Parthy v Grow MF Pty Ltd

Case [2023] FCA 1037

FEDERAL COURT OF AUSTRALIA

Parthy v Grow MF Pty Ltd [2023] FCA 1037   

Application for leave to appeal: Grow MF v Parthy [2023] FCA 442
File number: VID 356 of 2023
Judgment of: COLLIER J
Date of judgment: 31 August 2023
Catchwords: PRACTICE AND PROCEDURE – leave to appeal – interlocutory judgment and order – relevant principles for leave to appeal and interlocutory injunction orders
Legislation: Corporations Act 2001 (Cth)
Cases cited:

Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57

Décor Corp Pty Ltd v Dart Industries Inc [1991] 33 FCR 397

Grow MF v Parthy [2023] FCA 442

Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238
Division: Fair Work
Registry: Victoria
National Practice Area: Employment and Industrial Relations
Number of paragraphs: 37
Date of hearing: 9 August 2023
Counsel for the Applicant: Applicant was self-represented
Counsel for the Respondent: L. Davis
Solicitor for the Respondent: SLF Lawyers

ORDERS

VID 356 of 2023
BETWEEN:

ANINDHA PARTHY

Applicant
AND:

GROW MF PTY LTD

Respondent

ORDER MADE BY:

COLLIER J

DATE OF ORDER:

31 AUGUST 2023

THE COURT ORDERS THAT:

1.The application for leave to appeal the decision in Grow MF v Parthy [2023] FCA 442 be refused.

2.The applicant pay the costs of the respondent, such costs to be taxed if not otherwise agreed.

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


REASONS FOR JUDGMENT

COLLIER J:

  1. Before the Court is an application filed on 20 May 2023 for leave to appeal a decision of this Court in Grow MF v Parthy [2023] FCA 442 (primary decision). Before the primary Judge Grow MF Pty Ltd (Grow MF) sought orders (in summary) that the applicant, Anindha Parthy, restore access to certain technology accounts of Grow MF, and that Mr Parthy be restrained from otherwise dealing with any of the materials in those accounts.  The primary Judge ordered on 4 May 2023 that:

    1.        Within 2 days of this Order, the Respondent:

    (a)Restore Mr Sohan Karunaratne’s GitHub account “@sohank88” as an “owner” of the Grow Metrics GitHub Account and notify the Applicant’s lawyers; and

    (b)Provide Mr Sohan Karunaratne with access as an administrator to the Growmetrics Figma Account and notify the Applicant’s lawyer; and

    (c)Provide the Applicant’s lawyers with a copy of all material held on the Growmetrics Production Environment (referred to by the Respondent as the Growmetrics QA Environment).

    2.Until the hearing and determination of this proceeding or until further order, the Respondent (whether by himself, his employees or agents or otherwise howsoever) be restrained from, without the licence or authority of the Applicant or order from the Court:

    (a)       accessing using in any manner whatsoever;

    (b)       reproducing (other than for the purposes of this proceeding);

    (c)deleting, destroying, concealing or modifying, or taking any step which is likely to impede the recovery of;

    (d)disclosing to any third party (other than legal advisors for the purposes of this proceeding),

    the material held in the Grow Metrics…

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Parthy v Grow MF Pty Ltd [2023] FCA 1037
Case
[2023] FCA 1037
Decision Date

CaseChat Overview and Summary

In the case of Parthy v Grow MF Pty Ltd, Anindha Parthy sought leave to appeal an interlocutory judgment and order made by the primary Judge in Grow MF v Parthy [2023] FCA 442. The primary Judge had ordered that Parthy restore access to certain technology accounts of Grow MF and be restrained from dealing with the materials in those accounts. The Full Court was required to consider whether the primary decision was attended by sufficient doubt to warrant reconsideration and whether substantial injustice would result if leave were refused. The applicant relied on two grounds for appeal: firstly, that he did not need to complete any action for orders 1(a) and 1(c) to be completed, and secondly, that the orders relied on unreliable evidence from Grow MF.

The Full Court examined the grounds for appeal and found that neither established that the primary decision was attended by sufficient doubt warranting the grant of leave to appeal. The respondent had successfully restored access to the GrowMetrics GitHub Account and Figma Account by making two Grow MF staff members owners of the GitHub Account, allowing the respondent to restore access for Mr Karunaratne. The Full Court found that the applicant had not provided any evidence to suggest that the respondent's evidence before the primary Judge was unreliable. Moreover, the Full Court noted that the hearing before the primary Judge was an urgent duty matter due to the detrimental effect on Grow MF's business caused by the applicant's conduct. Therefore, the applicant was in no position to complain that he was given insufficient time to prepare for the hearing before the primary Judge.

Accordingly, the Full Court refused the application for leave to appeal the decision in Grow MF v Parthy [2023] FCA 442. The applicant was ordered to pay the costs of the respondent, such costs to be taxed if not otherwise agreed.

Orders

Orders of the court

1. The application for leave to appeal the decision in Grow MF v Parthy [2023] FCA 442 be refused.

2. The applicant pay the costs of the respondent, such costs to be taxed if not otherwise agreed.

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

Background

Background to the litigation

In seeking leave to appeal the applicant relied on the following grounds: 1. Anindha Parthy did not need to complete any action for orders 1a and 1c to be completed2. The orders relied on unreliable evidence from other party Grow MF Pty Ltd(errors in original)BACKGROUND At all material times Grow MF has operated a marketing technology services business, providing clients with an automatic application known as the “GrowMetrics Application”. The applicant is a qualified software engineer. In June 2022 he took a part-time contractor role with Grow MF. On 30 November 2022 he entered an employment contract with Grow MF in the role of Chief Technology Officer. The applicant resigned from that role in April 2023, although 5 days later he sought to withdraw that resignation. The respondent refused to accept the applicant’s withdrawal of his resignation, on the basis of Mr Parthy’s alleged misconduct, being that Mr Parthy had removed access for certain Grow MF staff (including Grow MF’s co-founder and executive Director, Mr Sohan Karunaratne) to technology accounts critical to the operation of Grow MF’s business. Additional background facts summarised by the primary Judge in her Honour’s decision were as follows:11The applicant operates the Grow MF business by offering services contained on the GrowMetrics application to clients. The current version is called GrowMOFO 2.5 (which Mr Parthy refers to as GrowMOFO 2.0 Stable). Grow MF is developing a new version of the application, referred to as GrowMetrics 3.0. 12To develop and maintain the GrowMetrics application, Grow MF has accounts on various technological applications. On my understanding, the technological applications can be explained as follows.13The GrowMetrics application is operated by underlying source code. That source code is created, maintained, developed and stored on GitHub, a third party source code repository. Prior to 28 April 2023, the applicant contends Mr Parthy and Mr Karunaratne were both “owners” of the GitHub account.14When that code is ready to be deployed, it is “pushed” from GitHub to what the applicant refers to as the “GrowMetrics production environment”. The respondent refers to the production environment as the “GrowMetrics QA environment”. Mr Parthy submits this account was set up in his personal account on Google domains and Netlify. He does not appear to dispute that it was set up in his role as Grow MF’s Chief Technology Officer. 15Prior to 28 April 2023, three people had access to the GrowMetrics production environment (or QA environment): Mr Karunaratne, Mr Parthy and Adrian Sabic (a product manager at Grow MF). This account was accessed through an organisation username and password (meaning one single username and password). 16For further development and testing of “high fidelity” prototypes, Grow MF uses Figma. 17The parties are agreed that GrowMetric’s Figma account was set up by Mr Parthy in his role as Chief Technology Officer and as such he became an “administrator”. Mr Karunaratne understood that he was also an administrator prior to 28 April 2023. Administrators have permissions to give or revoke access to Grow MF staff. 18Whether Grow MF had reimbursed Mr Parthy for the costs associated with Grow MF’s Figma account was a matter in issue between the parties. 19It is these three technological accounts that the applicant alleges Mr Parthy has locked the applicant out of access. The applicant characterises Mr Parthy’s conduct, which occurred after Mr Parthy resigned on 24 April 2023 but while he was still working for Grow MF, as follows: •Removed Mr Karunaratne as “owner” of the GrowMetrics GitHub Account and Mr Karunaratne’s access altogether; •Removed access for all Grow MF staff (other than potentially Ms Melanie Lim) to critical parts of the GrowMetrics GitHub Account including the parts housing the source code for GrowMOFO 2.5 and Growmetrics 3.0 and otherwise limit their ability to perform certain functions; •Removed Mr Karunaratne as “administrator” of the GrowMetrics Figma Account and his access altogether; •Removed access for all Grow MF staff (other than potentially Ms Melanie Lim) to the GrowMetrics Figma Account; •Changed the password for the GrowMetrics Development Environment and not disclose the new password to Grow MF; and•Mr Parthy may have also moved the GrowMetrics Development Environment from Grow MF’s Amazon Web Services.20Grow MF contends the GrowMetrics accounts are essential for Grow MF to operate its business and full access is required to efficiently and effectively:(a) fix any bugs in the current live version GrowMOFO 2.5;(b) test any changes to the source code;(c) develop or test the new version GrowMetrics 3.0; and(d) demonstrate the current or new version to clients.21Mr Karunaratne deposes to the harm suffered by Grow MF caused by the inability to access its accounts on GitHub, the production environment (QA environment) and Figma. This harm includes an inability to service customers, reputational harm, payment of overheads and staff salaries (approximately $3,000 per day) to developers unable to perform meaningful work and loss of potential revenue from new clients, including a proposed new service agreement worth between $500,000 to $750,000 in revenue.PRIMARY JUDGE’S DECISION

Evidence

Evidence Before The Court

The interlocutory injunctive relief sought by the respondent was granted.SUBMISSIONS AND EVIDENCE IN THE LEAVE TO APPEAL In seeking leave to appeal the decision of the primary Judge, the applicant was self-represented and filed no written submissions. He relied on the following material:(1)Affidavit of Aninda Parthy filed on 20 May 2023; and(2)Affidavit of Aninda Parthy filed on 23 May 2023. At the hearing, applicant made oral submissions, in summary as follows: ·He did not agree para 2 of the primary decision, as not all the relevant code was used by the staff or customers of Grow MF. ·Although he had removed access by staff of Grow MF to certain technology systems, this had no effect on the respondent’s business. ·Paragraph 3 of the primary decision was incorrect, to the extent that the primary Judge accepted that there was a contract between Grow MF and the applicant. There was no contract between the applicant and Grow MF at the relevant time, as the Chief Executive Officer of Grow MF had not been appointed at the time, and the applicant did not recall signing the contract. It followed that the alleged contract of employment was fabricated.·Paragraph 10 of the primary decision was incorrect as not all the staff had their access to relevant technology systems removed. Other members of the development team at the respondent could create the relevant environment. Further the Chief Executive Officer of Grow MF did not need to access the relevant systems. ·At para 35 of the primary decision her Honour identified that the applicant no longer had authorised control over the copyright and confidential information as he was no longer employed by the respondent. This was incorrect because the applicant was authorised to keep his intellectual property in relevant code while he was owed compensation for the creation of the code. In particular the applicant relied on email correspondence as follows:·The applicant was prejudiced at the hearing before the primary Judge because he had insufficient time to consider evidence produced by the respondent (namely material filed at 6:49 am on 4 May 2023, which was the day of the hearing before the primary Judge). The respondent filed written submissions and relied on the following material:(1)Affidavit of David Jackson filed on 30 June 2023; and(2)Affidavit of Sohan Karunaratne filed on 12 July 2023. The respondent submitted in summary:·Neither of the two grounds on which the applicant relied established that the primary decision was attended by sufficient doubt warranting the grant of leave to appeal.·Mr Parthy made two Grow MF staff members an “owner” of the GrowMetrics Github Account, which allowed the respondent to restore access by Mr Karunaratne. ·Grow MF did not require the applicant to take any further steps to comply with Orders 1(a) and 1(c) made by the primary Judge.·The applicant had not provided any evidence to suggest that the respondent’s evidence before the primary Judge was unreliable. ·There was no evidence of injustice that the applicant would suffer if leave to appeal were refused. ·The appealed Orders were unlikely to affect the scope or outcome of the substantive proceedings.·Grow MF had access to the GrowMetrics GitHub Account. Because the applicant had not complied with order 1(c), by 18 May 2023, Grow MF was able to develop a workaround, and did not press for the applicant to take any further steps to comply with order 1(c). ·The applicant must show an error in the exercise of discretion by the primary Judge. It was insufficient that the Court might be persuaded that it would or might have made a decision different from that of the primary Judge.·The applicant did not provide any basis for restraining Grow MF’s access to the relevant technological accounts. The conduct of the applicant meant that Grow MF could not maintain and update the version of its software in commercial use, and could not efficiently develop a new version of its software.·The hearing before the primary Judge was an urgent duty matter, because of the detrimental effect on the respondent’s business caused by the conduct of the applicant. To that extent the applicant was in no position to complain that he was given insufficient time to prepare for the hearing before her Honour. The applicant had not identified any further evidence or argument which he would have put before the primary Judge.CONSIDERATION

Decision

Reasons for decision

Before the Court is an application filed on 20 May 2023 for leave to appeal a decision of this Court in Grow MF v Parthy [2023] FCA 442 (primary decision). Before the primary Judge Grow MF Pty Ltd (Grow MF) sought orders (in summary) that the applicant, Anindha Parthy, restore access to certain technology accounts of Grow MF, and that Mr Parthy be restrained from otherwise dealing with any of the materials in those accounts. The primary Judge ordered on 4 May 2023 that:1. Within 2 days of this Order, the Respondent:(a)Restore Mr Sohan Karunaratne’s GitHub account “@sohank88” as an “owner” of the Grow Metrics GitHub Account and notify the Applicant’s lawyers; and(b)Provide Mr Sohan Karunaratne with access as an administrator to the Growmetrics Figma Account and notify the Applicant’s lawyer; and(c)Provide the Applicant’s lawyers with a copy of all material held on the Growmetrics Production Environment (referred to by the Respondent as the Growmetrics QA Environment).2.Until the hearing and determination of this proceeding or until further order, the Respondent (whether by himself, his employees or agents or otherwise howsoever) be restrained from, without the licence or authority of the Applicant or order from the Court:(a) accessing using in any manner whatsoever;(b) reproducing (other than for the purposes of this proceeding);(c)deleting, destroying, concealing or modifying, or taking any step which is likely to impede the recovery of;(d)disclosing to any third party (other than legal advisors for the purposes of this proceeding), the material held in the Grow Metrics GitHub Account, the GrowmetricsFigma Account, the Growmetrics Production Environment (referred to by the Respondent as the Growmetrics QA Environment) and/or the Growmetrics Slack Development Account. 3. Costs of the Applicant’s application for interlocutory relief be reserved.4. The parties have liberty to apply. In seeking leave to appeal the applicant relied on the following grounds: 1. Anindha Parthy did not need to complete any action for orders 1a and 1c to be completed2. The orders relied on unreliable evidence from other party Grow MF Pty Ltd(errors in original)BACKGROUND At all material times Grow MF has operated a marketing technology services business, providing clients with an automatic application known as the “GrowMetrics Application”. The applicant is a qualified software engineer. In June 2022 he took a part-time contractor role with Grow MF. On 30 November 2022 he entered an employment contract with Grow MF in the role of Chief Technology Officer. The applicant resigned from that role in April 2023, although 5 days later he sought to withdraw that resignation. The respondent refused to accept the applicant’s withdrawal of his resignation, on the basis of Mr Parthy’s alleged misconduct, being that Mr Parthy had removed access for certain Grow MF staff (including Grow MF’s co-founder and executive Director, Mr Sohan Karunaratne) to technology accounts critical to the operation of Grow MF’s business.

Ratio Decidendi

Legal Principle Established

The respondent submitted in summary:·Neither of the two grounds on which the applicant relied established that the primary decision was attended by sufficient doubt warranting the grant of leave to appeal.·Mr Parthy made two Grow MF staff members an “owner” of the GrowMetrics Github Account, which allowed the respondent to restore access by Mr Karunaratne. ·Grow MF did not require the applicant to take any further steps to comply with Orders 1(a) and 1(c) made by the primary Judge.·The applicant had not provided any evidence to suggest that the respondent’s evidence before the primary Judge was unreliable. ·There was no evidence of injustice that the applicant would suffer if leave to appeal were refused. ·The appealed Orders were unlikely to affect the scope or outcome of the substantive proceedings.·Grow MF had access to the GrowMetrics GitHub Account. Because the applicant had not complied with order 1(c), by 18 May 2023, Grow MF was able to develop a workaround, and did not press for the applicant to take any further steps to comply with order 1(c). ·The applicant must show an error in the exercise of discretion by the primary Judge. It was insufficient that the Court might be persuaded that it would or might have made a decision different from that of the primary Judge.·The applicant did not provide any basis for restraining Grow MF’s access to the relevant technological accounts. The conduct of the applicant meant that Grow MF could not maintain and update the version of its software in commercial use, and could not efficiently develop a new version of its software.·The hearing before the primary Judge was an urgent duty matter, because of the detrimental effect on the respondent’s business caused by the conduct of the applicant. To that extent the applicant was in no position to complain that he was given insufficient time to prepare for the hearing before her Honour. The applicant had not identified any further evidence or argument which he would have put before the primary Judge.CONSIDERATION The Full Court in Décor Corp Pty Ltd v Dart Industries Inc [1991] 33 FCR 397 at 398 explained the issues to which the Court should have regard in considering an application for leave to appeal an interlocutory decision, including:·whether, in all the circumstances, the primary decision was attended with sufficient doubt to warrant its being reconsidered by the Full Court; and·whether substantial injustice would result if leave were refused, supposing the decision to be wrong. In this case the primary Judge had exercised her discretion to issue interlocutory orders 1(a) and 1(c). In considering whether leave to appeal ought be granted it is appropriate to have regard to the grounds on which the applicant relies, being (I understand) the basis on which the applicant contends that the primary decision was attended by error.Ground 1 In ground 1 the applicant claimed that he did not need to complete any action for orders 1(a) and 1(c) to be completed.