King Kong Corporation Pty Ltd v Moses

[2022] FCA 1066

FEDERAL COURT OF AUSTRALIA

King Kong Corporation Pty Ltd v Moses [2022] FCA 1066

File number(s):	VID 510 of 2022
Judgment of:	WHEELAHAN J
Date of judgment:	8 September 2022
Catchwords:	INJUNCTIONS – application for urgent interlocutory relief by the former employer of the respondent – restraint clauses in employment agreement – alleged breach of contractual and general law obligations of confidence – application for early discovery – whether relief should be granted in circumstances where the applicant had not effected personal service on the respondent and the hearing operated, functionally, on an ex parte basis – limited interim injunction granted for seven days – balance of application adjourned
Legislation:	Federal Court Rules 2011 (Cth) rule 41.07
Division	General Division
Registry	Victoria
National Practice Area	Other Federal Jurisdiction
Number of paragraphs	7
Date of hearing	8 September 2022
Counsel for the Applicant	Mr T Dowling
Solicitor for the Applicant	Danaher Moulton
Counsel for the Respondent	The respondent did not appear

ORDERS

VID 510 of 2022

BETWEEN:

KING KONG CORPORATION PTY LTD (ACN 153 324 497)

Appellant

AND:

ALEXANDER MOSES

Respondent

ORDER MADE BY:	WHEELAHAN J
DATE OF ORDER:	8 SEPTEMBER 2022

PENAL NOTICE

TO:     ALEXANDER MOSES

IF YOU (BEING THE PERSON BOUND BY THIS ORDER):

(A)      REFUSE OR NEGLECT TO DO ANY ACT WITHIN THE TIME SPECIFIED IN THIS ORDER FOR THE DOING OF THE ACT; OR

(B)      DISOBEY THE ORDER BY DOING AN ACT WHICH THE ORDER REQUIRES YOU NOT TO DO,

YOU WILL BE LIABLE TO IMPRISONMENT, SEQUESTRATION OF PROPERTY OR OTHER PUNISHMENT.

ANY OTHER PERSON WHO KNOWS OF THIS ORDER AND DOES ANYTHING WHICH HELPS OR PERMITS YOU TO BREACH THE TERMS OF THIS ORDER MAY BE SIMILARLY PUNISHED.

UPON the applicant by its counsel undertaking:

(a)to submit to such order (if any) as the Court may consider to be just for the payment of compensation, (to be assessed by the Court or as it may direct), to any person, (whether or not that person is a party), affected by the operation of the order or undertaking or any continuation (with or without variation) of the order or undertaking; and

(b)to pay the compensation referred to in (a) to the person affected by the operation of the order or undertaking,

THE COURT ORDERS THAT:

1.Subject to order 2 below, until 4.00 pm on Thursday 15 September 2022 or further order, the respondent by himself, his servants or agents, or howsoever, be restrained from using, copying or distributing in any way the documents listed in Annexure A to these orders, being the documents listed in Annexure JD-7 to the affidavit of Jessica Delahunty affirmed 7 September 2022.

2.The restraint effected by order 1 does not apply to any use or copying of the documents by the respondent or by any solicitors or counsel retained by him for the sole purpose of obtaining legal advice in relation to this proceeding, and of responding in this proceeding to the applicant’s claims.

3.The applicant’s interlocutory application otherwise be adjourned for hearing before the General Duty Judge at 10.15 am on Thursday 15 September 2022.

4.The applicant, by its solicitors, is to send –

(a)a copy of this order;

(b)a copy of its written submissions; and

(c)a copy of the settled reasons for judgment given today –

to the respondent’s email address as soon as practicable.

5.Order 4 above does not affect any requirement to effect personal service of the originating application and this order on the respondent, which should be effected as soon as practicable: see Federal Court Rules 2011 (Cth), r 41.07

6.There be liberty to apply.

7.Costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ANNEXURE A

Document ID	Title	Document Description
1Rw6TOXqsXEs6HU5zru_Nuagcx1LwzDzMjcCjws3pSzk	Backlink Requests	A list of backlink requests submitted for clients, including the associated budgets and target URLs dating back to 2019.
1Gb4SrJkYKXaTZibknIdCuqJH7Gzpo3wb7t42rA8CTHI	CLIENT - Keyword Mapping	This is an internal template used to document an SEO keyword mapping strategy.
1oRu_iDCMQoSg9Mp5plqLckCo4Rp7AQnUkgTSWeWmL-0	CLIENT On-Page SEO	This is an internal template used to document an SEO keyword content strategy for a client's website.
13N7cMlo6XWXanxX5DE-XbD4uUkZTwuQU0t2HzOXgvOQ	Copy of SEO Logins	This is a list of logins to all third party and King Kong Google Workspace tools used by the King Kong SEO team to perform their work. This list reveals not only our sensitive login credentials, but also our full software stack that we use to perform our work.
1V1CnxxVnJQu9q3V1RRg8aqdYgHFS_Z2Y	CRO Onboarding Questionnaire - Google Forms.pdf	This is a copy of the questionnaire that we send to clients so we can collect the information we need to prepare for their digital project with King Kong.
1kHYOfD9PNlcBZZV5wgFDfjaBilQrTGau	footerlinks-NEW.html	Internal work product - custom code to add footer links onto a large SEO client's website.
1lm7cJo6gp0-9d6HqkGfOHo76owhcWdAL_YgHPki2_N4	GA4 Shopify Checkout Code	Internal work product - code to add Google Analytics 4 Shopify tracking to ecommerce client checkout.
1vxfyPklboAR-XAEjgFQT7t9SnxAqxZDV	GA4-Ecommerce-WooCommerce-Template.json	Internal work product - code for Google Analytics 4 WooCommerce ecommerce client websites.
1dgvDf_FcTakctFZ9BG1a2-hDstbS7Z4G	General-GA4-Template(view, phone, email & form).json	Internal work product - code for Google Analytics 4 tracking on client websites.
1yrI5ZjJu5NahkCLCOpmWlvWMjeAaZzplAh7-A6R8a7Q	KK - AM - Passwords	This is a list of logins to all third party and King Kong Google Workspace tools used by the King Kong account management team to perform their work. This list reveals not only our sensitive login credentials, but also our full software stack that we use to perform our work.
1utdYJgzOVdsNRVJ43IzT4yRsbvU6gHZ6zJNrXkxlhxo	Marina SEO clients master	Internal work product - a master list of SEO clients belonging to another SEO specialist, including handover notes and status of client.
1SeXTHiNGEsQ3tPdbC_QtwWuCLZbtNwI6	Onboarding Questionnaire.pdf	This is a copy of the questionnaire that we sent to clients so we can collect the information we need to onboard them as new clients into the agency.
14C3VlLtHrhjr6QjsYFUlpJtILvFwKdQKsrO8ndIolak	Sales Copy Changes for CLIENT	Internal template to capture sales copy on SEO client product pages.
18istBb1siYp0xZGDPOCDN7_QIZ-MKROozG00_v_qV7w	SEO Content Orders - Original	Detailed list of SEO content ordered (including number of articles and type of content) for all King Kong SEO clients dating back to 2018.
1VeI2QHuqu9SNSLfTGUeUq82JTAkDiv8CXBBw1tFi5nw	SEO Department SOPs	Our customer onboarding process which details how our systems work together to bring on new customers and the internal processes that take place once a new customer is signed up.
1mnoNnyWYnRKcE8J6gaXMO2QgIzYK1IFT	styles-scripts.html	Internal work product - custom code to style SEO content on a large SEO client's website.
1cR3VRQTeZX-6zAsQ2KbDtalH4RKRPy0_WFfTy2ZBM54	TRIBAL CHEATSHEET	This is an extensive document of over 80 pages that lists all the custom code and methods we use for deploying onsite SEO strategies onto a client website.
1MeGqBX8cke6bVO4_AocwCFxrOUL9-eptjDBP4C-ZPg0	ABRI - Zack Wallace- Client Asset Checklist	Internal work product - client asset checklist showing the documentation and other assets we collect as part of our digital projects work for a client. No significance for SEO and the document was stored on a drive that was not relevant to the SEO team.
15pJye_--3-umM31KiVR53ovGPRs6KrxGPsECo58Whvc	ADU Agency - Landing Page Strategy	Internal work product - documentation outlining our our landing page offer strategy for a client. No significance for SEO and the document was stored on a drive that was not relevant to the SEO team.
1nc8mcRgZTpG1L37pUMnBO-XIGHBEb4zyj_U15Bj8DNM	ADU Agency - Strategy Meeting	Video recording of meeting with client where we outline our strategy, research and findings to support their landing page digital project. No significance for SEO and the document was stored on a drive that was not relevant to the SEO team.
1m76WOKQy5ORzWJFjIijPDP3rfpjNdw7Yh6pVEarayo0	Aqua Pro Water Systems - Content Order - 16 Articles	SEO content ordered for an SEO client.
1bqdTJbQHI1SqMyW2YpsWpBgfjxhRProddXyHplNeh2Y	AVEISEOT - WIP SEO Tracker	An internal spreadsheet tracking the performance of SEO campaigns.
1foD37kaB4VcM3-783iDwf-k8WHeFdJvAoKgO5ZK2R34	Cashify Loans  - Content Order - 10 Articles	SEO content ordered for a large SEO client.
178yE64JkffWl7Qjw81eI6SzJyw3AEncYCZP1N14Kx-k	Cashify Loans  - Keyword Mapping	SEO keyword mapping strategy for a large SEO client.
1zptfNawsQHJ7ownx0G8QizVNVw-cH0C8JGHszDDWQec	Diamond Protection Firefighting Training Course LP	Internal work product - documentation outlining our our landing page offer strategy for a client. No significance for SEO and the document was stored on a drive that was not relevant to the SEO team.
1-fZH61AaM4vsdL4deWxBrMSPMsk8v4F5tD36RPgMkYY	Exit Strategy eBook 2 (Housing Firesale)	Copy for a client's digital project. No significance for SEO and the document was stored on a drive that was not relevant to the SEO team.
15USq3Il2beqmdkYopUrkNYo2r8EHQqhOC7lrSauQ7Vc	Green Bee Project - Brad Esposito- Client Asset Checklist	Internal work product - client asset checklist showing the documentation and other assets we collect as part of our digital projects work for a client. No significance for SEO and the document was stored on a drive that was not relevant to the SEO team.
1oYWoMb6Da0FonDvorBPwTow8VtQv2b6mjl1wR-o_qBs	Hamriyah Free Zone Authority - Optimisations	Internal work product - proposed optimisations for a client's strategy.  No significance for SEO and the document was stored on a drive that was not relevant to the SEO team.
1aydN5Ok95K93_oxT3KCVVJxTPZ3V8OK8p_C8XzoIPUk	Kamahl Simon -  Kamahl Barhoush- Client Asset Checklist	Internal work product - client asset checklist showing the documentation and other assets we collect as part of our digital projects work for a client. No significance for SEO and the document was stored on a drive that was not relevant to the SEO team.
1IV-A2RakA6gUiKBUMuDqeq-Y-LxXesxEpTQHFZF92IY	Marcus Pearce - Marcus Pearce- Client Asset Checklist	Internal work product - client asset checklist showing the documentation and other assets we collect as part of our digital projects work for a client. No significance for SEO and the document was stored on a drive that was not relevant to the SEO team.
1LDeQ4nnsjXiwNJwGiSlWDC6b8tceYLuU	PegnPickle.docx	Copy for a client's digital project. No significance for SEO and the document was stored on a drive that was not relevant to the SEO team.
1lBXJs0zAHVpUwZ0O87mpctSIEo-NxzU7	Pegnpickle.jpg	Images for a client's digital project. No significance for SEO and the document was stored on a drive that was not relevant to the SEO team.
10znGl56IGiqY1EiZvWmqrvAXpbYHfI1nsCvchsyEsVo	SaaS Partners - Patrick Parker (MAJOR SALES FUNNEL AND MINI SALES FUNNEL) - Client Asset Checklist	Internal work product - client asset checklist showing the documentation and other assets we collect as part of our digital projects work for a client. No significance for SEO and the document was stored on a drive that was not relevant to the SEO team.
1BP4vseGFfS1MKnyuwLK4-L_y75e_A9sU9lW7ELG50CU	Southwestern Consulting -  Adam Outland - Strategy	Internal work product - documentation outlining our our offer strategy for a client. No significance for SEO and the document was stored on a drive that was not relevant to the SEO team.
1bhicmdaR7jmtwQYmib0QgV3fqunbwT7lHGH3Ja2HV9w	Southwestern Consulting -  Adam Outland- Client Asset Checklist	Internal work product - client asset checklist showing the documentation and other assets we collect as part of our digital projects work for a client. No significance for SEO and the document was stored on a drive that was not relevant to the SEO team.
1Dm1cMUeEGDn-DdqVHMZe4_OEXoA6cL0QXfXCtatSvi4	Southwestern Consulting -  Adam Outland- PM Test Checklist	Internal work product - project management checklist showing internal process for our digital projects work for a client. No significance for SEO and the document was stored on a drive that was not relevant to the SEO team.
1CBG3O0o73GTe1JZe03Jva3Brr2AN0uOs3LNrPUEeoPI	Team AB Calendly Integration	Internal work product - technical requirements related to our digital projects work for a client. No significance for SEO and the document was stored on a drive that was not relevant to the SEO team.

REASONS FOR JUDGMENT
(Ex tempore, revised)

WHEELAHAN J:

1. The applicant is engaged in the business of digital marketing. The respondent is a former employee of the applicant. The respondent’s employment was governed by a written employment agreement. The respondent gave the applicant notice of resignation on 1 August 2022, and served his final day on 26 August 2022.

2. The applicant filed today an originating application seeking injunctive and other relief based upon allegations that the respondent has breached and proposes to breach restraint obligations in the contract of employment. The applicant further alleges that the respondent has breached express confidentiality obligations in the contract of employment, and that prior to the conclusion of his employment, the respondent downloaded specified documents, the contents of which are confidential to the applicant, with the result that there was a threat that the respondent would use information in the documents in breach of contractual and general law obligations.

3. Within the originating application is an application for interlocutory relief until the final hearing and determination of the proceeding, and an application for early discovery. The solicitors for the applicant requested that the interlocutory application be listed urgently, and today. In response to that request, I listed the interlocutory application at 2.15 pm this afternoon. At the commencement of the hearing, I was informed by counsel for the applicant that the respondent had not been personally served with the process. However, I was informed that the process had been sent to the respondent by email, and a copy email from the applicant’s solicitors to the respondent was produced. I was told, and the email confirmed, that the documents were sent shortly before 1.00 pm today.

4. In the circumstances, I put to counsel for the applicant the application for interlocutory relief was functionally an ex parte application. Counsel for the applicant accepted this to be the position.

5. During the course of the hearing, I conveyed to counsel for the applicant a provisional view that I would not make on an ex parte basis orders directed to enforcing the contractual restraint obligations, or contractual obligations directed to confidential information generally, or the orders for early discovery that were sought. In light of those indications, counsel for the applicant did not further pursue those parts of the interlocutory application on an ex parte basis.

6. That leaves for consideration a number of identified documents which were listed in an annexure to an affidavit of Jessica Delahunty affirmed 7 September 2022 and filed by the applicant in support of its application. The evidence in that affidavit discloses a prima facie case that these documents contained information that is especially confidential to the applicant, and that the documents were downloaded by the respondent prior to the conclusion of the term of his employment. The combined force of the description of the information contained in the documents, and the fact of their downloading supports a prima facie inference that the respondent downloaded the documents for the purpose of later use, that is, following the conclusion of his employment.

7. Having regard to the claimed sensitive nature of the documents, and the prima facie circumstances in which they were downloaded, there is a real risk that the information in the documents may be used by the respondent in a way that is unlawful, that is in breach of express or implied obligations under the contract of employment, or alternatively in breach of general law obligations as to confidence. I consider that the balance of convenience favours the grant of an interim injunction for the limited time of seven days so as to preserve the status quo pending a hearing at which the respondent has an opportunity to be heard in relation to these documents, and also the balance of the interlocutory application by the applicant. There is a real risk that, if the applicant is successful at trial in its claims in relation to the confidential information that it claims lie within the downloaded documents, damages will not be an adequate remedy.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheelahan.

Associate:

Dated:       9 September 2022