National Hearing Centres v Gupta

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

EMPLOYMENT AND INDUSTRIAL LIST

S ECI 2025 04271

NATIONAL HEARING CENTRES PTY LTD (ACN 075 889 262)	Plaintiff
v
ASHEESH GUPTA (and others according to the attached Schedule)	Defendants

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JUDGE:	Attiwill J
WHERE HELD:	Melbourne
DATE OF HEARING:	14 and 15 August 2025
DATE OF RULING:	28 August 2025 (revised 29 August 2025)
CASE MAY BE CITED AS:	National Hearing Centres v Gupta
MEDIUM NEUTRAL CITATION:	[2025] VSC 528

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INJUNCTIONS — Application for interlocutory injunctions – Springboard injunction – Confidential information injunctions - Injunctions to enforce employment restraints, including post-employment restraints – Alleged breaches of equitable obligation of confidence, fiduciary duty, duty of fidelity and employment restraints – Where plaintiff’s former employees have established a competing business, including during employment with the plaintiff, and are also alleged to have misused confidential information and threaten to misuse information – Whether serious questions to be tried – Whether damages are an adequate remedy – Whether balance of convenience supports the injunctive relief sought – Delay – Prejudice – Injunction granted to restrain use of confidential information – Relief otherwise refused – Liberty Financial Pty Ltd v Scott (No 4) (2005) 11 VR 629 – LibertyFinancial Pty Ltd v Jugovic [2021] FCA 607 – Just Group Ltd v Peck (2016) 344 ALR 162.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A Solomon-Bridge	Gilchrist Connell
For the Defendants	Ms R Preston with Mr T Burn-Francis	Duffy & Simon

HIS HONOUR:

INTRODUCTION

The plaintiff seeks interlocutory relief against two of its former long-standing employees, Mr Gupta and Mr Trampevski, the first and second defendants, and a company they established in competition with the plaintiff named Hearing Consultants Australia Pty Ltd (Hearing Consultants), the third defendant. The plaintiff seeks a broad range of interlocutory relief against the defendants based on a number of causes of action, including breaches of the equitable obligation of confidence, fiduciary duty, duty of fidelity and employment and post-employment contractual restraints. There is currently a consent order that restrains certain conduct of the defendants until 4:00pm on the day the Court delivers its ruling on the application.

The principles applicable to an application for an interlocutory injunction are well established. In summary:

(a) a plaintiff seeking interlocutory injunctive relief must demonstrate that there is a serious question to be tried;

(b) the injury the plaintiff is likely to suffer must be one for which damages will not provide an appropriate remedy;

(c) the balance of convenience must favour the granting of an injunction, which also requires consideration of the strength of the plaintiff’s claim;

(d) ultimately, the Court should take the course that appears to carry the lower risk of injustice if it should turn out to have been wrong, in the sense of granting an injunction to a party who fails to establish the asserted right at trial, or failing to grant an injunction to a party who succeeds at trial.

These principles are not entirely separate and must be examined together.

The parties, at times, conducted the application as if it was the final hearing. This included making submissions that the Court should make findings as to particular factual matters even though these matters were plainly the subject of disputed evidence.

The plaintiff ultimately identified with more precision the causes of action and the evidence it relied upon concerning whether there was a serious question and, as a result, confined its case to these matters (as identified in the document titled ‘plaintiff’s further note on minute of order – with tables’ provided to the Court on 15 August 2025). These matters are different and more confined, in some respects, than the matters set out in the plaintiff’s submissions filed 30 July 2025. The plaintiff also ultimately identified with precision the interlocutory injunctive relief it sought (as also identified in the document titled ‘plaintiff’s further note on minute of order – with tables’ provided to the Court on 15 August 2025 and to be read in the context of the plaintiff’s proposed minute of order). Again, this is different to the relief sought in the statement of claim, the summons, the subject of the present injunctions and the plaintiff’s proposed minute of order. The plaintiff ultimately sought the following injunctive relief (bolding used for emphasis):

Order 1(a) (Springboard Injunction)

Until the trial of the proceeding, except as required to defend this proceeding, the first and second defendants be restrained from being engaged in, involved in or associated with the third defendant.

Alternatively

Order 1(a) (Non-Compete Injunction)

Until the trial of the proceeding except as required to defend this proceeding, the first defendant be restrained from being engaged in, involved in or associated with the third defendant’s business operating out of 664 Burke Road, Camberwell.

Alternatively

Until the trial of the proceeding except as required to defend this proceeding, the first defendant be restrained from being engaged in, involved in or associated with the third defendant’s business operating out of 664 Burke Road, Camberwell save for as a shareholder or unitholder.

Order 1(b) (Confidential Information Injunction)

Until the trial of the proceeding the defendants be restrained from making any use of or disclosing the plaintiff’s confidential information [as to Mr Gupta and Hearing Consultants as defined in Annexure A to the plaintiff’s proposed minute of order, but as to Mr Trampevski as defined in the ‘plaintiff’s further note on minute of order – with tables’].

Alternatively

Order 1(c) (Alternative Confidential Information Injunction)

Until the trial of the proceeding the defendants be restrained from making any use of or disclosing the following, save to the extent it is in the public domain through no actions on their part or information required to be disclosed by law:

(i) information regarding manufacturers’ and suppliers’ pricing;

(ii) the plaintiff’s business strategy, including the plaintiff’s geomapping data;

(iii) the plaintiff’s financial information, including the plaintiff’s revenue and profitability generally and across different locations;

(iv) client information, including contact information and client opportunities;

(v) the skills, competence, performance and renumeration of employees of the plaintiff.

Order 1(d)(i) (Customer/Supplier Injunction)

Until the trial of the proceeding the first defendant be restrained from soliciting, canvassing, approaching or accepting any approach from any customer or supplier of the plaintiff with whom he had dealings during his employment with the plaintiff, with a view to obtaining the custom or supply for a business that is the same or similar to any business carried on by the plaintiff; and

Order 1(d)(ii) (Employee Injunction)

Until the trial of the proceeding the first defendant be restrained from inducing, encouraging or assisting any employee to leave their engagements with the plaintiff.

The defendants ultimately proffered an undertaking to the Court in the form of Annexure A to this ruling.

On 25 July 2025, the plaintiff commenced this proceeding by writ and statement of claim and filed a summons seeking urgent interlocutory relief. On 30 July 2025, upon the plaintiff giving the usual undertaking as to damages, the Court made orders by consent, inter alia, as follows:

1.That the hearing of the plaintiff’s summons filed 25 July 2025 be adjourned to 6 August 2025 at 10am or so soon thereafter as the business of the Court allows, and that until 4:00pm on that day:
(a)       the first and second defendants, by themselves, their officers, employees or agents, be restrained from consulting with, providing services to, or selling product to, any clients or customers (former, current or prospective);
(b)the defendants, by themselves, their officers, employees or agents, be restrained from soliciting, canvassing, or approaching any customer of the plaintiff with a view to obtaining their custom for the third defendant’s business or any other business in competition with the business operated by the plaintiff;
(c)       the defendants, by themselves, their officers, employees or agents, be restrained from inducing, encouraging or assisting any employee to leave their employment with the plaintiff;
(d)the defendants be restrained from making any use of or disclosing the plaintiff’s confidential information; and
(e)       the first defendant, in addition to the obligation in 1(b) above, be restrained from accepting any approach from any customer of the plaintiff with whom the first defendant had dealings during his employment with the plaintiff with a view to obtaining their custom for the third defendant’s business or any other business in competition with the business operated by the plaintiff.

These injunctions were extended, again on the plaintiff’s usual undertaking as to damages and by consent, on 6, 14 and 15 August 2025. The injunctions presently restrain conduct until 4:00pm on the day the Court gives its ruling on the plaintiff’s summons. The present order is, in fundamental respects, different to the plaintiff’s present application for injunctive relief. For example, the Springboard Injunction is much broader than the present interlocutory relief.

The Court informed the parties during the hearing on 15 August 2025 that this matter may be set down for trial commencing on 27 October 2025 and that the Court will make interlocutory timetabling orders (e.g. disclosure of documents under the Civil Procedure Act 2010 (Vic) and witness outlines) at the time it delivers its ruling on the interlocutory application. The plaintiff confirmed to the Court its consent to the trial commencing on 27 October 2025.[1] The defendants did not inform the Court that they would not be ready for trial by that date but otherwise made no meaningful response. The trial will be set down commencing on 27 October 2025.
[1]T 133.9-17 (15 August 2025).

BACKGROUND
The plaintiff

The plaintiff carries on business as part of a global hearing aid retailer business, operating audiology clinics and engaging in the retail sale of hearing aids. It has over 350 clinics in regional and metropolitan areas across Australia. It carries out audiological screening, testing and the sale of hearing aids and accessories and also wax removal on an ad hoc basis. It has operated in Australia since 1997. In 2010 it was acquired by its parent company, Amplifon S.p.A, which is a corporation incorporated under Italian law. In about 2020, the plaintiff rebranded from ‘National Hearing Care’ to ‘Amplifon’. A statement on Amplifon’s Australian website states that it has more than 9,200 directly owned stores in over 25 countries around the world. In Melbourne, the plaintiff has 33 stores and 6 ‘shop in shop’ stores which are retail spaces within a medical clinic. Mr Hardie gave evidence that prior to May 2021 no business operated by any member of the Amplifon Group operated within 5km of the Burke Road Clinic.

The current Australian subsidiaries of Amplifon S.p.A comprise:

(a) the plaintiff;

(b) Bay Audio Pty Ltd. This operates an audiology business in Australia and conducts audiological screening, testing, the sale of hearing aids and accessories, and wax removal on an ad hoc basis. The plaintiff acquired this business in 2021;

(c) Attune Hearing Pty Ltd. The plaintiff acquired this business in 2020. This operates an audiology business in Australia and conducts audiological screening, testing, the sale of hearing aids and accessories, and wax removal on an ad hoc basis. It also provides a range of clinical testing services for medical purposes. The plaintiff acquired this business in 2020;

(d) Attune Workplace Hearing Pty Ltd. The plaintiff acquired this business in 2020. There is no other evidence concerning this company except that it may be inferred that it does not currently conduct any business;

(e) Ear Deals Pty Ltd. There is no other evidence concerning this company except that it may be inferred that it does not currently conduct any business; and

(f) Amplifon Australia Holding Pty Ltd. There is no other evidence concerning this company except that it may be inferred that it does not currently conduct any business.

The plaintiff refers to these companies collectively as ‘Amplifon Group Australia’. Mr Hardie, the sales director of the plaintiff, gave evidence in his affidavit made 25 July 2025 (First Hardie affidavit):

10.Amplifon Group Australia is the largest hearing aid retailer in metropolitan Melbourne with some of its main competitors being Audika, Hearing Australia and Specsavers. Nationally its market share is about 33% and its footprint in Melbourne is similar. In Metropolitan Melbourne, the Plaintiff has 33 stores and six “shop in” stores, which are a retailer space situation within a general practitioner medical clinic.
11.Amplifon Group Australia has invested significant resources to establish its competitive and profitable operation in Australia and has grown quickly through reinvestment in operations and strategic acquisitions. There are high barriers to entry to new entrants due to capital costs of retail stores, less favourable pricing with manufacturers for lower volumes and lower market share. An additional and substantial challenge for new entrants is that a client base is normally tied to audiologists at other clinics.
12.The Plaintiff divides its area of operations into geographical regions and then divides the regions into areas. Each area has retail stores from which the Plaintiff conducts business. Retail stores treat individuals over the age of 26 years and accept both private and Hearing Services Program (HSP) clients. HSP clients are individuals eligible for government subsidised hearing healthcare.
13.The Plaintiff's retail stores employ audiologists and front of house employees. The front of house employees are called Client Advisors.
14.Audiologists are qualified to diagnose hearing loss and provide and fit hearing solutions for individuals. Day to day, an audiologist employed by the Plaintiff would:
a.         conduct hearing tests;
b.         diagnose hearing loss;
c.         refer clients to a general practitioner as required;
d.         generate reports for general practitioners;
e.         conduct pre-employment checks;
f.         fit and provide hearing solutions, such as hearing aids;
g.         conduct home visits;
h.         servicing and troubleshooting devices.
15.The most significant function of an audiologist is to improve quality of life by providing hearing solutions, involving the sale of hearing healthcare products such as assistive listening devices, hearing aids, headphones, alarm clocks and microphones (hearing devices).

The plaintiff derives income from the sale of hearing aid devices, their repair and maintenance, and fees from appointments with clients, including hearing aid tests and assessments. The appointments also include WorkCover appointments and appointments with workplaces such as the Australian Defence Force. The sale of hearing aids and associated fittings constitutes by far the greatest part of the plaintiff’s revenue.

Mr Hardie gave evidence concerning the plaintiff’s audiologists in the First Hardie affidavit:

17.…The sale of hearing aids is facilitated directly through audiologists, who, as part of their duties, will during their consults recommend hearing solutions to clients where appropriate.
18.A high performing audiologist in a high performing location may generate as much as $2M in gross revenue each year, sometimes more, the vast majority of which will be attributable to hearing aid sales (and associated fittings) by that audiologist.
19.In that respect, the sale of hearing aids/upgrades of hearing aids is the most lucrative aspect of the audiology client life cycle. For example, in some cases, the sale of hearing aids and associated fittings can bring in revenue of up to $13,800 per pair. A client will generally upgrade to new hearing aids every three to five years in more affluent areas, the periods of time are shorter given those clients may have more of an ability to upgrade their hearing devices when new technology becomes available.
20.Audiologists have direct contact with the Plaintiff's clients and are the face of the business for the clients. Their relationships with clients may last for many years. Audiologists are highly qualified specialists dealing with a health issue being that of hearing loss which, for many people who consult with audiologists, is a significant quality of life matter. Given this, clients place a significant amount of trust in their treating audiologist.
21.A typical audiologist of the Plaintiff has approximately 1000 client appointments in a year. Of these appointments, over 70% of the appointments would be for the purpose of prescribing hearing aids.
22.The Plaintiff's audiologists participate in a monetary incentive scheme based on the number of hearing solutions provided to clients. In this way, audiologists are strongly incentivised to sell hearing aids or upgrades to clients.
23.Ordinarily, a client rejecting recommended hearing aids would result in our call centre telephoning the client within three to six months to attempt to re-book them for an appointment for hearing aids. The exception is where the audiologist ticks a box on the client form stating “do not contact”. In my experience, audiologists would rarely tick that box on a client form and it would usually only be for good reason, such as where the client is now deceased, or relocated.
24.It can take a number of years for an audiologist to foster a strong client relationship. This is because a client will usually see their audiologist no more than every 6 to 12 months on average. In some circumstances they may come more frequently to address issues like fast hearing deterioration, batteries or challenges with fittings or usage. A quicker bond can also be created when an audiologist sees a client for the first time and fits hearing aids for them, providing relief from their hearing concerns.
25.To my observation and in my experience, clients do not commonly move around from one audiologist to another, though some (albeit a small minority of) clients are less fussy about which audiologist they see. I have mentioned above the trust that customers place in the skills of audiologists to treat a significant quality of life issue for them.
26.The Plaintiff has developed particular sales protocols and suggested scripts for audiologists with the objective of building a relationship between the audiologist and a new client to the Plaintiff and to ensure that the relationship continues to grow in order to retain the client. In doing so, the Plaintiff recognises that it is the connection between the audiologist and the client which is imperative in order to retain the client as a customer of the Plaintiff.

Mr Gupta disputed some of the matters in paragraph 24 of the First Hardie affidavit and gave evidence that he saw patients less frequently and only at their key consultations and that patients move between audiologists regularly. Mr Hardie disputed this and gave evidence that Mr Gupta saw his patients 4.7 times more often than Mr Gupta’s Client Advisers saw his clients directly. I refer to paragraph 7 of the the affidavit of Mr Hardie made 14 August 2025 (Third Hardie affidavit). These disputes are matters to be determined at trial.

Mr Gupta

Mr Gupta commenced employment with the plaintiff on 15 January 2001 as an audiologist. Relevantly, Mr Gupta entered into a written employment agreement with the plaintiff on 12 July 2013. Mr Gupta was employed on a full-time basis and eligible to participate in the plaintiff’s audiology bonus scheme, which was amended from time to time. It is important to set out some of the key terms of the employment agreement:

Confidential Information
You acknowledge that Confidential Information is of considerable commercial value to NHC. Any disclosure of Confidential Information in breach of your obligations will cause NHC damage that cannot adequately be compensated by any award of damages. NHC shall be entitled to an injunction to restrain you from disclosure of this Confidential Information and this remedy shall be in addition to any award of damages that may be made in favour of NHC.
You may use Confidential Information for the sole purpose of providing services to NHC in the course of your employment. You must not use Confidential Information for any other purpose without the express written approval of the CEO or a Director of NHC.
You must not remove Confidential Information from the premises of NHC without the express written approval of the CEO or a Director of NHC.
This clause shall also not apply to Confidential Information that is or subsequently comes into the public domain (unless this is due to a breach of confidentiality by you) or information required to be disclosed by law.
"Confidential Information" includes all information regarding the business, trade secrets and commercially valuable information of NHC, its related entities and associates, including without limitation:
·all information relating to NHC clients (eg. client lists, databases or records, particular Client transactions and the state of client accounts) to which you are privy as a result of your employment with NHC;
·all information relating to suppliers of goods and services and NHC arrangements with any other third parties;
·all information relating to NHC including products, pricing, manuals, books, Policies and personnel;
·all matters relating to the business and marketing plans and strategies, technical data and financial information of NHC;
·all systems, processes, designs, methods, drawings, know-how, specifications, intellectual property, computer hardware, software or programs of NHC; and
·any information or document which you have been given or which has come to your attention during your employment with NHC which, from its nature and content, is or would reasonably be expected to be confidential; and
·personnel records.

…

Restraints

During the Restraint Period you must not:
·be engaged in, be involved in or be associated with, a Like Business (including as a principal, agent, director, employee, partner, shareholder or unit-holder, contractor, advisor, consultant or agent) in the Restraint Area.
·solicit, canvass, approach or accept any approach from any customer or supplier of a Group Member with whom you had dealings with during your employment with the Company with a view to obtaining the custom or supply for a Like Business in competition with the Business.
·interfere with the relationship between any Group Member and any of their customers, suppliers, employees or contractors.
·induce, encourage or assist any employee to leave their employment with a Group Member.
·assist any third party to engage in any activity referred to above.

You acknowledge that each restriction specified above is in the circumstances reasonable and necessary to protect the Company's legitimate business interests, including interests, but not limited to the protection of Confidential Information, the Company's relationships with customers, suppliers, employees and contractors the goodwill of the Company's business.
…
General
Your obligations in respect of post-employment restraints, privacy, confidentiality, intellectual property and company property contained in this Letter will survive termination of your employment.
To the extent permitted by law, this document constitutes the entire agreement between you and NHC in relation to your employment and supersedes any prior agreement between the parties.
The terms of this Letter will continue to apply to your employment, irrespective of any alteration to your title, duties, level of responsibility, remuneration or place of employment unless amended by written agreement signed by you and NHC.

Mr Hardie gave evidence in the First Hardie affidavit that:

34.Gupta was the direct point of call with the Plaintiff's clients who were treated by him and held a trusted position with the clients in understanding their hearing needs.
35.Since the commencement of his employment, Gupta predominantly worked at the Plaintiff’s Camberwell clinic, but would also, albeit less often, work at the South Yarra clinic. Gupta would also occasionally work in the Plaintiff's regional Victoria and Tasmanian clinics. Since I joined the Plaintiff in 2012, I estimate that he would have spent around 80% of his time at the Camberwell clinic. I was informed by Michelle Atme, Associate Sales Director of the Plaintiff, on 23 July 2025 and believe that she used to work at the Plaintiff's South Yarra clinic in 2015 and that in that year, Gupta worked predominantly from Camberwell and from the South Yarra clinic one day per week.
36.Throughout Gupta's employment, he was consistently one of the Plaintiff’s top performing audiologists across Australia in terms of his sales of hearing aids. Gupta won awards for his high performance, including “High Performer of the Year” many of the years he was employed. The financial prizes for such awards included shares in the Plaintiff or significant cash payments of up to $20,000. It is evident from his success that Gupta had strong relationships with clients and built a good rapport with them.
37.Having been Gupta's manager for some years and having regard to the fact that Gupta has been consulted by many long-standing clients while employed at the Plaintiff, I can say that he built a good rapport with his clients and appeared to be trusted by them. I found Gupta to be charismatic and personable. During the period which I was directly managing Gupta, I remember asking Gupta what he did to make him so successful at sales and Gupta said to me it was largely due to the trust he had built up with clients.

Mr Gupta disputed the matters in paragraph 34 of the First Hardie affidavit that he was the ‘direct’ point of call with his clients and gave evidence in his affidavit made 5 August 2025 (Gupta affidavit) that it was the administration team working within the clinic that would usually be the direct point of call with his patients. Mr Gupta gave evidence that he primarily worked at the plaintiff’s Camberwell premises but also worked from time to time on an ad hoc basis at the plaintiff’s South Yarra premises. These disputes are matters to be determined at trial.

On 3 March 2025, Mr Gupta sent an email, copied to Mr Hardie, in which he gave written notice of his resignation, with his final day of employment being 31 March 2025, and stated, inter alia:

My recent unexpected leave due to surgery and illness has prompted a reevaluation of my personal and professional priorities. After careful consideration, I have decided to conclude my 24-year journey with Amplifon. Amplifon/NHC has been instrumental in my career development, providing unwavering support from my days as an intern to the present. I’ve had the privilege of collaborating with exceptional professionals in our field, and forming enduring friendships along the way. I am profoundly grateful for the numerous opportunities that have enriched my long and fulfilling career with the company.
I am fully committed to ensuring a seamless transition over the next four weeks. During this time, I will dedicate myself to supporting the company in every way possible.
I extend my heartfelt wishes for continued success to you, the leadership team, and the entire Amplifon family. While this decision comes with a heavy heart, I am deeply thankful for the experiences and growth I’ve gained during my tenure.

Mr Gupta gave evidence of the reasons for his resignation, including his dissatisfaction with various aspects of the plaintiff’s business. Mr Hardie disputed many of the matters raised by Mr Gupta.

On 7 March 2025, Mr Hardie spoke with Mr Gupta to discuss his resignation. Mr Gupta gave evidence that he told Mr Hardie the reasons for his resignation, including his dissatisfaction with various aspects of the plaintiff’s business. Mr Hardie disputed that Mr Gupta raised some of these matters. Mr Hardie gave evidence that he asked Mr Gupta where he was going and Mr Gupta said that there was interest from other providers but that he had not made up his mind. Mr Gupta did not dispute this. Mr Hardie also gave evidence that he asked Mr Gupta if there was an option to start his own business and Mr Gupta said that there was but nothing firm. Mr Gupta did not dispute this.

This followed a period in which Mr Gupta had been on sick leave for an extended period following back surgery. Mr Gupta gave evidence that he took personal leave from 3 February 2025 to 30 March 2025 to recover from back surgery. Mr Hardie gave evidence that Mr Gupta took the leave until 28 February 2025. Mr Gupta gave evidence that his ‘effective date seeing patients was from 3 February 2025’ (Mr Gupta in his affidavit clearly makes a typographical error in not including the word ‘not’ before ‘seeing patients’). Mr Hardie gave evidence in the First Hardie affidavit that:

42.Although Gupta had a good track record of performance overall, over the 12 months preceding Gupta's resignation, and in addition to the unusual taking of sick leave which I mentioned above, I had noticed a downward trend in his performance. This concerned me. In my experience, a downward trend in the performance of an otherwise high-performing audiologist (particularly considering the financial motivation to perform well) often meant an employee was no longer looking to continue with their employment.
43.I have reviewed Gupta's key performance indicators for the first calendar quarter (January-March) of 2024 in comparison to quarter 1 of 2025. In quarter 1 of 2024, Gupta generated approximately $413,000 in revenue for the Plaintiff. In quarter 1 of 2025, Gupta generated only approximately $45,000 in revenue. I note also that Gupta's client prescriptions for hearing aids in quarter 1 of 2024 was 49 with a client conversion rate of 88%, in comparison to quarter 1 of 2025 whereby he only prescribed 5 clients with hearing aids. This significant decline was very unusual for Gupta.

Mr Gupta gave evidence that his performance would clearly have reduced in the January to March 2025 quarter given he was on personal leave and did not service any patients from 3 February 2025. Mr Gupta also disputed that his performance significantly declined and gave evidence that his performance bonus payment per week of work during the 2025 financial year was higher than it had been in the previous financial year. These disputes are matters to be determined at trial.

Mr Trampevski

Mr Trampevski commenced employment with the plaintiff as an audiologist in or around 10 January 2005. Mr Hardie said it was September 2004. From in or around August 2010, he was employed as an Area Manager. Mr Trampevski, in his affidavit made 5 August 2025 (Trampevski affidavit), gave evidence of his employment in various other roles, including as follows:

(a) 2013 to 2015: Regional Manager for a number of States;

(b) 2015 to 2018: Business Improvement Director;

(c) 2018 to 2020: Supply Chain Director;

(d) 2020 to May 2025: Regional Associate Sales Director.

From 1 March 2020, he was employed as a Regional Associate Sales Director, Southern Region. Mr Hardie gave evidence in the First Hardie affidavit that:

46In Trampevski's latest role of Regional Associate Sales Director he reported directly to me. The role required him to:
a.work closely with Area Managers of the Plaintiff to drive sales performance across the region;
b.help deliver a range of different metrics and key performance indicators for his region in order for them to meet their sales targets;
c.coach other employees in the Plaintiff's business, in particular Area Managers and audiologists;

d. visit retail stores;
e. manage client complaints;
f.have a deep understanding of the Plaintiff's business, including its store operations, client details and data, sales trends and forecasts (including which regions and stores were most profitable), and pricing;
g.communicate marketing and campaign strategies to his region; and

h. analyse business trends and weekly forecasts.

Mr Trampevski also gave evidence of his various core responsibilities:[2]
[2]Trampevski affidavit, [11].

11At the time my employment ceased and for almost 12 of years, I did not have any patients, rather my role whilst varied throughout the year was in relation to dealing with stakeholders of the business, managing of staff (which I have set out in greater details below). I was accountable to Justin following his promotion. My core responsibilities included:
a.managing my region to ensure sales targets and Key Performance Indicator (KPIs) were achieved;
b.to drive and achieve growth across the regions of Victoria, Tasmania, South Australia, and (Western Australia till 2023 July), and meeting or exceeding all sales targets and KPIs;
c.training, coaching & people development into senior roles including Justin;
d.sales training and leadership development including the mentoring of Area Managers, achieving a high level of engagement and retention of staff in my regions;
e.client management including the handling of the escalated complaints;
f.collaborating with key partners including with BUPA, Workcover lawyers and Humm Group sales representatives;
g.reporting & business analysis including the preparation of weekly, monthly and quarterly performance reports, providing actionable insights to senior management on sales trends and market dynamics; and

h. supporting HR in recruitment activities.

Relevantly, Mr Trampevski entered into a written employment agreement on 3 August 2010. It is important to set out some of key terms:

Confidential Information:
You must keep confidential and not disclose to any person without our written consent any of our or our Customers' confidential information including but not limited to:
·personal particulars of any type of any Customer;
·the practices, business dealings, trade secrets, documents and affairs of the Company or any of its associated or related entities;
·the techniques and methods of merchandising, budgeting and market analysis used by the Company;
·any intellectual property including patents, designs and trademarks;
·all systems, processes, methods, computer programs, databases and software of the Company;
·any information or document which you have been given or which has come to your attention during your employment with the Company which, from its nature and content, is or would reasonably be expected to be confidential and any information or document which contains information which is of commercial value to the Company or any of its associated or related entities;
·any information and document which you know, or reasonably ought to know, is actually or potentially of commercial value to the Company; and
·any information and document adapted or derived in any way from Confidential Information, even where the adaptation or derivation involves significant or substantial original work;

except for such information that is publicly available other than in breach of this Agreement or which you are obliged to disclose by law.

The plaintiff seeks to enforce this term, but does not otherwise seek to enforce the other post-employment restraints in the employment contract. During the hearing the plaintiff appeared to accept that these may be void given various drafting errors, but the matter was not the subject of any detailed submissions.

On 5 March 2025, Mr Trampevski sent an email to Mr Hardie, in which he gave written notice of his resignation with his final day of employment being 2 April 2025 and stated, inter alia:

I hope this email finds you well. After careful consideration, I have decided to resign from Amplifon Australia, with my last day being 2nd of April.
Leaving after 20 years is not an easy decision. My time at Amplifon has been incredibly rewarding, and I’m grateful for all the opportunities I’ve had here.
The fact that I’ve stayed this long is a testament to how much I’ve enjoyed my work and working with the people in the company.
I still hold Amplifon in the highest regard. However, due to personal circumstances, I need to explore options that are less demanding with flexibility for my current situation.
I’m committed to ensuring a smooth transition. Please let me know how I can best assist during this period. Thank you for your understanding and to the wider team for their ongoing support over the years.

On 6 and 7 March 2025, Mr Hardie spoke to Mr Trampevski about his resignation. Mr Hardie gave evidence:[3]

51On 7 March 2025 at 4:05pm, I again telephoned Trampevski and asked that he stay for another few months or at least until June or late May 2025. I said the Plaintiff could pay him his bonus and he could also come on an upcoming management trip to Thailand if he agreed to stay employed with the Plaintiff for another couple months. I also said to him I hoped he would not screw us and go to work [for a] competitor business including Gupta (noting I had spoken with Gupta a few hours before (see paragraph 41 above) and Gupta had left the door open to starting his own business). Trampevski said he was not going to do that. Ultimately, Trampevski agreed that he would stay with the Plaintiff for an additional couple of months in exchange for his bonus. He did not want or take up the trip to Thailand.

[3]First Hardie affidavit, [51]-[53].

Mr Hardie also gave evidence:[4]
[4]Ibid [48]-[49].

48Over the course of 12 months preceding Trampevski's resignation, I had noticed a downward trend to his performance and, as with Gupta, I had wondered about whether this was evidence he was intending on moving to another business. Given the nature of his role my conclusions in this regard did not relate to sales or quotas but to more traditional human recourses related measures.
49In particular, I observed and in fact had discussed with Trampevski the following concerns with his management of day-today operations in the course of the 12 months before his resignation:
a.During a recent two-week leave period, he failed to provide clear direction to his team regarding meetings, key points of contact, and day-to-day operations. As a result, regular reporting sessions for the VIC/TAS region were missed until I intervened to nominate a leader;
b. The region fell short of intern audiology recruitment targets to start 2024, despite multiple conversations with him. Consequently, the region operated below FTE budget for January and February, with VIC1 significantly impacted until May, when I had to step in to address recruitment challenges and reallocate team members across the state;
c.Weekly reporting meetings often lack preparation, with reports being completed during the meeting itself;

d.There was insufficient attention to operational details, exemplified by an audiologist being overpaid for the entirety of 2024 due to incorrect FTE and overtime allocation;
e. A new area manager started without a comprehensive induction plan. In the absence of direction from Trampevski, I worked with HRBP and Michelle Atme to create one;
f. One of the region's area managers approached me directly, citing a lack of support for their Individual Development Plan and requesting my assistance to advance their career;
g.There is a general sense of disorganisation and a lack of accountability across the region.

Mr Trampevski gave evidence that Mr Hardie did raise concerns with his performance but gave evidence disputing the precise matters that were raised with him and also gave evidence concerning his performance. Nonetheless, there is no issue that he withdrew his resignation and continued to work for the plaintiff.

On 28 April 2025, Mr Trampevski sent an email to Mr Hardie, in which he gave further written notice of his resignation, now with his final day of employment being 23 May 2025 and stated, inter alia, that is was due to his personal circumstances. Mr Trampevski gave evidence concerning the reasons for his resignation, including concerning his personal circumstances and also concerns about the plaintiff’s business. He was paid his bonus.

On 28 April 2025, Mr Hardie was told by Mr Trampevski that he was going to work with Mr Gupta:[5]

55I am informed by Flavia Paoli, Managing Director of the Plaintiff, and believe that on 28 April 2025, prior to Trampevski sending me an email with his resignation, Trampevski approached Mr Paoli in a hallway of the Plaintiff's offices and said he wanted to be honest and was going to go work for Gupta. I saw Trampevski later that day and he told me the same thing.
56Had I known Trampevski was going to work with Gupta or any other competitor, I would not have asked him to remain employed or offered him his bonus and trip to Thailand. I would not have wanted him to remain employed because during the period of employment after 6 March 2025, Trampevski continued to have access to the Plaintiff's confidential information, as described below - including regularly updated sales and marketing results and forecasts.

Plaintiff’s alleged confidential information

[5]First Hardie affidavit, [55]-[56].

Mr Hardie gave evidence concerning the plaintiff’s confidential information and Mr Gupta’s and Mr Trampevski’s access to it in the course of employment. In particular, I refer to the key evidence concerning this at paragraphs 57 to 67 and 71 of Mr Hardie’s First Hardie affidavit, paragraphs 12 and 13 of his affidavit of 30 July 2025 (the Second Hardie affidavit) (which wholly amended paragraphs 63 and 64 respectively of his First Affidavit) and paragraphs 13, 21, and 23 to 36 of the Third Hardie affidavit. Much of the information is described in very general terms. See for example, the Second Hardie affidavit at sub-paragraphs 12(b), 12(c), 12(d) and 12(f) and at sub-paragraphs 13(b), 13(c), 13(d), 13(e) and 13(g).

Mr Hardie gave the following key evidence, inter alia, concerning client information:[6]
[6]Ibid [60]-[62].

60The confidential client information data which is stored on the HSP portal, Microsoft BI and Fox platforms includes:
a.         full names;
b.         addresses;
c.         dates of birth;
d.         email addresses;
e.         phone numbers;
f.         hearing healthcare history;
g.         payment history; and
h.         history of services provided.
61Given the nature of the Plaintiff's business is providing hearing healthcare services to clients and selling hearing aids to its clients, access to confidential client information is provided in confidence, both in regard to the clients and the Plaintiff.

62 The private client information in the Australian market and related market knowledge and data has taken the Plaintiff almost three decades to gather. While some clients might only visit a retail store once for a hearing check, others have been with the Plaintiff's business for a long period of time. Their contact details and services history allow for targeted direct marketing by the Plaintiff, including through the prompting of audiologist appointments where, for example, it can be seen that they may be ready for a hearing aid upgrade.

Mr Gupta gave evidence concerning his access to the plaintiff’s information. In particular, I refer to paragraphs 34 to 43 of the Gupta affidavit. In summary, he accepts, denies, and qualifies various statements Mr Hardie made about his access to information. These are disputes to be determined at trial. Mr Gupta also gave evidence:[7]

42I was not aware, nor did I have intimate knowledge beyond my accumulated know how that had been common knowledge within the business of the top performing locations as described in paragraph 67 of Hardie's Affidavit. Further, I reject any assertion that the information we had access to would assist us in enticing or soliciting high performing audiologists to Hearing Consultants. As a start-up business, we have limitations on cash flow and cannot afford the capital outlay to attract high performing audiologists to come and work for Hearing Consultants.

[7]Gupta affidavit, [42].

Mr Trampevski gave evidence concerning his access to the plaintiff’s confidential information. In particular, I refer to paragraphs 29 to 43 of the Trampevski affidavit. In summary, he disputes that he had access to some information but states that he had access to some information. Again, these disputes are to be determined at trial.

Mr Gupta and Trampevski did not respond to the matters set out in paragraphs 12 and 13 of Mr Hardie’s Second affidavit, where he amended paragraphs 63 and 64 of the Hardie First affidavit, which provided a detailed list of the confidential information that he says Mr Gupta and Mr Trampevski had access to. As a result, it is difficult to determine the precise nature and extent of the dispute concerning access to the confidential information. But the fact remains there are extensive factual disputes between the parties concerning access. It appears that that there are disputes concerning, inter alia, the following matters:

(a) the extent of Mr Trampevski’s access to the Fox, Microsoft BI and HSP platforms;

(b) the extent of Mr Gupta’s knowledge of the information;

(c) the nature and extent of Mr Gupta’s past and present knowledge of the plaintiff’s clients;

(d) the precise client information data that was available on each of the Fox, Microsoft BI and HSP platforms;

(e) the precise information available to Mr Trampevski on the Microsoft BI platform;

(f) further as to Mr Gupta, the information he disputed having access to, inter alia, figures relating to EBITDA, geomapping data developed by the plaintiff about locations with population indicators which demonstrate areas with a high level of persons over the age of 55.

(g) further as to Mr Trampevski:

(i)the extent to which Trampevski had access to HTO information, specifically deidentified customer data, such as hearing test dates, quantities, and values;
(ii)whether he had access to HTO client codes and all KPIs around HTOs, including volumes by clinic and areas;
(iii)the extent to which he had access to Customer Relationship Access (CRM). Specifically, whether Mr Trampevski had access to ‘MUU’ marketing data that his peers and Area Managers did not.

As a result, there is serious questions to be tried as to the nature and extent of the access of Mr Gupta and Mr Trampevski to the plaintiff’s alleged confidential information, including at the times when the plaintiff entered into the employment agreements with Mr Gupta and also Mr Trampevski.

There are also extensive factual disputes whether certain information is confidential information. Much of the information by its description appears to be confidential. The defendants relied upon the plaintiff’s evidence now being publicly disclosed in these proceedings and that this makes some of the information not confidential. This is a serious question, but I observe that the plaintiff’s evidence does not disclose much of the information that underlies Mr Hardie’s evidence.

In these circumstances, this issue of access and the nature of the information, and whether it has been disclosed, is properly a matter for trial.

Establishment of Hearing Consultants

There is no dispute between the parties that Mr Gupta and Mr Trampevski established Hearing Consultants and took very substantive steps to establish it during the period of time they were employed by the plaintiff. There is also no dispute that Mr Gupta and Mr Trampevski never informed the plaintiff that they were engaging in these activities at any time during their employment with the plaintiff. There is no dispute that Hearing Consultants, once it commenced trading, was and is a direct competitor of the plaintiff.

Mr Gupta gave evidence that he began discussing establishing an audiology clinic with Mr Trampevski in about June 2024. Mr Trampevski gave evidence to the same effect.

On 27 June 2024, Hearing Consultants was incorporated. Upon its incorporation,

(a) its principal place of business was identified as being 664 Burke Road in Camberwell (the Burke Road Premises). This is recorded in the company search. This is prior to the transfer and variation of a lease of the Burke Road Premises which was entered into some time prior to 22 November 2024. I address this further below. Mr Gupta also gave evidence that they had looked at other alternate premises and I infer that this must have been sometime prior to 27 June 2024;

(b) its directors were Mr Gupta and Mr Trampevski. Mr Gupta remains a director, but Mr Trampevski ceased to be a director on 22 April 2025; and

(c) its shareholders were companies associated with Mr Gupta and Mr Trampevski, which were also incorporated on 27 June 2024. This remains the present position.

Hearing Consultants entered into a transfer and variation of a lease of Burke Road Premises (it is undated). Mr Gupta gave evidence that the transfer and variation of lease was ‘secured’ on 22 November 2024 and commenced on 1 December 2024. But the transfer and variation of lease provides for the ‘Security Deposit’ or ‘Bond’ to be provided on the ‘Transfer Date’ (i.e. 22 November 2024). The transfer and variation of lease provides for a ‘rent free period’ commencing on 22 November 2024. As a result, I infer it was entered into sometime prior to 22 November 2024.

Mr Gupta gave evidence as to why he and Mr Trampevski selected the Burke Road Premises.

Mr Gupta also gave evidence that in early April 2025 he and Mr Trampevski commissioned the website associated with Hearing Consultants.

Mr Gupta gave evidence that he contacted suppliers upon the cessation of his employment. Hearing Consultants has also subsequently entered into various contracts with hearing aid suppliers.

By no later than 11 April 2025, Mr Gupta described himself on LinkedIn as an audiologist at Hearing Consultants.

On and from 12 April 2025, Mr Gupta’s image was significantly displayed in a large photograph at the Burke Road Premises together with extensive branding advertising ‘Hearing Consultants’. The photographs in evidence show a significant retail shop front. This is in very close proximity to the plaintiff’s Camberwell premises at a distance of about 30 metres.

On 14 April 2025, Hearing Consultants entered into a contract with My Kube Pty Ltd to provide fit-out out works for the Burke Road Premises in the sum of $182,134 plus GST. Mr Gupta gave evidence that on 14 April 2025 he and Mr Trampevski paid a deposit for the fit out works. There is no evidence when the fit out work commenced.

On 22 April 2025, Mr Trampevski resigned as a director of Hearing Consultants, leaving Mr Gupta as the sole director and secretary. The reason for this was not explained. But this was shortly prior to his resignation from the plaintiff, notice of which was given on 28 April 2025.

The defendants registered various business names. I refer to Hardie’s First affidavit at paragraph 69. Mr Hardie gave evidence that the names were registered on 19 May 2025 and 5 June 2025. Mr Gupta gave evidence that the business names were registered between 19 May 2025 and 5 June 2025. Mr Hardie gave evidence, to the effect, that these locations correspond with the plaintiff’s best performing sites and that, as a result, there must have been a misuse of the plaintiff’s confidential information. For example, Mr Hardie gave evidence:[8]
[8]First Hardie affidavit, [72]-[77] and [92]-[94]. See also Second Hardie affidavit, [7]-[8].

70Each of the above locations corresponds with a high-performing clinic location of the Plaintiff, which is a fact which would only be known through access to the confidential sales and performance data I have described above.
71In the course of his work, Trampevski had regular access to a report used by the Plaintiff to monitor its best performing clinics. The business names obtained by Hearing Consultants correlate with suburbs in which some of the Plaintiff's best performing clinics are located. Hearing Consultants premises are close to seven of the Plaintiff's top performing clinics.

72       The relevant top performing clinics of the Plaintiff are:
a.         Epping (which is in the same suburb as the proposed Hearing Consultants Epping);
b.         Dandenong (which is 3.7km from Hearing Consultants operating out of the North Dandenong Clinic);
c.Cheltenham (which is 9.5km from the suburb of Glen Huntly, corresponding to the registered business name Hearing Consultants Glen Huntly);
d.Frankston (which is 10km from Hearing Consultants Carrum Downs operating out of Carrum Downs Medical Centre);
e.Camberwell (which is 190 metres from Hearing Consultants Camberwell);
f.Reservoir (which is in the same suburb as the proposed Hearing Consultants Reservoir); and
g.         Brandon Park (which is 2.2km from Hearing Consultants Mulgrave operating out of the Valewood Clinic, Mulgrave).

A copy of the table showing the above information is produced at page 89 of JH-1.
73With reference to the Plaintiff's GP marketing database referred to at paragraph 63.i above, the Defendants have registered business names for, and commenced trading at:
a. Hearing Consultants Dandenong North within North Dandenong Clinic which is considered a 'silver' classification in terms of high value GPs;
b. Hearing Consultant Mulgrave within Valewood Clinic which is considered a 'silver' classification in terms of high value GPs; and
c.Hearing Consultants Carrum Down within Carrum Downs Medical Centre which is considered a 'bronze' classification in terms of high value GPs.

74With regard to the other three business names registered by the Defendants, the suburb of:
a.         Epping has a 'gold' classification;
b.         Glen Huntly has a 'white' classification;
c.         Reservoir has a 'gold' classification.
75       I therefore consider that the selection of the locations must have occurred as a result of Hearing Consultants' access to and acquiring of the Plaintiff's confidential information, including up to date sales, the GP marketing database and audiologist performance information. This confidential information would reveal to the Defendants which of the Plaintiffs locations are the most lucrative and profitable.
76Given the nature of the audiology business and its client base, many clients tend to be local to where the business operates. I therefore believe Gupta and Trampevski have chosen locations close to the Plaintiffs most lucrative and profitable locations with the intention of soliciting the Plaintiffs clients from those respective locations.
77       Given the number of clinics for which business names have been registered, I can only suppose that Hearing Consultants intends to solicit audiologists to work in those clinics once open, hoping for them to take many of their clients with them (I have mentioned earlier in my affidavit the strong client connection which is formed between audiologists and clients). Given the typically high salary of audiologists, a new audiology business would want to make especially certain that it only employs likely high-performing audiologists in its clinics - a matter that, for the Plaintiffs audiologists, was easily identifiable to Trampevski through his former role at the Plaintiff.

…

92I am informed by Luke Marin, an employee of the Plaintiff, and believe that the:
a.Hearing Consultants Mulgrave site will initially be located at the Valewood Clinic, 1 Wanda Street, Mulgrave; and.
b. I am informed by Luke Marin, an employee of the Plaintiff and believe that the hearing Consultants Carrum Downs site will initially be located at the Carrum Downs Medical Centre, 113a Hall Road, Carrum Downs.

A copy of email correspondence received from Hearing Consultants on 10 July 2025 providing the above the Mulgrave and Carrum Downs addresses is produced at page 95 of JH-1.
93I understand the Hearing Consultants Dandenong North site will initially be located at the North Dandenong Clinic, 62 Gladstone Road, North Dandenong.
A true copy of a screenshot of Gupta appearing on the North Dandenong Clinic website (with URL: gupta) which states he will be operating out of this clinic is produced at page 96 of JH-1.
94These locations are in medical centres which rank high on the Plaintiff's geographic location of high performing clinics and high performing audiologists. As I describe above at paragraph 62.i, information of this kind is confidential and highly valuable information of the Plaintiff. This strongly suggests to me that Hearing Consultants have used the Plaintiff's confidential information to determine where they should open their medical room clinic locations.

On 15 May 2025, a building surveyor issued a building permit in relation to the fit out works at the Burke Road Premises.

Mr Gupta gave evidence that in the period 26 May 2025 to 25 June 2025, he carried out a few home visits to clients that had found him through the website. These visits occurred post the employment of Mr Gupta and Mr Trampevski.

Mr Gupta gave evidence that from 6 June 2025 they made use of a room at the Carrum Downs Medical Centre and from 21 June 2025 they made use of a room at Valewood Clinic. Mr Hardie gave evidence of Hearing Consultants’ operation from medical centres at Mulgrave, Carrum Downs and North Dandenong.[9]
[9]First Hardie affidavit, [91]-[94].

On 18 June 2025, Hearing Consultants entered into a contract with the Commonwealth of Australia to provide certain services. This was signed by Mr Gupta but also signed by Mr Trampevski as a ‘director/secretary’ even though he had resigned as the director and was not the secretary. The contract provides that Hearing Consultants must provide certain services on the terms set out in the contract. I refer to clause 7. Mr Gupta gave evidence:[10]

66By refusing to see patients or customers as per the Plaintiff's instruction, Hearing Consultants, John and I would be in breach of our contractual obligations to the Australian Government (HSP) and patients who are subject to the hearing Services Program by refusing service.
A copy of my email exchange with the Australian Government Department of Health, Disability and Ageing dated 30 July 2025 is attached at page 112-113 of AG-1.

[10]Gupta affidavit, [66].

The plaintiff disputed that there would be any breach.

Mr Gupta gave evidence that on or about 2 July 2025 the builder handed over the completed Burke Road Premises.

On 3 July 2025, Hearing Consultants opened its retail business at the Burke Road Premises.

Mr Hardie gave evidence that the following businesses have commenced trading: Hearing Consultants Dandenong North, Hearing Consultants Mulgrave and Hearing Consultants Carrum Down, all within medical centres (i.e. a ‘shop in shop’).

Mr Hardie expressed the following opinions:[11]

95Given the opening of Hearing Consultants Camberwell retail store, I consider the Defendants must have confidence in an already established reliable client base attending that store which would support what must be their significant overheads for that store. I describe below the requests from Gupta's clients to transfer from the Plaintiff's clinics to the Hearing Consultants Camberwell clinic.
96When combined with the information I describe below, the timing of their opening new business locations leads me to infer that Gupta and Trampevski have diverted business opportunities away from the Plaintiff during their employment and utilised confidential client information and confidential sales information to target clients after ceasing employment.

[11]First Hardie affidavit, [95]-[96].

On 30 July 2025, Mr Gupta and a person only identified as ‘Peter’ from the Department of Health, Disability and Ageing exchanged correspondence. In summary, Peter informed Mr Gupta that it was a breach of the contract for Hearing Consultants to refuse to service a client.

Alleged misuse of confidential information

The plaintiff relies upon the following key conduct in relation to the alleged misuse:

(a) misappropriating and misusing the client information described in paragraph (iv) of the Alternative Confidential Information Injunction (plaintiff’s Client Information). With respect to Mr Gupta it relies upon inferences, the failure to lead certain information by the defendants and the leading of other irrelevant information by them concerning transfer requests made by clients in July 2025 to the plaintiff for transfer of their care to Hearing Consultants. With respect to Mr Trampevski it relies upon the downloading by him of information concerning sales forecast data of clients who attended appointments but who decided not to proceed with a purchase;

(b) misappropriating and misusing other information described in paragraphs (i), (ii), (iii) and (v) of the Alternative Confidential Information Injunction (plaintiff’s Other Information). It relies upon the inference from the substantial and speedy development of the Hearing Consultants’ business in direct competition with the plaintiff, including at its key sites, in particular Mr Trampevski’s intimate knowledge of such information and Mr Trampevski’s suspicious laptop activity prior to departure and Hearing Consultants’ business plans of unprecedented scale compared to the normal market entrant. In addition that Mr Trampevski has disclosed the plaintiff’s information ‘at least inadvertently or sub-consciously’ and will do so in the future unless restrained.

There are some differences in the precise conduct of misuse relied upon in the claims against Mr Gupta and Mr Trampevski. But the substantive conduct is the same as the plaintiff relies upon them acting in concert and, in effect, in a joint enterprise, for the benefit of Hearing Consultants. The rationale for many of the differences is also not apparent. They are not significant on this application. As a result, I have had regard to all of the conduct of misuse alleged against both of them in determining whether there are serious questions to the claims against the defendants unless I otherwise identify this in these reasons.

The plaintiff also relies upon, inter alia, these matters and the continued association between Mr Gupta and Mr Trampevski in Hearing Consultants to submit that an inference may be made that the misuse will continue. It also sought to rely upon the defendants seeking to limit the undertaking proffered to disclosing or using ‘documents’. As a result, the defendants made amendments to the undertaking, broadening it to include information in the documents.

Alleged misappropriation and misuse of the plaintiff’s Client Information

In my view, there is a serious question whether Mr Gupta misused the plaintiff’s Client Information (e.g. email addresses) and Mr Trampevski misused sales forecast data of clients to, inter alia, solicit and approach clients for Hearing Consultants. I accept that an allegation that a former employee has misused confidential information belonging to his or her former employer ‘is of the utmost seriousness’:[12] see Liberty Financial Pty Ltd v Scott (No 4).[13]
[12]Liberty Financial Pty Ltd v Scott (No 4) (2005) 11 VR 629, [13] (Harper J) (Scott).
[13]Ibid.

The defendants submitted that the plaintiff’s Client Information is not confidential, including contact details of clients. It submitted that this information belongs to the client. But this may not affect the confidential nature of such information in the possession of the plaintiff. It also submitted that this forms part of know-how. In my view, there is a serious question whether the plaintiff’s Client Information is confidential.

Mr Hardie gave evidence of the plaintiff’s receipt of transfer requests from its clients, with whom Mr Gupta dealt with during his employment with the plaintiff, to transfer their records to Hearing Consultants. I refer to the First Hardie affidavit at paragraphs 105 to 126 and also paragraph 4 of the Second Hardie affidavit. Mr Hardie also gave evidence in the First Hardie affidavit:[14]

129In addition to the confidential information risk, I have not seen such an immediate and quick scale of client transfers to one provider in all my time at the Plaintiff's business. The client transfer requests total 15 as at the date of this affidavit, but the Hearing Consultants Camberwell retail store has only officially been open since 3 July 2025.

[14]First Hardie affidavit, [129].

Mr Hardie also gave evidence in the Third Hardie affidavit:[15]

11 With reference to paragraph 35 of the Gupta Affidavit, Gupta saw 16 clients between 3 February 2025 to his final day with Amplifon – 31 March 2025 inclusive. Notably, he saw clients Agapitoula Pliambas on 3 February 2025 and Leonie O'Hanlan on 31 March 2025, both of whom have since transferred to Hearing Consultants Australia. I can think of no reason why those clients would have voluntarily searched for an audiologist so soon after seeing Gupta and stumbled upon his new clinic without his having solicited them.

[15]Third Hardie affidavit, [11].

Mr Gupta gave evidence that Mrs Ben-Meir, one of the patients who provided a transfer request to the plaintiff, made contact with him in May 2025. In addition, Mr Gupta gave evidence:[16]
[16]Gupta affidavit, [60]-[62].

60I did not solicit, induce or approach any of those seventeen patients to become patients of Hearing Consultants. A simple google search would have revealed that I had started Hearing Consultants. Additionally, through Hearing Consultants Australia website, patients can directly enquire.
A copy of direct patient enquires are attached at page 102-109 of AG-1.
61In my experience and knowing other audiologists, having seen numerous audiologists leave the Plaintiff during my time as an employee, I disagree with the assertions stated in the Hardie Affidavit at paragraphs 127-129. It is common when a practitioner/audiologist leaves a clinic or provider that a “flurry” of patient transfer requests occur. In my opinion, this occurs for a variety of reasons including:
a. patient/clinician relationship; and
b.clinician and referrer network relationships; and
c.Supplier and clinician relationships.

Hearing Consultants commenced business on 3 July 2025. In the period between 4 July and 25 July 2025, the plaintiff received fourteen requests from former clients serviced by Mr Gupta to transfer to Hearing Consultants and a further two requests from Mr Gupta’s parents. The requests were in a form of a template that was prepared by Mr Gupta.

Mr Gupta denies that he, inter alia, approached any of these clients to become clients of Hearing Consultants. The defendants submitted that there is no evidence that he downloaded the plaintiff’s client information. Mr Gupta gave evidence that a simple Google search would have revealed that he had started Hearing Consultants. But Mr Gupta did not give any evidence of any actual approaches made by these clients to transfer their care to Hearing Consultants, including correspondence from them. Mr Gupta gave evidence that clients can directly enquire through the website of Hearing Consultants and referred to a number of patient enquiries. But none of them concern the clients who requested a transfer between 4 and 25 July 2025 who I have identified above. In addition, with respect to a patient named Mrs Ben-Meir, the defendants produced text messages between her and Mr Gupta that were incomplete as they do not contain a full record of the communications. Mr Gupta responded in his text of 25 July 2025 to a text from Mrs Ben-Meir that was not included. Mr Gupta’s evidence is not cogent for the reasons I have just identified.

The defendants also submitted that even if Mr Gupta did approach patients known to him the evidence does not point to a finding that this involved any misappropriation or misuse of confidential information. The defendants also submitted that the transfer requests represented a very small percentage of his clients. The defendant’s submission that the patients actively sought out Mr Gupta is, in part, consistent with the plaintiff’s own case as to the strength of customer connections and the trust patients had in Mr Gupta. But it does not explain why the transfer requests occurred in such numbers after the opening on 3 July 2025. By no later than 12 Apil 2025, Hearing Consultants had a prominent presence on Burke Rd at the Burke Road Premises and was advertising on the website. Nonetheless, the transfer requests started to occur in July 2025 shortly after opening. In my view, the claim of misuse and further misuse is strong.

The evidence concerning the conduct of Mr Trampevski was the subject of an objection that also addressed other evidence. For convenience, I address the objection below. For reasons I identify below, I have not upheld the objection. I note that, in any event, Mr Trampevski does not dispute that he downloaded sales forecast data of clients who attended appointments but decided not to proceed with a purchase. But there is no evidence that he used it and he has provided an explanation why he did it. It is disputed by Mr Hardie. As a result, there is serious question of misuse but I am not satisfied it is a strong or weak claim of misuse.

Mr Gupta’s and Mr Trampevski’s misuse of the Plaintiff’s Other Information

It is necessary to first address an objections to the First and Second Hardie affidavits. The defendants objected to the First Hardie affidavit at paragraphs 140-141 and the Second Hardie affidavit at paragraph 9. These paragraphs concern conversations between Mr Hardie and a Mr Andrew Le, Senior Analysis -Forensics of Forensic IT, concerning Mr Trampevski’s use of his computer and his mobile telephone. The defendants objected to these paragraphs on the following basis:

(a) Mr Le is not being called to give evidence;

(b) Mr Le’s report is not in evidence;

(c) there is no evidence that Mr Le is an appropriately qualified expert;

(d) the data upon which Mr Le’s opinions are expressed is not in evidence;

(e) the evidence is unreliable as it is ‘double hearsay’.

The plaintiff submitted in response:

(a) the opinion rule does not apply because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed. It submitted that is relevant to the issue of delay and why the plaintiff then issued this proceeding on 25 July 2025;

(b) the seniority and specialisation or relevant qualification of Mr Le may be inferred from his title and the content of his discussion with Mr Hardie at paragraph 141 of the First Hardie affidavit;

(c) the failure to call Mr Le is a matter that may ‘theoretically’ go to weight.

In my view, the evidence is admissible:

(a) I accept that the opinion rule does not apply as it may be admitted pursuant to s 77 of the Evidence Act 2008 (Vic) because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion is expressed. It is relevant to the issue of delay;

(b) in any event, I am otherwise satisfied that Mr Le is an appropriately qualified expert to express opinions on forensic IT matters. He is a senior analysis at a forensics IT organisation, expressing an opinion about a forensic IT issue;

(c) I accept that the matters set out in paragraphs 141 of the First Hardie affidavit and paragraph 9 of the Second Hardie affidavit are in large part conclusionary and the underlying data is not adequately identified. No report has been provided. This goes to weight. But I also note that Mr Trampevski has responded to paragraph 141 of the First Hardie affidavit, and, inter alia, does not dispute downloading other data.

In my opinion, there is a serious question whether Mr Gupta and Mr Trampevski misused the plaintiff’s Other Information. Again, I accept that this allegation is of the utmost seriousness: see Scott.[17] I am not satisfied that overall it a strong or a weak claim of misuse. But the actual information that is alleged to have been misused is sometimes described only in very general terms. In particular, I refer to Mr Hardie’s evidence in the Hardie First affidavit at paragraphs 75, 88, 94, 96, 127, 128. Some is specific. For example, see Mr Hardie’s evidence in the Hardie First affidavit at paragraph 141 and Hardie Third affidavit at paragraph 22.
[17]Scott, 634 [13].

First, there is no dispute that Mr Gupta and Mr Trampevski developed the Hearing Consultants’ business.

Second, there is a serious question to be tried whether Mr Trampevski had an intimate knowledge of the plaintiff’s Other Information.

Third, there is a serious question to be tried whether Mr Trampevski engaged in ‘suspicious laptop activity’ prior to departure from which it may be inferred that he misappropriated some of the plaintiff’s Other Information. That is, that he misappropriated some of the plaintiff’s Other Information shortly prior to the termination of his employment by downloading it. The plaintiff relies upon the matters told to Mr Hardie by Mr Le. I refer to the First Hardie affidavit at paragraph 141. Paragraph 141(a) refers to a ‘lack of file activity’ without any other explanation. But Mr Trampevski denies that he used another device before departure from the plaintiff. There is no other evidence that he did so, apart from the opinion of Mr Le which is not otherwise explained. Mr Trampevski does not deny that he downloaded data described in Mr Hardie’s affidavit at paragraphs 141(`b) and (c). He said he did it for work purposes which is disputed by Mr Hardie and Mr Hardie has provided reasons why this would not have been for work purposes, including in the Third Hardie affidavit at paragraph 22. Mr Trampevski also admits deleting his browsing history on his laptop on or before 9 May 2025 and gave evidence that he used the laptop for work and personal matters and did not consider it unusual to delete the history. I also refer to paragraph 130 of the First Hardie affidavit. The plaintiff relies upon Mr Trampevski wanting to retain his issued laptop and telephone. Mr Trampevski denies that he requested to retain is laptop. Mr Hardie gave evidence he ‘can only assume’ that his intention was that he wanted to continue to have access to the plaintiff’s confidential information. This later matter is speculation by Mr Hardie. I also refer to the Third Hardie affidavit at paragraph 22, where Mr Hardie gives evidence that Mr Trampevski downloaded performance data concerning all of the plaintiff’s audiologists nationally on 7 May 2025, and opines that, if this data was legitimately downloaded for the plaintiff’s purposes, a smaller regional subset of performance data would have instead been downloaded. I accept that there are serious questions of misuse but I am not satisfied that the claim is strong or weak.

Fourth, the plaintiff relies upon the plaintiff’s ‘refusal’ to make his personal mobile available for analysis by the defendant. Mr Hardie gave evidence that Mr Trampevski has refused to make his telephone available to the plaintiff’s solicitors available for analysis. First, Mr Hardie accepts that the telephone is Mr Trampevski’s telephone. Second, the plaintiff has not sought any order from the Court in relation to the telephone. I am not satisfied that the refusal, in these circumstances, gives rise to a strong claim of misuse.

Fifth, as I have already said, the plaintiff submitted that there is a serious question that Mr Trampevski has used the plaintiff’s Other Information ‘at the very least inadvertently or subconsciously’ and will do so in the future. It relied upon Liberty Financial Pty Ltd v Jugovic (Jugovic),[18] a decision in which Beach J said:
[18][2021] FCA 607, [180]-[181], [271]-[272], [277].

180. I am not able to resolve the assertions and counter-assertions. Suffice it to say that I have considered that there is a real risk that Mr Jugovic may inadvertently or subconsciously use Liberty’s confidential information if he takes up employment with ORDE in the next 12 months. But it is unnecessary for me to be more specific at this stage concerning the information. I am dealing with a threatened breach of confidence rather than a cause of action where there has been an actual breach. Further, I am not at all convinced that undertakings given by the defendants could address this problem. They would be difficult to police, particularly concerning subconscious or inadvertent misuse of confidential information.

181. In any event, I do not need to be more specific at this stage as in my view Liberty has made out a strong prima facie case in any event under the relevant restraint clause such as to now justify an injunction.

…

271. Finally on the prima facie limb question, Liberty also relies on the springboard doctrine.

272. Liberty says that if Mr Jugovic works for ORDE and uses Liberty’s confidential information, ORDE will receive an advantage by way of a head start or springboard to the detriment of Liberty. Liberty seeks to restrain Mr Jugovic from commencing work at ORDE on the basis of the springboard doctrine, for a period of at least the 12 month maximum “Relevant Time” if not longer.

…

277. In my view it is arguable that a springboard injunction will also lie on the facts of the present case. But I do not propose to say anything further about the matter at this stage. The injunction that I propose to grant can be justified on the other bases that I have already identified, subject to the balance of convenience question to which I will now turn.

The plaintiff submitted that this was a strong prima facie case. It submitted ‘the whole springboard injunction … relies upon the inadvertent and subconscious use of sensitive financial, commercial information of the plaintiff. That’s all I need to prove for the serious question.’[19] This submission also concerned Mr Gupta. Despite this submission, the plaintiff continued to address all of the other evidence concerning alleged misuse including by addressing this in the extensive tables provided to the Court on 15 August 2025. But the plaintiff also subsequently submitted that there is no difficulty with Mr Gupta going to another audiology clinic (i.e. not Hearing Consultants) as an employee audiologist.[20] The plaintiff also accepted that absent some inference of wrongdoing the plaintiff would have no legal basis to restrain Mr Gupta from a ‘feared breach of confidence’.[21] But this submission is arguably inconsistent with the plaintiff’s submission that there is a risk that Mr Gupta and Mr Trampevski will engage in inadvertent and subconscious use of sensitive financial, commercial information of the plaintiff in working for Hearing Consultants. None of this was adequately explained or addressed by the plaintiff. I accept that there is a serious question that Mr Gupta and Mr Trampevski may make inadvertent and subconscious use of the plaintiff’s Other Information in working at Hearing Consultants. This is a matter for trial.
[19]T 90.28-91.2 (14 August 2025)
[20]T 146.6-10 (14 August 2025).
[21]T 147.13-25 (14 August 2015)

Breach and apprehended breach by Mr Trampevski of his fiduciary duty to the plaintiff

This concerns the Springboard Injunction.

I am satisfied that:

(a) there is serious question Mr Trampevski owed the alleged fiduciary duty, but it is not a strong claim. He was a senior manager. I otherwise refer to the matters I have addressed in relation to the existence of the duty concerning Mr Gupta. The plaintiff again referred to him as a senior manager. Mr Hardie gave evidence concerning his role (see First Hardie affidavit at paragraph 46) and his access to confidential information but the plaintiff did not identify with any precision why there is a serious question that such a duty arose;

(b) in the event that Mr Trampevski owed the alleged fiduciary duty, there is a serious question that he breached it and insofar as the claim is based upon the:

(viii) the misuse of the plaintiff’s Other Information it is not a strong or weak claim of breach. I otherwise refer to the matters I have addressed in relation to this issue;

(ix) the misuse of the plaintiff’s Client Information it is a strong claim of breach. I otherwise refer to the matters I have addressed in relation to this issue;

(x) conduct of Mr Trampevski in establishing and preparing Hearing Consultants, it is a weak case. I otherwise refer to the matters I have addressed in relation to this issue concerning Mr Gupta but note that Mr Trampevski’s employment terminated on 23 May 2025;

(xi) conduct of Mr Trampevski in not informing the plaintiff of certain matters, such as him and Mr Gupta intending to compete with the plaintiff, there is no serious question. Alternatively, it is a very weak case. I otherwise refer to the matters I have addressed in relation to this issue concerning Mr Gupta;

(c) there is serious question the plaintiff will be entitled to relief at trial in the terms of the Springboard Injunction but it is a weak case and refer to the matters I have addressed in relation to this issue concerning Mr Gupta.

Breach and apprehended breach by Mr Trampevski of his duty of fidelity to the plaintiff

This concerns the Springboard Injunction.

It is well established that an employee has a duty of fidelity and loyalty to their employer. Mr Trampevski owed such a duty to the plaintiff during the term of his employment.

The plaintiff relied upon the same matters it did for the breach of fiduciary duty. As a result, I refer to my reasons on that claim which are applicable to this claim.

Breach and apprehended breach by Mr Trampevski of the confidential information covenant

This concerns the Confidential Information Injunction.

There is a serious question whether:

(a) Mr Trampevski breached the confidential information covenant whilst employed by the plaintiff;

(b) the confidential information covenant in Mr Trampevski’s employment agreement survived the termination of Mr Trampevski’s employment. I refer to Mr Trampevski’s employment agreement. But there is a strong claim that this did not survive the termination of his employment. As a result, this claim of further apprehended breaches is weak. The confidential information covenant does not expressly provide that it survives termination of the agreement. The covenants concerning ‘Restraints’ and ‘Intellectual Property’ are both expressed as surviving, and continuing after, respectively, termination of employment; and

(c) the plaintiff claims it would be entitled to final relief against Mr Trampevski in the terms of the Confidential Information Injunction.

In my view, the claims that Mr Trampevski breached the confidential information covenant whilst employed by the plaintiff are not strong or weak . But the claims that Mr Trampevski breached and will breach it post his employment are weak.

IS THERE A SERIOUS QUESTION TO BE TRIED AGAINST HEARING CONSULTANTS?

This concerns the Confidential Information Injunction and the Alternative Confidential Information Injunction.

I am satisfied that there are serious questions whether:

(a) Hearing Consultants is liable to the plaintiff on the basis that it is bound in equity as the alter ego of Mr Gupta and Mr Trampevski or as a third party receiver of confidential information given:

(i) Hearing Consultants was established on 27 June 2024;

(ii) Mr Gupta has at all relevant times been a director;

(iii) Mr Trampevski is at all relevant times until 22 April 2025 a director;

(iv) the impugned conduct relied upon is the conduct of Mr Gupta and Mr Trampevski. The plaintiff relies upon the matters that I have already addressed concerning the alleged misuse by Mr Gupta and Mr Trampevski of the plaintiff’s confidential information. As result, I refer to the matters I have already addressed concerning those issues insofar as it concerns the period on and from the incorporation of Hearing Consultants on 27 June 2024;

(b) the plaintiff is entitled to the relief set out in the Confidential Information Injunction and the Alternative Confidential Information Injunction. I have already addressed that relief.

ARE DAMAGES AN ADEQUATE REMEDY FOR THE PLAINTIFF’S CLAIMS?

First, it well-established that damages will rarely be an adequate remedy for a claim to enforce a contractual negative stipulation, such as the claims against Mr Gupta and Mr Trampevski, concerning their post-employment restraints in their employment agreements. As observed by Beach J in Jugovic[56]:

Second, it is well-established that where what is involved is the enforcement by injunction of a contractual negative stipulation, it is a rare case in which relief will be declined on the basis that damages are a sufficient remedy. The adequacy of damages is part of the broader balance of convenience question.

[56][2021] FCA 607, [283].

Edelman J in Emeco International Pty Ltd v O’Shea[57] said:

The reasons why damages are often inadequate in these cases includes (i) the difficulty of detection of breaches of the obligations; (ii) the difficulty of establishing causation between any loss of business with customers and any actions of the ex-employee; and (iii) the difficulty of the calculation of the quantum of any damage arising from loss of business …

[57][2012] WASC 282, [21] (citations omitted).

Second, as to the other claims in which I have found there is a serious question, the plaintiff submitted, inter alia, that damages are an inadequate remedy given the difficulty associated with detecting future breaches and the difficulty in assessing damages. The plaintiff submitted:[58]
[58]T154.1-13 (14 August 2025), T148.23-149.18 (14 August 2015).

(a) the damages inquiry would be extremely difficult;

(b) losing a client is hard to quantify as the loss includes the future income from that client which is difficult to determine;

(c) it would be very difficult to value the advantage obtained by the defendants;

(d) it would be impossible to show what income may have been derived by Hearing Consultants if it did not obtain a head start (i.e. the springboard) from the breaches; and

(e) it would be impossible for the plaintiff to prove the breaches caused the plaintiff’s profit to drop.

The defendants accepted that a complexity which arises is separating out the loss due to the defendants’ breaches.[59] But the defendants later submitted that patients may be traced.
[59]T83.13-17 (15 August 2025).

In DXC Connect Pty Ltd v Stephen Deibe[60], Black J said:

I am not persuaded that the balance of convenience favours the extended relief sought by DXC under the springboard principle, as distinct from leaving it to its rights for compensation against Mr McCabe for the loss which it is actually shown to suffer. It seems to me that, to adopt an observation made by Jacobson J in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd above at [82], there is no obvious reason in this case why damages or equitable compensation would not be an adequate remedy. To the extent that DXC had an established business in the relevant field, before the events of which it complains, and that business is now lost by reason of those events, there is no obvious reason why DXC should not be able to calculate the quantum of its claims in the ordinary way when the matter comes on for hearing …

[60][2017] NSWSC 1159, [61].

In my view, although the plaintiff is an established business, damages are an inadequate remedy for the plaintiff’s other claims, including breach of confidence, breach of fiduciary duty and breach of fidelity. This is because with respect to these claims there may, among other things, be a difficulty of establishing causation between any loss of business with customers and the actions of the defendants and the difficulty of the calculation of the quantum of any damage arising from loss of business. I also observe that the plaintiff relied upon the fact that the defendants have not proffered any undertaking to maintain an accounting of the finances of Hearing Consultants or of the income or profits derived by Mr Gupta and Mr Trampevski from Hearing Consultants. But they are parties to this proceeding and may be compelled to give discovery of documents containing such information.

WHERE DOES THE BALANCE OF CONVENIENCE LIE IN RELATION TO THE INTERLOCUTORY RELIEF SOUGHT?
Final relief?

In my view, the effect of making the relief, other than the Confidential Information Injunction and the Alternative Confidential Information Injunction, may be final relief. But this is difficult to determine on the present evidence. This is because, even if the plaintiff is entitled to relief, it may be for a periods that would be shorter between now and the hearing and determination of the trial. The trial will be listed for hearing on 27 October 2025 and, at best, will be determined later in 2025 or possibly early 2026. There is a serious question as to the duration of all of the relief. For example, the plaintiff submits that it should be one year[61] for Springboard Injunction, whereas the defendants submit that if the plaintiff were to be entitled to relief then it would only be for a couple of months. The plaintiff referred to this as being a ‘hot contest’ on the material to how long any springboard would be, assuming that it was available. The non-compete restraints also have a cascading restraint duration of 12, 6 and 3 months. In Jugovic,[62] Beach J said:
[61]T 123.7-9 (14 August 2025).
[62][2021] FCA 607, [278]-[279] (citations omitted).

278. Where the effect of an injunction may in substance amount to final relief, this may tip the balance of convenience in a defendant’s favour, all else being equal. In such circumstances, a stronger prima facie case may need to be shown by the plaintiff than otherwise to counteract. Further, in that context a greater than usual evaluation of the strength of the plaintiff’s case may be justified.

279. Putting it another way, where determination of the interlocutory application is likely to be practically conclusive, in considering the prima facie case limb, there must be shown to be a sufficient likelihood of success to justify the preservation of the status quo pending trial. The status quo at the moment is that Mr Jugovic has not commenced his employment with ORDE. And in one sense, to grant an injunction is to maintain that position.

Strength of the claims

I refer to the matters I have addressed in relation to the serious questions on the claims, including the strength of those claims.

Are damages an adequate remedy?

Damages are not an adequate remedy for the plaintiff’s claims. I have addressed this earlier.

Plaintiff’s undertaking as to damages

The plaintiff has proffered the usual undertaking as to damages. The defendants accept that the plaintiff has ‘deep pockets’. In my view, if the Court grants some of the relief and then the plaintiff fails at trial and the defendants seek to enforce the plaintiff’s undertaking, there is a risk that damages may be inadequate given the risk of damage to reputation and of the difficulty, for example, of establishing causation between any loss of business and the relief. Hearing Consultants has only just commenced trading and it may not have historical financial information that may assist in assessing its damages. I address this later in these reasons when addressing prejudice.

Defendants’ undertaking as to confidential information

As I have already said, the defendants have proffered an undertaking. It is set out in Annexure A to this ruling. I refer to its terms. The defendants submitted that it concerns the information that is the subject of the plaintiff’s claims.[63] I do not give much value to the undertaking. First, the undertaking is premised on there being ‘documents’ but the description of the documents in Schedule A does not identify any particular documents. It only refers to documents containing certain information. Second, the undertaking does not include all of the confidential information that the plaintiff alleges was misused. Third, in a material respect it is uncertain as it concerns ‘confidential client information data’. This is because the defendants submit client information data is not confidential.
[63]T 90.8-27 (15 August 2015).

The effect of refusing and granting the relief
Springboard Injunction

If the Court refuses to grant the Springboard Injunction then I am satisfied that will likely have a number of consequences:

(a) Mr Gupta and Mr Trampevski will continue to be engaged in, involved in and associated with Hearing Consultants and, as a result, Hearing Consultants will have the benefit of their continued involvement;

(b) it is likely that some of the plaintiff’s current clients, including Mr Gupta’s former clients, will continue to transfer their management to Hearing Consultants as a result of Mr Gupta’s continued involvement in Hearing Consultants. This is evident from the transfers that have already taken place. But the Springboard Injunction does not prevent Hearing Consultants serving such clients. There is evidence that the sale of hearing aids, and associated fittings, constitutes by far the greatest part of the plaintiff’s revenue;

(c) there is a risk that some of the plaintiff’s current employees, including persons associated with Mr Gupta and Mr Trampevski, including audiologists, may be employed by Hearing Consultants as a result of Mr Gupta and Mr Trampevski remaining engaged in, involved in and associated with Hearing Consultants. There is evidence that the sale of hearing aids is facilitated directly through audiologists. But Hearing Consultants has already been present publicly at the Burke Road Premises since 12 April 2025 and trading since 3 July 2025, and the only evidence of employees leaving is in relation to Mrs Arshad. The Springboard Injunction does not prevent Hearing Consultants from taking any action to employ any employees of the plaintiff;

(d) if Hearing Consultants has obtained the springboard as alleged then it would be able to continue to take advantage of it, with the benefit of Mr Gupta and Mr Trampevski. But the Springboard Injunction does not prevent Hearing Consultants from continuing to take advantage of the springboard and compete with the plaintiff except insofar as it seeks to prevent certain conduct of Mr Gupta and Mr Trampevski;

(e) damages will not be an adequate remedy for the plaintiff’s claims.

If the Court makes the Springboard Injunction then I am satisfied that it will likely have a number of consequences:

(a) Mr Gupta would have to take immediate steps to resign as an employee, director and secretary of Hearing Consultants and transfer the shares that are held by his company;

(b) Mr Trampevski would have to take immediate steps to resign as an employee and transfer the shares that are held by his company;

(c) Mr Gupta and Mr Trampevski would have to find alternate employment but the evidence concerning their difficulties of obtaining alternative employment is not cogent. This is because their evidence is premised on there being a much broader restraint. In addition, the order does not prevent them from servicing any of the plaintiff’s existing clients at another competitor;

(d) there is a real risk that Mr Gupta’s reputation will be damaged to an extent. This is because some clients have already transferred their management to Hearing Consultants and Mr Gupta’s image was used to prominently and publicly promote Hearing Consultants’ business and he would have to immediately cease his involvement with Hearing Consultants. He has been publicly involved in this business since 12 April 2025. Upon the making of the Springboard Injunction he would immediately cease that involvement. There is a real risk that this may damage his reputation;

(e) there is a some risk that Mr Trampevski’s reputation may be damaged to some extent but his evidence concerning this is not cogent. There is no evidence that his image was publicly associated with Hearing Consultants;

(f) Mr Gupta and Mr Trampevski have invested significant monies into Hearing Consultants and they will not be able to continue to progress and further establish that business. This is in circumstances in which the business in the Burke Rd Premises and at other sites has only just commenced. It is obviously in an important stage of its establishment;

(g) Hearing Consultants would likely continue to compete with the plaintiff but without Mr Gupta and Mr Trampevski. This is significant as they are the founders of the business and Mr Gupta is a very senior and experienced audiologist in the local area. Hearing Consultants would not have the benefit and advantage of the services of Mr Gupta and Mr Trampevski and there is a real risk that its business will be affected to a significant extent.

Non-Compete Injunction

If the Court refuses to grant the Non-Compete Injunction then I am satisfied that it will likely have a number of consequences:

(a) Mr Gupta will continue to be engaged in, involved in and associated with Hearing Consultants at the Burke Road Premises and as a result Hearing Consultants will have the benefit of his continued involvement at that location;

(b) the plaintiff will likely suffer detriment if Mr Gupta continues to be engaged in, involved in and associated with Hearing Consultants at the Burke Road Premises. I refer to the matters I have already addressed with respect to the plaintiff’s clients and employees in relation to the Springboard Injunction;

(c) damages will not be an adequate remedy for the plaintiff’s claims.

If the Court grants the Non-Compete Injunction then I am satisfied that it will likely have a number of consequences:

(a) Mr Gupta would have to take immediate steps to cease involvement with Hearing Consultant’s business at the Burke Road Premises (except possibly as a shareholder, given the alternative form of order sought);

(b) Mr Gupta would have to work at other sites being operated by Hearing Consultants or possibly find alternate employment. The Non-Compete Injunction does not prevent him from servicing any of the plaintiff’s existing clients at premises other than the Burke Road Premises or at another competitor;

(c) there is a real risk that Mr Gupta’s reputation will be damaged to an extent. This is because some clients have already transferred their management to Hearing Consultants and Mr Gupta’s image was used to prominently and publicly promote Hearing Consultants’ business and he would have to be immediately cease his involvement with Hearing Consultants at the Burke Road Premises. He has been publicly involved in this business since 12 April 2025. There is real risk that this may damage his reputation even though the Non-Compete Injunction is confined to the business being operated out of the Burke Road Premises;

(d) Hearing Consultants will likely continue to compete with the plaintiff but without Mr Gupta being engaged in, involved in or associated with Hearing Consultants’ business being operated out of the Burke Road Premises. This is significant as Mr Gupta is a very senior and experienced audiologist in the local area. Hearing Consultants would not have the benefit and advantage of the services of Mr Gupta at the Burke Road Premises and there is a real risk that its business will be affected to some extent.

Other relief

I address the effects of granting and not granting the other relief when exercising my discretion below.

EXERCISE OF DISCRETION
Springboard Injunction

I will exercise my discretion to refuse the Springboard Injunction sought against Mr Gupta and Mr Trampevski. This is because the balance of convenience favours refusing the relief as:

(a) it is a weak claim for relief;

(b) if I grant the relief and the consequences occur that I have already identified and the plaintiff fails to establish the right to relief at trial then most significantly Mr Gupta may have suffered damage to his reputation and Hearing Consultants is likely to have suffered loss of business and may have difficulty in establishing such loss, including causation between any loss of business and the Springboard Injunction;

(c) if I do not grant the relief and the consequences occur that I have already identified and if the plaintiff establishes the right to relief at trial then the plaintiff is likely to suffer loss for which damages are not an adequate remedy;

(d) in my view, the prejudice to the parties of granting or not granting the relief is significant for the plaintiff and the defendants, possibly slightly more so for the plaintiff, but this is outweighed by it being a weak claim for relief which is a significant factor;

(e) as a result, this is the course that appears to carry the lower risk of injustice.

Non-Compete Injunction

I will exercise my discretion to refuse the Non-Compete Injunction sought against Mr Gupta. The balance of convenience favours refusing the relief as:

(a) it is a very weak claim for relief;

(b) if I grant the relief and the consequences occur that I have already identified and the plaintiff fails to establish the right to relief at trial then Mr Gupta’s reputation may be damaged and Hearing Consultants is likely to suffer loss of business and may have difficulty in establishing such loss, including causation between any loss of business and the Non-Compete Injunction;

(c) if I do not grant the relief and the consequences occur that I have already identified and the plaintiff establishes the right to relief at trial then the plaintiff is likely to suffer loss for which damages are not an adequate remedy;

(d) in my view, the prejudice to the parties of granting or not granting the relief is significant for both the plaintiff and the defendants, especially Mr Gupta and Hearing Consultants, but it is a very weak claim and this is a significant factor;

(e) as a result, this is the course that appears to carry the lower risk of injustice.

Confidential Information Injunction and Alternative Confidential Information Injunction

I have decided to exercise my discretion to grant the Alternative Confidential Information Injunction sought against all defendants and refuse the Confidential Information Injunction against all defendants. The balance of convenience favours this course as:

(a) the plaintiff has a claim concerning the misuse of the plaintiff’s alleged confidential information against the defendants;

(b) the defendants have proffered a form of undertaking that is not adequate;

(c) the terms of the Alternative Confidential Information Injunction are more certain and precise than the Confidential Information Injunction. The claim based upon the Confidential Information Injunction is weak;

(d) if I grant the Alternative Confidential Information Injunction and the plaintiff fails to establish the right to relief at trial, no significant prejudice is likely be suffered by the defendants;

(e) if I do not grant the Alternative Confidential Information Injunction then there is a risk that they will misuse the plaintiff’s confidential information and damages would not be an adequate remedy;

(f) this is the course that appears to carry the lower risk of injustice.

Customer/Supplier Injunction

I have decided to exercise my discretion to refuse the Customer/Supplier Injunction sought against Mr Gupta. The balance of convenience favours refusing the relief as:

(a) it is a very weak claim for relief;

(b) if I grant the relief, there is a real risk that Mr Gupta’s reputation will be damaged to an extent. This is because some clients have already transferred their management to Hearing Consultants and Mr Gupta’s image was used to prominently and publicly promote Hearing Consultants’ business and he would have to immediately cease his involvement with any client with whom he dealt while employed with the plaintiff. He has been publicly involved in this business since 12 April 2025;

(c) if I grant the relief, Hearing Consultants would likely continue to compete with the plaintiff but without Mr Gupta being able to solicit, canvass, approach or accept any approach from the plaintiff’s clients with whom he had dealings with during his employment with the plaintiff. This is likely to be a detriment to Hearing Consultants;

(d) if I grant the relief and the plaintiff fails to establish the right to relief at trial and the consequences occur that I have identified above. Mr Gupta’s reputation may be damaged and Hearing Consultants is likely to have suffered loss of business and may have difficulty in establishing such loss, including causation between any loss of business and the Customer/Supplier Injunction;

(e) if I do not grant the relief then it is likely that some of the plaintiff’s current clients, including Mr Gupta’s former clients, will continue to transfer their management to Hearing Consultants as a result of Mr Gupta soliciting, canvassing, approaching and accepting approaches from them. This risk is evident from the transfers that have already taken place;

(f) if I do not grant the relief and the consequences occur that I have already identified and the plaintiff establishes the right to relief at trial then the plaintiff is likely to suffer loss for which damages are not an adequate remedy;

(g) in my view, the prejudice to the parties of granting or not granting the relief is more significant for the plaintiff but this does not outweigh the factor that this is a very weak claim and this is a significant factor;

(h) as result, this is the course that appears to carry the lower risk of injustice.

Employee Injunction

I have decided to exercise my discretion to refuse the Employee Injunction sought against Mr Gupta. The balance of convenience favours refusing the relief as:

(a) it is a very weak claim for relief;

(b) if I grant the relief, Mr Gupta, including in his capacity as a director of Hearing Consultants, would not be able to induce, encourage or assist any employee to leave their employment with the plaintiff;

(c) if I grant the relief and the plaintiff fails to establish the right to relief at trial and the consequence takes place I have identified immediately above, then Hearing Consultants will have lost the potential benefit of being able to employ any of the plaintiff’s employees. But, in my view, this is not significant;

(d) if I do not grant the relief there is a risk that Mr Gupta, including in his capacity as a director of Hearing Consultants, will, inter alia, induce, encourage and assist some of the plaintiff’s current employees, including persons associated with Mr Gupta, to be employed by Hearing Consultants, and they may do so. This may result in detriment to the plaintiff. But as I have already said Hearing Consultants has already been present publicly at the Burke Road Premises since 12 April 2025 and trading since 3 July 2025, and the only evidence of employees leaving is in relation to Mrs Arshad;

(e) if I do not grant the relief and the consequences occur that I have already identified and the plaintiff establishes the right to relief at trial then I accept that there is a risk that the plaintiff may suffer loss for which damages are not an adequate remedy;

(f) in my view, the prejudice to the parties of granting or not granting the relief is much more significant for the plaintiff but this does not outweigh the factor that this is a very weak claim and this is a significant factor;

(g) as a result, this is the course that appears to carry the lower risk of injustice.

CONCLUSION AND ORDERS

In conclusion, I will make an order in the terms of the Alternative Confidential Information Injunction and otherwise dismiss the plaintiff’s summons. I will hear from the parties on other consequential orders, including on costs and the timetabling of this matter for an expedited trial commencing on 27 October 2025.

---

ANNEXURE A

CONFIDENTIALITY UNDERTAKING

[INSERT NAME OF DEFENDANT] undertake undertakes, in relation to the documents referred to in Schedule A (the Documents), that:

1.Will not disclose or use the Documents or disclose the information or use the information contained in the Documents for any purpose other than the conduct of Supreme Court of Victoria proceeding S ECI 2025 04271 National Hearing Centres Pty Ltd v Gupta & Ors (Proceedings), unless:
a.[INSERT NAME OF DEFENDANT] have received the prior written consent of the plaintiff, National Hearing Centres Pty Ltd;
b.The Documents or the information contained in the Documents, has:
i.already been disclosed to the public in a way that waives the confidential status of the Documents otherwise than in contravention of a confidentiality undertaking;
ii.already been disclosed in the Proceedings in a way that waives the confidential status of the Documents otherwise than in contravention of a confidentiality undertaking, including by way of evidence or documents over which general access orders have been granted;

c. otherwise ordered by the Court.

Schedule A

1. Documents containing National Hearing Centres Pty Ltd’s:

a. confidential client information data;
b. sales or financial information, including EBITDA, budgets, forecasts, retail stores sales performance and revenue and profitability datasets;

c.        data relating to 'hearing test opportunities';
d.        sales performance of audiologists;
e.        geomapping data;
f.         internal general practitioner marketing database;
g.        Customer Relationship Management data;
h.        promotional materials.

SCHEDULE OF PARTIES

NATIONAL HEARING CENTRES PTY LTD (ACN 075 889 262)	Plaintiff
- and -
ASHEESH GUPTA	First Defendant
JOHN TRAMPEVSKI	Second Defendant
HEARING CONSULTANTS AUSTRALIA PTY LTD (ACN 678 589 350)	Third Defendant

[2025] VSC 528

28 August 2025 (revised 29 August 2025)