Liberty Financial Pty Ltd v Scott (No. 3)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
INTELLECTUAL PROPERTY LIST
(TRANSFERRED FROM THE FEDERAL COURT
OF AUSTRALIA, VICTORIA DISTRICT REGISTRY,
PROCEEDING NO. V1256 OF 2001)

No. 9140 of 2003

LIBERTY FINANCIAL PTY LTD (ACN 077 248 983) SHERMAN CHING MA	First Plaintiff Second Plaintiff
v
TREVOR WILLIAM SCOTT BLUESTONE GROUP PTY LTD (ACN 091 201 357) trading as BLUESTONE MORTGAGES	First Defendant Second Defendant

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1-3 JUNE 2005
DATE OF JUDGMENT:	13 SEPTEMBER 2005
CASE MAY BE CITED AS:	LIBERTY FINANCIAL LTD & ANOR v SCOTT & ANOR (NO. 3)
MEDIUM NEUTRAL CITATION:	[2005] VSC 363

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PRACTICE AND PROCEDURE – Pleading – Claims against former employee and his new employer, including claims for breach of contract, misuse of confidential information and breach of copyright - Whether second substituted statement of claim complies with pleading rules and requirements laid down in earlier judgments – Whether pleading likely to prejudice, embarrass or delay the fair trial of the proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr D. Meagher QC with Mr R. Kendall QC and Mr A. Rodbard-Bean	Dibbs Abbott Stillman
For the First Defendant	Mr P. Jopling QC with Mr A. Maryniak	Allens Arthur Robinson
For the Second Defendant	Mr S. Robb QC with Mr S. Anderson	Freehills

Table of Contents

Background

The Structure of the Statement of Claim

Identification of the “Confidential Information” – The Schedule and its Role

The Schedule - Conclusion

An Analysis of the Statement of Claim

Copyright Claim

Breach of Contract – The Scott Confidentiality Undertaking

Breach of Contract – The Employment Agreements

Other Matters and Conclusion

HIS HONOUR:

Background

On 30 November 2004, I delivered judgment in an application by the plaintiffs to amend their statement of claim so as to accord with a proposed pleading then before me. In the opening paragraphs of that judgment, I described the background to the application in the following words:

"Liberty Financial Pty Ltd, ("Liberty") the first plaintiff in this proceeding, is a money lender. It claims to be the first financier in Australia to serve a specialised market: borrowers who, because they are not sufficiently credit worthy, are not of much interest to conservative lenders such as banks. Lending in this market has its risks; but if you have carefully identified these, and are astute enough, and if your lending policies are sufficiently sophisticated and flexible, there is money to be made. Indeed, Liberty claims to have developed, through skill and hard work, all the attributes necessary to exploit the market to the full. It wishes to preserve its position in it. But its very success is a reason why the competition is now fierce.
Bluestone Group Pty Ltd ("Bluestone"), the second defendant, is one of those competitors. One of its employees is the first defendant, Mr Trevor Scott. He formerly worked for Liberty in a senior managerial position. In December 1999, however, he resigned. He subsequently worked for a time with an association of finance brokers known as Australian Finance Group (Victoria) Pty Ltd; but this ended in July 2000 or thereabouts, when he commenced employment with Bluestone. He there held, as he had with Liberty, a senior managerial position. He continues to be one of Bluestone's executives.
Liberty blames Mr Scott for giving Bluestone a springboard into a market which before then belonged to Liberty alone. Guided by its managing director (the second plaintiff, Mr Sherman Ma) Liberty (as it claims) pioneered sophisticated techniques not only for the introduction of potential borrowers but also for the assessment of the risk each presented and the terms most likely to be acceptable to them and profitable to the lender. Liberty therefore answered a need that had been in part created by the very difficulty of meeting that need, and which could be met only by overcoming those inherent problems. Having done the hard work, Liberty wished to reap the rewards. Then Bluestone entered the scene. It required a springboard if it was to challenge Liberty’s dominance. According to Liberty, it was Mr Scott who provided it. He did so by handing to Bluestone information about Liberty that the latter regarded as confidential. This was information that Mr Scott obtained through his employment with Liberty. Mr Scott knew of its great value. He also knew that it was confidential. Liberty and Mr Ma wish to put a stop to Mr Scott’s, and Bluestone’s, use of it."

In the result, I held that the plaintiffs' proposed amended statement of claim did not comply with the relevant rules. I therefore refused the application, but gave the plaintiffs leave to replead in accordance with the principles which I endeavoured to set out in my judgment.

A fresh pleading was prepared. I held it to be unsatisfactory. On 1 April 2005, the Court of Appeal dismissed an application for leave to appeal from that judgment. On 20 April, the plaintiffs filed, pursuant to leave granted by me on 16 February, a fresh statement of claim (properly called the “second substituted statement of claim”; I shall, for convenience, refer to it simply as the “statement of claim”). By summons issued on 11 May 2005, the second defendant seeks pursuant to r.23.01 of the Rules of the Supreme Court an order that the proceeding be permanently stayed or, alternatively, that judgment be entered for it on the grounds that the proceeding does not disclose a cause of action, is scandalous, frivolous or vexatious, or is an abuse of the process of the court. In the alternative, the second defendant seeks - pursuant to the same rule - an order that judgment be entered for it in respect of certain claims the subject of the statement of claim. These include a claim for infringement of copyright, a claim for unlawful inducement of breach of contract, and a claim for conversion. According to the summons of 11 May, the basis upon which these orders are sought is, again, that the paragraphs of the statement of claim in which the relevant claims are addressed do not disclose a cause of action, are scandalous, frivolous or vexatious or are an abuse of the process of the court.

As a further alternative, the second defendant seeks pursuant to r.23.02 an order that the statement of claim (or so much of it as remains after the claims made elsewhere in the summons have been dealt with) be struck out in its entirety on the grounds that it does not disclose a cause of action, may prejudice, embarrass or delay the fair trial of the proceeding, or is otherwise an abuse of the process of the court.

The first defendant, by summons also filed on 11 May 2005, joins the application made by the second defendant.

On 20 May 2005 Bluestone indicated that it wished to put before the Court affidavit material which, it was submitted, would demonstrate that much of the information for which confidentiality is claimed is in fact in the public domain. The plaintiffs objected. They pointed out, in my view reasonably, that it might well be a practical impossibility for them to absorb, and respond adequately to, a large body of material in the very limited time then available. I accordingly ruled that, unless following their consideration of the affidavits in question, the plaintiffs felt able to deal with them at the hearing beginning on 1 June 2005, I would not allow Bluestone to then rely upon those affidavits.

In the result, the plaintiffs were unable to prepare by the end of the month their response to the new material. The June hearing therefore concentrated upon the (alternative) claim, described in paragraph [4] above, for relief pursuant to r.23.02. Other claims made by the defendants in their summonses of 11 May will be dealt with, if necessary, at a later stage.

During the course of the hearing which began on 1 June, and by written submissions prepared both before and after that hearing, the defendants sought to have me rule on issues the appropriate resolution of which requires consideration of material that is external to the statement of claim. I take one example. In paragraph 2.4 of its written submissions dated 11 May 2005, Bluestone refers to a document that has been pleaded, but only in part. Bluestone relies on a portion of that document which has not been pleaded, and on the basis of that reliance submits that the plaintiffs’ claims for breach of covenant cannot succeed.

In my opinion, it is not open to the parties in a hearing pursuant to r.23.02 to go beyond that which has been pleaded. Accordingly, during the hearing itself and in the preparation of this judgment, I confined my consideration of the issues to those which can be properly defined as pleading points.

Under the umbrella of their respective summonses, each defendant makes wide ranging attacks on the statement of claim. Whereas in the past their complaints about the way the plaintiffs have framed their case concentrated upon a lack of specificity in the description of the information said to have been misused, now the defendants add to that continuing complaint submissions that the statement of claim is both prolix and unnecessarily complex, and ascribes to Mr Ma ownership of copyright which, as a true reading of the pleading demonstrates, he does not have. The defendants also submit that the terms under which Mr Scott was employed are pleaded in such a way as to cause confusion (in particular, through inconsistency and duplication in the formulation of the pleading); that neither the confidential information nor its alleged misuse is properly identified; and that the plaintiffs have persisted in maintaining what the defendants describe as an unsustainable “ambit” claim.

The Structure of the Statement of Claim

The statement of claim opens with an important allegation about Liberty. According to paragraph 3 of that document, Liberty first came into possession of information about itself, its customers and its business associates in 1996. It continued to gather such information thereafter. Not all of it is the subject of this proceeding. Despite the defendants’ reference to an “ambit” claim, the plaintiffs have by paragraph 3.d[1] of the statement of claim asserted that the information "relevant to the claims made herein [is] particularised in Appendix 3 and paragraph 55 herein."
[1]For some unspecified reason the document eschews brackets as an accompaniment to the identification of subordinate portions of its paragraphs.

In the nature of things, that limitation is not surprising. It is hardly likely that all the information known to a significant trading corporation about itself, its customers and its business associates could together and at once be at the centre of any cause or causes of action which is or are capable of being tried by other than a tribunal with supernatural powers. None of the parties to this case have ascribed to any judge qualities properly characterised as divine.

Nevertheless, as I noted at paragraph [4] of my judgment of 16 February, on one reading of the statement of claim on which the plaintiffs then sought to rely, Mr Scott stood accused of taking with him from Liberty to Bluestone “the entirety of the information relating to Liberty’s commercial activities.” But the rules of pleading, as they apply to cases in which confidential information has been said to have been misused in breach of an equitable duty of confidentiality, require a plaintiff to identify the actual information said to have been misused – and to do so with such specificity as would enable the reader to know precisely what that information is. So long as the present plaintiffs maintained that Mr Scott had misused the entirety of the information relating to Liberty’s commercial activities, so they were obliged to identify all that information with precision and in detail. The statement of claim then before me failed that test.

If paragraph 3.d. of the present statement of claim is to be taken at face value, this document does not fall into the same category as its predecessor. It limits the information said to have been misused. No longer is it claimed that the misuse has extended to the entirety of the information relating to Liberty’s commercial activities. Now, the plaintiffs restrict their allegations of misuse to a narrower field; and the boundaries of that field are “particularised in Appendix 3 and paragraph 55 herein.” It follows that, provided the appendix and the paragraph are sufficiently specific, the vice which infected the earlier pleading will not infect its successor.

The plaintiffs put forward a number of causes of action. The material facts relied upon to establish each element of each of them must, of course, be pleaded. Where the plaintiffs allege breach of an equitable obligation to maintain the confidentiality of confidential information, each item of information allegedly misused is a material fact. Each must therefore be identified with such specificity as would put before the reader the very information the subject of the proceeding. In many cases, this would necessitate the inclusion of that information in the statement of claim. In others, it may be sufficient to refer to the document or documents in which the information is to be found. This course is not open unless the information that is alleged to be the subject of the breach can be clearly distinguished from other documented material.

In every other respect, the ordinary rules of pleading apply. Those rules provide that all the material facts must be pleaded – but in a summary form and so as not to be encumbered by the evidence by which the material facts are to be proved.[2] Thus, if it is alleged that the defendant is in breach of a contractual obligation of confidence, the term imposing that obligation must be set out or described. The breach must also be alleged; and the allegation must be such as to identify both the particular confidential obligation that has not been maintained, and the means by which the breach occurred. If consequential damage is said to have been suffered, the pleading must include such facts relevant to the rule in Hadley v Baxendale[3] as would, if not alleged, take the defendant by surprise when evidence of them is given at trial. The more complicated the facts, or the law, or both, the greater the necessity that logic and clarity prevail, and that unnecessary verbiage be eschewed. The goal of the pleader must be to strive for, to seek, and to find, such simplicity as will enable opposite parties to (a) know what case it is they have to meet and (b) prepare an intelligible response, by way of a properly pleaded defence, to it.
[2]Supreme Court (General Civil Procedure) Rules 1996 r.13.02(1)(a)
[3](1854) 156 ER 145

It is also necessary that the pleadings enable the court to have some conception of what the case is about. As James LJ said in Davy v Garrett:

"But a defendant may claim ex debito justitiae to have the plaintiffs' case presented in an intelligible form, so that he may not be embarrassed in meeting it; and the court ought to be strict even to severity in taking care to prevent pleadings from degenerating into the old oppressive pleadings of the Court of Chancery. If pleadings such as this are to be allowed, the gentlemen who took such pains in the preparation of the rules may say, as Oliver Cromwell did after an unsuccessful attempt to reform abuses, ‘The sons of Zeruiah be too hard for me’."[4]

[4](1878) 7 Ch. Div. 473 at 486. Zeruiah, the mother of many sons, was the sister of David, King of Israel. David, having conquered Goliath and established his capital in Jerusalem, might have thought to live the balance of his life untroubled by family difficulties. Instead, the later part of his reign was afflicted by the revolts of his own sons and those of his fecund sister. The gentlemen who took such pains in the preparation of the Rules of Court that came into operation following the enactment of the Judicature Acts 1873 -1875 intended (or so James LJ would have it) that the old oppressive pleadings of the Court of Chancery should by the advent of those Rules to be banished into the past.

In essence, this case concerns the use or misuse of intellectual property in information, and of documents in which some of that information is contained. The plaintiffs assert (by the statement of claim, paragraphs 10-17) that Liberty, or alternatively both Liberty and Mr Ma, owned and own the copyright in certain literary works. Mr Scott infringed that copyright. Central to this claim is the identification of the documents allegedly the subject of such misuse.

Next, the plaintiffs assert (paragraphs 18-34) that Mr Scott is in breach of contractually imposed obligations of confidence. At the core of this claim is the identification of the contract, and its relevant terms, and of the confidential information which has allegedly been misused. The particular instances of misuse must also be specified.

Another contractual claim is put forward. The plaintiffs assert that, in addition to his breach of the confidentiality clause or clauses in his contract of employment, Mr Scott also breached a restraint of trade clause in that contract (paragraphs 35-39). To this, the plaintiffs add the allegation that Bluestone induced Mr Scott to breach both his obligation of confidence and the restraint of trade clause (paragraphs 41-43).

A claim based on the alleged conversion of certain documents and the information +++++++++++++++++++++++++++++++++++++++++++++++++++++++++contained in them is made by paragraphs 44 and 44A of the statement of claim. This is followed by a cause of action based upon s.183 of the Corporations Act 2001 (although it is pleaded as being based upon “s.183 of the Corporations Law 1989[5] and its statutory successors including the Corporations Act 2001”) (paragraphs 45-53). The penultimate allegation is that Mr Scott breached both his equitable obligation as to confidentiality (paragraphs 54-60) and his fiduciary duties (paragraphs 61-64). Together with these allegations it is finally alleged (paragraphs 65-69) that Bluestone not only knew of the latter misdemeanours, but also both assisted Mr Scott to commit them, and received benefits thereby. The statement of claim concludes with the prayer for relief.
[5]Section 183 of the Corporations Law 1989 is concerned with the ratification of contracts made before the formation of the company, and is therefore irrelevant to the present proceeding.

Liberty maintains that all the information the subject of this proceeding (which, for present purposes is to be contrasted with all the information about Liberty itself) has always been applied for the purpose of establishing, developing and conducting Liberty’s business,[6] and has been “kept confidential”.[7] With this in mind, and remembering both the importance of identifying with precision the information in question and that “that relevant to the claims made herein” is “particularised in Appendix 3 and paragraph 55”, one moves ahead to that paragraph. Its opening words state that the information set out in it "was and is information within that described in the Schedule".
[6]Statement of claim para. 3.e.
[7]Ibid, para.3.f.

Identification of the “Confidential Information” – The Schedule and its Role

Here is to be found the first real problem with the statement of claim. The expression "the Schedule" initially appears not in paragraph 3.d, which represents itself as pointing the reader to the repository of the information “relevant to the claims made herein”, but in a much later paragraph: paragraph 54. That paragraph is inserted immediately after the heading "Breach of Equitable Obligation as to Confidentiality". After commencing with the words: “At all times material the information in the Schedule”, it goes on without more to ascribe to that information “the necessary quality of confidence to allow confidentiality to be imposed”. These are discussed in more detail in paragraph [30] below.

Before turning to examine what place, if any, the Schedule has in the pleading, I interpolate a brief description of it. It is entitled "Schedule of Particulars of Liberty's Confidential Information" (emphasis added); one might therefore expect a degree of detail and of specificity. It consists of nearly 29 pages of references to such things as “[t]he combined characteristics of the Liberty product known as the Fresh Start Fixed Rate Home Loan” (which characteristics are then set out, with what accuracy or completeness or level of generality I am at present unable to ascertain). It also refers to documents, most of which are to be found in a court book prepared for this case. Under a table of contents of the Schedule, four principal headings are set out: "Products"; "Underwriting Policies"; "Originators"; and "Corporate". Of themselves, these mean little to the lay reader. They may or may not assist the defendants; but the audience at which a pleading must be directed includes the court, not all the judges of which will necessarily be omniscient.

When one turns to the body of the Schedule, one finds, on the one hand, portions of it which set out with specificity the information to which it refers; and, on the other, portions of it that do not. An example of the first category is to be found under the first heading – "Products" – and the sub-heading: "Market Research". Paragraph 1 under that sub-heading reads:

"The determination by Liberty that the practice of non-conforming lenders in the United States and the United Kingdom, whereby originators were required to provide a minimum threshold of loans applications [sic] for a specified period, was unsuitable to the practice of non-conforming lending in Australia."

Two other paragraphs follow before the next sub-heading: "Range and Common Characteristics of Products". The first paragraph under this sub-heading is an example of minimal specificity. It reads (omitting references to the court book):

"The Liberty product range, namely:
(a)     Fresh Start Fixed Rate Home Loan;
(b)     Fresh Start Variable Rate Home Loan;
(c)     Business Equity/Business Power;
(d)     Bridging Finance;
(e)     Alta;
(f)     Platinum +".

In the absence of the court book, this is meaningless to the lay reader. Although a pleading should be complete in itself, it may be that references to the court book remedy the defect. But one’s confidence in the correctness of the latter assumption is tempered by the fact that, before one could access all the information asserted by the plaintiffs to be relevant to (for example) Fresh Start Fixed Rate Home Loans, as many as eleven court book references must be explored; and that assumes that anything in the Schedule is relevant at all.

The last point takes me to a consideration of the role of the Schedule. The question is an important one. It is not clear, at least on an initial reading of the statement of claim, whether the plaintiffs are or are not alleging that “in its totality” or in some and if so what part or portion “the information in the Schedule”[8] is or is not relevant to this proceeding. There is as far as I can ascertain nowhere in the statement of claim, its appendices or the Schedule itself any explicit allegation on this point one way or the other, save that to be found in paragraph 3.d; and this seems to exclude the Schedule as the repository of anything to do with the case.
[8]Statement of claim, paragraph 54.

The fact that the first reference to it is in paragraph 54, under the heading “Breach of Equitable Information as to Confidentiality” is not necessarily helpful. The proposition with which that paragraph begins, that “the information in the Schedule … has … the necessary quality of confidence to allow confidentiality to be imposed” does not assist either, because it does not help in understanding the connection between that information and the issues in this proceeding.

It is true that information will not be regarded by equity as being subject to an obligation of confidence unless it has certain characteristics. The plaintiffs have in paragraph 54 of the statement of claim attempted to describe those characteristics that, as they allege, give to the information misused by Mr Scott qualities that bring it beneath the equitable umbrella. It was acquired by the application of Liberty’s “skill and effort”.[9] It has since been kept confidential by Liberty, which believed on reasonable grounds that it was confidential.[10] It is of a kind with other information that was and is, by the usage of the financial sector, kept confidential.[11] It was and is valuable to Liberty’s competitors, and if disclosed to them would cause Liberty substantial harm.[12] Finally, it could not have been acquired in its totality by a competitor otherwise than by the expenditure of money of the same order as that expended by Liberty in its acquisition.[13]
[9]Statement of claim, paragraph 54.b.
[10]Ibid, para. 54.c.
[11]bid, para. 54.d.
[12]Ibid, para. 54.h. and 54.j.
[13]Ibid, para. 54.i. I have been unable to discover where, if anywhere, in the statement of claim the particulars of that expenditure are set out.

It may be assumed for present purposes that the confidentiality of information with these characteristics will be protected by equity. I am nevertheless left to wonder about the Schedule's relationship to Appendix 3 – and, indeed, to paragraph 55. Until I am told what purpose the Schedule serves, I gain no assistance from the allegation to be found in paragraph 55 that “[t]he information set out herein was and is information within that described in the Schedule”. After repeating (unnecessarily, because the point is made as early as paragraph 3.d.) that the information thus set out "is confidential to Liberty" the statement of claim proceeds over the following six pages briefly to identify what appear to be an undifferentiated collection of documents and categories of information more details of which are said to be provided in Appendix 3. In no case does paragraph 55 itself purport to describe with the appropriate degree of specificity any information the subject of this proceeding: instead, the reader is referred by each sub-paragraph of paragraph 55 to that part of the Appendix in which the further descriptions are located. There are, however, no cross-references to the Schedule.

Paragraph 56 simply adds to the enigma. It alleges that, at all times material, Mr Scott ”knew that the information identified in paragraph 55” was confidential, and that Liberty believed and asserted as much. But paragraph 55 refers to both Appendix 3 and the Schedule. The reference to “the information identified in paragraph 55” could therefore be a reference either to the documents or information the subject of Appendix 3, or to the information the subject of the Schedule.

The waters are not clarified as one proceeds further upstream. Whereas paragraphs 57 and 58 each take as their subject “the information identified in paragraph 55 herein”, paragraph 59 alleges that that information “has been in part disclosed … for purposes other than the purposes of Liberty” (my emphasis). Particulars of the “part” are given by reference to a multiplicity, but not all, of the paragraphs of Appendix 3. There is no explicit reference in paragraph 59, whether in the particulars under that paragraph or elsewhere, to the Schedule.

I now turn to an examination of the role of the Schedule. In doing so I have had regard to the plaintiffs’ outline of submissions, especially at paragraphs 87 and 88, and to the oral submissions of senior counsel. As best I can understand the plaintiffs’ position, the role of the Schedule is limited but certainly not irrelevant. It is said in paragraph 87 that “the Schedule is of a general nature, whereas that in [sic] the appendix is specific.” I read this to mean that the Schedule is appropriately seen as describing in general terms the information with which Appendix 3 is concerned; and the latter concern, at least in the main, is to identify the acts of misuse upon which the plaintiffs rely.

As a matter of theory, this approach is unexceptional. One cannot by the use of information or documents that is or are not confidential breach an equitable obligation of confidentiality. A plaintiff who complains of a breach of this kind must therefore plead the facts which give rise to the obligation, including those which endow the relevant information with the “quality of confidence” to which paragraph 54 refers. The precise identification of the information allegedly misused would necessarily be included. But if that information forms part of a wider whole, the balance of which was not misused, the exercise may be assisted by a general description of the information or documents within the wider class. If this were the purpose of the Schedule, and if that purpose were achieved, then an objection of irrelevance would fail.

The inappropriate positioning of a general description of this kind within the statement of claim might nevertheless lead to confusion. Indeed, confusion is likely unless the role of the “general description” is spelt out within the pleading itself.

This is one of the problems to which the document presently before me gives rise. The present statement of claim is so drawn as to obscure the role of the Schedule. Although the latter first emerges in paragraph 54 under the heading “Breach of Equitable Obligation as to Confidentiality”, it has links back to the much earlier allegation of breach of contract. Thus Appendix 3, which is relevant to those allegations, makes frequent references to the Schedule. The reader seeking particulars about contractually confidential information would therefore of necessity be directed to that part of the pleading. Accordingly, it is impossible for the plaintiffs plausibly to assert that the Schedule is to be read as relevant only to the claims for breaches “of equitable obligations as to confidentiality”[14]. What is more, those whose responsibility it is to draw a defence to this statement of claim would be obliged as a matter of professional duty to attempt to follow the allegations of breach of contract through Appendix 3 to the Schedule.
[14]Heading above paragraph 54

It is of course possible that the attempt itself would assist an understanding of the role that the Schedule is intended to play. When I undertook the exercise, I initially went to the first document to which Appendix 3 refers. It is document i. of paragraph 1: the “AFG Members Presentation Queensland dated 1 May 1998”. It, along with all the documents described in paragraph 1, “[w]as [sic] and contained information within the Schedule.” Mr Scott is said by paragraph 1 of Appendix 3 to have misused it by transmitting it to his private email address. This occurred on 3 August 1998. Thereafter, Mr Scott failed to maintain its confidentiality. In addition, it was not used solely for the purpose of Mr Scott’s employment with Liberty; and it was not returned when he left.

These instances of misuse are relied upon by the plaintiffs as ten separate breaches of contract. How the misuse alleged in paragraph 1 of the Appendix relates to the breaches as specified in the particulars under paragraph 34 of the statement of claim is not explained. Nevertheless, the pleading requires the reader to explore each alleged breach. First, Mr Scott “used the information [for which we must read “Presentation”] … by incorporation of it into his own and Bluestone’s documentation and computer hardware and software”.[15]   Secondly, “he removed [the Presentation] from Liberty’s premises without the prior written consent of the [sic] Liberty”.[16] Thirdly, he reproduced it.[17] (This is later said to have been effected by its incorporation into his own and Bluestone’s hardware and software.) Fourthly, he failed to return it.[18] Fifthly, (this is a composite breach) he failed to ensure that it was secure when he was away from his desk, he improperly disclosed it, he breached an undertaking in respect of it, he did not in the way he used it ensure that the affairs of Liberty remained strictly confidential, and he placed the Presentation on his personal computer.[19] Sixthly, he discussed it with Bluestone.[20] Seventhly, he used it in a way that breached his obligation to serve Liberty with good faith and integrity.[21] Eighthly, he used it for purposes other than the furtherance of Liberty’s business.[22] Ninthly, he used the Presentation for his own purposes.[23] Finally, following the cessation of his employment with Liberty, he disclosed it.[24]
[15]Statement of claim, para. 34.a.ii.
[16]Ibid, para. 34.a.iv.
[17]Ibid, para. 34.a.v.
[18]Ibid, para. 34.a.vi.
[19]Ibid, para. 34.b.iii.
[20]Ibid, para. 34.b.iv.
[21]Ibid, para. 34.e.i.
[22]Ibid, para. 34.e.ii.
[23]Ibid, para. 34.e.iii.
[24]Ibid, para. 34.e.iv.

The repetitious and indeed vacuous nature of much of the above stands out. It is not a good example of a pleading that restricts itself to material facts set out in summary form. But so much for the alleged breaches of contract in which the Presentation was involved. The tendency of the statement of claim towards repetition continued from contract to equity. The use by Mr Scott and Bluestone of the document in question was also, according to the statement of claim, in breach of their equitable obligation of confidence to Liberty because it was thereby “in part disclosed, copied and/or used or [was] allowed to be copied and used for purposes other than the purposes of Liberty”. It is difficult to see what this adds to the claim for breach of contract.

According to the description given in Appendix 3, paragraph 1.i., the Presentation was used to “explain” Liberty products to prospective originators. It is therefore in spite of this that confidentiality is claimed for it. That claim is made in paragraph 1.a. of Appendix 3. The same assertion is repeated in sub-paragraphs b. and c. (indeed, these assertions are pleaded so as to cover each of the 21 documents listed under paragraph 1). But, in relation to the alleged breach of the “equitable obligation as to confidentiality”, the reader must be sceptical. In the context of the AFG presentation, which as I understand it was made to persons who Liberty hoped would take Liberty’s products into the market, it is likely that portions of it were not confined to confidential information but include information that was generally known and therefore not confidential; indeed, information which, one might suppose, Liberty intended would receive wide and general publicity.[25]
[25]At p.6 of the Presentation (CB 5/1996), there appears the statement “Liberty may be able to help people with impaired credit records, serviceability challenges, income substantiation difficulties or unacceptable application details.” It would be strange were Liberty to wish that this information be held under tight security.

The point I seek to make perhaps needs further elucidation. I appreciate that, in general, a plaintiff is entitled to expect that the reader will, for pleading purposes, not go behind allegations of fact. On the other hand, those who draw statements of claim have a duty to avoid the creation of confusion or doubt. Given their own description of the purpose of the AFG Presentation as “explaining Liberty products to prospective originators”, the plaintiffs must in the pleading take such steps as will enable the reader (if indeed this is possible) to reconcile that description with a blanket assertion of confidentiality for the entire document. The plaintiffs have almost done this in relation to their contractual claim, because they allege (in paragraph 20.h. of the statement of claim) that under the relevant contract of employment the expression “confidential information” was defined to include “the terms and conditions of any documents drawn for the purposes of Liberty’s businesses”. They have, however, failed to allege directly that the Presentation was so drawn; the nearest they get to this is to allege that the Presentation “[w]as specified in” a relevant contractual clause.

If the statement of claim almost, but not quite, brings the Presentation within the contractual definition of “Confidential Information”, it fails properly to plead that it was "confidential information” for the purposes of the alleged breach of the equitable obligation of confidence. The description of the Presentation in Appendix 3 merely identifies the document, and not the confidential information contained in it. This is insufficient. One must look elsewhere for the required specificity.

As I understand it, the plaintiffs would direct the reader to the Schedule. This is consistent with paragraph 1.n. of Appendix 3 which states that each document in paragraph 1 “… [w]as and contained information within the Schedule” (although it does not identify which part of the Schedule is relevant in respect of any given piece of information). At this point, the reader might also reasonably look at the document itself by going to the court book reference provided by the plaintiffs: CB.5/1989. Once there the reader would find at (for example) CB.5/1993 a page of the Presentation headed “Mortgage Market Overview”. Beneath the heading are six boxes. Again, the reader might take one by way of example: that headed “Consumers”. It includes the following cryptic statement: “Becoming more knowledgeable and demanding; to further segment into individual needs (eg. Service, price)”.

With the Schedule in one hand and the Presentation in the other, one might compare the two to determine whether the “Consumers” box at CB.5/1993 corresponds with any of the information identified in the Schedule. Here, an analysis of the cryptic message in the box might be helpful. One reading of this part of CB.5/1993 is that it informs those to whom it is made that consumers are becoming more knowledgeable and demanding; and that, as a result, the wise non-conforming lender will “further segment” the market by examining individual needs and selling points such as service and price.

One might expect that the heading “Market Research” in the Schedule would most logically relate to this part of the presentation. Yet, when one reads the relevant portions of the Schedule, it is not possible to see any correlation between the information there set out and the information at CB.5/1993. Moreover, the reader is then referred by paragraph 3 of the Schedule to a further three documents, being reports prepared by Mr Scott, which are contained in the court book. Is it to be expected that the reader, in order to ascertain whether any given portion of the presentation constitutes information that the plaintiffs claim to be confidential, must read these reports and then assess (or assume) that, for example, the item “Consumers” falls within the Schedule?

It seems to me that the answer should be “no”. Nonetheless, in the spirit of this exercise, I have examined the three reports to ascertain whether they disclose information which, falling within both the Schedule and the “Consumers” box of the presentation, is thus said by the plaintiffs to be confidential information. The quest has not been fruitful. I cannot, as a result of the examination, discern any correlation between the subject matter of the reports and the part of the presentation with which we are here concerned.

The exercise which I have outlined in the preceding paragraphs is one which ought not to be necessary before the reader is in a position to determine what “information” in the Presentation is said by the plaintiffs to be confidential. To the extent that the defendants, and the court, are required to undertake it in respect of any document or piece of information listed in paragraph 55, to that extent the pleading is less than satisfactory. If my experience is any guide, the exercise would require the reader to expend very significant effort for quite disproportionate, if any, reward.

The Schedule - Conclusion

I may summarise the position at which I have arrived. In my opinion, the Schedule suffers from two fatal flaws. First, its role in the totality of the statement of claim is not adequately identified in the pleading itself. Secondly, the attempt to follow through to the Schedule references made in such places as Appendix 3 will not necessarily be fruitful in providing additional relevant information.

What is required in a case in which the plaintiff claims breach of an obligation, imposed by equity, to maintain the confidentiality of confidential information, is a statement of claim that identifies the specific documents or items of information that are said to be both confidential and the subject of misuse. The identification must be such that those whose task it is to plead in response, and the judges before whom the proceedings come, will have before them not some more or less general description, but the very material in question. Most conveniently this will, if possible, be done in the pleading itself. At the very least, it will be done by reference to identified documents from the body which the confidential and misused material may be readily ascertained and, if surrounded by other material, readily segregated.

In most cases, and this is one, that information and those documents will form part of a body of confidential material not all of which has been misused. It may be helpful to identify the broader mass; but it must be clearly distinguished from the material said to have been misused. Since the broader mass is not the subject of the claim, it would be not merely unnecessary, but wrong, to describe it in detail. The detail is, ex hypothesi, irrelevant.

The importance of distinguishing between the misused information and other material is a point that I have attempted to make on earlier occasions. To take the example of the “Consumers” box, I would expect the pleader to state, if so instructed by the plaintiffs, that this information constituted confidential information. The defendants could then plead to it and the Court would determine the issue at trial. If that piece of information was merely generally known background, establishing a context for the presentation of other information that was truly confidential – an example might be information about products designed by the plaintiffs to meet the needs of the “more knowledgeable and demanding” consumers - then I would not expect the background information to be mentioned in the pleading; and no significant time would be spent on it at trial. By this means the pleading would perform the function for which it is designed, an essential element of which is to confine the trial to those matters that are truly in issue.

The cause of action for breach of an equitable obligation to maintain confidentiality is to be contrasted with that based upon breach of a contractual term. Where the breach of confidence arises from a breach of contract, the statement of claim must identify not only the contract, but more particularly the term or terms said to have been breached. If these provided that particular documents or classes of documents were confidential and imposed an obligation on the defendant to maintain that confidentiality, then the documents the subject of the alleged breach must be identified. They may contain material that is not itself confidential; but if the contract provided a blanket of confidentiality over a document or the documents as a whole, the pleading need not – for the purposes of putting forward a complete cause of action - segregate the different classes of information. It will in other cases remain necessary to link to the contract any information said to have been misused, and to identify that information with sufficient specificity to enable the defendant to know precisely how it is put that the breach occurred and with what material.

The above does not apply to evidence going to the relief sought by the plaintiffs. In contract as in a action for breach of an obligation imposed by equity, they must, of course, identify with appropriate specificity any information on which they intend to rely as having a particular relevance to damages or any other head of relief. The criterion is whether the failure to be specific would take the defendants by surprise.

I should add that, in my opinion, the plaintiffs have identified the contracts - and the terms of those contracts - of which, they say, the defendants are in breach. My disagreement with them goes to their failure to discriminate between the Scott Confidentiality Undertaking and the employment agreements, and the confusing and pointless repetition that that has entailed. It also goes to the unjustifiable burden placed upon the defendants by the repetitious cross-referencing involved in using the appendices in conjunction with the statement of claim; and to the general inappropriateness of the Schedule. I return to these topics later in this judgment.

An Analysis of the Statement of Claim

I return to the statement of claim proper. Paragraph 4.b. alleges that Mr Scott was employed by Liberty “pursuant to two written agreements of employment”. Later allegations make it tolerably clear, however, that this is not the plaintiffs’ case. Rather, they claim that between 21 May 1997 and 30 November 1998, he was employed pursuant to a written agreement dated 21 May 1997. Then, after a gap of one day (1 December 1998) his employment was governed by a different written agreement – in this case, dated 2 December. The second agreement operated from that date until 29 December 1999.

Each agreement contained terms, apparently identical as between the two agreements, that were designed to maintain the confidentiality of “the information specified therein”.[26] I assume that there was and is a coincidence between on the one hand the information specified in the two agreements and on the other that particularised “in Appendix 3 and paragraph 55”.[27] But these are merely assumptions, because the statement of claim does not allege that such a coincidence exists. What it does do is assert that “the information specified as confidential in clause 7.1 of each of the employment agreements was the same as that in” [28] a deed referred to in the statement of claim as the “Scott Confidentiality Undertaking”. The deed is dated 15 May 1997.
[26]Statement of claim, para. 25.a.
[27]Ibid, para. 3.d.
[28]Ibid, para.27.

As I understand the statement of claim, the “Scott Confidentiality Undertaking” was, in effect, superimposed on the employment agreements; or they on it. The law of contract, however, does not recognise a superimposition of the kind that the plaintiffs implicitly put forward. There is nothing in the statement of claim to suggest that either employment agreement directly incorporated the terms of the Scott Confidentiality Undertaking. And it is difficult to see why they should. As pleaded, each employment agreement had its own clause, clause 7.1(b), by which Mr Scott undertook “to keep the information specified therein confidential … [and] under his control”; to use it solely for the purposes of his employment, and hand it over on ceasing to be an employee; to comply with all internal directives in relation to its protection; and to discuss it only with persons nominated in writing.[29]
[29]Statement of claim, para. 25.b.

These undertakings are comprehensive enough to cover the confidentiality requirements of most employers in most situations. And if they were not, Liberty (it is alleged) issued many “internal directives in relation to [the] protection [of its information]”. Some of these required adherence by Mr Scott to the Scott Confidentiality Undertaking.

On one view this was doubling, or more accurately trebling, up. For not only did the Scott Confidentiality Undertaking contain the same undertakings as the employment agreements, albeit expressed in different words, but the former contained a clause to the effect that Mr Scott would continue to be bound by it after the employment agreements were entered into.[30] If (according to clause 4 of the Scott Confidentiality Undertaking as reproduced in paragraph 19.h. of the statement of claim) there were any inconsistency between the earlier undertaking and any subsequent agreement, the former would prevail.
[30]Statement of claim, para. 19.h.

Such a clause is, however, legally ineffective as a bar to change as sought by the contracting parties. Those privy to the Scott Confidentiality Undertaking could not bind themselves never to agree to its amendment or annulment by the making of a later, inconsistent, agreement. The plaintiffs implicitly recognised and recognise this. First, they not once but twice entered into a subsequent agreement with Mr Scott the terms of which in neither case were consistent with those of the undertaking, in the sense that they differed in form if not in substance from it – and covered other ground. Secondly, the plaintiffs now rely upon terms of the agreements which differ from those of the undertaking despite their own pleading that, to the extent of the inconsistency, the latter shall prevail. Thus, the plaintiffs allege by paragraph 23 of the statement of claim that on and from 21 May until 30 November 1998, Mr Scott’s employment “was pursuant to a written agreement … dated 21 May 1997.” The plaintiffs’ own pleading, therefore, asserts that Mr Scott’s employment was not pursuant to the terms of the undertaking, save to the extent that the latter were incorporated into the agreements. They were not so incorporated to the extent that they were inconsistent with the terms of the agreements, or merely covered the same field in irrelevantly different terms.

If (as I have concluded on the basis of the relevant allegations in the statement of claim) the differences between the Scott Confidentiality Undertaking and the agreements are of form rather than of substance, the plaintiffs do not need to rely upon the former. According to Mr Scott, however, there is an inconsistency between the undertaking and the employments agreements because the former has Liberty and Mr Ma as the owners of the confidential information, while the latter asserts that Liberty alone is entitled to ownership.[31] The plaintiffs should not, Mr Scott submits, clutter the statement of claim with allegations based upon the Scott Confidentiality Undertaking when that undertaking has been superseded by the later employment agreements.
[31]First Defendant’s outline of submissions, dated 26 May 2005, in support of application against plaintiffs’ substituted statement of claim.

This inconsistency not being apparent on the pleadings, I cannot at present take it into account. But if the differences are of such substance as to make the two incompatible, then the plaintiffs cannot rely upon both the undertaking and the employment agreements. One must over-ride the other. The pleading of inconsistent allegations of fact is forbidden by r.13.09 unless the pleading makes it clear that the allegations are pleaded in the alternative. The statement of claim fails to do this. On the contrary, it proceeds on the basis that the allegations concerning the undertaking are pleaded as additional material facts.

It may be that the Scott Confidentiality Undertaking contains terms that are additional to, while not being in conflict with, those in the employment agreements. Depending on the proper construction of the relevant document or documents, that may or may not run into problems with the principles of contract law. As a matter of pleading, however, the statement of claim should allege, as facts material to the contractual relationship, only those terms of the governing instruments that are (a) relevant, (b) not inconsistent with other pleaded terms of those instruments and (c) not merely repetitive of such other pleaded terms - in the sense of saying the same thing or covering the same ground, albeit in different words.

I note in passing that, if the statement of claim accurately reproduces the terms of the Scott Confidentiality Undertaking, Mr Scott was forbidden by those terms to include “the confidential information as defined therein” in “any … documentation … or … other medium”. This must have inhibited Mr Scott in creating documents for the plaintiffs’ use. It is therefore not surprising that, apparently, neither employment agreement reproduced provisions of this kind. What is surprising is that the plaintiffs regard them, even occasionally, as relevant to any relief they seek from the defendants in this proceeding. Take, for example, the allegation that, by the terms of the Scott Confidentiality Undertaking, Mr Scott undertook not for himself or anyone else to memorise any confidential information.[32] Unless the plaintiffs are in a position to call evidence (direct or inferential) that Mr Scott was in breach of this undertaking, and that the plaintiffs are entitled to some relief as a result, this allegation should not be pleaded. Irrelevant allegations should not appear in the statement of claim: it is impermissible to plead contractual terms that are not material to the cause of action. If, on the other hand, the plaintiffs are in a position to call evidence - or to have the Court draw the inference - that Mr Scott reproduced confidential information from his memory, having memorised it “for himself or for or on behalf of any third party”,[33] they of course may include an appropriate claim in the pleading; and (also as of course), they must identify that information with precision.
[32]Statement of claim, para. 19.e.
[33]Ibid (my emphasis).

In my opinion, the statement of claim is defective in failing to plead a relationship between the Scott Confidentiality Undertaking and the employment agreements that is both consistent with the principles of contract law, and comprehensible to those who must draw a defence to the statement of claim. Indeed, I go further. Those who draw the next statement of claim must carefully consider whether the Scott Confidentiality Undertaking has any part to play in these proceedings. One of the several serious defects in the present document is the indiscriminate inclusion in it of allegations that are, in essence, merely repetitious. I have already described as repetitive and vacuous the pleading of the numerous breaches allegedly constituted by the misuse of the AFG Members Presentation. A like description may be given to the pleading, as separate breaches, of relevantly identical provisions of the undertaking and the employment agreements. Thus Mr Scott is said to have breached the Scott Confidentiality Undertaking by disclosing confidential information to unauthorised persons, and to have breached the employment agreements by failing to maintain the confidentiality of confidential information. There is no material difference between the two. Defendants and the Court should not be troubled – in this case, troubled to the point of desperation – by having to deal with repetition of this kind. When the repetition is reflected in cross-references as numerous as those to be found in Appendix 3, the pleading takes on an almost surreal aspect. In my opinion, this in itself is enough to place this statement of claim in the “embarrassing” class. It is unacceptable.

Copyright Claim

I turn now to the claim for breach of copyright. The assertion in paragraph 10 of the statement of claim is that Liberty, alternatively Liberty and Mr Ma, is or are the owner or owners of copyright in the “literary works” the subject of this proceeding. On the pleading as it stands, the alternative allegation cannot be maintained. The particulars under paragraph 10 ascribe the second plaintiff’s imputed co-ownership to the fact that “each of the literary works was made and compiled by persons employed by Liberty”. That says nothing about Mr Ma’s rights. It is a phrase as apt in its application to Mr Scott as to anyone else, including Mr Ma. The latter, as the managing director of Liberty, is its most senior executive. Mr Scott was also a senior executive, albeit not so senior as Mr Ma. Both were employees of the first plaintiff; Mr Ma still is. In other words, the particulars under paragraph do not provide any greater link between the individual (Mr Ma) and ownership of copyright than they do as between Mr Scott and that ownership.

Nor does paragraph 11 make good the deficiency. On the contrary, it tells against Mr Ma as a claimant to ownership in any copyright. It alleges that “[e]ach of the literary works … was created by … Sherman Ma and Liberty’s employees … pursuant to the terms of their respective employment by Liberty and in the course of carrying out their duties and functions as employees of Liberty.” Although the word “other” is not inserted between the word “Liberty’s” and the word “employees”, a natural reading of the word “their” in that paragraph is nevertheless that it refers equally to Mr Ma and to other Liberty employees alike in their capacity as employees. Even if it does not, the unequivocal assertion is made that the employees created the literary works “in the course of carrying out their duties and functions as employees of Liberty.” If so, it is impossible to ascertain on the pleading as it is presently framed how any independently owned copyright could exist in another Liberty employee, Mr Ma. If his alleged right is to be pursued, it must be pleaded with much greater precision.

The plaintiffs in their undated “outline of submissions … in response to the application brought by each of the defendants to strike out the substituted statement of claim” contend that the statement of claim does allege facts that support Mr Ma’s joint copyright claim. They, however, rely in support of this submission on the statutory presumptions to be found in ss.126 and 127 of the Copyright Act 1968. Those presumptions do not remove from a claimant to the ownership of copyright the requirement that the facts upon which that claim is said to be made be pleaded. Thus, it not sufficient for the author of a literary work to claim copyright in it without also pleading the fact of authorship or, in the case of s.127(1) and (2), the fact that the person’s name appears on a work as author or joint author of it. The relevant allegation must be struck out.

I do not intend by anything said above to invite a further attempt by Mr Ma to claim copyright ownership. Nor do I wish to shut him out from pleading a legitimate claim. I do, however, make the point that these defendants and this Court must not to be required to suffer the making of unmeritorious claims simply because some client or some legal advisor thinks it would do no harm to throw them into the mix.

The literary works the copyright in which the plaintiffs claim to have been infringed by Mr Scott are listed in paragraph 10 of the statement of claim. There are 28 such works, separately described in paragraph 10 as “the first work”, “the second work” and so on down to “the twenty-ninth work”, with no reference to work No. 25. I assume that this omission is an inadvertent error. It is then alleged, in paragraph 12, that Mr Scott infringed the copyright by reproducing each of the literary works in a material form. Particulars are given. They begin (in particular a.) by asserting that between 1998 and the date on which this proceeding was issued, Mr Scott “without Liberty’s … licence or authority, copied or caused to be copied each of the literary works”. Each document was then transmitted by email from Liberty’s computer system to Mr Scott’s email address. By this means, according to the particular, Mr Scott “thereby caused or authorised to be reproduced in material form each of the literary works”.

The particulars then take a strange turn into obscurity. One would expect from all that has gone before that the documents so transmitted and reproduced would be the 28 documents listed in the body of the paragraph. Not so. By particular b. “the documents transmitted by Scott are those documents particularised in Appendix 1 and Appendix 2 (save and except for documents 6 and 7) and in paragraphs 1, 2, 3 and 50 of Appendix 3”.[34]
[34] I observe, but without further comment at this stage, that it is generally impermissible in a pleading document, or in a set of pleading documents, to include particulars of particulars.

This statement is at best misleading. A quick examination of the appendices demonstrates that there is no exact co-incidence, and perhaps little co-incidence of any kind, between the 28 literary works the subject of paragraph 10 of the statement of claim and the documents the subject of the appendices. Appendix 1 is headed “Copyright documents and documents containing confidential information transmitted from the email address of Trevor Scott at Liberty to the private email address ‘Trevor W Scott’.” There are 21 documents listed and described in it. Not a single one is identified by reference to its place among the twenty-eight documents the subject of paragraph 10. This failure is inexcusable. I also note that the appendix appears, by its heading, to make a distinction between “copyright documents” and “documents containing confidential information”. The distinction is explained, to the extent that it is explained at all, by the words, incorporated into the heading: “Copyright documents, numbered 1 to 12, and documents 1 to 21 contain confidential information.” These words are incompatible, or at least not readily compatible, with the statement in particular b. of paragraph 12 of the statement of claim that the copyright documents “are those particularised in Appendix 1” etc.

The heading of Appendix 2 adopts the same obscure phraseology as that of Appendix 1. It then lists and describes a further 7 documents. Again, none is identified by reference to any of the 28 literary works referred to in paragraph 10.

Appendix 3 (by paragraph 1) adds an additional 21 documents and (by paragraphs 2 and 3) yet another 11. None are identified by reference to paragraph 10 of the statement of claim. As best I can calculate, paragraph 50 of Appendix 3 includes five more, for a grand total of 65; but not one of which is described by its relationship to paragraph 10.

Particular b. of paragraph 12 of the statement of claim requires the reader to omit from “the documents transmitted by Scott” the documents numbered 6 and 7 in Appendix 2. When this is done, some 63 remain elsewhere in the appendices;[35] and the reader ought to be able to identify, and obtain particulars of, the 28 literary works from among the descriptions of those 63. But how one correlates the latter to the original 28 is a matter for speculation. Some may be “particularised” in Appendix 1; some in Appendix 2; and some in Appendix 3. The search for the particulars of any of them seems at this point in one’s progress through the pleading to be fraught with needless, indeed inexcusable, difficulty.
[35]I appreciate that the heading to Appendix 2 refers to “Copyright Documents, numbered 1 to 12”. This may mean that only 12 of the 21 documents described in the appendix are literary works within the meaning of that expression in paragraph 10. On the other hand, particular b. of paragraph excepts documents 6 and 7 of Appendix 2; it does not except any of the documents described in Appendix 1.

Particular c. of the particulars under paragraph 12 is merely repetitive – and therefore unnecessary – because it alleges that which has already been alleged in particular a.; namely, that by the transmission the documents were reproduced in material form.

Particular d. is likewise problematic – not because it is repetitive, but because it is internally inconsistent. It begins with the allegation that “in and from January 2000 to May 2000” Mr Scott copied each of the literary works or caused the transmission of one or more of them and thereby caused each of them to be reproduced in material form “on [sic] about the date each of the literary works were [sic] transmitted from Liberty’s computer system to [the]A[ustralian F[inancial] G[roup]’s computer system”. So the reader is taken from each, to one or more, and then back again to each. Each of the 28 literary works was copied. One or more was or were caused to be transmitted. All were “reproduced in material form … on or about the date each of the literary works were transmitted from Liberty’s computer system to AFG’s computer system”.

This is a roller-coaster ride, which is continued by particular e. It simply asserts with (in the circumstances) extraordinary directness that “the document [singular] transmitted by Scott to AFG is the fourth work”; and in so doing leaves the reader to wonder whether the reproduction which apparently constitutes the breach of copyright was the copying or the transmission, and whether, at trial, evidence about each or one or more of the literary works will be adduced.

The problems created as a result of the peculiar way in which particulars d. and e. have been drawn are replicated in particulars f. and g. The only material differences between the two sets of particulars are that (a) the former refers to AFG and the latter to Bluestone; (b) the fourth work was transmitted at some time “in and from January 2000 to May 2000”, whereas the date or dates of transmission of the other two was or were “in and from May 2000 and the date of issue of this proceeding”; and (c) in the latter set of particulars the documents copied or transmitted and reproduced are the nineteenth work and the twenty-eighth work.

It is instructive to attempt to trace through the statement of claim and its three appendices each of the works specifically identified in the particulars under paragraph 12: the “fourth work”, the “nineteenth work” and the “twenty-eighth work”. It will be remembered that each is said by particular b. in paragraph 12 of the statement of claim to be “particularised” somewhere in Appendix 1, Appendix 2 (save and except for documents 6 and 7) and in paragraphs 1, 2, 3 and 50 of Appendix 3. This suggests that the tracing exercise is necessary if the reader is to discover all that the pleading says about these documents.

The “fourth work” is described in paragraph 10.d. as “[a] document recording relationship manager performance for July and August 1998, revealing loan applications submitted and identifying originators”. It was, according to the opening portion of paragraph 12, reproduced - along with each of the other literary works - “[b]etween 1998 and the date of issue of this proceeding” by Mr Scott’s transmission of it to his email address. But it and another unspecified portion of the literary works, perhaps as many as all 28 documents, did not – according to the plaintiffs – simply sit thereafter within Mr Scott’s inbox. By particular d. under paragraph 12, it is alleged that the document that is the fourth work was “in and from January 2000 to May 2000” copied or transmitted and thus reproduced.

So the pleading to this point has told the reader something about the fourth work. According to particular b. under paragraph 12, however, there is still more. The difficulty is to find it.

I have already demonstrated that the combined total of the relevant documents in the appendices is 63 or thereabouts. The isolation of the fourth work from the other 62 should probably therefore begin with its description, which I repeat: “[a] document recording relationship manager performance for July and August 1998, revealing loan applications submitted and identifying originators”. Resort to the descriptions of the documents included in Appendix 1 suggests that there are two items that may correspond with the fourth work: items 12 and 14 (although I note that the heading to Appendix 1 does not include item 14 as a “copyright document”). Attachments 1 and 2 in item 12 are described as “August 98 figs.xls” and “July 98 figs.xls” respectively. In the column headed “Contents” they are further said to be “… documents [which] [s]how the number of loan applications (in dollar terms) submitted by various Liberty Relationship Managers and certain Liberty brokers …” for the periods in question. The two attachments to item 14 are said to be updated versions of the two relevant attachments to item 12. It is true that the descriptions of the two emails being items 12 and 14 in Appendix 1 provide details (date, time and court book numbers) of the emails said to constitute the acts of infringement by Mr Scott. However, the reader is referred by paragraph 12.b. to Appendices 2 and 3.

I been unable to determine whether Appendix 2 provides any further particulars of an infringing use of the fourth work. Meanwhile, the descriptions of documents numbered iii. and iv. in paragraph 1 of Appendix 3 are very similar to the description of “the fourth work” as given in paragraph 10.d. What is more, and this seems to be the circumstance that puts the matter beyond doubt, the court book reference for the third document in paragraph 1 of Appendix 3 is also the court book reference for the fourth work.

It took some time to get to this result. That is itself a criticism of the structure of the statement of claim, and of its relationship to its appendices. Yet there is another serious complaint. It is that, having done the hard work necessary to get to the third document in paragraph 1 of Appendix 3 in order to discover the promised further particulars, the reader finds nothing that is not already known except the allegation that the fourth work was transmitted from Liberty to Mr Scott’s email address on 7 September 1998. That is already known from Appendix 1, item 14. The date of transmission to AFG, which is equally important and not to be found thus far, remains no less of a mystery than it was when the search began. Other results of the “particularisation” promised by particular b. in paragraph 12 of the statement of claim are entirely absent.

A reference that takes the reader to a further source of the same information is worse than useless. It causes the wastage of time and effort in a labour intensive and very expensive exercise. Even if there is no intention to oppress, that may be the result. The courts must be vigilant to ensure that the judicial process does not become an instrument of oppression. Such a result would be the negation of that for which the courts must constantly strive. All parties are entitled to justice in the pre-trial procedures, as they are entitled to a just resolution of the dispute.

The nineteenth work is described in paragraph 10.s. of the statement of claim as “[a] list of clients and contact details, dated 29 April 1999” with a court book reference of CB.7/2646-2649. Item 9 of Appendix 1 would appear to relate to the nineteenth work in that it is an email dated 29 April 1999 which attaches a document described as “Address and telephone numbers.xls”. The court book reference for the email is CB.7/2645, but the attachment is not identified by either court book reference or by reference to the nineteenth work. It is left to the reader to assume that the email is an act of infringement of the copyright in the relevant document.

An examination of Appendix 2 reveals nothing of relevance. But when one turns to Appendix 3, one sees that a single document - that designated as document xx. in paragraph 1 - was allegedly despatched on 29 April; and while it was not a list of clients and contact details, it was a “[l]ist of originators accredited to Liberty, and originators seeking accreditation, contained [sic] addresses and telephone numbers”. In a poorly arranged appendix, this might be as good as one could expect; and the assumption that the twentieth document in paragraph 1 of Appendix 3 is also the document described in paragraph 10.s. of the statement of claim as “the nineteenth work” is strengthened by the circumstance that each has been given the same court book reference. Whatever the answer, the absence of direct cross-references to paragraph 10 is, as I have already indicated, inexcusable. Equally troubling is the fact that, once again, the search has produced no benefit. Appendix 3 contains no further “particularisation” of the nineteenth work, save that it was (as the plaintiffs allege) despatched on the day of its date: 29 April 1999.

The third and final literary work individually identified in paragraph 12 of the statement of claim is “the twenty-eighth work”. It makes its debut in paragraph 10.aa., under the rubric “A list of Liberty recording originators and their budgeted amounts for July 1998”. The column in Appendix 1 headed “Documents attached to the Email”, and the column in Appendix 2 headed “Attachment File Name” contain no references that appear to assist, although it is very difficult to the point of being impossible to compare the descriptions of the literary works as these are found in paragraph 10 of the statement of claim with the descriptions which appear in either appendix. I nevertheless assume that no further particulars of the twenty-eighth work are to be found in either Appendix 1 or Appendix 2.

I turn instead to paragraph 1 of Appendix 3. In paragraph 3 of that appendix, the search comes to an end. Two conclusions are inescapable. First, the description of document viii. in that paragraph matches exactly that of the twenty-eighth work in paragraph 10.aa. of the statement of claim. Even the court book references are the same. The eighth document in the former location is therefore “the twenty-eighth work” in the latter. The other inescapable conclusion is that, even more than was the case with the nineteenth work, the search was pointless. There were no further particulars. Paragraph viii. of Appendix 3 adds absolutely nothing to the description given in paragraph 10.aa. of the statement of claim.

The exercise described above took much time. It was also fruitless. The result demonstrates that the statement of claim is defective. Yet breach of copyright is not a difficult cause of action to plead. And it does not require the convoluted provision of Claytons particulars. Yet such is a feature of this pleading.

The defects of this portion of the statement of claim do not end there. Paragraph 12A alleges, giving the dates “July and August 2000 and on 8-9 October 2001”, that Bluestone infringed Liberty’s copyright in the nineteenth work by reproducing it. The paragraph then gives particulars. Particular a. asserts that Bluestone “used the information on the list for its own benefit by incorporating it into a document entitled ‘Network Distribution Strategy’ on 31 August 2000”. It is therefore relevant to know what that information was. According to paragraph 10 of the statement of claim, it was a list of clients and contact details. According to particular b. of paragraph 12A, it was an “introducer list” which Mr Scott “copied from a list of Liberty originators and their budgeted amounts for July 1998”. According to paragraph 1 of Appendix 3 it was a list of originators accredited to Liberty, and originators seeking accreditation. Bluestone, at paragraph 3.38 of its outline of submissions dated 11 May 2005, asserted that it was the subject of paragraph 48 of Appendix 3. It seems to me, however, that this is not so. What does seem to be clear is that nowhere in the statement of claim, or in its appendices, or in the Schedule, is “the information on the list”, which Bluestone is said to have used for its own benefit, identified.

Paragraphs 13 and 15 of the statement of claim plead, respectively, knowledge and belief. While these are not elements of the cause of action in breach of copyright, the prayer for relief includes a claim for additional damages under s.115(4) of the Copyright Act 1968. Knowledge and belief is relevant at that point.

Breach of Contract – The Scott Confidentiality Undertaking

Following the pleading of the cause of action based on alleged breaches of copyright, the statement of claim returns to the plaintiffs’ claims for breach of contract. If these were to be pleaded in accordance with the rules, only material facts, expressed in summary form, would be included. Thus, references to the terms of a contract should be restricted to those terms which are material. Terms that have not been breached, and are not alleged to have been breached, and that are not otherwise relevant, should not be pleaded.

Those who draw pleadings in complicated cases have especial responsibilities. Where senior counsel are engaged, they must exercise the authority of their office to ensure that the litigation is kept within manageable bounds. Neither parties nor courts have unlimited resources. It is of equal importance that litigation not be used merely as a means of oppression; and all unnecessarily oppressive steps should be eschewed. Clients who would have counsel act in ways that conflict with counsel’s duty to the court must be told that the latter duty is paramount. Such clients must also be told that instructions, obedience to which would result in a breach of that duty, do not bind and will not be followed.

Paragraphs 18 to 22 plead the Scott Confidentiality Undertaking. It was incumbent on counsel before introducing this document into the litigation to ask whether it added anything to the plaintiffs’ case. If it did, then its relationship with the employment agreements should have been carefully analysed and, if made the subject of the statement of claim at all, as carefully pleaded.

The plaintiffs rely upon the definition of “confidential information” as found in clause 12 of the undertaking. They allege, in paragraph 27 of the statement of claim, that “the information specified as confidential in clause 7.1 of each of the said employment agreements was the same as that in the Scott Confidential [sic] Undertaking … as set out in paragraph 20 herein.” That paragraph states that clause 12 of the undertaking “specified and defined ‘confidential information’ as meaning information not in the public domain which Liberty made available to Scott including: …”. There follows in sub-paragraphs a. – q. general descriptions of classes of information such as (I quote from sub-paragraph a.) “any material … relating in any manner whatsoever to Liberty”. This in fact covers everything included in the remaining sub-paragraphs.

It does not follow from the link between paragraph 27 of the statement of claim and clause 12 of the undertaking that the undertaking itself must be pleaded as a material fact or as a set of material facts. As I understand what the statement of claim says about the employment agreements, they are complete in themselves.[36] The case does not need to be bolstered by reliance on the undertaking insofar as it is not absorbed into the agreements. If this is right, pleading the undertaking as a separate source of obligations is unnecessary. In this proceeding, more than in most, the unnecessary pleading of facts must be eschewed.
[36]See paragraphs 23 and 24 of the statement of claim.

The point bears repetition by reference to the pleading of contractual terms in a cause of action for breach of contract. There is nothing to be gained by pleading terms that were not breached, and that were otherwise irrelevant. Allegations, such as that made in paragraph 20.k. of the statement of claim, that “confidential information” included “internal details of the premises from which Liberty operates” should not have been made unless it is intended to further allege that the defendants or one or other of them have wrongfully disclosed those details, and some relief (not necessarily damages, because these are not an element in the cause of action) is sought in consequence.

There is reason to think that this criticism applies to the three pages of the statement of claim occupied by paragraph 26. It repeats certain “[i]nternal directives and regulations of Liberty relating to the protection of information the subject of the undertaking in clause 7.1(b)(iii)”. The undertaking, as pleaded, was “to comply with all internal directives and regulations of Liberty in relation to the protection of the information specified therein”. Sub-paragraph b. of paragraph 26 pleads a directive “in the Liberty Policy and Procedure Manual Corporate … in these terms: … ‘Staff should ensue that all confidential information to which they have access is secure when they are not in the office or away from their desk’.” This bears a striking resemblance to the term of each employment agreement, pleaded in the preceding paragraph, that Mr Scott would “keep the information specified [in the agreement] … under his control while in the employment of Liberty”. There is no need to say it twice. Nor is anything to be gained by pleading, in sub-paragraph d. and again in sub-paragraph f. and again in sub-paragraph h., that a Liberty directive required Mr Scott to adhere to the Scott Confidentiality Undertaking.

The instructions to the pleader must be: decide whether or not a particular point is a good one, and whether or not it has already been made (perhaps in another guise); if yes to the first issue and no to the second, make the point as succinctly and clearly as possible, then move on. A good case does not need padding. A bad case will be made worse, not better, by the addition of mere verbiage. Paragraph 26 of the statement of claim is a prime example.[37] I expect that any future statement of claim will scrupulously refrain from pleading any material facts that are not necessary to make out a particular cause of action. Unnecessary padding has been a disturbing feature of this pleading. It obscures the real issues. At the levels presently reached, it adds enormously to the time taken by the reader in absorbing the documentation and discerning the real issues. And all for no benefit. On the contrary, it adds to the difficulties of trial management. In a case such as this, it is especially important that such difficulties be minimised.
[37]It is not necessarily impermissible to plead a “Liberty” directive, although if the Scott Confidentiality Undertaking is being put forward as binding in itself, then there is no need to bring it indirectly into the contractual arrangements by means of the “directive” device. The plaintiffs must decide how they intend to use the undertaking and the employment agreements, and then plead appropriately to the relationship between them.

When considering the “internal directives and regulations[38] of Liberty” set out at such length in paragraph 26 of the statement of claim, a reference to r.13.03 of the Rules of the Supreme Court is pertinent. It provides that the precise words of a document or conversation shall not be pleaded unless they are themselves material. Indeed, the effect of a document, or the purport of any conversation, even if material, shall be pleaded as briefly as possible (my emphasis). Paragraph 26 – which covers just over three pages - is in breach of this rule.
[38]There is in fact no reference elsewhere in paragraph 26 to any “regulation”.

Once there is a departure from the precept that only material facts be pleaded, the reader must attempt to gauge for himself or herself where the distinction is to be drawn. One of the difficulties to which paragraph 26 gives rise is that it contains internal inconsistencies that make it even harder than it otherwise would be to assess the extent to which the paragraph, or any part of it, is material. It alleges a mix of directives that contain what seem to be absolute prohibitions with others that place upon the shoulders of the individual employee the responsibility of deciding what confidential information might be released, and when. On the one hand, “such information is to be handled in strict confidence and not to be discussed with outsiders.” On the other, “[s]ince it is impractical to state in advance all possible types of business dealings of [sic] situations where privileged information is involved, employees are expected to use professional judgment in complying with this policy.”

One reference in paragraph 26 that may be material is to be found in an extract from the “Liberty Policy and Procedure Manual Human Resources”. It reads: “All documentation provided and used in the course of conducting business is considered confidential unless otherwise stated.” I shall return to this directive.

Paragraph 22 of the statement of claim alleges that Liberty entered into the employment agreements in reliance on the Scott Confidentiality Undertaking. Even were that so, it is not a fact material to a cause of action such as the present – which is for breach of contract. This is not a cause of action in tort, or for breach of the statutory injunction against misleading and deceptive conduct, or for reliance on a pre-contractual misrepresentation.

Breach of Contract – The Employment Agreements

Paragraph 28.a. of the statement of claim asserts that the “information specified by clause 7 in Scott’s 1997 Employment Agreement, and Scott’s 1998 Employment Agreement … was information which Liberty used in the Liberty non-conforming loan business”. But the reader has already been told (by paragraph 27 of the statement of claim) that the information specified as confidential in that clause was the same as that in the undertaking, and therefore the same as that set out in paragraph 20 of the statement of claim. Paragraph 20 informs the reader that (as the plaintiffs allege) the relevant information included “any material … relating in any manner whatsoever to Liberty or to Liberty’s business”. It necessarily follows, and therefore it is unnecessary to say so again, that all “information specified by clause 7 … was also information which Liberty used in the Liberty non-conforming loan business”. There is therefore no need for paragraph 28.a.

I noted in paragraph [100] above that there is nothing to be gained by pleading terms that were not breached, and that are otherwise irrelevant. By parity of reasoning, nothing is to be gained by pleading a contractual term, and a breach of that term, where these are mirrored by an allied term, and breach, which are pleaded elsewhere. This seems to apply to paragraph 29 of the statement of claim (where the term is pleaded), and paragraphs 34.c and 34.d., (which plead the breach). They are concerned with copyright, but add nothing to that which is pleaded under the nine paragraphs which deal with that subject under that heading in the statement of claim. They illustrate the pleader’s inability to resist the temptation to plead every possible point, material or not; and to do so after the point has already been covered - perhaps more than once.

Paragraph 29.a. asserts that, by the 1998 employment agreement, Mr Scott acknowledged “that where a literary … work is made by him as author in pursuance of the terms of his employment … Liberty is the owner of any copyright in the work”. Paragraph 34.c., using much useless verbiage for the purpose, pleads that in doing so Mr Scott breached that term. But even if a specific contractual term were required to effect Liberty’s ownership, that ownership has already been pleaded, as has a breach of the relevant copyright. It adds nothing to the strength of the plaintiffs’ case to allege, as is done in paragraph 29.a., the Scott “acknowledgement”; and it is a similarly empty exercise to allege (as is done not only in paragraph 34.a.viii. but also in paragraph 34.c.) that he later “denied” it: if Liberty owns the copyright, no denial by Mr Scott of that fact would make any difference.

In these circumstances it would be no surprise if no particulars of the denial were proffered. I return to this point below. If, as seems likely, the plaintiffs have constructed the denial merely out of the acts which also constituted the breach, the overkill involved in the plea would be even more starkly exposed. In these circumstances, paragraph 29.a., and its counterpart, paragraph 34.c., have no place.

The same may be said of paragraph 29.b. and paragraph 29.c. (which plead additional terms of the 1998 employment agreement) and for their ally, paragraph 34.d. (which pleads their breach). The former allege that if (my emphasis) “a literary .. work [including a table expressed in figures or symbols whether or not in a visible form] is made by Scott as author other than in pursuance of the terms of his employment … but …utilising the knowledge, know how, skills or experience that Scott acquired … in pursuance of those terms, Scott assigned all his … interest as owner of any copyright in the work”.

Paragraph 34.d. then takes up the running. It alleges that Mr Scott “as owner of … copyright in a literary … work … made by him as author other than in pursuance of the terms of his employment … utilizing the knowledge … that he had acquired … in pursuance of those terms” failed to assign the copyright to Liberty. Nothing elsewhere in the statement of claim supplements this bald assertion. Yet it cannot stand on its own. Without the material facts concerning the particular work or works, and without any further information about the authorship or the knowledge, the plea comes before the reader lacking any visible means of support. What was or were the works? When was it, or were they, made? Was it, or were they, expressed in figures or symbols whether or not in a visible form? Unless the “Particulars of Breaches” under paragraph 34 are of assistance, the statement of claim is silent.

With this in mind, I sought to ascertain from those particulars whatever information they contained. Their defects are demonstrated by what followed. The reader’s first discovery is that paragraph 34.d. does not itself refer to any particulars relevant to it alone; instead a “rolled up” set of particulars, referring the reader to a maze of different locations within Appendix 3, is given for the whole of paragraph 34. I am told by senior counsel for the plaintiffs that the reader is assisted by references in Appendix 3 back to particular paragraphs of the statement of claim. These are the paragraphs to which the documents, acts and conversations referred to in the appendix are said to relate. I take as an example the first document identified in the first paragraph (paragraph 1.i.) of Appendix 3. It is the “AFG Members Presentation Queensland dated 1 May 1998”. According to paragraph 1.i., this document constitutes an element in the breaches of contract set out in paragraphs 34.a.ii., 34.a.iv., 34.a.v., 34.a.vi., 34.b.iii., 34.b.iv., 34.c.i., 34.c.ii., 34.c.iii. and 34.c.iv. By this means the reader can easily, I am told, match each document in the appendix to the allegations made in respect of it.

This may be so. One may accept that it is easy to return on ten occasions to paragraph 34 so that one may check the ten references to that paragraph which accompany the first document described in paragraph 3 of the Appendix. But the Appendix describes very many documents, very many of which cannot be properly seen against the claims which the plaintiffs’ make in respect of them without the necessity for undergoing a similar, repetitive exercise. When that exercise is performed on a multiplicity of occasions, the work involved is far from easy.

In the meantime, however, none of the ten references appended to document i. of paragraph 1 of Appendix 3 include any reference to paragraph 34.d. I therefore trawled through each of the paragraphs of Appendix 3 identified as providing particulars to paragraph 34 – that is, paragraphs 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 34, 35, 36, 37, 38, 44 and 50. Not one of those 36 paragraphs included a reference back to paragraph 34.d.

Once again, the reader is required to undertake a laborious exercise in an ultimately fruitless attempt to locate the particulars pertinent to any given sub-paragraph of paragraph 34. It is not an answer to say, as senior counsel did during submissions, that the defendants must read the whole Appendix in any event. It seems to me that the structure of the document is completely askew – in this respect at least, the appendix becomes the primary document, while the statement of claim is that to which reference is made. The proverbial tail is wagging the proverbial dog. If Appendix 3 is intended to identify the particular documents, acts and things said to give rise to breaches of various contracts and duties, then the pleader must in the statement of claim direct the reader to the specific parts of the appendix that relate to the specific allegation. Had this simple step been taken in respect of paragraph 34.d., the absence of any particulars would have become apparent.

The same futility attends any attempt to obtain the particulars of Mr Scott’s alleged denial of Liberty’s ownership of copyright. Except that it is, on one level, infinitely worse. There are innumerable references in the identified paragraphs of Appendix 3 to paragraph 34.c. of the statement of claim. But, as a result of a typographical error, they are wrong: they were intended to be references to paragraph 34.e. [39]
[39]There are three references in Appendix 3 to paragraph 34.c. rather than a subparagraph of 34.c. – and it is not clear whether these are correct, or whether they too must be changed. The plaintiffs’ submissions do not address this point.

As the defendants point out, the pleading replicates this mistake with a further incorrect reference. Appendix 3 consistently refers to paragraph 34.f. when no such paragraph exists. Although the plaintiffs in both written and oral submissions have conceded that the reference to paragraph 34.c. is an error and should be a reference to paragraph 34.e., it was not until they filed written objections to submissions in reply on 22 June 2005 that, for the first time, they conceded that the references to paragraph 34.f. should also be read as references to 34.e. According to the plaintiffs, these are obvious typing errors which it is surprising the defendants did not detect, for “it is plain that any reference to 34.f. should read 34.e.”. They seek leave to file an amended document.

There are two points to be made about the plaintiffs’ position: first, it is not appropriate that either the defendants or the Court be required to take a complicated set of cross-references and guess that what appears to be one thing is in fact another – a plaintiff who pleads a multitude of cross-references must take particular care to get them right. The plaintiffs’ failure in this regard has resulted in this portion of the document, in its present form, being embarrassing. Secondly, if all references to paragraph 34.c. in Appendix 3 are changed to paragraph 34.e., the absence of any reference to paragraph 34.c. results in the reader being given no particulars of the denial of Liberty’s ownership of copyright. [40]
[40]Statement of claim, para. 34.c.

Paragraph 30 of the statement of claim pleads that Mr Scott remains bound by each of the undertaking and the employment agreements. This is an assertion of law, not fact, and thus need not be pleaded. As pleaded, it contradicts – or it is at least strongly arguable that it contradicts - paragraphs 23 and 24 of the statement of claim. Rule 13.09 of the Rules of the Supreme Court provides that a party may only make inconsistent allegations of fact if the pleading makes it clear that the allegations are pleaded in the alternative. The rule, therefore, does not apply to the present circumstances. For reasons already given, the plaintiffs must nevertheless in my opinion re-plead paragraph 30, if it is to remain at all, so that it and other, newly added, paragraphs of the statement of claim clarify what the plaintiffs now contend is the role (if any) of the undertaking, and what is its relationship to the employment agreements.

It is not material to the plaintiffs’ cause of action for breach of contract that Mr Scott was not authorised to breach it. Such a plea is relevant, if at all, to a reply. That is where paragraph 31 of the statement of claim should be found, if found at all.

Paragraph 32 of the statement of claim alleges “[f]urther and alternatively” (my emphasis) that each of the employment agreements included an implied term (in fact, three such terms are put forward) that Mr Scott would serve Liberty with good faith and fidelity, would use “information relating to the business affairs of Liberty” solely for the purposes of his employment, and after that came to an end, not use or disclose “any of the information specified in” paragraph 20 of the statement of claim.

This hardly likely to be a key paragraph. First, it cannot be both “further” and “alternatively”; it must be one or the other. But if it is “further” then, since an implied term cannot co-exist with an express term covering the same ground, the plea is bad. [41] In any event, it is a basic rule of pleading practice that one does not, save perhaps in the most exceptional case, plead the same fact (or point of law) twice. Secondly, both r.13.02 and r.13.04 of the Rules of the Supreme Court operate to make the “good faith and fidelity” plea unnecessary. So it serves no purpose, since it does not do what raising a point of law sometimes does: assist the reader to understand the narrative or the context against which other, material, facts are pleaded. Thirdly, no court would in my opinion imply a term that Mr Scott could never, following the cessation of his employment, use or disclose any of the very wide range of information defined as set out in paragraph 20:

“any material (whether in human or machine readable form) relating in any manner whatsoever to Liberty or to Liberty’s business ideas or concepts including without limitation any computer software of any nature, material recorded on computer disc, CD-ROM’s, magnetic tape, computer hardware of any nature, cassette or videotape or film or any other storage medium relating to Liberty and any related ideas, concepts and information”.

[41]It is one of the conditions of the implication of a contractual term that it be necessary to give business efficacy to the agreement.

On reaching paragraph 34, the statement of claim turns to breaches of contract – meaning, as the heading shows, breaches of the Scott Confidentiality Undertaking as well as of the employment agreements. The undertaking is dealt with first (paragraph 34.a.), but quickly runs across ground also covered by the employment agreements (which are the subject of paragraph 34.b.). Thus, while it is alleged that Mr Scott breached the undertaking by using confidential information “for purposes other than those authorised by Liberty”: 34.a.i., it is also alleged that he breached the employment agreements by using such information “for purposes other than the purposes of his employment with Liberty”: 34.b.ii. Again, while it is said that he disclosed confidential information to unauthorised persons: 34.a.iii, it is also said (as if there were some material difference in the two propositions) that he failed to maintain the confidentiality of confidential information: 34.b.i., and failed to keep it under his control: 34.b.v. Paragraph 34.a.ii pleads that Mr Scott incorporated confidential information into his own computer. Linked with this is paragraph 34.b.iii.(5), which pleads that he placed confidential information on his personal computer. The difference between the two is undisclosed. The plaintiffs maintain that Mr Scott removed confidential information from Liberty’s premises: 34.a.iv., and failed to return it upon request: 34.a.vi. At the same time, as if pleading an additional breach, they also maintain that, on leaving Liberty, he failed to hand over all records containing confidential information.: 34.b.iv. By paragraph 34.a.vii., Mr Scott is said to have approached Bluestone without Liberty’s permission; and the point is resurrected by paragraph 34.b.iv., in which he is said to have discussed confidential information with Bluestone although the latter had not been nominated by Liberty as an approved recipient of it.

This repetition is as obvious as it is unnecessary. This case demands tight pleadings, just as it demands tight management, if it is not to turn into a behemoth. Such an outcome will be inevitable if, as here, the Scott Confidentiality Undertaking is permitted to occupy much space in the statement of claim even though every (alleged) breach of it is matched by a like (alleged) breach of the employment agreements. Even if it has a (very minor, one would expect) role at some point, the undertaking has no place in this part of the claim.

The plaintiffs contend that, when those acting for the defendants come to draw their several defences, they will have no trouble pleading to paragraph 34. They will, it is to be assumed, simply deny everything. But, if that were the outcome, the real issues would not be identified with the clarity essential if the trial of this proceeding is to proceed with maximum efficiency. Of necessity, those pleading the defences will, therefore, be required to go to the particulars.

The scope of the first allegation of breach of contract cannot be appreciated without resort to those paragraphs in the statement of claim which are relevant to it. The allegation is that Mr Scott, in and from 1998 and up to the present but on a date or dates otherwise unknown to the plaintiffs, used information that in some manner related to Liberty for purposes other than those authorised by Liberty. The information was not in the public domain - as the reader is told not only by paragraph 34.a.i., but also by paragraph 20, to which one must go in order to pick up the reference to “information the subject of clause 12 thereof” in paragraph 34.a.i.

A search for additional information about the breach alleged in paragraph 34.a.i. would also take the reader to clause 4.1 of the Scott Confidentiality Undertaking. This is the clause nominated by the paragraph as the source of the term alleged to have been breached. Another relevant reference to that clause is to be found in paragraph 19 of the statement of claim; or, rather, that paragraph contains a reference to clause 4 but not to any identified sub-clause of that clause. Paragraph 19.a. alleges that, by the terms of the Scott Confidentiality Undertaking, Mr Scott “would use the confidential information as defined therein only for an authorised purpose”. Unauthorised purposes, if paragraph 19 itself accurately reflects the terms of the undertaking, included using the information in any document, computer or other medium; disclosing information “to any person other than as authorised under and subject to clause 5 therein”;[42] removing it from its premises without Liberty’s consent; and copying, memorising or in any manner reverse engineering it either for Mr Scott himself or any third party.
[42]Clause 5 is not set out in the statement of claim.

By itself, therefore, the allegation in paragraph 34.a.i. that Mr Scott breached his undertaking by using information for purposes other than those authorised by Liberty does not tell readers, who of course would include the defendants and their legal representatives, very much. It identifies neither the information said to have been used nor the unauthorised purpose to which it is said to have been put. In other words, it does not tell those who would draw a defence to this statement of claim enough to enable them to proceed with their task. They must therefore look to the particulars. And this means that they must turn to Appendix 3, because “[t]he particulars of the breaches alleged in paragraph 34 hereof are those particularised in Appendix 3 hereto”. But Appendix 3 is large. The particulars under paragraph 34 of the statement of claim therefore focus the search. As particulars of the alleged breach of that paragraph, one is helpfully directed from the particulars given under that paragraph to those particularised in Appendix 3; but limited to paragraphs 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 34, 35, 36, 37, 38, 44, and 50 of that document.

The first message received from paragraph 1 of Appendix 3 is that the “AFG Members Presentation Queensland dated 1 May 1998” was not a participant in a breach of paragraph 34.a.i. In all there are, however, 21 documents under the umbrella of paragraph 1. The dutiful reader scans through them all. Having done that, he or she discovers that none of them are identified as involved in the subject breach. The result, therefore, is that the paragraph is irrelevant to that breach. Despite this, those who would plead a defence to the statement of claim have been directed by that document to trawl through it.

One must next move to paragraph 2 of Appendix 3. It is there alleged, in effect, that on 28 January 2000, Mr Scott transmitted to AFG a copy of a list “containing 295 contact names and addresses, … a substantial number of whom were originators accredited to Liberty, others of whom were prospective originators of Liberty”. That transmission constituted the breach which is the subject of the allegation in paragraph 34.a.i. of the statement of claim. Paragraph 2 then refers the reader back to paragraph 1.xx. of the Appendix to confirm that, according to the plaintiffs, Mr Scott had on 29 April 1999 electronically copied the original list and (thereby) transmitted it to his email address.

The potential quantity, and sources, of information about the breach alleged by paragraph 34.a.i. remains and remain formidable. Those who represent one or other of the defendants continue to be under an obligation, having examined paragraphs 1 and 2 of Appendix 3, to proceed through paragraphs 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 29, 30, 31, 32, 34, 35, 36, 37, 38, 44 and 50.

The search is resumed by having resort to paragraph 3. It commences with the now familiar but false assertion that documents and information can be the same thing. In the words of the paragraph: “[e]ach document particularised hereunder[43] … was … confidential information as defined”. This statement is itself put forward in paragraph 3.j. of the Appendix as a particular of the breach of the term pleaded in paragraph 34.a.i. of the statement of claim (i.e. that Mr Scott used such information for unauthorised purposes). Other “particulars” follow. Each document was “provided … in the conduct of the business of Liberty, was not stated not to be confidential, and was therefore confidential pursuant to a Liberty directive being that alleged in paragraph 26.d. of the statement of claim”: 3.b. None was in the public domain: 3.c. Each was transmitted by Mr Scott to his private email address, not to a computer authorised by Liberty, thereby being removed from the premises of Liberty without its consent: 3.d. Each was also retained by him for more than two years after Mr Scott’s resignation: 3.e.; and was appropriated, copied or memorised by him: 3.f. None was used solely for Liberty’s purposes: 3.h.; none was kept confidential: 3.g.; and none was returned by him upon termination of his employment: 3.i.
[43]There are nine such documents.

It does not follow that these “particulars” (as they are described in the heading to Appendix 3) provide the defendants with all the information they need to avoid being taken by surprise. Thus, the failure to keep the document confidential is not described. Nor is any use for unauthorised purposes save to the extent that the transmission to Mr Scott’s private email address was an unauthorised use. But there is a more significant problem. Each of the nine documents the subject of paragraph 3 of Appendix 3 is individually identified. As part of that process, there is included a reference to the breach to which each individually relates. None is at this point in the pleading said to relate to the breach pleaded by paragraph 34.a.i. of the statement of claim.

The position, therefore, is this: the particulars under paragraph 34 of the statement of claim assert that paragraph 3 of Appendix 3 contains further particulars of the breaches alleged in paragraph 34, including the breach alleged by paragraph 34.a.i. A similar assertion is made in paragraph 3.j. of the Appendix concerning “[e]ach document … hereunder”. But when the reader goes to each of those individual documents, every one accepts a connection to some other breach but disclaims any connection to the breach pleaded by paragraph 34.a.i.

Apart from any other problems with this statement of claim, this fault is unacceptable.

As best I can ascertain, the first reference in Appendix 3 to a breach as set out in paragraph 34.a.i. of the statement of claim, save for the inconsistent references to which I have already referred, is to be found in paragraph 5.e. Read literally, which is obviously not how it should be read, it states that “After commencing Scott’s Bluestone employment … e. The particulars in paragraph 5.a. - 5.d. herein are particulars of the breaches of contract alleged in paragraph 34.a.i. …”. Read more sensibly, the allegation seems to be that after joining Bluestone, Mr Scott passed to his new employer one or more of the Liberty originator lists, or at least advised Bluestone of the contents of such a list or lists. It is also alleged that Mr Scott solicited originators “for the benefit of Bluestone”: 5.d. By reference back to paragraph 34.a.i. it is possible to ascertain that, according to the plaintiffs, in and from 1998 and continuing Mr Scott used information about originators for purposes other than those authorised by Liberty. How he used it is not otherwise revealed. When he used it is almost as much of a mystery, since all we are told is that whatever happened to it happened some time in the last seven years.

In short, the search thus far has been laborious. Not only that, but it has yielded results that are not commensurate with the effort required to attain them.

The position then is this: the plaintiffs, by paragraph 34 of the statement of claim, allege some 23 individual breaches of Mr Scott’s contractual obligations. The particulars of these breaches are said to be found in 36 separate paragraphs of Appendix 3. Many of these contain sub-paragraphs. Paragraph 1 contains, relevantly, 21; paragraph 3, nine; and so on. For present purposes, however, subparagraphs may be ignored. Even discounting them, those preparing a defence to this statement of claim would be required to refer, in the way I attempted to illustrate above, to hundreds of sources of particulars before they could be confident that all the “paragraph 34” allegations relevant to a defence drawn in accordance with the Rules could be completed. If my experience is any guide, arrival at a particular source would not necessarily increase the sum of information about any particular breach.

In this context, I note that just as a statement of claim is required to contain the necessary particulars of any factual matter pleaded, so is a defence: r.13.10. By r.13.12, a general denial of allegations made in another pleading (in this case, the statement of claim) shall not be sufficient compliance with that rule.

Paragraph 4 of Appendix 3 is the next paragraph to which reference is made in paragraph 34 of the statement of claim. On examination, however, it contains nothing of relevance to the breach pleaded by paragraph 34.a.i. Accordingly, the reference is to that extent false. It is a further indication of the difficulties facing not only those who are charged with drawing defences to this statement of claim, but also the judge who tries the proceeding.

Other Matters and Conclusion

So much for paragraph 34. Paragraphs 35 to 38 deal with the alleged breach by Mr Scott of the covenant restraining employment (clause 9.1 of the employment agreements), while paragraph 39 deals with the alleged breach of the covenant restraining solicitation. With one exception, these paragraphs are clear, straightforward and demonstrate the manner of pleading that I would expect of the rest of the document. The exception is paragraph 39.b.v. It is a particular of the allegation in paragraph 39.b. that Mr Scott enticed away from Liberty persons who were its consultants, agents or representatives. The particular refers the reader back to the merry-go-round that constitutes the additional particulars in Appendix 3; in this case subparagraph 5.a.: “Scott held and at all times material retained on his personal computer the documents identified in subparagraph 5.a. of Appendix 3 hereto”. Thus the reader is taken, when he or she reaches the subparagraph, to [e]ach of the documents (and their content [sic]) identified in subparagraphs 1.iii., 1.iv., 1.v., 1.vi., 1.vii., 1.x., 1.xi., 1.xi.,[sic] 1.xiv., 1.xv., 1.xvi., 1.xvii.,1.xviii., 1.xix., 1.xx., 1.xxi., 3.i., 3.iii., 3.vi., 3.viii. and 3.ix. - a further 21 documents, if one counts both those designated “1.xi”. Having made the journey, the reader is told no more than that, for example, the document identified in paragraph 1.iii. was transmitted by Mr Scott to himself on 7 September 1998. This is absolutely no help in discovering who, when and how the enticement was effected. No specific allegation is otherwise made.

I have, I think, said enough about this statement of claim to demonstrate that it may prejudice, embarrass or delay the fair trial of this proceeding. Subject to what is said below, the faults already recounted infect the balance – or, at least, so much of it as to require the whole to be repleaded. I nevertheless propose to give the plaintiffs another opportunity to plead what are undoubtedly good causes of action - in the sense that, properly pleaded, they would provide a platform for a fair trial of the number of claims that the plaintiffs wish to pursue.

The new statement of claim, insofar as it relies upon a cause of action in contract, must be confined to those breaches of contract upon which the plaintiffs base their contractual claims. It should eschew reference to terms, and more especially contracts, that merely duplicate other terms and other contracts. It should plead only those terms the breach of which will be seriously pursued. It should link those terms to the allegations of breach in a way that will enable the reader to make the connection without backwards and forwards movements between different and distant portions of the pleading.

The new statement of claim must also specify and identify, in accordance with the rules of pleading applicable to cases of misuse of confidential information and documents, each piece of information and each document said to have been misused. The degree of specificity may vary as between claims for breach of contract and those for breach of an obligation imposed by equity: any variance will be dictated by the terms of the contract. The statement of claim need not identify, other than in general terms, the pool of information which Liberty claims to be confidential, because only that which is said to have been misused is material. Any facts about which the plaintiffs intend to call evidence in relation to their claims for relief must be pleaded where a failure to do so would take the defendants by surprise: r.13.07(1)(b) of course applies generally. Otherwise, the plaintiffs must be astute to distinguish between material facts, particulars and evidence. This distinction was not properly observed in the present statement of claim. The mere verbiage of that document, with words piled upon words but adding nothing, must be eschewed. Every word should have a particular purpose. Likewise, the mere repetition of allegations (illustrated by the re-appearance of paragraph 55.a. – 55.u. of the statement of claim in paragraph 1.i. – 1.xxi. of Appendix 3)[44] will open the fresh pleading to perhaps fatal attack. In short, the principles expounded in the several judgments in this case must be followed.
[44]The catalogue of documents that appears in paragraph 55.a. –55.u. of the former is repeated in paragraph 1.i. – 1.xxi of the latter.

I make some final points. First, in its outline of submissions dated 11 May 2005, Bluestone contends (at paragraph 4.12) that a contract which purports to restrict forever an employee from using any information acquired during the course of his or her employment is in those terms unenforceable as a restraint of trade. The plaintiffs in rejoinder assert that the application of restraint of trade doctrines to a confidentiality covenant is open to debate and individual challenge. It seems to me that this is a matter that may turn upon the particular facts. It should be held over for resolution, if necessary, at trial. Secondly, the question of the susceptibility of “information” to the tort of conversion is not one that I am presently in a position to decide. That, too, might perhaps best be left for trial, although I do not foreclose (or necessarily encourage) pre-trial argument upon the point. Thirdly, while Bluestone criticises the plaintiffs for not distinguishing between information that is current and information that is not, the plaintiffs say that the distinction is not relevant to a contractual breach and, moreover, that information about past products is still current to the extent that they have regard to it in formulating their present products.[45] Again, a decision on the point is not for the present.
[45]Outline of submissions for the plaintiffs, undated, para. 58 (c).

In the result, the applications pursuant to r.23.02 made by each defendant by separate summonses dated in each case 11 May 2005 must, for the reasons advanced above, be allowed. The whole of the second substituted statement of claim must be struck out.

[2005] VSC 363

13 September 2005