Maxilift Australia Pty Ltd v Donnelly
[2020] SASC 8
•28 January 2020
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
MAXILIFT AUSTRALIA PTY LTD v DONNELLY
[2020] SASC 8
Judgment of The Honourable Justice Nicholson
28 January 2020
COURTS AND JUDGES - CONTEMPT - PARTICULAR CONTEMPTS - BREACH OF UNDERTAKING TO COURT - GENERALLY
COURTS AND JUDGES - CONTEMPT - PUNISHMENT AND ENFORCEMENT - PUNISHMENT - ORDER - NATURE OF PUNISHMENT - FINE
In an earlier judgment delivered in this matter, the plaintiff, pursuant to subrule 303(7) of the Supreme Court Civil Rules 2006 (SA), was given permission to issue a summons to the defendant requiring the defendant to appear before the Court to answer the charge of contempt: Maxilift Australia Pty Ltd [2019] SASC 115.
The defendant was previously employed by the plaintiff as a salesperson and commenced employment with a competitor company. The plaintiff brought an application that the defendant be charged with contempt of court due to alleged breaches of an undertaking that the defendant had made to the Court concerning use of the plaintiff’s confidential information and the defendant’s relationships with customers and contractors of the plaintiff. The defendant pleaded guilty to 25 charges of contempt and submissions were heard on sentence.
Held:
1. The defendant is to be fined in the amount indicated at paragraphs [32]-[36] for each of the counts of contempt of court to which he pleaded guilty. The 25 fines, once accumulated, amount to $7,115.
Supreme Court Civil Rules 2006 (SA) r 303, r 306; Sentencing Act 2017 (SA) s 10, s 26, referred to.
Maxilift Australia Pty Ltd v Donnelly [2019] SASC 115, discussed.
MAXILIFT AUSTRALIA PTY LTD v DONNELLY
[2020] SASC 8Civil: Application
NICHOLSON J.
Introduction
In a judgment delivered on 5 July 2019[1] I gave permission to the plaintiff, pursuant to rule 303 of the Supreme Court Civil Rules 2006 (SA), to commence proceedings alleging contempt of court by the defendant. In accordance with my orders, such proceedings were commenced by and in the name of the plaintiff rather than by the Registrar of the Court. The background to the proceedings, together with a detailed account of the then alleged acts of contempt of court, are set out in my earlier judgment and do not need to be repeated in full here.
[1] Maxilift Australia Pty Ltd v Donnelly [2019] SASC 115.
The defendant resisted the plaintiff’s application for permission. However, once permission was granted the defendant, after some negotiations, pleaded guilty to each of 25 charges of contempt alleged in the plaintiff’s summons.[2] Late last year I heard further submissions from the parties on the issue of sentence.
[2] The summons in its original form, as filed, was in ambiguous terms and arguably may have given rise to duplicity concerns. It was ambiguous in that it could be read as identifying either one or three allegations of contempt with multiple particulars whereas each of the particulars identified a separate allegation of contempt. Following its amendment in Court with the consent of the parties, the summons identified as separate counts 26 separate acts of contempt alleged. Two of the allegations were expressed to be alternatives. Hence, ultimately, the defendant only pleaded to 25. The amendments did not effect any substantive change.
The circumstances giving rise to the 25 charges are a little complex. It will be sufficient by way of background if I set out the following extract from my earlier judgment.[3]
[3] Maxilift Australia Pty Ltd v Donnelly [2019] SASC 115 at [2]-[6].
The defendant was employed by the plaintiff as a salesperson, between 16 November 2009 and 10 November 2017. Prior to the defendant’s employment with the plaintiff he was employed by BG Crane Pty Ltd ACN 097 663 431 (BG Crane). This role involved managing sales on the northern New South Wales coast. On or about 7 March 2007, whilst the defendant was employed with BG Crane, the company changed its name to Hiab Australia Pty Ltd (Hiab). The defendant left Hiab to take up his employment with the plaintiff on 16 November 2009. On 8 January 2018, the defendant returned to employment with Hiab.
On 18 March 2010, after the defendant had commenced employment with the plaintiff, Hiab again changed its name to Cargotec Australia Pty Ltd (Cargotec). However, Cargotec continued to trade intermittently under the registered business name “Hiab Australia”. In this judgment reference to “Hiab” will be a reference to Cargotec (formerly Hiab and BG Crane), being the company that employed the defendant prior to 16 November 2009 and which currently uses the registered business name “Hiab Australia”.
Following the defendant resuming employment with Hiab on 8 January 2018, the plaintiff expressed concern about the defendant’s alleged misuse of the plaintiff’s confidential information. The plaintiff was concerned that its confidential information might be used by the defendant to obtain business from the plaintiff’s customers and contractors for the benefit of Hiab. Upon the plaintiff commencing proceedings in this Court, the defendant agreed to give an undertaking to the Court with respect to the plaintiff’s confidential information and the defendant’s relationships with the plaintiff’s customers and contractors. He denied misusing or having access to confidential information.
On 15 March 2018, the defendant gave an undertaking to the Court in the following form (the Undertaking):
This undertaking is given to the Supreme Court of South Australia by Craig Donnelly of 7 Park Avenue, Bray Park NSW 2484 (Defendant)
WHEREAS:
A. The Defendant was employed by the Plaintiff as a salesperson between 2009 and 2017.
B. During his employment, the Defendant had access to the Plaintiff’s Confidential Information.
C. During his employment, the Defendant created business relationships with the Plaintiff’s Customers and Contractors.
D. On 10 November 2017, the Defendant resigned from his employment with the Plaintiff.
E. The Defendant commenced employment with Hiab Australia Pty Ltd (Hiab), a direct competitor of the Plaintiff on 8 January 2018.
F. The Plaintiff has expressed concern over the Defendant’s alleged access to the Plaintiff’s Confidential Information during his employment with, and/or for the benefit of, Hiab.
G. The Plaintiff has also expressed concern about the alleged misuse of its Confidential Information to obtain business from the Plaintiff’s Customers and Contractors.
H. Donnolly [sic] has offered to give this undertaking with respect to Confidential Information and his relationships with the Plaintiff’s Customers and Contractors but denies any misuse of or access to any such Confidential Information.
THE DEFENDANT NOW UNDERTAKES TO THE COURT that:
1. He has not accessed, used or misused the Plaintiff’s Confidential Information;
2. He will at no to [sic] time in the future access, use, or misuse the Plaintiff’s Confidential Information; and
3. Between 10 November 2017 and 30 June 2018 he has not, and will not, communicate with, or accept any approach from:
a.any Customer or Contractor with whom he had a business relationship through his employment with the Plaintiff that was not a pre-existing Customer or Contractor of Hiab with whom Hiab had dealings in the 12 months preceding 10 November 2017; or
b.any individual at any Customer or Contractor with whom he had a business relationship through his employment with the Plaintiff, even if the Customer or Contractor was a client of Hiab with whom Hiab had dealings in the 12 months preceding 10 November 2017 (but for the avoidance of doubt, he can communicate with or accept any approach from any other individual at a Customer or Contractor that was a client of Hiab in the 12 months preceding 10 November 2017 with whom he did not have a business relationship through his employment with the plaintiff).
For the purposes of this undertaking:
4. Confidential Information means:
a.information regarding employees, Customers or contractors of the Plaintiff, and any others who do business with the Plaintiff other than such information that is already in the possession of Hiab as a consequence of its dealings with any Customers or Contractor prior to 10 November 2017 or that is available in the public domain;
b.ideas, know-how, concepts and information, whether in writing or otherwise; and
c.all other information relating to the Plaintiff including its products, business, activities, finances, marketing or promotional information, policies and personnel,
including any information in the Plaintiff’s power, possession or control concerning or belonging to any other person.
5. Contractor means any person, entity or business with whom the Plaintiff deals and/or from whom the Plaintiff receives products and/or services, for reward.
6. Customer means any person, entity or business with whom the Plaintiff deals and/or whom the Plaintiff provides products and/or services, for reward.
The Undertaking, although given on 15 March 2018, was designed to operate both prospectively and retrospectively, and to encompass the period between 10 November 2017 to 30 June 2018.
The 25 charges in their final form (1(a), 2(a) to 2(m) and 3(b) to 3(l)) and to which the defendant has pleaded guilty are set out in Appendix A to these reasons.
Factual basis of the acts of contempt
In essence, the plaintiff’s complaints and the established acts giving rise to the contempts are that the defendant communicated with or accepted approaches from persons on various occasions, being persons with whom he had been prohibited from communicating or from whom he had been prohibited from accepting an approach. Each of the infringements of the undertaking was relatively minor in the scheme of things and no harm by way of loss of business or otherwise has been asserted by the plaintiff or established. The 25 proscribed interactions were with four separate persons or entities and can be summarised, sufficiently for present purposes, as follows.
Vince McNamara Engineering & Sales (VME) (counts 2(f), (g), (i), (j), (k) and (m); 3(b), (d), (e), (h), (i), (j), (k) and (l))
These 14 interactions occurred between February to June 2018. VME is not a customer of Maxilift. VME do not purchase cranes, they fit cranes onto trucks. VME is a contractor that does work for various entities, including for customers of Maxilift and Hiab. The business relationship between VME and the defendant started during the defendant’s time with Hiab prior to his ever working for Maxilift.
The defendant submitted and I accept that on these occasions of breach there was no loss to the plaintiff. VME went to a contractor (Hiab) to offer to fit a crane for one of Hiab’s customers. The business went to VME, not Hiab. The defendant submitted that this was not a particularly serious breach because the intent of the undertaking was to protect the interests of the plaintiff, otherwise the undertaking would be simply punitive. Here the defendant was giving this contractor business not depriving the plaintiff of business. There is no evidence that VME, by undertaking the job for a Hiab customer, was in any way prevented from also doing work for the plaintiff. There was not a loss of opportunity for the plaintiff. There was also no gain to the defendant.
K & J Trucks at Coffs Harbour (K & J) (counts 2(b), (c), (h)[4] and (l); 3(c), (f) and (g))
[4] The charge 2(h) involved both K & J and Coffs Harbour City Council (CHCC) and is referred to again below. However, the defendant is to be penalised only once and I have sentenced for 2(h) within the CHCC category.
These seven interactions occurred between January 2018 and May 2018. K & J is not a customer of the plaintiff. K & J do not purchase cranes, they fit cranes onto trucks. The defendant has known Mr Quinn at K & J since 1996. K & J had previously obtained cranes through an agent, and had dealt with Hiab through their agent.
The defendant submitted that on these occasions of breach, K & J had won a contract to install a crane for their customer Nambucca Shire Council. Hiab supplied a crane for the job being a crane which the plaintiff and other companies do not supply. There was no gain to the defendant and again no loss to the plaintiff. Again, the defendant was giving the contractor business not depriving the plaintiff of business. The defendant submitted that the breach in this case was again technical because it did not interfere with what went to the heart of the undertaking, that is, protecting the business of the plaintiff.
CraneServe (counts 1(a) and 2(e))
These two interactions occurred in January/February 2018. CraneServe is not a customer of the plaintiff. CraneServe do not purchase cranes, they fit cranes onto trucks. The defendant has known Mr Cox of CraneServe for over 20 years.
The defendant submitted that on this occasion, CraneServe had won a deal from a truck dealer called “Sydney Trucks & Machinery” to supply and fit a crane. There was no evidence that CraneServe was prevented from doing a job for the plaintiffs. Again, the heart of the undertaking, or the purpose of the undertaking, is to protect the plaintiff’s business. This breach did not detract from the plaintiff’s business.
Coffs Harbour City Council (CHCC) (counts 2(a), (d) and (h)[5])
[5] See fn 4 above.
These three interactions occurred in January to March 2018. The defendant submitted that this breach was the most serious. CHCC is a customer of the plaintiff. On this occasion of breach, Hiab provided a crane to a customer who is a former customer of the plaintiff and an ongoing customer of both. CHCC had sought tenders to replace an existing hire crane being the crane that the defendant had sold to CHCC when he was previously employed by Hiab prior to working with the plaintiff. Expressions of interest were sought specifically from Hiab and a brand called HMF. It was a closed tender.
According to the defendant, he did not think that he would be in breach at the time because the plaintiff was never eligible to participate in that tender process. Had the plaintiff been involved in the tender process the defendant would have stepped away because that would have been competing with the plaintiff. The plaintiff was never eligible to tender for that job. There was no loss to the plaintiff, nor did the defendant’s actions detract from the plaintiff’s business. However, the defendant accepted that this was a gross error on his part. He should have got another salesperson from Hiab to deal with the tender and the subsequent technical aspects of the tender.
Other considerations relevant to sentence
Rule 306 of the Supreme Court Civil Rules 2006 (SA) empowers the Court to punish a contempt of court by fine or imprisonment or both. Within these constraints the penalty is at large.
I have already briefly outlined the circumstances of the acts of contempt. Each taken alone was a relatively minor infraction although the repetitive nature of the behaviour and the large number of occasions when the defendant failed to comply with the undertaking render the defendant’s actions, when viewed as a course of conduct, to be serious contempt of court. I accept that the actions of the defendant did not cause harm to the plaintiff nor any direct benefit to the defendant. However, the harm caused to the administration of justice should such conduct be allowed to pass uncriticised and unpunished would be significant. In my earlier reasons,[6] I made the following observation.
The Undertaking, insofar as the plaintiff is concerned, is in the nature of injunctive relief. This type of relief is often apposite precisely because it can be difficult, if not impossible and very costly, to justify and prove damages for breach of an underlying contractual or equitable obligation. Ordinarily, a party is entitled to insist upon compliance with any injunctive relief or undertaking in lieu that has been procured.
[6] Maxilift Australia Pty Ltd v Donnelly [2019] SASC 115 at [23].
I accept the following submission put on behalf of the plaintiff.
If parties cannot rely on such undertakings being observed and adhered to, and fully enforced upon breach, this significantly undermines the Court’s processes and the administration of justice in respect of all areas where undertakings might be provided, including in the settlement of proceedings. Taken to its logical conclusion, parties may become reluctant to settle cases early on the provision of undertakings, which would consequently place a significantly greater strain on both the parties’ and the Court’s resources.
The objective circumstances of the defendant’s acts of contempt mean that his offending cannot be regarded as a minor or technical contempt. It is more serious than that.
However, I must also have regard to the defendant’s mental state when assessing his overall culpability. The plaintiff has submitted that there are sufficient indicators in the evidence concerning the defendant’s behaviour to allow a finding that he knowingly and deliberately breached the undertaking. I am not satisfied that was so.
The plaintiff gave oral evidence before me during the sentencing submissions hearing. My overarching impression of the defendant is that he is not particularly sophisticated nor overly experienced with technical legal language, nor au fait with legal procedures generally. The proceedings initiated by the plaintiff were of a complex nature and the language of the undertaking given to the Court in order to resolve the proceedings was dense. In some respects, the language describing the metes and bounds of the restrictions was not easy to fathom. With respect, I doubt that the defendant had a sufficient facility with language and grammar to enable a clear understanding of that to which he was agreeing, in the absence of careful explanation.
It is true that the defendant received legal advice before agreeing to the undertaking. However, I am not aware of the content of that advice. Further, I am not able to determine whether or not any advice given as to the content and meaning of the undertaking was accurate. The legal argument before me at the permission hearing was sufficient to indicate that different views as to the meaning of the undertaking were available. Even now, I have not, because of the guilty pleas, been called upon to arrive at a final construction of the terms of the undertaking.
Furthermore, even assuming that the defendant had been properly advised, he would, in my view, face difficulty in retaining over time a clear understanding of the metes and bounds of the undertaking unless he were to re-read it and seek further advice from time to time.
The defendant gave evidence to the effect that he understood the undertaking to be concerned with conduct that would or might harm the plaintiff. It was this that motivated his actions. He did not think that he was doing anything wrong. The defendant did not re-read the undertaking nor seek advice as to its potential application prior to engaging in any of the actions that he now understands were in breach of the undertaking.
I accept the defendant’s evidence in this respect. I am satisfied that his conduct in breaching the undertaking was reckless. He did not knowingly breach the undertaking. This state of mind, together with the fact that no harm was caused to the plaintiff, allow some leniency to be exercised when sentencing for an otherwise serious course of conduct.
I turn to consider briefly the defendant’s personal circumstances. He has no prior convictions for contempt of court nor any prior criminal record of significance.[7] The defendant is 52 years old. He completed year 10 at school in New South Wales after which he completed an apprenticeship as an electrical fitter. He left that type of work in 1995 and took to selling cranes with various organisations. The defendant has been gainfully employed for most of his adult life. The defendant has three adult children, two of whom he describes as independent with the third “independent to a certain extent”. He was divorced from the mother of the three children in 2012 and since then has been rebuilding his life.
[7] The defendant committed a low range drink driving offence about seven years ago and has received speeding fines.
The defendant has been left with a capital sum in the amount of approximately $135,000 following the sale of the matrimonial home as part of the divorce settlement. He has about $400,000 in superannuation. The defendant intends to use the capital sum to assist in acquiring another house to live in. I accept that the defendant is not well off. However, he is presently employed on a base salary of $110,000 per annum together with commissions which, in a good year, might amount to $20,000 or so. He also has an allowance which enables him to lease a work vehicle; he travels 70,000 to 80,000 kilometres per annum.
The Court received a written reference from a personal friend of more than 40 years who described the defendant as honest, trustworthy and highly principled. I have no reason not to accept this assessment. The defendant is not at all happy about events as they have turned out and genuinely feels hard done by given his belief that he acted within the spirit of the undertaking in not doing anything to harm the plaintiff’s business. However, it is difficult to see the defendant as contrite and remorseful for his conduct. He maintains the view that he has not done anything wrong. Nevertheless, I am satisfied that he has well and truly learned a lesson and that he is unlikely to breach court orders or any undertaking owed to the Court again.
Sentence
I turn to sentence. The sentencing process is to be conducted according to common law principles; the Sentencing Act 2017 (SA) does not apply. This is unfortunate because, to my mind, the gravamen of the defendant’s contempt is the continued course of conduct extending over more than six months comprising 25 separate acts of contempt. Had section 26 of the Sentencing Act 2017 been available, I would have imposed a single penalty for all offences. As it happens, I must sentence for each contempt individually and accumulate the penalties.[8]
[8] Given that I propose to fine the defendant and not to order terms of imprisonment there is no scope to order that any of the penalties be served partially or wholly concurrently.
I take the view that a prison term is not called for. To impose on a 52 year old man with no prior criminal record a prison term (suspended or unsuspended) for the first time is an extremely serious step. Whilst section 10 of the Sentencing Act 2017 does not apply, I have nevertheless been guided by subsection 10(2) which, in broad terms, reflects the common law.
(2)Subject to this Act or any other Act, a court must not impose a sentence of imprisonment on a defendant unless the court decides that—
(a) the seriousness of the offence is such that the only penalty that can be justified is imprisonment; or
(b) it is required for the purpose of protecting the safety of the community (whether as individuals or in general).
I propose to fine the defendant with respect to each of the contempts committed. In doing so, the common law concepts of proportionality and totality are to be observed.
Ordinarily, it might be considered that each of the 25 contempts, because of their differing circumstances, might call for differential penalties. However, I think the differences are so slight in this case as not to require that. This is subject to two matters. First, I agree with the defendant’s submission that the contempts concerning Coffs Harbour City Council (counts 2(a), 2(d) and 2(h)) were more serious than the others. They merit a slightly higher penalty. The second consideration is that as time passed, the defendant’s offending became slightly more culpable because of the increased opportunity to reflect on what he was doing and to seek advice before continuing to offend. However, given that I am sentencing on the basis of recklessness and not knowing breaches, this factor is a minimal consideration which, in the circumstances should be ignored.
A further matter to take into account is the fact that the defendant pleaded guilty. Whilst this does not, as earlier discussed, demonstrate contrition in the conventional sense, it is indicative of good prospects for rehabilitation and is to be accorded significant utilitarian value in saving the time and resources involved in a potentially lengthy trial. I will discount the penalties I otherwise would have imposed by 20 per cent on account of the pleas.
Subject to totality considerations, I impose the following fines.
For each of the 14 VME counts, 2(f), 2(g), 2(i), 2(j), 2(k), 2(m), 3(b), 3(d), 3(e), 3(h), 3(i), 3(j), 3(k) and 3(l), I impose a fine of $400 reduced from $500 on account of the pleas.
For each of the six[9] K & J counts, 2(b), 2(c), 2(l), 3(c), 3(f) and 3(g), I impose a fine of $400 reduced from $500 on account of the pleas.
[9] That is, excluding count 2(h), see fn 4 above.
For each of the two CraneServe counts, 1(a) and 2(e), I impose a fine of $400 reduced from $500 on account of the pleas.
For each of the three[10] CHCC counts, 2(a), 2(d) and 2(h), I impose a fine of $480 reduced from $600 on account of the pleas.
[10] That is, including count 2(h), see fn 4 above.
These 25 fines, once accumulated, amount to $10,240. I am required to consider the question of totality. In my view, each individual penalty is proportional with reference to the particular act of contempt concerned. However, I take the view that the total is not proportional to and does not fairly reflect the defendant’s contemptuous course of conduct as a whole. Further, I take the view that fines totalling $10,240 would be crushing given the defendant’s personal circumstances. I will reduce each of the above fines by a further $125 on account of totality. This gives rise to fines totalling $7,115.
The formal orders of the Court are that the defendant is to be fined in the amount indicated in these reasons for each of the counts of contempt of court to which he has pleaded guilty. I will hear the parties on the matters contemplated by Supreme Court subrules 306(2) (time for payment of the fines) and 306(3) (costs).
APPENDIX A
You are required to attend before the Supreme Court on the hearing of this summons, which is issued by the Registrar of the Court, to answer the following charges of contempt of Court in that you did breach:
1.paragraph 3(a) of the undertaking given to the Court on 13 April 2018 (Undertaking) during the period 10 November 2017 to 12 April 2018 by communicating with, or in the alternative, accepting approaches from Customers or Contractors (as defined in the undertaking) with whom you had a business relationship through your employment with the Plaintiff that was not a pre-existing Customer or Contractor of Hiab with whom Hiab had dealings in the 12 months preceding 10 November 2017 in that you:
1(a).in or around January or February 2018 had communications with Mr Nathan Cox (Mr Cox), owner of CraneServe, a Contractor of the Plaintiff, in the nature of a telephone call placed by the Defendant to Mr Cox regarding the installation of Hiab cranes;
2.paragraph 3(b) of the Undertaking during the period 10 November 2017 to 12 April 2018 by communicating with or in the alternative, accepting approaches from individuals at Customers or Contractors with whom you had a business relationship through your employment with the Plaintiff in that you:
2(a).on or around 10 January 2018 had communications with Mr David Robertson (Mr Robertson), Fleet Coordinator at Coffs Harbour City Council, a Customer of the Plaintiff, in the nature of a face to face discussion between Mr Robertson and the Defendant;
2(b).on or around 18 January 2018 had communications with, and/or accepted the approach from, Mr Kevin Schuhmann (Mr Schuhmann) owner of K&J Trucks Coffs Harbour, a Customer of the Plaintiff, in the nature of a conversation and emails sent between the Defendant and Mr Schuhmann at around 9:58am and 12:07pm with the subject "Re: Hiab .99B3DUO 2016";
2(c).on or around 18 January 2018 had communications with Mr Kevin Schuhmann in the nature of a conversation and an email sent by the Defendant to Mr Schuhmann at around 3:08pm with the subject "RE – COFFS CITY COUNCIL TENDER";
2(d).in or around January or February 2018 had communications with Mr Robertson in the nature of an email sent to Mr Robertson by the Defendant advising of the Defendant's new contact details;
2(e).in or around January or February 2018 had communications with Mr Cox in the nature of a telephone call placed by the Defendant to Mr Cox regarding the installation of Hiab cranes;
2(f).on or around 27 February 2018 communicated with Mr Michael McNamara (Mr McNamara), part owner, director and Foreman at Vince McNamara Engineering and Sales (VME), in the nature of an email sent by the Defendant to Mr McNamara via the email address [email protected] at around 2:17pm with the subject heading "re – Crane pricing – for Michael";
2(g).in or around March 2018 had communications with Ms Rose-Anne Fletcher (Ms Fletcher), Administration Assistant for VME, in the nature of a face to face discussion between Ms Fletcher and the Defendant at the premises of VME at 12 Snow Street, South Lismore, New South Wales;
2(h).on or around 6 March 2018 communicated with Mr Robertson in the nature of a telephone conference between Mr Robertson, the Defendant and a representative of K& J Trucks Coffs Harbour;
2(i).on or around 6 March 2018 communicated with Mr McNamara in the nature of an email sent by the Defendant to Mr McNamara via the email address [email protected] at around 8:50am with the subject heading "RE – DEMO TRUCK – K & J";
2(j).on or around 22 March 2018 communicated with Mr McNamara in the nature of an email sent by the Defendant to Mr McNamara via the email address [email protected] at around 7:56am with the subject heading "RE – NATIONAL PARK CALS";
2(k).on or around 27 March 2018 communicated with Mr McNamara in the nature of an email sent by the Defendant to Mr McNamara via the email address [email protected] at around 1:02pm with the subject heading "Fwd: Rous Water Calculation C1982_O1A";
2(l).on or around 27 and 28 March 2018 had communications with Mr Schuhmann in the nature of emails sent between the Defendant, Mr Gary Roe (Mr Roe), Managing Director of Ekebol Pty Ltd and Mr Schuhmann at around 1:30pm and 5:26pm on 27 March 2018 and 9:25am on 28 March 2018 with the subject "Coffs Harbour Council Scania P360LB8X4MNB Tender LGP 912 QO" or "Re: Coffs Harbour Council Scania P360LB8X4MNB Tender LGP 912 QO";
2(m).in or around March to June 2018 had communications with Mr McNamara in the nature of a face to face discussion with Mr McNamara at the premises of VME at 12 Snow Street, South Lismore, New South Wales;
3.paragraph 3(b) of the Undertaking during the period 13 April 2018 to 30 June 2018 by communicating with or in the alternative, accepting approaches from individuals at Customers or Contractors with whom you had a business relationship through your employment with the Plaintiff in that you:
…
3(b).in or around late April 2018 had communications with Ms Louise McNamara (Ms McNamara) part-owner and Administration Manager of VME, in the nature of a face to face discussion with Ms McNamara at the premises of VME at 12 Snow Street, South Lismore, New South Wales;
3(c).on or around 30 April 2018 had communications with Mr Schuhmann in the nature of an email sent by the Defendant to Mr Roe, with a copy to Mr Schuhmann at around 8:39am with the subject "Re: Coffs Harbour Council Scania P360LB8X4MNB Tender LGP 912 QO";
3(d).on or around 30 April 2018 communicated with Ms McNamara in the nature of an email sent by the Defendant to Ms McNamara via the email address [email protected] at around 10:55am with the subject heading "RE – ACCOUNT APPLICATION";
3(e).on or around 2 May 2018 communicated with Ms McNamara and Mr McNamara in the nature of an email sent by the Defendant to Ms McNamara and Mr McNamara via the email address [email protected] at around 7:56am with the subject heading "RE – GREG CLARK BUILDING";
3(f).on or around 4 May 2018 had communications with Mr Schuhmann in the nature of an email sent by the Defendant to Mr Roe and Mr Schuhmann at around 12:29pm with the subject "Re: Coffs Harbour Council Scania P360LB8X4MNB Tender LGP 912 QO";
3(g).on or around 7 May 2018 had communications with Mr Schuhmann in the nature of an email sent by the Defendant to Mr Roe with a copy to Mr Schuhmann at around 7:52am with the subject "Re: Coffs Harbour Council Scania P360LB8X4MNB Tender LGP 912 QO";
3(h).on or around 16 May 2018 communicated with Mr McNamara, in the nature of an email sent by the Defendant to Mr McNamara via the email address [email protected] at around 8:02am with the subject heading "RE – TRUCK BUILD SPEC – GREG CLARK BUILDING";
3(i).on or around 18 May 2018 communicated with Ms McNamara in the nature of an email sent by the Defendant to Ms McNamara via the email address [email protected] at around 9:09am with the subject heading "RE – GREG CLARK BUILDING";
3(j).on or around 31 May 2018 communicated with Mr McNamara, in the nature of an email sent by the Defendant to Mr McNamara via the email address [email protected] at around 6:48am with the subject heading "RE – GREG CLARK INSTALL";
3(k).on or around 12 and 15 June 2018 had communications with Ms Fletcher in the nature of an emails sent between the Defendant and Ms Fletcher via the email address [email protected] at around 11:54am on 12 June 2018 and 3:09pm on 15 June 2018 with the subject heading "Rose-Anne crane quotation"; and
3(l).in or around June 2018 met with and spoke to Ms McNamara at the premises of VME at 12 Snow Street, South Lismore, New South Wales.
1