Percival Publishing Co Pty Ltd v Caldwell

Case •

[1989] FCA 678

•

10 Nov 1989
JUDGMENT NO ........ ........ ... L 67fr g 9 , 1. :
i
i..

LIMITED DISTRIBUTION

CATCHWORDS

Employees1 duties - interlocutory injunction - retention of benefits gained in breach of employeesf duties - unjust enrichment - participation in breach - freedom of trade.

Confidential Information - interlocutory injunction - whether former employee should be restrained from using information obtalned in the course of employment - freedom of trade.

Percival Publishing CO Pty Limited v. Caldwell & Ors

NO. G566 of 1989

Davies J.
10 November 1989

Sydney

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

) )

NEW SOUTH WALES DISTRICT REGISTRY
) NO. G566 of 1989
)
GENERAL DIVISION )
BETWEEN:  PERCIVAL PUBLISHING CO PTY
LIMITED

Applicant

AND :  KAY COLDWELL

Respondent

REGINALD DE GOUMOIS

Second Respondent

EXECUTIVE MEDIA PTY

LIMITED

Third Respondent

SCOTHOUSE CORPORATION PTY

LTD

Fourth Respondent

HICHAEL HARATSIS

Fifth Respondent

MICHAEL JAMES HARATSIS

-.

Sixth Respondent

ELIZABETHAN PUBLISHING PTY
LTD (t/a "HARGREEN
PUBLISHING COMPANY") r

Seventh Respondent

CORAM:  Davies J.
DATE :  10 November 1989
PLACE  : Sydney

MINUTES OF ORDER

UPON the applicant, by its counsel, giving the usual undertaking as to damages,

THE COURT ORDERS THAT:-

  1. The respondents and each of them be restrained until 31 March 1990 or prior order, as principal, employee or otherwise, and by themselves, their servants or agents from publishing or being knowingly concerned in or soliciting, the publication of the following matter:-

Client Publication
(1) The Amalgamated Metal Metal Trades
Workers Union of (General) Award
Western Australia
(2) Australian Stevedoring Australian
Supervisors Association Stevedoring
Supervisor
(3) Department of Defence Naval Supply
(Navy Office) Newsletter
( 4 ) The Motor Inn and Motel Innews
Association of Australia
(5) Foremen Stevedores The Australian
Association Foremen Stevedores
Review
( 6 ) Building Workers The SA Building
Industrial Union (SA) Worker and Engine
Driver
(7)(a) Transport Workers Transport Worker
Union (SA Branch)
(b) Transport Workers Transport Workers
Union (NSW Branch) Industry Guide;
TWU Safety Guide
(C) Transport Workers The New Transporter
Union (Brisbane
Sub-branch)
(8) Federated Ironworkers (a) PIA Awards
Association of (b) FIA Occupational
Australia Health and Safety
Handbook
(9) Cattlemen's Union Cattlemen's Union
(ad) Directory
(10) Northern Territory Northern Territory
Cattlemen's Association Cattlemen's
Association Yearbook
(ll)(a) Australian Workers Australian Workers
Union (NSW Branch) Union (NSW Branch)
Cement Workers Awards
(b) Australian Workers Australian Workers
Union (SA Branch) Union (SA Branch)
Yearbook
W)@) Australian Workers (a) AWU Safety Guide
Union
(b) AWU Construction
Guide
(C) AWU Delegates

Guide

(b) Australian Workers AWU Pastoral Awards
Union Pastoral
(13) Printing & Kindred (a) Graphic Arts
Industries Union Award
(b) PKIU Technology
Guide Book
(c) PKIU Health and
Safety Guide Book
The Australian The Australian
Firefighters Union Fire Fighter
TAFE Teachers Union The Australian
TAFE Teacher
Trade Union The same publications
Information and as produced for the
Research Centre Miners Federation -
see below
The Caravan Club of The Caravanner
Australia Limited
Miners Federation
(a) Australian Trade
Union Migrant
Handbook
(b) Unions and the
Challenge of
Technology
(c) Review of Careers
and Employment
Bricklayers, Plasterers The Victorian
and Plaster Workers' Bricklayer and
Industry Union Plasterer

2.         The respondents and each of them by themselves, their servants and agents be restrained until the determination of these proceedings or prior order, from divulging or using without the consent of the applicant the following information in respect of each of the organisations listed above:-

(i> The advertising rates charged by the
applicant in respect of magazines for
each such organisation;
(ii) The revenue received or receivable and costs incurred by the applicant and bad debts in respect of each such magazine;
(iii) Figures in respect of commission payable to the applicant's sales contractors and sales achieved by branch offices of the applicant;
and from divulging without the consent of the
applicant:-
(iv) The complete list of journals published by the applicant.

3.         Liberty to apply for termination or variation of the above orders be reserved.

  1. The costs of the motion be costs in the cause.

5.

A further directions hearing be fixed at an early date.

NOTE :  Settlement and entry of orders is dealt with in
Order 36 of the Federal Court Rules.

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
1
NEW SOUTH WALES DISTRICT REGISTRY
) No
)
GENERAL DIVISION 1
BETWEEN:  PERCIVAL PUBLISHING CO PTY
LIMITED

Applicant

AND :  KAY COLDWELL

Respondent

REGINALD DE GOUMOIS

Second Respondent

EXECUTIVE MEDIA PTY

LIMITED

Third Respondent

SCOTHOUSE CORPORATION PTY

LTD

Fourth Respondent

MICHAEL HARATSIS

Fifth Respondent

MICHAEL JAMES HARATSIS I , l .I
Sixth Respondent , . I
ELIZABETHAN PUBLISHING PTY , -
LTD (t/a "HARGREEN , .
PUBLISHING COMPANY")
i
Seventh Respondent I -
.-,
CORAM :  Davies J.
DATE :  10 November 1989
PLACE :  Sydney

REASONS FOR JUDGMENT

In the principal proceedings, application is made,

1990.

inter alia, for a declaration that the first respondent, duties which they owed to the applicant, Percival Publishing, their employer, and for injunctions against the use or disclosure by Coldwell, De Goumois and the third to seventh respondents, companies with which Coldwell and De Goumois are now associated, of information that was confidential to the applicant and its employees. The application also seeks.injunctions against the retention and use by the respondents of any benefits improperly gained from the breaches by Coldwell and De Goumois of their duties to Percival Publishing. Orders are sought with respect to misleading and deceptive representations. Orders are sought for the delivering up of documents. It is unlikely that the matter will come on for trial before the middle of

In this present motion, interlocutory injunctions

are sought against the disclosure or use of information
alleged to be confidential to the applicant and against the

use or retention of benefits alleged to have been improperly

gained through breach of duty.

All respondents, other than De Goumois, appeared by counsel to oppose the motion.

As this is an interlocutory motion, as the facts and legal principles to be applied have still to be fully debated and as, in the final decision, there will be

significant matters of discretion to be considered, it is
undesirable that I should discuss fully the many issues
which will ultimately be in dispute. The issues before me
are whether there are serious questions to be tried and what
orders should be made having regard to the balance of
convenience. I shall simply set out the facts as I find
them without commenting on the witnesses. At the trial, the
evldence will be different.

The applicant, Percival Publishing, is a publisher of, inter alia, booklets and magazines and much of its work involves the publication of journals and booklets for trade unions and trade associations. Many of these journals and

booklets are funded by the advertising which appears
therein. Percival Publishing has a sales organisation, the
sales personnel of which contact potential advertisers and
arrange for advertising in the publications.

Coldwell and De Goumois were both valued employees of Percival Publishing, Coldwell having the title of

publisher and De Goumois being the manager of the South
Australian Branch. Earlier this year, Coldwell, De Goumois

and other employees of Percival Publishing became organisation they went.

dissatisfied with their employment. Coldwell and De Goumois
contacted a number of trade unions and associations and
became satisfied that, if they themselves left Percival

The flfth respondent, Michael Haratsis, and the

M. Haratsis and M.J. Haratsis. It was arranged that a new organisation to be entitled "Executive Media" would be established, that Coldwell would join it and that, if they wished to do so, others from the Percival Publishing organisation could also do so. A letterhead was printed with the name Executive aedia, showing the proprietor to be Executive Medla Pty Limited. The address and fax number given were those of Scotshouse Corporation. On this letterhead, Coldwell wrote in July 1989 to a number of unions and associations who were clients of Perclval publishing inviting them to transfer their business to Executive Media. On 21 July 1989, the name "Executive Media Pty Limited" was reserved and on 1

slxth respondent, Mlchael James Haratsis, had a publishing Elizabethan Publishing Pty Limited, which traded as Hargreen Publishing Company, were part. Hearing of Coldwell's dissatisfaction, H.J. Haratsis contacted her in June or July 1989. They had a further telephone conversation on 13 July. On 17 July there was a meetlng between Coldwell,

organisation of whlch the third respondent, Scotshouse

August a shelf company was acquired. Subsequently, its name
was changed to Executive Media Pty Limited. On 4 August,

Coldwell left the employment of Percival Publishing and on 9

August, De Goumois also did so.

While they were still employed by Percival

Publishing, Colwell and De Goumois both contacted several unions and associations and arranged or sought to arrange to

take over the publishing work previously done by Percival informed another member of Percival Publishing's staff:-

"Bruce, we are about to be a part of the

biggest 'coup' in Australian publishing.

I have stitched up the B.W.I.U., T.W.U.,

Association, Northern Territory
Cattlemen's Association, the A.W.U. and

F.I.A., Queensland Cattlemen's of Australia, the TAFE Teachers and the P.K.I.U. and the offices are all set up and we're just about ready to go."

De Goumois also said:-

"So it will be just like old times. Kay
[Coldwell] will be general manager and
publisher and I will be South Australian
state manager. Things will be back to
how they used to be."

As those statements showed, Coldwell and De Goumois both worked to entice unions and associations away from Percival Publishing and believed that they had attracted a number of clients to the new organisation with which they were to be associated.

It is alleged on behalf of Percival Publishing

that, in enticing away the clients, Coldwell and De Goumois
made false statements about Percival Publishing. This

aspect of the matter has, however, little significance in

the present motion. It is also alleged, and proved on a

prima facie basis, that Coldwell and De Goumois during their employment enticed other employees of Percival Publishing to join them in the new organisation. And, when he left his

employment, De Goumois took some of the files of Percival

Publishing; though the significance of what was taken has yet to be established.

Executive Media established a branch in Adelaide

staffed by De Goumois and two salesmen who formerly were
employed by Percival Publishing. A Sydney branch was
established headed by Coldwell who was appointed sales
manager of the Australia wide organisatlon of Executive

Media. In the Sydney office, she was assisted by Pat Wood,

who had been her secretary while she was at Percival
Publishing. A Brisbane office was established headed by Mr
Kym Smith who had been a manager of Percival Publishing's
Brisbane office.

It is not in dispute that an employee has a duty to be honest and diligent in the employer's business and not to abuse confidence in matters appertaining to his employment,

nor that, unless it be contrary to an express term, the
employee, after leaving the employment, may lawfully set up

a business of the same nature as that carried on by his

employer and, provided that he acts fairly, may deal with

persons who were customers of his late employer, and so

compete with his employer in business. See Smith's Law of

Master & Servant, 6th Ed., pp.88, 92; v. Green [l8951 2

QB 315; Wessex Dairies Limited v. Smith [l9351 2 KB 80; and Ors [l9461 1 Ch. 169.

An employee also has a duty, after the termination of his employment, not to disclose confidential information contrary to the interests of the former employer. see

employment, the obligation of good faith to the employer confidential and desires to be kept confidential. After
does not continue and the former employee must keep secret
only those matters the secrecy of which a court would
protect. In considering this issue, a court will take into

that there should be freedom of trade and that, in the
public interest, persons should not be unduly restrained
from carrying on their chosen occupation. See, eg.,

account the general and important principle of public policy 118941 AC 535. As Lord Macnaghten said at p.565, "The public have an interest in every person's carrying on his trade freely; so has the individual." Thus, the more information can be identified as a trade secret private to the employer, the more likely it is that the secrecy will be protected by a court. The more the information can be identified as part of the general stock of knowledge which the former employee must use in carrying on his occupation, the less likely it is that the alleged confidentiality of the information will be protected.

Smith's Law of Master & Servant, 6th Ed., p.92. This duty was considered in Faccenda Chlcken Limited v. Fowler [l9871 1 Ch. 117 in which the dlstinctlon was drawn between confidential information which, while an employee remains in the employment of the employer, his obligation of good faith or fidelity would oblige him not to disclose from that which, after hls employment, he is free to disclose because the information is part of his general stock of knowledge, part of his working capacity. Kerr, Neale and Nourse LJJ held that the obligation after employment was limited to trade secrets.

It is not necessary or even appropriate for me to

consider in detail what was said by their Lordships. But
certain principles cannot be in doubt. They are that an
employee has, during his employment, an obligation of good
faith towards the employer and therefore to keep
confidential that which the employer considers to be

Moreover, it is not in dispute that a person who,

in common design with an employee, participates in the employee's default may be held liable to answer to the employer for the detriment suffered by the employer thereby

and also for any benefits improperly gained therefrom.

The evidence before me demonstrates a prima facie case that Coldwell and De Goumois breached the duties which,

during the course of their employment, they owed to Percival Publishing. During the course of their employment they

to enticing away clients and employees of that company.

worked to the detriment of Percival Publishing with a view the evidence also establishes a prima facie case that the respondents consciously participated in those breaches of duty. The use of the Executive 14edia letterhead in July and the seeking by the Haratsis organisation in late July and

early August of quotations for printing publications of

Percival Publishing is sufficient evidence of that.

Counsel for the 3rd to 7th respondents submitted

that there was no evidence against a number of the respondents. However, I am satisfied that all the respondents were, in one way or another, concerned with what

occurred. All are a part of the Haratsis publishing
organisation and, if an injunction is granted, some
restriction should be placed upon their activities pending
the trial of the proceedings.

In the principal proceedings, the applicant will be able to recover damages for any breaches of duty by Coldwell and De Goumois. But, in addition to damages, orders by way

of injunction may be made to restore to Percival Publica-
tions any benefit wrongfully taken from it by the
respondents or to prevent the use by the respondents of any
benefit wrongfully gained by them. The term "unjust

enrichment" is increasingly being used. See per Deane J. in

Pavey & Matthews Pty Limited v. Paul (1986) 162 C.L.R. 221

at p.263, per Toohey J. in Baumgartner v. Baumgartner (1987)
164 C.L.R. 137 at pp. 152-3 and per Gaudron J. in Trident

General Insurance Co. Limited v. McNiece Bros Pty Limited

(1988) 165 C.L.R. 107 at p.175. For present purposes, it is

sufficient that the breach of a fiduciary obligation, an C.L.R. 41. Equitable remedies by way of injunction or constructive trust may be granted once the breach of a fiduciary obligation has been established. See per Gibbs CJ at p.67. Recognised fiduciary relationships Include the relationship of employer and employee. See per Gibbs CJ at

obligation of trust and confidence, may lead not merely to
compensatory damages but to an order for the restitution of
property unconscientiously withheld. See Hospital Products

p.68, Mason J. at p.96 and Dawson J. at p.141. See also
Fiduciary Obligations by P.D. Finn, Chapter 24.

Thus, a final inlunction may go not only to

confidential to Percival Publishing and thus to prevent
further damage to Percival Publishing but also as a
restitutionary order with respect to any benefit gained from
the wrongful use of information that was confidential to
Percival Publishing and from the wrongful actions of
Coldwell and De Goumois in enticing away clients of Percival

restrain the future use or disclosure of information that is company.

An interlocutory injunction will not be granted

merely to take away from the respondents a benefit gained further harm to an applicant from wrongful action which has taken place or is threatened and to restore to an applicant forthwith that which, on a prima facie basis, ought not to have been taken from it. See Aubanel and Alabaster Ltd. v. Aubanel (1949) 66 RPC 343.
from wrongful action; for such is the task of a final order.

Nevertheless, an Injunction should not issue which will preclude Coldwell and De Goumois from exercising their general skills in their chosen occupation notwithstanding

they have acquired in the employ of Percival Publications.
Colwell and De Goumols have ceased employment with Percival

that the knowledge that they have gained is knowledge which their employment in the same field as that in which Percival Publications engages and they may compete therein either on their own behalf or as employees of another organisation.

The application of these principles will in general

resolve the balance of convenience. That balance lies in
favour of restoring forthwith to Percival Publications that
which prima facie ought not to have been taken from it, of
precluding any further harm arising from prima facie
wrongful actions and in favour of protecting that which is
seriously alleged to be confidential yet of allowing the
respondents to engage in conduct including conduct by way of

competition with Percival Publications which it is otherwise
their right to undertake. An injunction may be granted
notwithstanding that the respondent may have entered into
contractual arrangements with former clients of Percival
Publishing.

The applicant seeks first an order that the

respondents and each of them by themselves, their servants
and agents be restrained from publishing or being knowingly

concerned (whether as prlnclpal, employee or otherwise) in of his or her employment by the applicant. Nineteen trade unions and organisations are identified.
the publication of any printed matter for any person or
corporation who was a cllent of the applicant during the
term of the employment of Coldwell and De Goumois by the

applicant and in respect of whom either Coldwell or De

Such an injunction is too wide either on a

permanent or on an interlocutory basis. It extends beyond

the business which Percival Publishing had during the Percival Publishing published for the Department of Defence the Naval Supply newsletter. That was the only business which Perclval Publishing did for the Department of Defence which must have been responsible for a myriad of other publications. It would be inconsistent with the principle
employment of Coldwell and De Goumois and seeks to prevent

the publication of works which were not works published by

of freedom of trade to preclude Coldwell or De Goumois or

any part of the Haratsis publishing organisation from
approaching the Department of Defence with a view to
publishing works with which Percival Publishing has had no
connection.

Counsel for the respondents indeed submitted that any injunction should not cover all the publications which were published by Percival Publishing for the 19 unions and

associations who are alleged to have been approached by
Coldwell or De Goumois during the course of their
employment. This is a difficult question as Percival
Publishing does not have knowledge of and cannot prove in
this motion what were the arrangements, if any, which

Coldwell and De Goumois made or believed that they had made

with the clients of ~ercival Publishing. The facts do not

presently show that Percival Publishing has lost much motion. In all the circumstances, the balance of convenience lies in favour of granting an injunction covering all the publications, the publication of which was sought by Coldwell and De Goumois during the course of their employment. As to the identity of those publications, I am prepared to accept the submissions put by counsel for the applicant.
business. But this fact may be due to the prompt action
taken by Percival Publishing in instituting these
proceedings and in obtaining a widely expressed interim

injunction, an injunction which is still operative.

However, such an injunction, which does not clearly

distinguish those publications which would have transferred to the new organisation from Percival Publishing from those which would not have done so must be limited in time.

Otherwise, Coldwell, De Goumois and the Haratsis organisation will be unduly restricted in their right to compete freely with Percival Publishing. I shall therefore limit the injunction to 31 March 1990. That date should

give Percival Publishing sufficient time to counteract, so
far as it may be able to do so, any harm done to it by
coldwell and De Goumois during the course of their
employment. Percival Publlshlng does not have a serious

case for an injunction extending beyond that date.

There should therefore be an injunction restraining

the respondents and each of them until 31 March 1990 or
prior order, as principal, employee or otherwise, and by
themselves, their servants or agents from publishing or
being knowingly concerned in or soliciting, the publication

of the following matter:-

Client Publication
(1) The Amalgamated Metal Metal Trades
Workers Union of (General) Award
Western Australia
(2) Australian Stevedoring Australian
Supervisors Association Stevedoring
Supervisor
(3 ) Department of Defence Naval Supply
(Navy Off ice) Newsletter
( 4 ) The Motor Inn and Motel Innews
Association of Australia
(5) Foremen Stevedores The Australian
Association Foremen Stevedores
Review
( 6 ) Building Workers The SA Building
Industrial Union (SA) Worker and Engine
Driver
(7) (a) Transport Workers Transport Worker
Union (SA Branch)
(b) Transport Workers Transport Workers
Union (NSW Branch) Industry Guide;
TWU Safety Guide
(C) Transport Workers The New Transporte~
Unlon (Brisbane
Sub-branch)
(8) Federated Ironworkers (a) PIA Awards
Association of (b) FIA Occupational
Australia Health and Safety
Handbook
(9) Cattlemen's Union Cattlemen's Union
(01-3 Directory
(10) Northern Territory Northern Territory
Cattlemen's Association Cattlemen's
Association Yearbook
(ll)(a) Australian Workers Australian Workers
Union (NSW Branch) Union (NSW Branch)
Cement Workers Awards
(b) Australian Workers Australian Workers
Union (SA Branch) Union (SA Branch)
Yearbook
(12)(a) Australian Workers (a) AWU Safety Guide
Union
(b) AWU Construction
Guide
(c) AWU Delegates
Guide
(b) Australian Workers AWU Pastoral Awards
Union Pastoral
(13) Printing & Kindred (a) Graphic Arts
Industries Union Award
(b) PKIU Technology
Guide Book
(C) PKIU Health and

Safety Guide Book

The Australian The Australian
Firefighters Union Fire Fighter
TAFE Teachers Union The Australian
TAFE Teacher
Trade Union The same publications
Information and as produced for the
Research Centre Miners Federation -
see below
The Caravan Club of The Caravanner
Australia Limited

-1 6-

Miners Federation (a) Australian Trade
Union Migrant
Handbook
(b) Unions and the
Challenge of
Technology

(C) Review of Careers

and Employment

Bricklayers, Plasterers The Victorian
and Plaster Workers' Bricklayer and
Industry Union Plasterer

As the injunction is limited in time, I have added the words unhindered in restoring its posrtion.

"and soliciting" to the injunction with the intent that

The applicant also seeks the following injunction:-

"Order that the respondents and each of them by
themselves, their servants and agents be
restrained ... from divulging or using without
the consent of the applicant, the following
information in respect of each of the
organisations named on the list of
organisations annexed hereto and marked "A"

(the organisations listed above)

(a) The existence and/or amount of any
honorarium paid by the applicant to
each organisation or editor of the
magazine;
(b) The name of the person with whom the applicant dealt in relation to the publication of magazines or material for such organisations;
(C) The method of distribution of
publications employed by the applicant
for each such organisation;
(d ) The number of copies published by the

applicant for the most recent issue of

any magazine for each such
organisation;
(e) The advertising rates charged by the applicant in respect of magazines for each such organisation;
(f) The names of advertisers in each such magazine;
(g) The names of persons in the advertiser companies with whom the applicant dealt in respect of each such magazine;
(h)

receivable and costs incurred or

The figures for revenue received or debts in respect of each such magazine;

(i)      Figures in respect of commission payable to the applicant's sales contractors and sales achieved by branch offices of the applicant;

(j)

The complete list of journals published by the applicant."

An injunction should, I think, go with respect to

some. of this information. Counsel for the first respondent

did not ultimately contend otherwise. The injunction should
run until the determination of the proceedings or prior
order. Counsel for the applicant was content that the
injunction should be restricted to information, "being

information obtained from any files of the Applicant in

respect of each of the said organisations or from the

printouts and sheets referred to in the affidavit of B.T. Alberry sworn 4 October 1989." However, the meaning and

effect of such words is not clear. They should not be
included in the injunction.

Plainly, some of the matters sought to be

restrained are not confidential. For example, the names of

advertisers in each of the magazines is something that may

be obtained by an examination of the magazines. And other
matters sought to be protected would be ordinarily known in
the trade. For example, the name of the person with whom
the applicant dealt in relation to the publication of
magazines would, in general, be the officer in each
organisatlon who generally dealt with such matters and this
would be either a matter generally known to the trade or
could readily be ascertained by a member of the trade. It
is not seriously arguable that an injunction should issue
with respect to the matters listed in paras (b), (c), (d),
(f) and (g).

The existence or amount of any honorarium paid by

the applicant to each organisation in respect of the
publication of the magazine, the matter set out in para (a)
is a matter which common experience suggests the applicant
would regard as confidential to itself. Therefore
disclosure of such a matter by Coldwell or De Goumois during
their employment would have been in breach of their duty to
their employer. Other persons in the trade would, no doubt,

be able to guess or estimate that matter in general terms

but precise details would not be generally known. However, the item falls in my view within the principle discussed in Faccenda Chicken Limited v. Fowler. It is a matter which

matter which is now within the general stock of knowledge
which Coldwell and De Goumois have of the industry.

the employer would consider to be confidential but it is a the industry without taking information such as that into

account. In competing with Percival Publications, which

they are entitled to do, they ought not to be prevented from
using their knowledge of honorariums, that is to say the
amount paid to an organisation or an officer thereof to
obtain the advertising rights to the publication.

Counsel for the respondents conceded that, on an

interlocutory basis, an injunction should issue with respect
to the matters set out in para (e).

The matters set out in the remaining paras (h), (i) and (j) are matters concerning which Percival Publications

has a serious case for an injunction. The balance of

convenience lies in favour of protecting the confidentiality

thereof pending the determination of the proceedings. The

words "or incurrable" in paragraph (h) should be omitted.

The injunction should therefore read:-

That the respondents and each of them by themselves, their servants and agents be restrained until the determination of the

proceedings or prior order from divulging or

using without the consent of the applicant,

the following information in respect of each
of the organisations listed above:-

(i)

The advertising rates charged by the applicant in respect of magazines for each such organisation;

(ii)

The figures for revenue received or receivable and costs incurred by the applicant and bad debts in respect of each such magazine;

(iii)

Figures in respect of commission payable to the applicant's sales contractors and sales achieved by branch offices of the applicant;

and from divulging without the consent of the
applicant :
(iv) The complete list of journals published

by the applicant.

Subject to the giving of the usual undertaking on

behalf of the applicant, orders by way of injunction will be granted in the forms I have set out above. The costs of the motion should be costs in the cause. A further directions

hearing will be fixed at an early date.

I certify that this and the 19 preceding pages are a true copy of the Reasons for Judgment herein of the Honourable Mr Justice Davies.

Associate:

Date:  10 November 1989
Counsel for the applicant:  Mr A.J.L. Bannon
Solicitors for the applicant:  Blake Dawson waldron

Counsel for the 1st respondent: Miss R.S. McColl

Solicitors for the respondent:  Dunhill Morgan
Counsel for the 3rd to 7th 
respondents:  Mr 14.D. Young
Solicitors for the 3rd to 7th 
respondents:  Mallesons Stephen Jacques
Dates of hearing:  4, 5 & 6 October 1989
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