminary discovery granted

Catchwords:

CIVIL PROCEDURE — Preliminary discovery — To identify address of potential defendant — Where plaintiff proposes to seek search orders as first step

Legislation Cited:

Court Suppression and Non-Publication Orders Act 2010 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Principal judgment

Parties:

Data Processor Pty Ltd (Plaintiff)
Launtel Pty Ltd ABN 34 107 572 341 (First Defendant)
X Integration Pty Ltd ABN 112 450 343 (Second Defendant)
Optus Mobile Pty Ltd ACN 054 365 696 (Third Defendant)
St.George Bank – A Division of Westpac Banking Corporation ABN 33 007 457 141 (Fourth Defendant)

Representation:

Counsel:
SA Lawrance SC with A Smorchevsky (Plaintiff)

Solicitors:
Kardos Scanlan (Plaintiff)

File Number(s):

2023/235090

Publication restriction:

The Court’s reasons for judgment on the plaintiff’s application for preliminary discovery not be published (other than to the defendants) before 3 May 2023.

EX TEMPORE JUDGMENT

1. Before the Court is an application for preliminary discovery under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 5.2 seeking to establish the whereabouts of Mr Sean O'Toole. Mr O'Toole is a full-time employee of the plaintiff. The plaintiff claims that Mr O'Toole has breached duties he owes as an employee of the plaintiff by misusing confidential information concerning betting odds in relation to sporting events which the plaintiff generates and sells to customers as part of its business. As a first step, the plaintiff proposes to seek search orders against Mr O'Toole. In order to be able to do so, the plaintiff needs to know where Mr O'Toole can be found. Mr O'Toole works from home. However, it appears that he does not currently reside at the address he gave as his home to the plaintiff. That address was surveilled by a private investigator on 12, 14, 15 and 17 April 2023 for substantial parts of the day, but there was no evidence that Mr O'Toole lives there. Since he works from home, it is to be expected that if he did live at that address he would have been seen at least on one occasion during the period when the premises were observed. The plaintiff does not have any other current address for Mr O'Toole. In particular, the New South Wales electoral roll shows Mr O'Toole's address as being the address that the plaintiff has.

2. In its written submissions, the plaintiff has indicated a number of further steps it could take to try to ascertain the current address of Mr O'Toole. I accept, however, that each of those steps runs the risk of placing Mr O'Toole on notice that the plaintiff is investigating his conduct, and if that were to happen, Mr O'Toole may take the very steps that the proposed search order is designed to prevent. I am satisfied in those circumstances that the plaintiff has made reasonable inquiries concerning Mr O'Toole's whereabouts.

3. The plaintiff has provided the Court with substantial material in support of its application for a search order. It is not necessary to say anything about that material in the present context except to say that I am satisfied that the plaintiff has a good arguable case that it is entitled to such an order on the basis of that material.

4. The plaintiff seeks documents disclosing Mr O'Toole's whereabouts from two internet service providers, his mobile telephone provider and his bank. For the reasons given in the plaintiff's written submissions, and in the affidavit of Mr Keith Jeffs, General Manager of the plaintiff, sworn on 18 April 2023, I am satisfied that each of those persons may have material that enables the plaintiff to identify Mr O'Toole's whereabouts.

5. In those circumstances the Court makes the following orders:

1. Upon the undertaking of the plaintiff’s solicitor to pay the applicable filing fee, leave to the plaintiff to file in Court:

1. the summons;

2. the affidavits of:

1. Keith Jeffs dated 18 April 2023;

2. Trent Whitbourne dated 18 April 2023;

3. Alistair McKeough dated 18 April 2023;

4. Keith Jeffs dated 19 April 2023.

(Documents)

2. The summons be made returnable instanter.

3. Order pursuant to r. 5.2(7) that the plaintiff need not serve the summons on the defendants.

4. Order pursuant to r. 5.2(2) that, by 4pm on 21 April 2023:

1. The first defendant give discovery to the plaintiff of documents sufficient to show any address(es) at which or to which the first defendant provides internet or telecommunications services for the benefit of, or which are used by Sean O’Toole;

2. The second defendant give discovery to the plaintiff of documents sufficient to show any address(es) at which or to which the second defendant provides internet or telecommunications services for the benefit of, or which are used by Sean O’Toole;

3. The third defendant give discovery to the plaintiff of documents sufficient to show:

1. the geographical location of:

1.   the mobile phone using phone number “XXXXX ”;

2.   any other phone known or believed by the third defendant to be registered to or used by Sean O’Toole,

(or the cell towers used by any of those mobile phones) during the period 1 March 2023 to 18 April 2023; and

2. the most recent address for Mr Sean O’Toole held by the third defendant.

4. The fourth defendant give discovery to the plaintiff of documents sufficient to show:

1. the locations or businesses at which credit or debit cards held by Sean O’Toole (holder of account number XXXXX , BSB XXXXX ) have been used during the period 1 March 2023 to 18 April 2023; and

2. the most recent address for Mr Sean O’Toole held by the fourth defendant.

5. Order that:

1. service of any orders upon the first defendant be effected by sending the order, together with copies of the Documents, to each of the following email address by 4pm on 19 April 2023:

1. “[email protected]”

2. “[email protected]”

3. “[email protected]”

2. service of any orders upon the second defendant be effected by sending the order, together with copies of the Documents, to the email address “[email protected]” by 4pm on 19 April 2023;

3. service of any orders upon the third defendant be effected by leaving the order, together with copies of the Documents, at the address Building C, Level 4, 1-7 Lyonpark Road, Macquarie Park NSW 2113 by 4pm on 19 April 2023; and

4. service of any orders upon the fourth defendant be effected by sending the order, together with copies of the Documents, at the address Level 18, 275 Kent Street, Sydney NSW 2000 by 4pm on 19 April 2023.

6. Upon the plaintiff by its counsel giving the usual undertaking as to damages, order that each of the first, second, third and fourth defendants be restrained until 4pm on 2 May 2023 from disclosing any of:

1. the contents of the Documents;

2. the existence or subject-matter of these proceedings;

3. the existence or subject-matter of any orders made in these proceedings; and

4. any steps taken by them in compliance with any orders made in these proceedings,

to any person, including Mr Sean O’Toole, other than:

5. for the purpose of complying with any of these orders;

6. as required by law; or

7. for the purpose of obtaining professional legal advice or legal services.

7. Order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), on the ground that it is necessary to prevent prejudice to the proper administration of justice, that each of the defendants be prohibited, until 4pm on 2 May 2023, from disclosing any of:

1. the contents of the Documents;

2. the existence or subject-matter of these proceedings;

3. the existence or subject-matter of any orders made in these proceedings; and

4. any steps taken by them in compliance with any orders made in these proceedings,

to any person, including Mr Sean O’Toole, other than:

5. for the purpose of complying with any of these orders;

6. as required by law; or

7. for the purpose of obtaining professional legal advice or legal services.

8. Liberty to apply to the Court to each of the first, second, third and fourth defendants on 6 hours’ notice.

9. These orders be entered forthwith.

10. These orders not be recorded in the Court’s computerised record system until 3 May 2023.

11. The Court’s reasons for judgment on the plaintiff’s application for preliminary discovery not be published (other than to the defendants) before 3 May 2023.

12. The Court notes the plaintiff’s undertaking to meet the reasonable costs of each defendant to the present summons in locating and producing documents the subject of orders made on the plaintiff’s application.

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Decision last updated: 26 July 2023