Integrated Global Partners Pty Ltd v Hyde
[2018] VSC 45
•13 February 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S CI 2017 04878
| INTEGRATED GLOBAL PARTNERS PTY LTD | Plaintiff |
| (ACN 161 017 634) | |
| v | |
| EMMA HYDE (and others according to the schedule) | Defendants |
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JUDGE: | McDONALD J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 December 2017 |
DATE OF JUDGMENT: | 13 February 2018 |
CASE MAY BE CITED AS: | Integrated Global Partners Pty Ltd v Hyde & ors |
MEDIUM NEUTRAL CITATION: | [2018] VSC 45 |
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INJUNCTION – Plaintiff accessed second defendant’s confidential information when conducting an audit of an employee’s laptop computer – Employee undertaking work for second defendant in breach of contractual obligations to plaintiff – Plaintiff utilised confidential information in preparation of statement of claim – Application for orders striking out statement of claim and restraining plaintiff’s lawyers from continuing to act in proceeding – Circumstances in which plaintiff accessed confidential information did not impose obligation to maintain confidentiality of documents – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr I G Waller QC with Mr J S Mereine | HWL Ebsworth |
| For the Defendants | Mr P H Solomon QC with Ms M Norton | Norton Rose Fullbright Australia |
HIS HONOUR:
The plaintiff (IGP) is engaged in the business of providing management consulting services worldwide to companies in the mining and resource industry and government bodies, agencies, authorities and departments. The first defendant, Ms Hyde, was employed by IGP as Practice Manager between 1 January 2016 and 29 September 2017. The second defendant, Tactical Transformation Services and Associates Pty Ltd (TTSA), was incorporated on 7 April 2017. On the same day, the third defendant, Mr Nucifora, was appointed as its sole director and company secretary. The sole shareholder of TTSA is Audacia Global Pty Ltd (Audacia), a company controlled by Mr Nucifora. Mr Nucifora was a director of IGP between 23 October 2015 and 30 June 2016. Ms Donna Murphy is Mr Nucifora’s sister. Ms Murphy was employed by IGP between 1 September 2015 and 25 October 2017. From 1 August 2016, Ms Murphy was employed in the role of business support officer. Mr Nucifora was her supervising partner. Between 16 March 2017 and 25 October 2017, Ms Murphy was employed pursuant to a written contract of employment as a casual employee at an hourly rate of $61.65.
On 6 July 2017, IGP entered into a consultancy agreement with Audacia pursuant to which Audacia was engaged as a consultant to undertake work for IGP. On 10 July 2017, IGP entered into a selective share buy-back agreement with Audacia. IGP, Audacia and Mr Nucifora entered into a shareholder exit deed pursuant to which IGP agreed to purchase Audacia’s shares in IGP. Mr Nucifora agreed to resign as a director of IGP and Audacia agreed to procure Mr Nucifora to perform consultancy work for IGP under the consultancy agreement.
The unchallenged evidence of Mr Herman Kleynhans, a director of IGP, is that on or about 20 October 2017, he became aware that:
(a)between 9 August 2017 and 29 September 2017, Ms Hyde had, without any authority, downloaded a substantial number of confidential documents belonging to IGP from Sharepoint while she was doing work for TTSA and Mr Nucifora;
(b)TTSA appeared to be engaged in, or preparing to engage in, the business of, among other things, providing management consultant services to companies in the mining and resources industry; and
(c)it was not necessary for Ms Hyde, in the performance of her role as practice manager at IGP, to have downloaded those confidential documents belonging to IGP from Sharepoint.[1]
[1]Affidavit of Herman Kleynhans sworn 4 December 2017 (‘Kleynhans Affidavit’) [23].
From 1 August 2016, in her role as business support officer, Ms Murphy worked for IGP from her home in Jensen, a suburb of Townsville. IGP assigned Ms Murphy a laptop for the purpose of undertaking her duties. Ms Murphy’s use of this computer was subject to IGP’s IT system Acceptable Use Policy. Under the terms of that policy, IGP retained the right to:
… monitor the use of its IT systems and the data on it at any time. This may include (except where precluded by local privacy laws) examination of the contents stored within the email and data files of any user, and examination of the access history of any users.[2]
Under the terms of the policy, IGP reserved the right to ‘regularly audit networks and systems to ensure compliance with this policy’.[3] Ms Murphy signed the plaintiff’s Acceptable Use Policy on 2 November 2015.[4]
[2]Second affidavit of Herman Kleynhans sworn 5 December 2017 [7(b)].
[3]Ibid.
[4]Ibid [7(c)].
At some point subsequent to 17 August 2017, Mr Nucifora provided Ms Murphy with a laptop computer for the purpose of her assisting him on an unpaid basis with office support administrative work relating to the business of TTSA.[5] Ms Hyde gave Ms Murphy shared access to the TTSA One Drive for the purpose of undertaking this work.[6] Ms Murphy accessed the TTSA One Drive at her home from her TTSA laptop and synched the TTSA One Drive to her TTSA laptop.[7]
[5]Affidavit of Donna Murphy affirmed 1 December 2017 [10(a)].
[6]Ibid [10(b)].
[7]Ibid [10(c)].
On 24 October 2017, at the direction of Mr Nucifora, Ms Murphy was preparing TTSA invoices for a vendor prequalification application for TTSA using her TTSA laptop. Ms Murphy noticed that some of the folders of documents uploaded to the TTSA One Drive and synched to her TTSA laptop were no longer being displayed. She re-synched the whole TTSA One Drive to her TTSA laptop and made a backup of all documents uploaded to the TTSA One Drive onto her Hard Drive. On the same day, she connected her Hard Drive to her IGP laptop from her home and exported to her Hard Drive a copy of all documents uploaded to the IGP One Drive.[8]
[8]Ibid [19]–[20].
In October 2017, Toniolo Consulting was contracted to provide information technology and support services to IGP. On 24 October 2017, Mr David Toniolo, a director of Toniolo Consulting, remotely accessed Ms Murphy’s IGP laptop and made a copy of all of the documents which were stored on the laptop, as well as devices which were attached to it at that time. Relevantly, those documents included the contents of the TTSA One Drive which had been backed up on Ms Murphy’s Hard Drive and connected to her IGP laptop.
The documents downloaded by Mr Toniolo on 24 October 2017 included a folder called ‘Emma Hyde’. Those documents included a document entitled ‘TTS Start-up Actions’.[9] Mr Kleynhans’ unchallenged evidence, based on the contents of this document, is that Ms Hyde was responsible for, among other things:
(a)setting up the folder structure and security for TTSA’s document management system (One Drive), which was to be completed by 26 August 2017;
(b)documenting TTSA’s on-boarding and off-boarding process, including a welcome email and all new starter documents, which was to be completed by 31 July 2017;
(c)documenting the site on-boarding and off-boarding process, including the medical process and incident reporting policy, which was to be completed by 31 July 2017;
(d)setting up of a central email address;
(e)creating a site-based employee timesheet template; and
(f)establishing a referral agreement with Alliance Automation.[10]
[9]Exhibit HJK25 to Kleynhans Affidavit.
[10]Kleynhans Affidavit [38].
The documents downloaded by Mr Toniolo on 24 October 2017 include emails to Ms Hyde which indicate that she was involved in:
(a)the preparation of business cards and design work for TTSA whilst an employee of IGP;[11]
(b)organising professional indemnity and public and product liability insurance for TTSA while she was employed by IGP;[12]
(c)preparation of instructions for TTSA employees to set up and share documents using the TTSA One Drive for Business account;[13] and
(d)the preparation of quotes and proposals for TTSA whilst Ms Hyde was still employed by IGP.[14]
[11]Ibid [39]; Exhibit HJK26 to Kleynhans Affidavit.
[12]Kleynhans Affidavit [40]–[41]; Exhibit HJK28 to Kleynhans Affidavit.
[13]Kleynhans Affidavit [43]; Exhibit HJK29 to Kleynhans Affidavit.
[14]Kleynhans Affidavit [56]–[57]; Exhibits HJK41–HJK47 to Kleynhans Affidavit.
On 27 October 2017, IGP filed an originating process and statement of claim. The defendants contend that, in drafting the statement of claim, IGP’s lawyers used TTSA’s confidential information which was on the Hard Drive attached to Ms Murphy’s IGP laptop when it was remotely accessed by Mr Toniolo on 24 October 2017. The TTSA confidential information which the defendants contend was accessed by IGP’s lawyers in the preparation of the statement of claim is identified in Exhibit MJN7 to the affidavit of Mr Nucifora affirmed 1 December 2017. The TTSA confidential information includes the following categories of information:
(a)proposed ownership arrangements pertaining to TTSA and its subsidiaries;
(b)engagement proposals, quotes and contracts for service between TTSA and its actual or prospective clients, recording matters including the services to be provided and professional fees to be applied by TTSA;
(c)employment contracts and other documents detailing employee entitlements, including remuneration and incentive payments calculated by reference to revenue and net profit projections;
(d)TTSA’s employee charge-out rates;
(e)‘start-up’ tasks relevant to TTSA’s business;
(f)the identity of TTSA’s clients and potential clients;
(g)tax invoices and policy schedules for TTSA’s insurance policies, containing details including the policy number and premium payable;
(h)TTSA’s suppliers and vendors;
(i)employee email user names and passwords;
(j)an advice that is the subject of a claim for legal professional privilege; and
(k)TTSA’s capability statements.
On 13 November 2017, the defendants’ solicitors, Henry Davis York, wrote to the plaintiff’s solicitors requesting electronic copies of documents referred to in the statement of claim at paragraph 13(h), including the documents referred to in the particulars. The request for the electronic documents was made because each of the defendants and their lawyers were based in Brisbane. The plaintiff’s solicitors responded in a letter dated 16 November 2017, by which they enclosed the documents listed therein, including those referred to in paragraph 13(h) of the statement of claim. The email included links to two Dropbox folders which were said to contain the documents referred to in the letter from the plaintiff’s solicitors.
In a letter dated 23 November 2017, the defendants’ solicitors noted that the Dropboxes included a range of documents containing the TTSA confidential information. The letter stated, among other things, that IGP was not authorised by the defendants to access, use or disclose the TTSA confidential information. Further, the defendants’ solicitors requested that the plaintiff explain how the documents came into its possession.
By a letter dated 24 November 2017, the plaintiff’s solicitors gave the following explanation as to how the documents contained in the Dropbox folders came into the plaintiff’s possession:
Our client obtained a copy of the documents when it remotely accessed its own laptop computer that it had assigned to Donna Murphy. In doing so, our client accessed the contents of that laptop and any devices that were attached to it. At that time our client was concerned to ensure that it had a copy of its confidential documents that were on those devices in the event that they were subsequently deleted. Accordingly, a copy of the documents on those devices was made and included the documents which you now seek to have destroyed.[15]
[15]Exhibits MJN2–MJN5 to the affidavit of Michael Nucifora affirmed 1 December 2017.
The defendants contend that the plaintiff’s conduct in accessing and using TTSA’s confidential information, particularly for the purpose of drafting paragraph 13 of the statement of claim, constitutes a breach of confidence. By a summons dated 4 December 2017, the defendants seek orders:
(a)subparagraphs 13(e) to 13(h) and paragraphs 14-16, 18, 20-22, 25-27 and 31-33 (including any particulars thereto) of the Statement of Claim dated 27 October 2017 be struck out;
(b)the plaintiff:
(i)deliver up all hard copies of TTSA’s Confidential Information (as those capitalised words are defined in exhibit “MJN-7” to the affidavit of Michael John Nucifora affirmed on 12 December 2017) in its possession, custody or power to the solicitors for the defendants;
(ii)return any computer disk or other storage device containing copies of TTSA’s Confidential Information in its possession, custody or power to the solicitors for the defendants;
(iii)delete all electronic copies of TTSA’s Confidential Information in its possession, custody or power;
(iv)delete or destroy all other documents in its possession, custody or power which contain or record information derived from TTSA’s Confidential Information; and
(v)provide by affidavit, written confirmation of compliance with subparagraphs (b)(i) to (iv) above to the solicitors for the defendants;
(c)following the completion of the steps to be taken in subparagraph (b) above, any lawyer or person within the organisation of any firm of lawyers engaged by the plaintiff, or any counsel retained on behalf of the plaintiff, who has seen or directly or indirectly made use of TTSA’s Confidential Information, be restrained from continuing to act or work for the plaintiff in the proceeding; and
(d)the Statement of Claim dated 27 October 2017 be removed from the Court file.
Confidential information ‘obtained’ by third parties
The TTSA information which was accessed remotely by Mr Toniolo on 24 October 2017 included information which had the necessary quality of confidence to sustain a cause of action in breach of confidence.[16] A key issue in the current proceeding is whether the circumstances in which the TTSA confidential information was obtained by IGP imported an obligation of confidence upon IGP. The TTSA information was not obtained by IGP as a consequence of any breach of confidence. Rather, IGP was exercising its lawful right to audit the laptop computer of an employee, Ms Murphy. In their written submissions, the defendants submit:
It follows that where a third party receives information with actual or constructive notice of its confidentiality, the obligation of confidence will extend to that party. Accordingly, confidential information that is obtained not by reason of breach of confidence, but as a result of an accident or inadvertence (including information that is “found”) is protected, at least where the recipient knows or ought to know that the information is confidential.[17]
[16]Coco v AN Clark (Engineers) Limited [1969] RPC 41, 47; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 [30].
[17]‘Outline of Submissions in Support of the Defendants’ Summons’, dated 8 December 2017 [32].
The defendants cite three authorities in support of the proposition set out above: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd;[18] Attorney-General v Guardian Newspapers (No 2);[19] and Trevorrow v South Australia (No 4).[20]
[18](2001) 208 CLR 199 [34]–[36] (‘Lenah Game Meats’).
[19][1990] 1 AC 109, 281.
[20](2006) 94 SASR 64 [80] (‘Trevorrow’).
The passage from the judgment of Gleeson CJ in Lenah Game Meats relied upon by the defendants is as follows:
34. It is clear that there was no relationship of trust and confidence between the respondent and the people who made, or received, the film. It is also clear that if, by information, is meant the facts as to the slaughtering methods used by the respondent, such information was not confidential in its nature. But equity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence. And the principle of good faith upon which equity acts to protect information imparted in confidence may also be invoked to “restrain the publication of confidential information improperly or surreptitiously obtained”. The nature of the information must be such that it is capable of being regarded as confidential. A photographic image, illegally or improperly or surreptitiously obtained, where what is depicted is private, may constitute confidential information. In Hellewell v Chief Constable of Derbyshire, Laws J said:
“If someone with a telephoto lens were to take from a distance and with no authority a picture of another engaged in some private act, his subsequent disclosure of the photograph would, in my judgment, as surely amount to a breach of confidence as if he had found or stolen a letter or diary in which the act was recounted and proceeded to publish it. In such a case, the law would protect what might reasonably be called a right of privacy, although the name accorded to the cause of action would be breach of confidence. It is, of course, elementary that, in all such cases, a defence based on the public interest would be available.”
35. I agree with that proposition, although, to adapt it to the Australian context, it is necessary to add a qualification concerning the constitutional freedom of political communication earlier mentioned. The present is at least as strong a case for a plaintiff as photography from a distance with a telephoto lens. But it is the reference to “some private act” that is central to the present problem. The activities filmed were carried out on private property. They were not shown, or alleged, to be private in any other sense. That is consistent with the concession referred to above.
36. When, in Attorney-General v Guardian Newspapers Ltd (No 2) Lord Goff of Chieveley gave examples of cases where an obligation of confidence would be imposed, even in the absence of some confidential relationship, his Lordship referred to “obviously confidential” documents, or “secrets of importance to national security” coming into the possession of a member of the public. What his Lordship described as “a public interest in the maintenance of confidences” extends to matter which a reasonable person would understand to be intended to be secret, or to be available to a limited group to which that person does not belong.[21]
[21]Citations omitted.
The passage from the judgment of the Full Court of the South Australian Supreme Court in Trevorrow relied upon by the defendants is as follows:
80.Where a person has obtained confidential information, the court will restrain a wrongful use of that information: Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39. In doing so, the court is enforcing the obligation of conscience arising from the circumstances in or through which the information was communicated or obtained: Moorgate Tobacco Co Ltd v Philip Morris Ltd (No2) (1984) 156 CLR 414 per Deane J at 437–438. The court will restrain publication where the confidential information has been acquired improperly or surreptitiously: Lord Ashburton v Pape [1913] 2 Ch 469 at 475, or where the person to whom the confidential information has been disclosed seeks to use it in breach of the terms on which it was disclosed and to the detriment of the party who communicated the confidential information: Coco v A N Clark (Engineering) Ltd [1969] RPC 41 at 47. The principle will apply also where a person innocently comes into possession of confidential information through the inadvertence of another. Assume a person inadvertently leaves confidential information in a satchel on a bus. The person finding the satchel opens it for the purpose of obtaining information as to the person who left the satchel behind and in the course of doing so reads confidential information. If necessary, the court will make an order restraining the finder from using that confidential information. In making that order, the court would be enforcing the obligation of conscience arising from the fact that the finder came into possession of the information in circumstances in which it was not intended that the confidential information could be used by the finder.
The passages in the judgments set out above do not support the proposition that equity will intervene in every case where a third party receives information which that party knows or ought to know to be confidential. In Lenah Game Meats, Gleeson CJ observed:
But equity may impose obligations of confidentiality even though there is no imparting of information in circumstances of trust and confidence. And the principle of good faith upon which equity acts to protect information imparted in confidence may also be invoked to “restrain the publication of confidential information improperly or surreptitiously obtained”.[22]
[22](2001) 208 CLR 199 [34].
In the present case, the information obtained by IGP was not surreptitiously or improperly obtained. Rather, it was obtained pursuant to the exercise of an employer’s lawful right to audit an employee’s laptop computer. The facts of the present case are readily distinguishable from those which underpin the judgment of Vickery J in DC Payments Pty Ltd v Next Payments.[23] In DC Payments, the defendant inadvertently provided the plaintiff with its ‘master customer list’ in the course of discovery. The list was an attachment to an email which had been discovered. The customer list recorded the details of each merchant with whom the defendant had a contract. The plaintiff made use of the list when pleading certain allegations in an amended statement of claim. Vickery J stated:
It is now also well-settled that the publication of information which is confidential in nature can amount to an actionable breach of confidence where a person innocently comes into possession of such information either through inadvertence or by some other accidental conduct, either on the part of the recipient of the confidential information or on the part of the owner of the protected material.[24]
[23][2016] VSC 315 (‘DC Payments’).
[24]Ibid [30].
In their written submissions, the defendants contend:
Put another way, the basis on which equity intervenes is by deciding whether in all the circumstances it would be unconscientious for the recipient of information to decline to respect the confidentiality of the information. That question may be determined by reference to the recipient’s knowledge at the time of the receipt of information, and also having regard to matters the recipient has come to know by the time the court considers whether to grant a remedy.[25]
[25]‘Outline of Submissions in Support of the Defendants’ Summons’, dated 8 December 2017 [31].
In support of the propositions set out above, the defendants cite the judgment of the New South Wales Court of Appeal in Armstrong Strategic Management & Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd.[26] The particular passage relied upon is at [100] as follows:
100.Coco v A N Clark (Engineers) Ltd [1969] RPC 41 does not provide an exhaustive statement of when equity will hold that an obligation of confidence has arisen. Even if there is no entrusting of confidential information by A to B in circumstances of confidence, there can sometimes be an obligation of confidence that attaches to information that is inherently confidential or private if that information is illegally or surreptitiously obtained, or is come across in the street, or is received unsolicited. In such a case there is “an obligation of conscience arising from the circumstances in or through which the information was communicated or obtained.” An obligation of confidentiality can be recognised even if there is no particular relationship between the parties and no deliberate malfeasance, but where a person receives information that, by virtue of the circumstances in which it is received, he or she knows or ought to know is confidential. The basis upon which equity intervenes in such circumstances is by deciding whether, in all the circumstances, it would be unconscientious for the recipient of the information to decline to respect the confidentiality of the information. That can depend not only on what the recipient knew at the time of receiving the information, but also on what the recipient has come to know by the time the court is considering whether or not to grant the remedy.[27]
[26](2012) 295 ALR 348.
[27]Ibid [100] (citations omitted).
The reasoning set out above does not support the relief sought by the defendants. I accept the defendants’ submission that ‘the basis upon which equity intervenes is by deciding whether in all the circumstances it would be unconscientious for the recipient of the information to decline to respect the confidentiality of the information’. In the circumstances of the present case, however, it is not unconscientious for IGP to have declined to respect the confidentiality of the TTSA confidential information. It obtained the information exercising a lawful right to audit an employee’s laptop. The sole reason the TTSA confidential information was accessible was because TTSA engaged Ms Murphy to undertake work for it. Prima facie, as discussed below, that engagement facilitated a breach by Ms Murphy of express and implied contractual obligations which she owed to IGP. The defendants have failed to establish that IGP obtained the TTSA confidential information in circumstances which imported an obligation upon it to respect the confidentiality of the information.
If I am wrong in reaching the conclusions set out above, I would, in any event, decline to grant the defendants the relief they seek. The defendants do not come to Court with clean hands.
The circumstances in which equitable relief may be denied by reference to the doctrine of unclean hands was succinctly stated in Meyers v Casey[28] by Isaacs J as follows:
… where the right relied on, and which the court of Equity is asked to protect or assist, is itself to some extent brought into existence, or induced by some illegal or unconscionable conduct of the plaintiff, so that protection for what he claims involves protection of his own wrong. No court of Equity will aid a man to derive advantage from his own wrong, and this is really the meaning of the maxim.[29]
[28](1913) 17 CLR 90.
[29]Ibid 124.
In Cowell v British American Tobacco Australia Services Ltd,[30] the Court of Appeal stated:
But since the jurisdiction to enjoin publication or use of privileged information is limited to such equity as may inhere in the confidentiality of the communication, ordinary principles dictate that injunction ought not go at the suit of an applicant who comes to equity with unclean hands or where the subject-matter of the communication ‘is the existence or real likelihood of the existence of an iniquity in the sense of a crime, civil wrong or serious misdeed of public importance, and the confidence is relied upon to prevent disclosure to a third party with a real and direct interest in redressing such crime, wrong or misdeed’.[31]
[30][2007] VSCA 301.
[31]Ibid [34].
In the passage set out above, the Court of Appeal identified two discrete bases upon which injunctive relief could be refused in respect of an applicant seeking an injunction to restrain misuse of confidential information. First, by reason of an applicant coming to equity with unclean hands. Second, by reference to the iniquity doctrine where the confidence is relied upon to prevent disclosure to a third party with a real and direct interest in redressing a crime, wrong or misdeed.
In the current proceedings, I have come to a clear view that the defendants do not have any entitlement to equitable relief because they come to Court with unclean hands. It is therefore unnecessary to express any concluded view regarding the application of the doctrine of iniquity.
From 16 March 2017 until the termination of her employment on 25 October 2017, Ms Murphy was employed by IGP pursuant to a written contract of employment. Clause 10, Conflict of Interest, was in the following terms:
You agree that during the employment you will not directly or indirectly be concerned or interested (except as a shareholder of a publicly listed company) in a business that is competitive with the business of IG Partners.
In addition to this express provision, Ms Murphy’s contract of employment contained an implied duty of fidelity to IGP not to engage in conduct which impeded the faithful performance of her obligations or was destructive of confidence between her and IGP.[32]
[32]Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 [30] (French CJ, Bell and Keane JJ), [63]–[66] (Kiefel J).
I have set out earlier in this judgment the circumstances in which Mr Toniolo was able to access the TTSA confidential information. The evidence before the Court supports a finding that during the period 17 August 2017 to 25 October 2017, Ms Murphy was undertaking office administration support work for TTSA. Mr Kleynhans’ unchallenged evidence is that during the period prior to 20 October 2017, TTSA appeared to be engaged in, or was preparing to engage in, business which was in direct competition with IGP’s business. The performance of work by Ms Murphy for TTSA whilst an employee of IGP prima facie constitutes a breach of cl 10 of her contract, as well as a breach of the implied duty of fidelity. The fact that Ms Murphy did not receive any payment for the work which she performed for TTSA does not alter this conclusion.
Ms Murphy is Mr Nucifora’s sister. There is evidence that when Ms Murphy commenced employment in the role of business support officer with IGP on 1 August 2016, her supervising partner was Mr Nucifora.[33] On 1 July 2017, Mr Nucifora commenced providing consultancy services to IGP in respect of various mining projects in Australia and overseas.[34] The evidence of Mr Kleynhans is to the effect that between 9 August 2017 and 29 September 2017, Ms Hyde, without authorisation, downloaded a substantial number of IGP’s confidential documents. Ms Hyde was employed by IGP until 29 September 2017. The evidence presently before the Court supports a finding that, prior to that date, Ms Hyde was concurrently undertaking work both for TTSA and Mr Nucifora.[35]
[33]Kleynhans Affidavit [11].
[34]Ibid [18].
[35]Ibid [22]–[23].
The evidence presently before the Court supports a finding that the defendants had actual knowledge that the request for Ms Murphy to undertake work on behalf of TTSA, including providing her with access to the TTSA One Drive, would place her in a position incompatible with her contractual obligations to IGP. The conduct of the defendants, coupled with Ms Murphy’s acquiescence thereto, is the reason why IGP was able to access TTSA’s confidential information when Ms Murphy’s laptop was audited on 24 October 2017.
If, contrary to my primary finding, the defendants had established that the circumstances in which IGP obtained TTSA’s confidential information were such as to impose upon it an obligation of confidence, I would in any event deny the defendants the relief they seek. The defendants do not come to Court with clean hands. The defendants’ application by way of summons dated 4 December 2017 is dismissed. I shall hear the parties on the question of costs.
SCHEDULE OF PARTIES
| No. S CI 2017 04878 | |
| BETWEEN: | |
| INTEGRATED GLOBAL PARTNERS PTY LTD | Plaintiff |
| (ACN 161 017 634) | |
| v | |
| EMMA HYDE | First Defendant |
| TACTICAL TRANSFORMATION SERVICES AND ASSOCIATES PTY LTD (ACN 618 448 454) | Second Defendant |
| MICHAEL JOHN NUCIFORA | Third Defendant |
2
3
0