Marel Australia Pty Ltd v Buckmaster

In the matter of Marel Australia Pty Ltd v Buckmaster, the applicant sought interlocutory relief to obtain information from the respondent, an ex-employee, who had resigned and was set to work for a competitor. The applicant alleged that the respondent had attempted to transfer confidential information to the new employer, had retained this information, and had not been candid about his post-employment disclosures. The respondent claimed privilege on the basis that responding to the inquiries might expose him to a civil penalty under section 183 of the Corporations Act 2001. The court had to determine whether the applicant was entitled to the information sought.

The court identified that the applicant's entitlement to information discovery was based on the principles established in the Norwich Pharmacal decision and Justice Warren's ruling in Computershare. The Norwich Pharmacal decision held that where a person unknowingly becomes involved in the tortious acts of others, they have a duty to assist the wronged party by providing full information. This principle was extended to information discovery by some cases, which suggested that the scope of preliminary discovery under the general law could include information discovery. The court needed to consider whether these principles applied to the case at hand and whether the respondent's claim of privilege was valid.

The court found that the respondent's employment agreement contained specific clauses regarding confidentiality, non-competition, non-solicitation, and the assignment of intellectual property, which obligated him to maintain the confidentiality of the company's information. The applicant alleged that the respondent attempted to transfer confidential information to a competitor, retained this information, and was not candid about his post-employment disclosures. The court examined the respondent's claim of privilege based on the potential exposure to a civil penalty under the Corporations Act. The court had to determine if the respondent's concerns were sufficient to warrant a privilege claim and whether this privilege outweighed the applicant's need for information.

The court ordered that by 4:00pm on 30 September 2024, the respondent must serve an affidavit on the applicant detailing any disclosure of Marel confidential information, the means and dates of such disclosure, and his knowledge of the present location of specific devices. The respondent was also required to exhibit a file list of the files stored on any devices still in his possession as of 10 May 2024. Additionally, the court restrained the respondent from disclosing any Marel confidential information to any other person until the hearing and determination of the originating application. The costs of the interlocutory relief were reserved, and the originating application was adjourned for review.