Delacamp Australia Pty Ltd v In Hue Ch'ng

[2002] VSC 101

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
PRACTICE COURT

No. 4655 of 2002

DELACAMP AUSTRALIA PTY LTD
	Plaintiff
v.
IN HUE CH'NG	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	21 March 2002
DATE OF JUDGMENT:	25 March 2002
CASE MAY BE CITED AS:	Delacamp Australia Pty Ltd v. Ch'NG
MEDIUM NEUTRAL CITATION:	[2002] VSC 101

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Injunction - Former employee misusing confidential information of former employer.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R.A. Millar	Nathan Kuperholz
For the Defendant	Mr M. Sifris	Maddocks

HIS HONOUR:

1           It is conceded by counsel for the defendant that there are serious issues to be tried in this proceeding and that it is appropriate that some restraining order or orders be continued against the defendant.  Those, if I may say so, were very sensible concessions.  I say that for the reason that in my view, based on the material presented to the court, it is strongly arguable that the defendant breached the duty of good faith he owed to the plaintiff by taking a list of its clients for use after termination of the employment relationship which existed between him and the plaintiff and thereafter did use the list and the other information contained on the list for that purpose.

2           The dispute between the parties seems to me to basically boil down to whether there should be a limitation imposed on the continuation of any such order by virtue of what has been termed the "springboard principle":  see Slevin and Brown v. Associated Insurance Brokers of Australia (Qd) Pty Ltd[1].

[1]Unreported, 16 February 1996, QCA 18.

3           Having considered this matter over the weekend, I consider that it is appropriate to restrain the defendant in the manner contended for by his counsel, but for a longer period of time than that proposed by him.

4           I have arrived at that conclusion basically because of the defendant's behaviour in taking the plaintiff's customer list with him when he did and the brazen manner in which the evidence indicates he used it since that time, clearly to the detriment of the plaintiff.

5           Accordingly I make the following orders:

1.The defendant deliver up to the plaintiff all copies of the plaintiff's customer list being the list comprising Exhibit AADS 10 to the affidavit of Andrew Suddick sworn 12 March 2002 and any other list or document containing or incorporating the plaintiff's list of customers ("the confidential information").

2.        On or before 27 March 2002 the defendant:

(a)delete from all computers in his possession and under his control the confidential information save for the customers of Magnetone Pty Ltd or Magnetone Pte that are not customers of the plaintiff.

(b)file and serve an affidavit deposing to the matters referred to in sub-paragraph (a) on or before 8 April 2002.

3.Until 30 June 2002 or further order the defendant be restrained whether by himself or his servants and agents from:

(a)       making any use of the confidential information;

(b)Using any list, summary record or other similar document recording any product price information concerning any of the plaintiff's customers.

4.Pursuant to Rule 29.07, the defendant make discovery of all documents on or before 8 April 2002, such discovery being general but including all documents (whether electronically stored and/or otherwise) in the defendant's possession or control which:

(a)are within the categories of documents contained in Schedule A of the Orders of the Court dated 5 March 2002;

(b)were obtained from the plaintiff, and any documents extracted or derived therefrom;

(c)relate to any dealings with any person who was, prior to 31 October 2001, a customer or supplier of the plaintiff.

5.The plaintiff file and serve its statement of claim on or before 28 March 2002.

6.The defendant file and serve his defence and counterclaim (if any) on or before 8 April 2002.

7.The plaintiff file and serve its reply and defence to counterclaim (if any) on or before 18 April 2002.

8.The plaintiff file and serve its affidavit of documents on or before 19 April 2002.

9.The proceeding thereafter be referred to the Listing Master for pre-trial directions and be accorded such priority as the Listing Master deems appropriate.

10.That the plaintiff be released from as much of its undertakings to the court concerning documents obtained from the defendant pursuant to the orders of the court dated 5 March 2002 as would prevent the use of such documents in the bringing of proceedings in Singapore concerning the defendant, Andrew Loe, Magnetone Australia Pty Ltd and/or Magnetone Singapore Pte Ltd or other parties associated with Magnetone Australia Pty Ltd and/or Magnetone Singapore Pte Ltd.

11.      I reserve the costs of this application.

12.      I reserve liberty to the parties to apply.

13.I direct that this order be drawn up by the plaintiff's solicitors and be signed by a judge pursuant to Rule 60.04 of the Rules of Civil Procedure.

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