Portal Software v Bodsworth - [2005] NSWSC 1179

No judgment structure available for this case.

CITATION:
Portal Software v Bodsworth [2005] NSWSC 1179
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 17-19, 21 October 2005

JUDGMENT DATE :

22 November 2005

JUDGMENT OF:
Brereton J

DECISION:
Injunction granted.

CATCHWORDS:
RESTRAINT OF TRADE – breach of confidence – trade secrets – confidential information – contract of employment – employee bound by contract for a period of six months from employee’s departure date within the States and Territories of Australia – whether the restraint is excessive, unreasonable and void – whether the restraint of trade is contrary to public policy and void or is justified by the special circumstances of the particular case – whether the restriction is reasonable having regard to the interests of the parties concerned – where restraint would prohibit the defendant from visiting, contacting or dealing with any former client during the relevant period of restraint – validity of restraint is judged at the time at which the contract is made – from what date does the restraint run – whether last day of employment was last day the defendant was required to work for the employer – whether “last day of employment” was the “departure date” of the defendant – whether the employer, by excusing the defendant from further attendance, accelerated the end date of the defendant’s employment – no payment in lieu of notice – restraint clause is triggered by termination of employment not by cessation of attendance – restraints are reasonable for the protection of plaintiff’s confidential information, and not unreasonable in the interests of the public – unnecessary to resort to the Restraints of Trade Act – no warrant to extend the contractual restraint beyond the term on which the parties agreed.

LEGISLATION CITED:
Evidence Act s 121
Restraints of Trade Act, 1976 (NSW)

CASES CITED:
Attwood v Lamont [1920] 3 KB 571
Austin & Partners Pty Ltd v Spencer BC9806371 (NSWSC, 1 December 1998, Windeyer J)
Buckley v Tutty (1971) 125 CLR 353
Business Seating (Renovations) Ltd v Broad [1989] ICR 729
Butt v Long (1952) 88 CLR 476
Commercial Plastics Limited v Vincent [1965] 1 QB 623
Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337
Dixon v Stenor Ltd [1973] ICR 157
G W Ploughman & Sons Ltd v Ash [1964] 1 WLR 568; [1964] 2 All ER 10
Geraghty v Minter (1979) 142 CLR 177
Herbert Morris Ltd v Saxelby [1916] 1 AC 688
Home Counties Dairies Limited v Skilton [1970] 1 WLR 526
I F Asia-Pacific Pty Ltd v Galbally (2003) 59 IPR 43; [2003] VSC 192
Kerchiss v Colora Printing Inks [1960] RPC 235
Kone Elevators Pty Ltd v McNay (1997) ATPR 41-564
Leech v Preston Borough Council [1985] ICR 192
Lees v Arthur Greaves Ltd [1974] ICR 501
Lindner v Murdock’s Garage (1950) 83 CLR 628
Littlewoods Organisation Ltd v Harris [1977] 1 WLR 14
McLaughlin Consultants v Boswell [1989] 30 IR 417
Mills v Dunham [1891] 1 Ch 576
Nordenfelt v Maxim Nordenfelt Guns & Ammunition [1894] AC 535
Orton v Melman [1981] 1 NSWLR 583
Portal Software v Bodsworth [2005] NSWSC 631
Sharp v Cain [1924] SASR 203
Siagian v Sanel Pty Ltd (1994) 122 ALR 333
Tank Lining Corp v Dunlop Industrial Pty Ltd (1982) 140 DLR (3d) 659
Technograph Printed Circuits Ltd v Chalwyn [1967] RPC 339
Vandervell Products Ltd v McLeod [1956] RPC 185
Wood & Moore’s Stores Limited v Jones (1899) 81 LT 169
Woolworths Limited v Olson [2004] NSWCA 372
Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317

PARTIES:
Portal Software International Pty Ltd (plaintiff)
Jason Bodsworth (defendant)

FILE NUMBER(S):
SC 3250/05

COUNSEL:
R Alkadamani (plaintiff)
M White (defendant)

SOLICITORS:
Haywards Solicitors (plaintiff)
Watkins Tapsell (defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday 22 November 2005

3250/05 Portal Software International Pty Ltd v Jason Bodsworth

JUDGMENT

1 HIS HONOUR: The defendant Jason Bodsworth commenced employment with the plaintiff Portal Software International Pty Ltd as a senior solution specialist on 1 December 2002. He agreed not to disclose any trade secret or confidential information concerning Portal’s business and personnel, and that in the event that the contract was terminated, for a period of six months from his “departure date”, within Australia, not to enter the service of another firm that could compete with Portal’s products and services, and not to visit or contact Portal’s clients. On 26 April 2005, Mr Bodsworth informed Portal that he was leaving. Portal told him that he would not be required to work beyond 28 April 2005. On 9 May, he commenced employment with Amdocs Australia Pty Limited, a competitor of Portal, as a senior sales engineer. In these proceedings, Portal seeks to restrain Mr Bodsworth from being employed by Amdocs until 24 November 2005, and from visiting or contacting Portal’s clients until that date. Mr Bodsworth contends that the restraint is excessive and void (and that, the proper law of the contract being that of Victoria, the Restraints of Trade Act, 1976 (NSW) is not available to save it).

2 The essential issues are:

· Is the restraint excessive, unreasonable and void; and

· From what date does the restraint run.

3 Before addressing those issues, it is necessary to understand some features of the telecommunications billing software industry and the role in it of the solution specialist (or “pre-sales staff”), Mr Bodsworth’s employment at Portal, his departure from Portal, and the interlocutory proceedings, and then to reach some conclusions about Mr Bodsworth’s customer connection and access to and use of confidential information at Portal.

The telecommunications billing software industry

4 Portal is one of five major worldwide providers of billing software to the telecommunications industry. The others are CSG, ConvergSys, ADC/Intech, and Amdocs. In Australia, the client base is limited, with only three or four major customers: Singtel Optus, Vodafone, and the Telstra group. Of them, the Telstra group is by far the largest. Both Portal and Amdocs provide billing software solutions to Telstra.

5

6 According to Mr Bodsworth, whose evidence was not challenged or contradicted in this respect, Amdocs’ product is more comprehensive than Portal’s: Amdocs’ flagship product Amdocs 6, is “a portfolio of billing and billing related products” incorporating, with a billing and rating solution, a customer relationship management application, a mediation product, an order management product, a web-based self-care solution, an activation manager and a document designer, so that there are about 12 distinct applications or products in Amdocs 6 that connect to provide a “total solution” for operational support systems for the telecommunications industry. Portal’s flagship product, Portal P7, which was launched in early 2005, competes with Amdocs’ billing and rating solution, but does not have the customer relationship module, the order management module, the provisioning module, or the mediation module.

7 Mr Bodsworth has been in the telecommunications industry since 1991. From about February 1991 until November 1998 he was employed by Telstra, in Melbourne. From about December 1998 until December 2002 he was employed by ADC (now known as Intech), as an applications consultant in its billing division in various locations including Auckland, Brisbane and Singapore. While employed by ADC, and at Portal, his work was in “pre-sales”, a role which requires a technically-minded person who supports the sales staff: sales staff do not know the technical aspects of the software product, and the role of the pre-sales staff is to explain the technical aspects of the software to the client, demonstrate that it will fulfil the client’s requirement, and, in this way, help achieve sales of the software and prove the product to be sold.

8 The pre-sales role is part of the tender process which, particularly with large corporate clients, is quite well-established. First, there is an initial meeting arranged by the supplier’s (here, Portal) sales personnel to stimulate interest and propose a presentation in respect of a particular problem, product or solution. After initial contact is made with a potential client by sales staff, the solution specialist becomes involved in the more technical discussions with the client’s technical staff, making a presentation to show the capabilities and functionality of the product, thus stimulating interest. This may lead to further presentations to the same or other groups. Then, the supplier proposes the functionality to illustrate how a particular business problem for the client can be solved. If the product is a new or up-grade product for a client such as Telstra, the client may internally prepare and issue a request for information (RFI), normally to several major software suppliers, and not just the one which has made the initial sales contact - unless it is within the scope of an existing project or installation; usually, a minimum of three different tenderers may be invited and are able to respond. Typically, four to six weeks are allowed for the preparation of a response, and the supplier then provides an initial response document, which can comprise several hundreds of pages. If the project is to proceed, the client will then usually issue a request for proposal (RFP), in the case of Telstra through its sourcing group. Telstra usually takes at least six months to reach the RFP stage after the RFI stage, and usually sends its RFP to several potential tenderers; tenders submitted in response to the RFP must conform to Telstra’s internal tendering policies, and Telstra then evaluates the tenders, often using an external consultant to rank them. Evaluation of the various proposals may take weeks to months, and, depending on the results, Telstra may issue letters declining some tenders, and then ask for a “proof of concept” in respect of the remaining proposals.

9 The whole process takes a minimum of six months for most telecommunications customers, but for tier one clients such as Telstra, the process can take eighteen months or more. For smaller customers it may take less, but Mr Bodsworth has never been involved in a sales project and tender process that has taken less than three months. Mr McLaughlin, who was Portal’s account executive for the Telstra account, said that the pre-sales process could take “several months”, typically less than six but sometimes longer.

10 Thus the solution specialist enters the picture at the second step, after sales staff have made the initial contact, and remains involved up to the end of the “proof of concept”, when the project is handed over to professional services staff, who enter into the contracts and implement the solution. While involved, the solution specialist is in contact with various personnel at the customer – usually, a number of different people - most days of the week. But the solution specialist is not the prime point of contact, nor the person who negotiates the sale, nor involved in the implementation of the solution.

Mr Bodsworth’s employment contract and role

11 The contract between Portal and Mr Bodsworth is dated 8 November 2002. Mr Bodsworth signed it in Portal’s Singapore office, and was told that it would be sent to Hong Kong for signature by Mr John Tull, Portal’s Vice President and General Manager, Asia-Pacific. Mr Bodsworth received a copy of the executed contract some days later, in early November 2002. It is signed on behalf of John Tull for Portal by a person who has not been identified, and by Mr Bodsworth for himself.

12 The contract described Mr Bodsworth’s duties and job responsibilities as follows:-

Employee’s place of work is described above with the following provisions:

a. The company may for reasons of policy change the center of operations and may require Employee to transfer the place of work to another area within or outside of Australia.

b. During the employment the Employee may be called upon to travel in Australia and/or abroad in order to perform Employee’s duties.
Employee is assigned the position of Senior Solution Specialist with the duties and responsibilities reasonably consistent with such position, including but not limited to:

· Drive software sales by demonstrating the functional and technical components of Portal’s products and architecture.

· Listens to prospect to understand technical and functional requirements, identifies pain points and business opportunities.

· Presents solution to prospect in a way that causes them to select it over all other competing proposals.

· Responsible for “getting the win” for Portal.

13 Mr Bodsworth’s remuneration was a base salary of $130,000, plus bonuses (which, in his last year, brought his total remuneration to about $330,000).

14 The contract was expressed to be “for an indefinite period as from 1 December 2002”. There was provision for immediate termination for gross misconduct, and that “Notwithstanding the clauses above, either party may terminate this contract by giving the party one month’s written notice of termination. The company reserves the right to pay the employee one month’s salary in lieu of notice. On termination the employee is entitled to payment of any accrued annual leave or other statutory entitlements”.

15 Clause 9, entitled “Confidentiality and Proprietary Information”, relevantly provided as follows:-

Exclusivity

Employee agrees to devote employee’s work time and effort for the exclusive benefit of company and not to engage in any other professional activity for the duration on this contract without the expressed written approval of the company.

Confidentiality and Non Competition Undertaking

Employee shall not directly or indirectly disclose to any person or association, any trade secret or confidential information concerning the business of the company and its personnel, without the written authorisation of the company.

Employee hereby acknowledges any violation of this confidentiality will subject employee to dismissal based on gross misconduct and prosecution under Australian law.

Employee expressly agrees that in the event this contract is terminated for any reason by either party, for a period six months from employee’s departure date within the States and Territories of Australia, not to:

· Enter the service of or start another firm that could compete with those services/products of the company;

· Visit or contact the company’s clients or deal with any individual or company that was a client of the company for a period of twelve months preceding employee’s departure date.

16 Clause 10 provided that Australian law governs the contract, and that any dispute should be subject to the exclusive jurisdiction of the Australian courts. The contract identified Portal’s principal place of business as being in Sydney. Mr Bodsworth says that he applied for the position knowing and intending that it would involve him living and working in Melbourne, and Portal paid his expenses of relocating from Singapore to Melbourne.

17 At Portal, Mr Bodsworth worked primarily on the Telstra account. He says, and I accept, that his contacts at Portal’s clients, and in particular at Telstra, were not at a high level, and were not the executives who made decisions, but at best people who, through the reporting process, might influence the people who make decisions. Generally, it was Kevin McLaughlin (account manager), Steve Gillett (client partner), or Graeme Paynter who went to client lunches, golf days and other corporate entertainment where key decision-makers were available. Mr Bodsworth did not.

Mr Bodsworth’s Departure from Portal

18 As already mentioned, Portal released its latest flagship product, Portal P7, in about February 2005.

19 A head-hunter approached Mr Bodsworth on behalf of Amdocs, and he had an interview with Amdocs on or about 29 March 2005, of which there shall be further mention below.

20 Mr Bodsworth underwent training on P7, in New Zealand, between 29 March and 1 April.

21 Mr Bodsworth attended Portal’s Asian strategic business planning session on 21 and 22 April, in Sydney. On 19 or 20 April, when he came to Sydney for that purpose, he stopped at Amdocs to pick up his draft contract of employment.

22 On 26 April 2005, Mr Bodsworth telephoned Mr Stephen Gillett, Portal’s client partner at its Sydney office. Mr Bodsworth told Mr Gillett that he was resigning and giving 28 days notice. When asked, he told Mr Gillett that he was going to Amdocs. I prefer Mr Bodsworth’s version, that Mr Gillett asked him “Don’t you have a non-compete clause in your contract?”, to which Mr Bodsworth replied “Yes, I do. I understand that this is unenforceable. Many employees pass between Portal and Amdocs. I came to Portal from ADC”, over Mr Gillett’s version. I accept that Mr Bodsworth said to Mr Gillett: “I came from ADC; I never once disclosed any ADC stuff. I would not do it with Portal’s information. Your confidential information would be safe with me”.

23 Later that day, Mr Gillett telephoned Mr Bodsworth and told him: “Your services will not be required beyond Thursday 28 April 2005. Finish the work you are doing on the BigPond Single Bill Solution proposal as your last official task”. At Mr Gillett’s request, Mr Bodsworth sent an email to confirm his resignation, in the following terms:

As discussed, I am emailing you to officially notify Portal of my resignation. As per my contract, I am giving 28 days notice from today until the termination of my employment with Portal. I hope you will understand my decision based on the details of our conversation.

24 On 27 April, Mr Gillett sent Mr Bodsworth an email, relevantly as follows:

Following our recent discussions, this email confirms:

· Receipt of your resignation notice yesterday, indicating that your last day of employment with Portal will be 24 May 2005.

· That you have advised Portal that you have accepted an offer of employment with Amdocs.

· You are aware of the terms in your employment contract with Portal in relation to the non-compete clause, requiring that you do not commence employment with a competitor of Portal software for a period of six months.

· Portal agrees to your last working day being 24 May 2005, however does not require you to work the period between 29 April and 24 May.

The process from here is:

Please return all Portal property, and IP, to Kevin in the office on 28 April 2005, including but not limited to

Hardware (laptop computer, printers, any other discs or storage devises that contain portal IP),

Documentation (including any handwritten notes)

Software.

To confirm the above please leave Kevin a signed statement, that you do not possess any Portal property including IP including all of the above.

25 Mr Bodsworth said that he thought that his obligations to work for Portal ceased when Portal dispensed with any requirement for him to attend, but agreed that no-one at Portal had used the phrase “payment in lieu”.

26 On Thursday 28 April, about mid-morning, Mr Bodsworth discovered that he could no longer access his Portal laptop with his password. With Mr McLaughlin, he made arrangements to obtain access by contacting Portal’s IT support person in Japan. He did not receive access to Portal’s servers, network, or email service. By the time he had gained access to his laptop, there was insufficient time to complete the task. He said to Kevin McLaughlin: “I can complete the work from home and return the laptop on Monday morning,” and Mr McLaughlin agreed. Mr Bodsworth says that he then returned all Portal property in his possession at the office including his keys, ID and electronic passes.

27 On Friday 29 April 2005, Mr McLaughlin telephoned him and said: “Steve Gillett wants to retrieve the laptop immediately, Monday is not acceptable”. Mr McLaughlin attended at Mr Bodsworth’s home to collect the laptop on Saturday 30 April 2005, around 7.00 pm. The laptop was loaded with data which Mr Bodsworth thought that Mr McLaughlin would not need, but was lacking in disk space. He said he asked Mr McLaughlin if he should leave the PST file installed or free up a gig and a half of disk space, and that Mr McLaughlin said something to the effect “whatever”, so he deleted it to free up disk space. In the presence of Mr McLaughlin, Mr Bodsworth proceeded to “clean up” the laptop, which Mr McLaughlin was going to inherit. This “clean up” involved the deletion of data. One of the files deleted was the PST file (which is the electronic mail file). In Mr McLaughlin’s presence, Mr Bodsworth also copied to a CD some personal information comprising contact information and personal settings. He said he deleted his personal files from the Portal laptop because it included extensive personal information of his own, and not to prevent detection of communications, for example, with Amdocs of Portal confidential information.

28 Mr McLaughlin says that Mr Bodsworth said: “I am just deleting some personal information and saving some from my laptop onto a disc”. In cross-examination, Mr McLaughlin accepted that Mr Bodsworth showed him where various files were located on his laptop relating to Telstra. He did not recall, but conceded that it was possible, that Mr Bodsworth said: “I am going to get rid of my mail files because it is taking up one and a half gigs, do you have a problem with that?”. Although Mr McLaughlin, who is still employed by Portal, said that he would have had an objection, that answer does not sit well with his concession that it was possible that the question was asked though he does not recall it. I prefer Mr Bodsworth’s version.

29 Mr Bodsworth commenced working for Amdocs on 9 May 2005.

The interlocutory proceedings

30 On 12 May 2005, solicitors for Portal wrote to Mr Bodsworth, observing that he had refused to sign a statement that he did not possess any Portal property or intellectual property, and complaining that he had recently participated in commercially sensitive planning sessions with Portal when engaged in discussions with Amdocs. Attention was drawn to the confidentiality and non-competition clauses of the employment agreement, and an undertaking was demanded that he did not have any documents of Portal, nor any of its intellectual property, nor any information in electronic form, and had not disseminated any confidential information of Portal to any third party.

31 A further letter from Portal’s solicitors, dated 24 May 2005, observed that there had been no response to that of 12 May, nor any undertaking, the request for which was repeated. Reference was again made to clause 9 of the employment contract, and an application for injunctive relief was threatened.

32 Mr Bodsworth had been told by acquaintances that restraints were unenforceable, and he mentioned this to his (Melbourne) solicitors, who told him, “It’s difficult to enforce”, or “Generally it is not pursued”. He accepted that those solicitors did not tell him that the restraints were unenforceable, and he understood that there was an element of risk, though he thought it minimal. He accepts that he has had access to confidential information of Portal, and says that he would not disclose it.

33 Between 27 and 29 May, Mr Bodsworth travelled to Israel, returning between 10 and 12 June. Meanwhile, on 1 June 2005, Portal filed its summons commencing these proceedings. Before the summons was first returnable on 9 June, Portal made application on 3 June to Nicholas J, sitting as Duty Judge, who made orders restraining Mr Bodsworth until 10 June from disclosing certain specified confidential information of Portal. On 9 June, by consent, those orders were continued until 24 June, and, without admissions, Mr Bodsworth was restrained from deleting any information on any personal computer used or owned by him until 17 June 2005. On 17 June, on the application of Portal, the court ordered that Mr Bodsworth that day courier CD copies of files of Portal’s document discretely stored on his computer to Portal’s solicitors, and all PST Outlook files to his solicitors Watkins Tapsell, and that Mr Bodsworth be restrained from “deleting any information on any personal computer used or owned by him until 24 June 2005”.

34 On 24 June 2005, White J heard Portal’s application for further interlocutory relief. Prior to deciding the contested interlocutory application, his Honour, by consent, made final orders in the following terms:-

1. The defendant be restrained from disclosing any confidential information of the plaintiff’s relating to:

(a) The plaintiff’s P7 products;

(b) The plaintiff’s road map for future features and capabilities of the plaintiff’s billing software;

(c) The plaintiff’s strategic customer development and business plan for the next twelve months;

(d) Information provided to the plaintiff by Telstra in respect of:

(i) Telstra’s initiatives to replace existing billing platforms;

(iii) Telstra’s initiatives to wind down and roll off existing legacy systems.

35 Those orders remain in permanent effect and were not in issue on the hearing before me. White J also made consent interlocutory orders, as follows:-

3. Without admissions, and until further order, the defendant be restrained from visiting or contacting the following clients of the plaintiff: Vodafone UK, Vodafone Australia, Vodafone New Zealand, Telstra Clear, M1, Sensis, Rich.

4. Without admissions, and until further order, the defendant be restrained from deleting any information on any personal computer used or owned by him.

5. (a) Order that the defendant grant access on 25 June 2005 to a computer expert retained by the plaintiff to take an image of the computers owned by the defendant or used by him at home, except for any computer provided to the defendant by his present employer.

(b) Direct that the defendant notify the plaintiff’s computer expert of the files which the defendant claims are private and confidential by 5.00 pm 26 June 2005.

(c) Grant access to the plaintiff’s computer expert to all files on the image taken pursuant to order 5(a).

(d) Direct that Steve Gillett or Alex Roche, together with Claire Gaging or other solicitor at Watkins Tapsell and the plaintiff’s computer expert, have access to the files which the defendant claims are private and confidential.

(e) Direct that Claire Gaging or other solicitor at Watkins Tapsell be available during the hours of 8.30 am and 6.00 pm on weekdays and on being provided with four hours notice by the plaintiff for the purposes of attending the examination by Steve Gillett or Alex Roche.

(f) Direct that the files of the defendant in respect of which he assets the contents are private and confidential is to be kept confidential by the plaintiff’s computer expert, Steve Gillett and Alex Roche until further order of the court except that those persons may disclose to the plaintiff’s legal advisers the name of the file and the general nature of the information.
(g) Liberty to the parties to restore the matter to the list in the event of any dispute as to whether the contents of the files are private and confidential files of the defendant on 24 hours notice.

6. (a) An order that the defendant grant access to a computer expert retained by the plaintiff to take the PST CDs which has been copied by the defendant. The PST CDs should be provided to the plaintiff’s solicitor on an undertaking to forward it to the plaintiff’s computer expert on 27 June, 2005.

(b) Direct that the defendant notify the plaintiff’s computer expert of all documents on the PST files, including telephone contacts and emails which the defendant claims are confidential by 5.00pm on 26 June 2005.

(c) Grant access to the plaintiff’s computer expert to all PST computer files.

(d) Direct that Steve Gillett or Alex Roche, together with Clair Gaging or other solicitor at Watkins Tapsell and the plaintiff’s computer expert, have access to the files which the defendant claims are private and confidential.

(e) Direct that Clair Gaging or other solicitor at Watkins Tapsell be available during the hours of 8.30 am and 6.00 pm on weekdays and on being provided with four hours notice by the plaintiff for the purposes of attending the examination by Steve Gillett or Alex Roche.

(f) Direct that the files of the defendant in respect of which he asserts the contents are private and confidential is to be kept confidential by the plaintiff’s computer expert, Steve Gillett and Alex Roche until further order of the court except those persons may disclose to the plaintiff’s legal advisors the name of the file and the general nature of the information.

(g) Liberty to the parties to restore the matter to the list in the event of any dispute as to whether the contents of the files are private and confidential of the defendant on 24 hours notice.

7. Liberty to the parties to restore on 24 hours notice.

36 Consequent upon the contested interlocutory hearing, his Honour made a further interlocutory order, in the following terms:

37 Pursuant to the interlocutory consent orders, at Portal’s request, Mitchell Bezzina, a computer forensic specialist, examined the two hard disk drives contained within Mr Bodsworth’s personal computer. He found that 58,433 files on one hard disk drive, and 2,374 on the other, had been deleted since 9 June 2005. Further analysis indicated that about 99% of this was the result of a “disk clean up”, which would delete files no longer used by the operating system - typically temporary files – as distinct from data files created by the user. A disk clean up had been executed on 25 June 2004 at 12.50 AEST. The files which were deleted were deleted from the first hard disk drive between 9 and 25 June, and from the second on 13, 16, 24, and 25 June.

38 Mr Bezzina also identified four setup files for “secure erasure programs”, which allow a user to delete files from the computer and overwrite the deleted files so that they cannot be recovered. A secure erasure program such as 12 Ghosts Shredder provides no advantage in creating more usable storage space on a hard disk drive, its sole purpose being to delete a data file so that it cannot be recovered at a later stage. Mr Bezzina’s evidence is that the secure erasure program 12 Ghosts Shredder was uninstalled on 25 June, at 11.06 AEST, and that it was not possible to tell whether that program had been executed between 13 June and 25 June 2005. In cross-examination, it was clarified that while the 12 Ghosts Shredder program was installed as at 13 June, whether the program had been installed before 13 June was equivocal. However, there were four secure erasure programs on the hard drive as early as 9 March, and coupling this with Mr Bodsworth’s evidence that he had used the shredder software before 9 June, I find that it was installed prior to 9 March. There is no evidence that he did so after 9 June, save to uninstall it.

39 Approximately 3,599 files on the first hard disk drive, and 2,051 on the second, appeared to have been deleted using 12 Ghosts Shredder. In cross-examination it was clarified that the 6,000-odd files that had been “shredded” were not defined in time, so that it was not possible to tell when they had been deleted, which could have been prior to 9 June.

40 Mr Bodsworth said (under the protection of a certificate under Evidence Act, s 121) that, for a time after the order was made, he had understood (because of what he was told, over the telephone when he was first given notice of the order, while he was overseas) that it was his understanding that he was prohibited from deleting “files” - as distinct from “information”, which he later learnt to be the case. Mr Bodsworth said that he understood the intention of the order was to preserve any evidence of use by him of Portal’s information, but to allow him to use the computer and keep it in his house, so that he, his wife and children could continue to use it. Between 9 June and 24 June 2005, on what exact day he does not recall, he performed a disk cleanup, which had the result that “cookies” and “temporary internet files” were deleted. He did not consider this to be deleting “files”. He says that he did so probably twice, and that he did not otherwise delete information from his computer in the period 9 to 24 June, though he did uninstall a program, namely 12 Ghosts Shredder.

41 Mr Bodsworth said that he did not remember the date on which 12 Ghosts Shredder was uninstalled, although when it was put to him that it was 24 June, immediately after the interlocutory hearing before White J, he conceded that it very well could have been then. He explained that the program could not be used to shred an individual email, but only the entire PST file (for which purpose it was not used, as the PST file was not shredded). He said that he uninstalled the 12 Ghost Shredder program for fear of an allegation that he had such a program on his computer with the capacity to delete files, explaining that the fear which led him to uninstall the 12 Ghost Shredder program was that, having formed the view that Portal was adopting a vindictive approach towards him, he thought that the presence of a shredder program on his computer would facilitate a suggestion that he tried to delete information.

42 I am unpersuaded that I should reject Mr Bodsworth version of these matters. Generally speaking, I accept Mr Bodsworth’s evidence: in my view he was frank; he made concessions against his interest referred to in greater detail below as to his access to and potential use of confidential information; his versions of conversations were not inconsistent with the documents and were rarely inconsistent in substance with the versions of Portal’s witnesses; he presented as a careful and accurate witness with a good recollection; and his evidence was not shown to be incorrect by objective facts. I had some reservations about his inability to concede that he deleted 12 Ghost Shredder on 24 June, but on review it is notable that he did in fact accept that it might very well have been on that date that he did so, although he could not precisely recall when.

43 It follows that I am unpersuaded that Mr Bodsworth deleted information from Portal’s laptop or his personal computer with the intention of preventing discovery of unauthorised disclosures or uses of Portal’s confidential information. As to the laptop, deletion of the PST file took place long before these proceedings were threatened, so far as Mr Bodsworth thought with the apparent assent of Mr McLaughlin, and there is no reason to suppose that it contained any communications of confidential information to Amdocs. As to his personal computer, it does not appear that the Shredder program was used after 9 June, and although the disk cleanups removed temporary files, that would not have deleted information saved to the computer by a user.

Mr Bodsworth’s customer connection and confidential information

44 In considering the extent to which Mr Bodsworth had a relevant customer connection on behalf of Portal, it is necessary to bear in mind the nature of the market for telecommunications billing software in Australia. It is a market affected by constant technological development, as new versions of software are developed to enhance or replace older versions. The development of new versions takes time and considerable investment. The customers are large and sophisticated organisations which do not commit to contracts for new software quickly, but engage on a usually lengthy process of demonstration, tendering and review, involving many different personnel from different areas within the customer. Decisions are made at a high level, and not by the customer representatives with whom Mr Bodsworth usually dealt. I accept Mr White’s submission that this is not an industry in which a single salesperson can readily influence a decision to contract for new billing software. The products sell on their technical capabilities compatibility with customers’ needs and established systems, and not by reason of personal relationships.

45 However, Mr Bodsworth has accepted that he had a high level of access to confidential information in relation to Portal’s business with Telstra. Particular aspects of Portal’s confidential information to which Mr Bodsworth had access included:

· Portal P7, Portal’s latest and current core product;

· Portal’s “future roadmap” (that is, development plans) for the next two versions;

· Portal’s strategic customer and business plan for the next twelve months, including which regions in Asia Pacific and which customers and which specific opportunities with each would be targeted;

· Information provided to Portal by Telstra in respect of Telstra’s initiatives to replace existing billing platforms; Telstra’s initiatives to improve customer management; and Telstra’s initiatives to wind down and roll-off existing legacy systems;

· Tender quotes and the methodology underpinning the dollar values quoted in respect of a proposal to Vodafone;

· Technical fault logs and solutions, technical correspondence about faults, and costing estimates for proposed projects.

46 Of these, the first four categories are already the subject of a permanent final injunction granted by consent by White J.

47 A quantity of information which Mr Bodsworth conceded was confidential to Portal was identified amongst documents produced to the court by Mr Bodsworth pursuant to a notice to produce the subject of Order 2 made on 24 June 2005 for the delivery up of documents by Mr Bodsworth to Portal, including a proposal to Vodafone disclosing prices, pricing methodology, and a summary of benefits of the system; a billing strategy proposal for Vodafone, being a feasibility study for replacement of Vodafone’s wholesale billing platform; handwritten notes including information on client requirements and architecture and technical information on client business; a spreadsheet, collated by Telstra, reporting bugs in Portal’s software; a release document describing the Portal product, dated January 2005, which would only be released to a customer if the customer entered into a non-disclosure agreement; information recording details of integration between Seibel and Portal billing software; information about Portal client M1, including a step-by-step breakdown of how Portal would address particular issues for M1, and discussion of M1’s needs and M1’s system; documents provided by Sensis to Portal in confidence; detailed information about Portal’s product, which Portal would not give to a customer, even if the customer entered into a non-disclosure agreement; and a comprehensive technical log of incident reports of bugs, faults and areas of weakness in Portal’s software.

48 Portal contends that there is no satisfactory explanation as to why these documents were not delivered up to Portal until after a Notice to Produce was issued, pointing to Mr Bodsworth’s evidence that it took only several hours to collate them and emphasising that there was no delivery up or acknowledgement of the retention of those documents, until nearly three weeks after the commencement of proceedings, when the documents were produced to the Court and an order for their delivery up made by consent. However, as Mr White points out, Mr Bodsworth was overseas in Israel between late May and mid-June 2005. He discussed the fact that he had backed-up Portal and Telstra materials on his home computer with representatives of Portal on 27 May, 2 June and 4 June 2005. He asked for time to separate work and personal materials on the computer. Although it was suggested in cross-examination that Mr Bodsworth should have returned documents in response to the letters from Haywards dated 12 and 24 May 2005, those letters did not seek the return of documents, but demanded signed declarations from Mr Bodsworth that he did not have any such documents; and Mr Bodsworth declined to make such a declaration when he did still have such materials in his possession. On about 3 June 2005, Mr Bodsworth offered Portal an undertaking in similar form to the orders consented to on 9 June 2005, and provided a letter from Amdocs requiring Mr Bodsworth to observe his obligations in relation to confidential information.

49 Mr Bodsworth did retain, on his personal computer at home, some documents, particularly of Telstra, which he then thought that it was permissible for him to retain, although he now concedes that it was not. These were, essentially, documents of Telstra, IBM, Vodafone and other parties. He thought they were not owned by Portal, and that he could therefore keep them. He now concedes that he is not entitled to them.

50 In so far as it was suggested that any inference adverse to Mr Bodsworth should be drawn from the presence on his computer of some Portal documents, Mr Bodsworth has explained that he prudentially backed-up documents on his home computer, having no other access to back-up facilities. Such backing-up does not appear to contravene Mr Bodsworth’s employment contract or any instructions given to him, or any policy of Portal. Mr Gillett agreed there was no server available in the Melbourne office, that Mr Bodsworth’s backing-up was prudent, and that Portal’s mobile access policy contemplated both the use of home computers for work purposes, and the downloading and backing up of Portal documents on them.

51 Mr Bodsworth was cross-examined about his interview with Amdocs on 29 March 2005. Amdocs’ notes of that interview were also in evidence. I am unpersuaded that any confidential information of Portal was disclosed to Amdocs during that interview. Mr Bodsworth’s evidence of its course was entirely plausible, and consistent with Amdocs’ notes.

52 Mr Bodsworth was first represented before the Court in these proceedings on 9 June 2005, at which time the orders made on 3 June 2005 were continued by consent to 24 June 2005. Those orders included an order restraining Mr Bodsworth from disclosing confidential information nominated by Portal and specified in the order relating to Portal’s P7 product. On 24 June Mr Bodsworth consented to a further extension of that order without limitation in time. Mr Bodsworth has never resisted such an order, and does not dispute that his employment contract with Portal contained a provision, in clause 9, requiring him not to disclose without authorisation confidential information about the business of Portal or trade secrets of Portal to “any person or association”. Mr Bodsworth says he has not done so and would not do so.

53 Mr Bodsworth accepted that he was “headhunted” for the position at Amdocs for reasons which included his knowledge of Telstra from having worked at Telstra. He accepted that in discussing the benefits of Amdocs’ products with potential customers, he would quite possibly have in mind the advantages of Amdocs’ products relative to those of Portal. He accepted that the restraints which bound him had an impact in what information he felt he could disclose to a potential customer who might ask a question about Portal, which would require him to consider the restraints. Mr Alkadamani, who appeared for Portal, asked him:-

Q. I put it to you that it is not realistic to be able to put out of your mind confidential information that you gained while working for Portal, in your work for Amdocs? A. I am not sure. I have not had need to.

Q. I put it to you that you cannot realistically not use the information that you have obtained? A. If it has become part of my experience, I can’t take my experience out of my head.

Q. That includes the confidential information, too, does it not? A. I would have to concede that, yes.

54 While it goes too far to suggest, as Mr Alkadomani did, that Mr Bodsworth cannot realistically fail to utilise the confidential information, trade secrets and know-how of Portal in working for Amdocs, nonetheless there is an ever-present risk that, however well-intentioned, he may do so, particularly since his employment with Amdocs is also predominantly focused on Telstra, is also a technical role and also involves him doing all that he can within his role and capacity to assist in the sale of Amdocs products.

55 In my view, Mr Bodsworth was frank about his access to and use of Portal’s confidential information; he conceded that he had access to confidential information; he conceded that he could not, in his employment with Amdocs, necessarily avoid using that information; he has never opposed relief by way of enforcement of his obligation not to disclose or use Portal’s confidential information; there is no evidence that he has disclosed any of Portal’s confidential information, nor that while at Portal he disclosed the confidential information of his previous employer; his versions of conversations were not inconsistent with the documents or objective facts, and were rarely inconsistent in substance with the versions of Portal’s witnesses; he presented as a careful and accurate witness with a good recollection.

56 As a result, not only of general acceptance of his evidence but also the other facts and circumstances discussed above, I conclude that:

· Although Mr Bodsworth had quite extensive contact with various personnel at Telstra, he was not the prime point of contact, nor the person who negotiated sales, nor implemented the solutions; his contacts were not at a high level, and were not the executives who made decisions, but at best people who, through the reporting process, might influence the people who make decisions; the customers were large and sophisticated organisations which used well-established tender processes and often external valuation. Thus Mr Bodsworth did not have a significant customer connection on behalf of Portal;

· Despite his misconceived but not unintelligible retention of some information provided by third parties to Portal in confidence, I am entirely unpersuaded that Mr Bodsworth has disclosed or misused information confidential to Portal, or that he would intentionally do so.

57 However, there is an ever-present risk that in his employment for Amdocs, Mr Bodsworth would be placed in a position where, however well-intentioned, he might unavoidably use such information for the benefit of Amdocs and to the detriment of Portal. While I accept that claims against employees based on confidential information, should be carefully scrutinised, billing software such as Portal P7 is very expensive, complex software, and it cannot be doubted that not only the source code, but aspects of its features, strengths, weaknesses and future development plans constitute information that it is important, from Portal’s perspective, to protect from dissemination to competitors.

58 This risk, and Portal’s right to protection against it by covenant and injunction, is not diminished by the fact that some information about the capabilities and features of P7 is publicly available, including on Portal’s website: as Mr Bodsworth accepted, the information to which he was privy went beyond what was publicly available, and would only be provided to a potential customer under a confidentiality agreement. True it is that Mr Bodsworth was not engaged in engineering, product development, professional services, technical support, training or research and development; did not have access to P7 source code, nor develop any products for Portal, nor install and commission P7 for customers; and while he could follow installation instructions for demonstration purposes, he was not a programmer, nor a professional services employee, and did not have the technical qualifications or experience to install or commission a product such as P7. However, Mr Bodsworth had knowledge of the P7 product well beyond that which was in general circulation, and it was recently acquired, since February 2005: he had made albeit limited slide presentations to customers prior to the end of March 2005, and he received formal training was in New Zealand between 29 March and 2 April 2005, which can hardly be said to be outdated. And while it is also true that the training Mr Bodsworth received on P7 was the same as the customer representatives from Telstra, IBM and Vodafone – and that there was even some concern at Portal that Mr Bodsworth should not attend P7 courses with the customer representatives, lest customers realise that Portal’s Senior Solution Specialist might not know any more about the product than the customers – such training would only be provided to customers under terms of confidentiality.

59 Mr Bodsworth conceded that the training provided by Portal and received by him in respect of the P7 product was more detailed than any information that could be found on the website, and would be regarded by Portal as, and was, confidential. He also accepted that had he disclosed to Portal that he was in the course of negotiations for employment with Amdocs, he would not have received that training. That he did not apparently retain any training manuals – and certainly, none appeared in the material produced by Mr Bodsworth to the Court – and that he no longer has any of the hard copy documents, and has not had access to the PST file since leaving Portal, and has agreed to a regime for destruction of the soft copy documents, does not detract from the circumstance that he has, quite recently, received information about P7 which is not in the public domain and which would be entrusted by Portal to customers, if at all, only under non-disclosure agreements.

60 Whether or not properly characterised as a trade secret, such information may legitimately be protected by covenant [Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317, 341].

Is the Restraint Excessive, Unreasonable and Void?

61 Ordinarily, in New South Wales, one approaches this type of case by determining, first, whether the alleged breach (independently of public policy considerations) does or will infringe the terms of the restraint properly construed; secondly, whether the restraint in its application to that breach is against public policy; and thirdly, if it is not, then in its application to the alleged infringing conduct, the restraint is valid unless the court makes an order under Restraints of Trade Act, s 4(3) [Orton v Melman [1981] 1 NSWLR 583; Woolworths Limited v Olson [2004] NSWCA 372, [42]]. That is because the effect of the Restraints of Trade Act, s 4(1), requires attention to be concentrated on the actual breach, rather than imaginary or potential breaches, for the purpose of determining the validity of a restraint.

62 However, in the present case there is a very live issue as to whether the Restraints of Trade Act is available, it being argued on behalf of Mr Bodsworth that the proper law of the contract is that of the State of Victoria, and Mr Bodsworth’s current employment by Amdocs being primarily in the State of Victoria. It will only be necessary to resolve the issue of whether or not the Act is available in this case if, at common law, the restraint is void. It is therefore convenient to approach the issue in this case, at least initially, without reference to the Act.

63 At common law, a restraint of trade is contrary to public policy and void, unless it is justified by the special circumstances of the particular case, for which purpose it is sufficient justification that the restriction is reasonable having regard to the interests of the parties concerned and in reference to the interests of the public, so that while affording adequate protection to the party in whose favour it is imposed, it is not injurious to the public [Nordenfelt v Maxim Nordenfelt Guns & Ammunition [1894] AC 535, 565; Herbert Morris Ltd v Saxelby [1916] 1 AC 688, 706, 707; Lindner v Murdock’s Garage (1950) 83 CLR 628, 653]. While the cases refer to “special circumstances” justifying a restraint, that means no more than facts of a particular case from which reasonableness can be inferred [J D Heydon, The Restraint of Trade Doctrine, 2nd Ed, p29]. If the restraint is not reasonable in reference to the interests of the parties and the public, it is contrary to public policy and void [Buckley v Tutty (1971) 125 CLR 353, 376]. This test reconciles two conflicting policies, first “that a man should be free to use his skill and experience to the best advantage and should not be put in the position of a slave”, and secondly, that covenants should be observed and enforced [Herbert Morris Ltd v Saxelby [1915] 2 Ch 57, 76; [1916] 1 AC 688; Attwood v Lamont [1920] 3 KB 571, 577].

64 While courts commence from this same general principle in all cases of restraint of trade, a more rigorous approach is applied to restraints in employment contracts than in contracts for the sale of goodwill [Nordenfelt, 566; Mason v Provident Clothing & Supply Co Ltd [1913] AC 724, 731, 738; Herbert Morris Ltd v Saxelby [1915] 2 Ch [77]. A stricter and less favourable view is taken of covenants in restraint of trade between employer and employee, than in commercial agreements [Geraghty v Minter (1979) 142 CLR 177, 185; Heydon, pp68-69; Woolworths Limited v Olson [38]].

65 An employer is not entitled to be protected against mere competition; the legitimate interests of an employer which may be the subject of protection by covenant are in the nature of proprietary subject matter [Vandervell Products Ltd v McLeod [1957] RPC 185, 192; Tank Lining Corp v Dunlop Industrial Pty Ltd (1982) 140 DLR (3d) 659, 664], including the employer’s trade secrets and confidential information, and goodwill including customer connection.

66 In order to determine whether a restraint exceeds what is necessary for the protection of the legitimate interests of the employer and therefore void, it is necessary first to construe the restraint. Absent resort to the Restraints of Trade Act, it is then necessary to consider whether, on the particular facts proved, the restraint so construed is reasonable.

67 A restraint is to be interpreted, for the purposes of ascertaining its real meaning, independently of the rules prescribing tests of reasonableness for the purpose of ascertaining its validity [Butt v Long (1952) 88 CLR 476, 487; Geraghty v Minter, 180]. Nonetheless, where there is ambiguity, a covenant in restraint of trade in an employment contract will be construed in favour of the employee, so that a narrower construction of the scope of a restraint will be preferred to a broader construction, when both are reasonably available [Mills v Dunham [1891] 1 Ch 576, 589-90; Vandervell Products Ltd v McLeod, 193; Littlewoods, 1486; Butt v Long, 487] - though this does not authorise a restrictive interpretation of general words simply to save a covenant from invalidity [Butt v Long, 487; Galbally [108]]. In Australia, Butt v Long precludes the more liberal approach to construction of restraints adopted by Lord Denning MR in Littlewoods Organisation Ltd v Harris [1977] 1 WLR 14, 72, by which courts construe wide words narrowly so as to make the clause reasonable and therefore enforceable, interpreting them from the perspective that the parties’ object is legality, and if the words of the restraint are so wide that on a strict construction they cover improbable and unlikely events, declining to enforce it in respect of them. However, Butt v Long is not inconsistent with the view that a covenant in restraint of trade should be construed, in the case of ambiguity, in favour of the employee; that is to say, in favour of giving it a narrower rather than a wider operation [Butt v Long, 487].

68 Construction of a restraint is informed by the factual matrix, and in particular the nature of the employer’s business, and the employee’s role in it. An agreement in restraint of trade is construed with reference to its subject matter, and descriptive words may be restricted in their operation by reference to the circumstances in which the parties contract. Thus restraints which at first sight are general in form, in prohibiting a former employee from offering to perform services for or soliciting the custom of the former employer’s clients, have often been construed as relating only to those services or products which the employer had offered, and covenants prohibiting a former employee from dealing or transacting business with customers of the former employer have been construed to mean business of the same or a similar kind to that which had been carried on by the former employer [Lindner v Murdock’s Garage, 635, 649; Mills v Dunham [1891] 1 Ch 576, 581, 586; Business Seating (Renovations) Ltd v Broad [1989] ICR 729, 735, (Millet J); G W Ploughman & Sons Ltd v Ash [1964] 1 WLR 568, 572; [1964] 2 All ER 10; McLaughlin Consultants v Boswell [1989] 30 IR 417, 419 (Bryson J); cf I F Asia-Pacific Pty Ltdv Galbally (2003) 59 IPR 43; [2003] VSC 192, [118]-[127]].

69 The first limb of the restraint provides that Mr Bodsworth is not for a period of six months from his “departure date”, within the States and Territories of Australia, to “enter the services of or start another firm that could compete with those services/products of” Portal. Two issues arise in construing this limb of the restraint, apart from the reference to “departure date”, which is addressed later.

70 The first concerns the words “those services/products of” Portal. For Mr Bodsworth, Mr White submits that it is not clear to what the word “those” refers, though acknowledging it might be illuminated by the reference to “software sales” in the description of Mr Bodsworth’s duties earlier in the agreement. But in my opinion, the words clearly enough mean the (as distinct from “those”) services and/or products of Portal, and the evidence clearly enough establishes the scope of Portal’s business, services and products, as understood by both parties: Portal supplies billing software and related services to the telecommunications industry, so that the products/services of Portal referred to in the restraint are the billing software and related services which Portal provides to the telecommunications industry.

71 The second issue is the reference to “another firm that could compete”, and in particular the word “could”. Mr White submits that this potentially covers any of the following:

· A business which currently has the capability to compete with Portal’s products and services and does so;

· A business that currently has the capability to compete with Portal’s products and services but does not or may not do so during the restraint period;

· A current non-competitor of Portal with no present capability to compete with Portal’s products or services but which may or may not become so capable within the duration of the restraint and which, if it becomes so capable, will engage in that competition;

· A current non-competitor of Portal with no present capability to compete with Portal’s products or services and which may become so capable during the period of the restraint, but which choses not to engage in that competition;

· A current non-competitor of Portal with no present capability to compete with Portal’s products or services and which may possibly become so capable during the period of the restraint, but which does not become so capable.

72 Telecommunications billing software is complex and expensive. Worldwide, there are only five providers. In Australia, there are only three significant customers. That is the market in which the competition for Portal’s products and services in Australia, contemplated by the restraint, takes place.

73 The purpose of the covenant is plainly enough to prevent Portal from losing business opportunities which it might otherwise win to Mr Bodsworth’s new employer. In that context and applying the principle that in case of ambiguity a restraint is to be construed narrowly in favour of the employee, the words “could compete” are concerned with entities that are participants in the market which at the time of the alleged breach have the capacity to compete in the market with Portal’s services or products. The words “could compete” are concerned with a present capacity at the time of the alleged breach, to compete. They are intended to cover those business entities which, during the term of the restraint, have the capacity to compete with Portal for any particular supply of product or service – entities which could, during the period of the restraint, as a matter of practical reality submit a tender for a supply of products/services which Portal is a tenderer. There is a breach of the restraint only where the new employer, at the time of the alleged breach, has an existing capacity to compete with Portal.

74 Accordingly, the first limb of the restraint prohibits Mr Bodsworth from being employed by an entity that, at the time of the alleged breach, has as a matter of practical reality the capacity to compete with Portal in the market for the supply in Australia of telecommunications billing software by tendering for the supply of products and/or services for which Portal might tender. On the evidence, those entities at present are limited to Amdocs, CSG, ConvergSys, and ADC/Intech.

75 The second limb of the restraint provides that Mr Bodsworth for a period of six months from his “departure date” within Australia, is not to “visit or contact the company’s clients or to deal with any individual or company that was a client of the company for a period of twelve months preceding employee’s departure date”.

76 In the context of the restraint clause (including the reference to Portal’s services/products in the first limb), the contract as a whole (including the reference to software supply), and the factual matrix, it is clear that the intent of the parties was to prohibit Mr Bodsworth from visiting or contacting Portal’s clients, or dealing with any individual or company that was a client of Portal during the relevant period, in connection with the supply or possible supply of telecommunications billing software. It is not inconsistent with Butt v Long, in construing restraints of this type, to adopt the approach referred to in cases such as Mills v Dunham, Business Seating v Broad, and McLauglin Consultants v Boswell. The interpretation of such restraints by reference to the business in which the employer is engaged, and the nature and scope of the employee’s duties in that business, is well established [Butt v Long (1953) 88 CLR 476, 487, 490; Home Counties Dairies Limited v Skilton [1970] 1 WLR 526; Heydon, pp108-112]. While, in Galbally, Dodds-Streeton J distinguished those cases and declined to hold that the non-solicitation clause with which her Honour was concerned could be restricted to services, custom or business the same as or similar to those of the plaintiff, her Honour was strongly influenced towards that result by the absence of any definition, in the restraint clause or elsewhere in the contract, of the employer’s business, custom or the type of service it provided, or of Mr Galbally’s role. In the absence, not only from the restraint clause but also from the contract as a whole, of any description of the prohibited business or services, her Honour found insufficient warrant for limiting the scope of the restraint by reference to the business of the employer and the nature of Mr Galbally’s duties in it. With respect, I doubt the conclusion that a construction of a restraint which limits general words to the employer’s specific business can or should be adopted only where the specific business is described elsewhere in the contract. There is no reason why the scope of the employer’s business, as a fact known both to employer and employee, cannot be proved by extrinsic evidence, even if the employer’s business is not described in the contract.

77 In the present case, the restraint was plainly intended to protect Portal’s business. This provides ample reason to suppose that it was visiting, contacting and dealing with Portal’s clients in connection with the supply or possible supply of products or services which would compete with Portal’s products and services, that the parties had in mind. If the restraint were not so construed, it would prohibit Mr Bodsworth from attempting to obtain personal telecommunications services such as a mobile phone, or a landline service, or an internet connection, from Telstra, and it cannot reasonably be supposed that either party intended that to be its effect: they intended it to protect Portal’s business, and the visits and contacts and dealings which it contemplates are visits, contacts or dealings for the purposes of or in connection with or related to the supply or possible supply of telecommunications billing software and related services. [This construction substantially accords with that adopted by White J on the interlocutory application: Portal Software v Bodsworth [2005] NSWSC 631, [33]-[34].]

78 The next question, then, is whether the restraints, so construed, are reasonably necessary to protect the legitimate interests of Portal, and are not unreasonable in the interests of the public.

79 No submission is advanced that the duration of the restraint is excessive, nor that its territorial scope is too wide. Mr White rightly did not agitate these issues. As to duration, there was evidence (already summarised above) that individual transactions in this business took in the most favourable settings not much less than six months, and often longer. Mr Bodsworth’s successor, Mr Tkalec, was subject to a similar (six months) restraint. Mr Bodsworth’s contract with Amdocs includes a 12 month post-employment restraint. In his previous employment at ADC, Mr Bodsworth was subject to a restraint, he thought for 12 months. As to territory, it is plain that Portal’s business is at least Australia wide, and a restraint on employment within the States and Territories of Australia for a period of six months does not go beyond the reasonable protection of Portal’s legitimate interests.

80 Mr White, however, concentrated his attack on the scope of the restraint (as distinct from duration or area). Mr Alkadamani, for Portal, sought to support the restraint inter alia on the basis of customer connection, but I do not accept this. Portal did not identify a single contact at Telstra or elsewhere with whom Mr Bodsworth had any special connection. Mr Bodsworth was not the relevant account executive, nor the person who negotiated the arrangements, with customers. He could not possibly be said to be “the face of Portal” for the purposes of any customer. The customers in this industry are large and sophisticated organisations, most unlikely to be influenced by a single solutions specialist. The business of Portal, and Mr Bodsworth’s former role in it, in the context of this industry, is such that protection of customer connection does not support a restraint.

81 But Mr Alkadamani principally founds Portal’s case that it has a legitimate interest to be protected by the restraint on protection of Portal’s confidential information. The evidence shows that Mr Bodsworth has had access to a substantial amount of Portal’s confidential information. Some of it was received in the last few weeks before he told Portal that he was leaving to go to Amdocs (and would not have been obtained by him had he told Portal that he was intending to leave). Mr Bodsworth conceded that in serving his new employer he could not put out of his mind the information which he had gleaned from Portal, and that in providing information to potential customers of Amdocs, he might well be faced with a need to make judgments as to what he could and could not disclose of his knowledge of Portal products. In my view, it is incontestable that Mr Bodsworth is in possession of confidential information of Portal which could be employed by him, consciously or unconsciously, to the advantage of Amdocs and the detriment of Portal.

82 Mr White submits that, in the absence of proof of a breach of Mr Bodsworth’s obligation not to disclose confidential information, and his consent since the commencement of proceedings to orders restraining disclosure of specified confidential information, further restraint is unnecessary and excessive, and that there are no grounds for Portal to seek further protection by means of the contractual restraints.

83 I disagree. First, the validity of a restraint is judged at the time at which the contract is made [Nordenfelt, 574; Commercial Plastic Limited v Vincent [1964] 3 WLR 820, 829; Heydon, pp37-40; Galbally, [117], Lindner v Murdock’s Garage; Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337, 334; Woolworths Limited v Olson 372, [40]], by reference to what the restraint entitled or required the parties to do, rather than what they intend to do or have actually done. In this respect, the court “will not enter into nice considerations as to the personal honour or integrity of the particular employee” [CJ Farwell, Covenants in Restraint of Trade as Between Employer & Employee (1928) 44 LQR 66, 68; Heydon, p87]. Secondly, as Lord Denning said in Littlewoods [at 1479; see also 1485], experience has shown that it is unsatisfactory to simply have a covenant against disclosing confidential information, because it is difficult to draw the line between information which is confidential and information which is not, and very difficult to prove a breach when the information is of such a character that an employee can carry it away in his head. The only practicable solution is to take a covenant from the employee by which he undertakes not to work for a trade rival. The permissibility of such restraints for such a purpose is well established [Kone Elevators Pty Ltd v McNay (1997) ATPR ¶41-564; 43,834; Woolworths v Olson, [38], [67]]. Lord Denning’s explanation of the desirability of a contractual restraint is apposite to the utility and appropriateness of the restraints in this case.

84 However, Mr White next submits that, construing the restraints as I would, they will have the effect of prohibiting Mr Bodsworth from undertaking a range of activity in a field wider than is necessary for the legitimate protection of Portal’s interests, because Amdocs sells additional products for which Portal is not a competitor, and an employee can only be restrained from carrying out activities which would place the employer at risk, which generally means in areas in which the employee has worked for the employer. Thus a covenant which prohibited an employee from becoming concerned in the manufacture of printed electrical circuits, including “single sided printed circuits”, was excessive, where the employee had never worked on single sided printed circuits [Technograph Printed Circuits Ltd v Chalwyn [1967] RPC 339]. A covenant not to carry on activities pertaining to the manufacture of non-intoxicating beverages was excessive, because it prohibited the sale of raw materials that were the basis of such beverages, which had not been part of the employer’s business [Sharp v Cain [1924] SASR 203]. And a covenant restraining an employee from being concerned with trades which corresponded to various departments of the employer’s general store was too wide, because the employee had worked only in the tailoring department [Attwood v Lamont [1920] 3 KB 571]. Covenants which refer to a particular “business” or to “competitors”, rather than specifying particular activities, are often excessive where the employer undertakes other, non-protectable, activities in competition [Commercial Plastics Limited v Vincent [1965] 1 QB 623; Vandervell Products Ltd v McLeod [1956] RPC 185; Wood & Moore’s Stores Limited v Jones (1899) 81 LT 169].

85 But in my opinion, the evidence of the factual matrix relating to the relevant market in Australia shows that this is not such a case. In short, Portal’s competitors in the industry in Australia are not apparently diverse businesses, in which Mr Bodsworth might be employed without any connection with the supply of billing software. While Amdocs provides products and services somewhat more extensive than Portal’s range, they are connected, so that the supply of Amdocs’ other products overlaps with the supply of billing software. On this, I accept Mr Gillett’s evidence, as follows:-

WHITE: Q. So if Mr Bodsworth, while he was employed by Amdocs, approached Telstra, for example, in relation to those products, that wouldn’t prejudice any interests of Portal, would it? A. To the extent that they were stand-alone and didn’t interface with the billing system, I would think not. However, it is important to understand that each of those satellite systems do tend to interface with the billing platform as a central engine.

86 Given the nature of Portal’s competitors’ businesses as disclosed in the evidence, and the restriction of the restraint to Australia, this is a case in which the activities from which the former employee is excluded can be expressed to cover their generalised businesses, because their businesses generally largely overlap with Portal’s, and do not include discrete components unrelated to the provision of telecommunications billing software [cf Kerchiss v Colora Printing Inks [1960] RPC 235, 239; Commercial Plastics Limited v Vincent [1965] 1 QB 623, 644–645]. Such a restraint does not have the effect of excluding Mr Bodsworth from employment in areas in which Portal is not entitled to be protected, because it is not apparent that Portal’s competitors have an unrelated business in which he might be employed.

87 Accordingly, in my opinion the restraints properly construed are reasonable, having regard to the interests of the parties, for the protection of the legitimate interests of Portal.

88 It was not suggested that, if found to be reasonable having regard to the interests of the parties, the restraints were unreasonable having regard to the public interest; on that issue the employee bears the onus, and no submission to that effect was advanced on behalf of Mr Bodsworth. Having regard to the evidence of the world-wide nature of the industry, and of restraints in comparable employment contracts, and the level of Mr Bodsworth’s remuneration at Portal, I would not in any event find that keeping Mr Bodsworth out of employment with competitors of Portal in Australia (having regard to his past history of employment overseas) for six months (having regard to comparable employments with a restraint of twelve months) was injurious to the public interest.

89 Accordingly, the restraints, properly construed, are valid and effective.

What was the Departure Date?

90 That leaves a question as to when the six month restraint period commenced to run. Portal contends that it runs from the last day of employment, which it says was 24 May 2005, with the consequence that the six month period expires on 24 November 2005. Mr Bodsworth argues that his “departure date” was 29 April, the last day on which he was required to work for Portal.

91 For Mr Bodsworth, Mr White submits that “departure date” is an ordinary English term and should be given its natural and ordinary meaning, and that as Mr Bodsworth “went away” from the plaintiff on 28 April 2005 and did not return, that should be taken as his “departure date”. In answer to Mr Alkadamani’s submission that Mr Bodsworth remained an employee until 24 May, Mr White submits that:-

· Mr Bodsworth did no work for Portal after 29 April, and had he come into the office to work none would have been given to him;

· Mr Bodsworth had no access to Portal’s computer system after 29 April;

· Mr Gillett’s evidence, that he reaffirmed that the last day of employment was to be 24 May, should not be accepted;

· Mr Gillett circulated an email on 29 April stating that Mr Bodsworth had resigned and “Portal does not require him to serve out his one month notice period”;

· Mr Bodsworth was told by letter from Haywards dated 12 May 2005 that the restraint applied until 24 October 2005, six months after the week of his departure; and later documents stating a different position were mere assertions by Portal to maximise the restraint on Mr Bodsworth.

92 The last of these points may immediately be disposed of. Ms Costigan, the author of the letter dated 12 May 2005, gave evidence to the effect that the reference to October as opposed to November was a mistake on her part. I have not the slightest reservation in accepting that evidence. The most telling factor is her use of the date 24 October, which is explicable only by reference to the date at which the 28 day notice period would have expired, namely 24 May, and is not explicable by reference to the date on which notice was given, nor the last day on which Mr Bodsworth actually worked for Portal.

93 It is clear that upon Mr Bodsworth giving notice as he did, had nothing further occurred, his employment would not have come to an end until 24 May. The question is whether Portal, by excusing him from further attendance, accelerated the end date of his employment.

94 Generally, the expression “payment in lieu of notice” may bear either of two different meanings. First, it is used to describe a payment, to an employee whom it is proposed to dismiss summarily, of a lump sum representing compensation for the wages or salary which he or she would have received if given the notice to which the employee is entitled by law. In that case, the employment terminates upon the date of payment of the lump sum. Secondly, an employee may be given the full period of notice to which he or she is entitled by law but at the same time excused any duty (and refused any right) that he or she would otherwise have under the employment contract to attend at the work place during the notice period. In that case, the employment continues until the expiration of the period for which the payment is made [Leech v Preston Borough Council [1985] ICR 192, 196; Siagian v Sanel Pty Ltd (1994) 122 ALR 333, 352]. In the first case, the payment in lieu is treated as payment of liquidated damages for an already complete termination of the contract; in the second, it is a mere waiver by the employer of the right to require services, the contract continuing despite the waiver of services [Dixon v Stenor Ltd [1973] ICR 157, 158G, 159D-F (Donaldson J); Lees v Arthur Greaves Ltd [1974] ICR 501]. In the latter case, the employee is in effect on paid leave [Dixon v Stenor Ltd [1974] ICR 157, 159E-F].

95 Whether payment in lieu of notice – or relieving an employee from the obligation to attend – immediately terminates the employment, is always a question of fact, and the proper inference may turn upon subtle indications or nuances of wording [Leech, 196-7; Siagian, 352]. Prima facie, in the absence of evidence of a contrary intention, it will usually be inferred that where there is a payment in lieu of notice, the employer intended the termination to take effect immediately [Siagian, 353-355]. But as that statement indicates, it is subject to evidence of a contrary intent.

96 In Austin & Partners Pty Ltd v Spencer BC9806371 (NSWSC, 1 December 1998, Windeyer J), the employee gave the employer notice on 5 January 1993. On 11 January, the parties agreed to four weeks notice (to be worked out) from 5 January. Thereafter the employer came to the view that the employee had embarked on a deliberate course to attract clients to himself in his new position, and on 15 January the employer by its solicitors notified the employee in the following terms:

We understand from our client that you have resigned from your position with the Company and are presently serving out the period of notice given by you. Our client accepts your resignation, but does not require you to further serve the Company and accordingly intends to pay you for the balance of the term of your notice and you accordingly are required to vacate the Company’s premises forthwith and to deliver to the Company any property belonging to it which you may have in your possession.

97 Windeyer J thought the letter equivocal in its terms, but that the employee did not regard it as immediate termination. One factor favouring this conclusion was that salary continued to be paid and accepted weekly. His Honour concluded that the parties continued to act on the assumption that employment was to cease on 4 February 1993 and that the letter of 15 January did not constitute immediate termination.

98 In Siagian, Wilcox CJ suggested that the test of continuing right or obligation, adopted by Stamp LJ in dissent in Lees v Arthur Greaves, was a useful one in determining whether a payment in lieu of notice immediately terminated a person’s employment.

99 In the present case, there is overwhelming evidence of an intention that the employment contract remain on foot until the expiration of the 28 day notice period on 24 May 2005.

100 First, the evidence does not establish that Portal exercised any right to pay Mr Bodsworth one month’s salary in lieu of notice. There was in fact no payment in lieu of notice, but payment of salary in the ordinary course until the termination date. Portal’s employment records show 24 May as the cessation date. Mr Bodsworth was not paid out on 28 or 29 April; he received his final payment on 24 May. In any event, the right to pay an employee in lieu of notice is one typically conferred on an employer in connection with termination by it of an employee’s services, to avoid the requirement for giving notice; it is not characteristic of termination by an employee (where, if anything, forfeiture in lieu of notice is sometimes agreed or allowed), and there is little reason why an employer would, in the event of termination on notice by an employee, wish to exercise any right to pay in lieu of notice, when it can leave the contract to expire by effluxion pursuant to that notice, while not requiring the employee to attend.

101 Secondly, there was an ongoing obligation on the employer at least to pay salary. Nor was there any doubt that Mr Bodsworth considered himself entitled to be paid by Portal for the one month notice period. Had Portal failed to pay salary in May, Mr Bodsworth’s remedy would not have been an action for breach of a contract made on 28 April, but an action for remuneration under the contract of employment.

102 Thirdly, Mr Gillett’s email of 27 April 2005 makes clear that there was no intention to release the notice period, because though not requiring Mr Bodsworth to work between 29 April and 24 May, it still specified the last working day as being 24 May. In the light of that email, even if Mr Gillett did not reaffirm that the last day of employment was on 24 May in his conversation with Mr Bodsworth on 28 April 2005 (and I am prepared to accept Mr Bodsworth’s version to that effect), he did so by the email, and there can have been no doubt as to what Portal’s position was in that respect. The reference in Mr Gillett’s circular email to Mr Bodsworth not being required to serve out his notice period meant that he was not required to perform work during that period, but it does not evince an intention or agreement that the employment should terminate before 24 May. In the absence of anything to give rise to an estoppel, Portal could have changed its mind on that subject at any time up to 24 May.

103 Accordingly, Portal did not accelerate the termination date from 24 May. The email from Mr Gillett confirming Mr Bodsworth’s last day as 24 May, and the termination pay calculations stating that to be the date of cessation, evinces a contrary intent. In my opinion, this case falls in the second of the categories mentioned: Mr Bodsworth’s employment continued until 24 May, and in the interim he was, in effect, on paid leave.

104 The remaining question then is whether “departure date” has any other meaning than the last day of employment. In my opinion it does not; in this context they are synonymous, and in the context in which it appears, “departure date” is a reference to departure from employment with Portal, and not departure from Portal’s premises. The most important indicator of this is that the triggering event for operation of the restraint clause is termination of employment, not cessation of attendance. Its operation commences “in the event this contract is terminated for any reason by either party”. If an employee were terminated for misconduct for being absent without leave for a fortnight, the “departure date” would not relate back to the commencement of the unauthorised absence, but would commence from the termination date. An employee does not depart from employment simply by ceasing to render services, but only by termination of the employment. “Departure date” means the date of departure from employment and is synonymous with the end date of employment. As Mr Bodsworth remained an employee of Portal until 24 May, he did not depart that employment until that date, and the restraint runs from that date, expiring on 24 November 2005.

Conclusion and Orders

105 Upon the proper construction of Mr Bodsworth’s employment contract, the first limb of the restraint prohibits him from, until 24 November 2005, being employed by (or commencing) a business entity which, at the time of the alleged breach, has the present capacity to compete in the market for the supply of telecommunications billing software and related services with Portal’s products and services. Amdocs is one such entity.

106 The second limb of the restraint prohibits Mr Bodsworth, until 24 November 2005, from visiting or contacting clients of Portal or dealing with any individual or company that was a client of Portal during the period of twelve months before 24 May 2005, for the purposes of or in connection with or related to the supply or possible supply of telecommunications billing software and related services. Ultimately, Mr Alkadamani accepted that Telstra and Vodafone (Australia) were the only relevant customers for the purposes of the second limb of the restraint.

107 Those restraints are reasonable for the protection of Portal’s confidential information, and not unreasonable in the interests of the public. They are valid at common law. It is therefore unnecessary to resort to the Restraints of Trade Act, or to consider whether it is available.

108 Portal is entitled to injunctive relief, for the short remaining period of the restraint. Although the interlocutory relief sought by Portal did not include an injunction reflecting the first limb of the restraint, Portal asserted its rights in that respect from an early stage and commenced and prosecuted proceedings for a injunction as expeditiously as reasonably possible. The difficulty of proving and assessing damages for breach of such a covenant means that damages are almost always an insufficient remedy. Moreover, it is important that the court makes clear that such covenants solemnly given and taken will be enforced. Accordingly, there should be injunctions against contravention of both limbs of the restraint.

109 Mr Alkadamani submitted that because the restraint was primarily supported by protection of confidential information rather than customer connection, an injunction for a period in excess of the six months stipulated in the contract would be appropriate. I reject this submission. The injunction restraining disclosure of confidential information, which has already been made by consent, is unlimited in time. There is no warrant to extend the enforcement of the contractual restraint beyond the term which the parties agreed was appropriate, and it would be quite wrong to do so.

110 Mr Alkadamani submitted that Portal should recover, by way of equitable compensation, a refund of salary paid to Mr Bodsworth for the period 9 May to 24 May 2005, when Mr Bodsworth was also employed by Amdocs. However, he pressed this only to the extent that it was not inconsistent with the entitlement of Portal to maintain its position that employment ceased on 24 May 2005. As I have found that employment continued until 24 May 2005, there is no basis for recovering salary paid by Portal up to that date.

111 Portal seeks an order restraining disclosure of the information referred to in the fifth and sixth categories of confidential information referred to in par 58 above (pursuant to the much more general claim for an injunction restraining use or disclosure of confidential information in par 5 of the Summons), orders in respect of the other categories of information described in that paragraph having already been made. Mr Bodsworth does not in principle resist an order to the effect of order 5, in so far as it relates to actual confidential information or trade secrets, but submits that as framed it would treat all of the multifaceted material referred to and annexed or exhibited to Portal’s affidavits (which have been served on an ongoing basis during the proceedings) and identified or claimed as confidential material as the subject of the proposed order.

112 Consistent with the general rule that an injunction should not be wider than is necessary for the protection of or enforcement of the rights the subject of the proceedings [Fletcher v Foodlink Ltd (1995) 60 FCR 262, 264-266], in cases involving alleged breaches of obligations of confidence, the injunction sought should identify with some precision the confidential information to which it relates [Thomas Marshall (Exporters) Ltd v Guinte [1978] 3 WLR 116, cited in Gurry, Breach of Confidence, 1984, p 409]. The injunction proposed in paragraph 5 is too wide because it does not do that [P A Thomas & Co v Mould [1968] 2 QB 913]. But limited to the information in the fifth and sixth categories, it will not suffer from that vice.

113 On 18 October 2005, Portal for the first time proposed, in a draft minute of order, certain “ancillary relief” which it sought, for the more effective implementation of the orders made on 24 June 2005, to facilitate the separation of Mr Bodsworth’s personal information from information derived from Portal which resides on Mr Bodsworth’s home computer, and destruction of the information derived from Portal. Mr Bodsworth immediately, without admission, accepted the regime proposed.

114 I make the following orders:

1. Order that the defendant be restrained until and including 24 November 2005 from being employed or engaged by Directory Technology Pty Limited and/or Amdocs Australia Pty Limited, whether under a contract of service or a contract for services or otherwise.

2. Order that the defendant be restrained until and including 24 November 2005 from visiting or contacting Telstra or Vodafone Australia for the purposes of or in connection with or related to the supply or possible supply of telecommunications billing software and/or related services.

a. Tender quotes and the methodology underpinning the dollar values quoted in respect of a proposal to Vodafone;

a. The defendant meet the plaintiff’s computer expert and an employee of the plaintiff nominated by the plaintiff in Sydney, on a date and at a time to be agreed and failing agreement on a date and at a time nominated by the plaintiff of which at least seven days notice shall be given to the defendant.

b. At such meeting, the defendant identify to the computer expert in the presence of an employee of the plaintiff his personal information contained in the PST file and copy that personal information in that file.

c. The plaintiff then destroy all the defendant’s personal information on the image entirely.

d. The plaintiff is then at liberty to use the balance of any of the information on the PST file as it sees fit.

Evidence Act

115 The defendant has sought an opportunity to make submissions about costs and I shall hear the parties as to costs. I shall also hear the parties as to what directions should be made in respect of the contempt application.

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28/11/2005 - - Paragraph(s)

Citations

Portal Software v Bodsworth [2005] NSWSC 1179

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CITATION:	Portal Software v Bodsworth [2005] NSWSC 1179 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	17-19, 21 October 2005
JUDGMENT DATE :	22 November 2005
JUDGMENT OF:	Brereton J
DECISION:	Injunction granted.

CATCHWORDS:	RESTRAINT OF TRADE – breach of confidence – trade secrets – confidential information – contract of employment – employee bound by contract for a period of six months from employee’s departure date within the States and Territories of Australia – whether the restraint is excessive, unreasonable and void – whether the restraint of trade is contrary to public policy and void or is justified by the special circumstances of the particular case – whether the restriction is reasonable having regard to the interests of the parties concerned – where restraint would prohibit the defendant from visiting, contacting or dealing with any former client during the relevant period of restraint – validity of restraint is judged at the time at which the contract is made – from what date does the restraint run – whether last day of employment was last day the defendant was required to work for the employer – whether “last day of employment” was the “departure date” of the defendant – whether the employer, by excusing the defendant from further attendance, accelerated the end date of the defendant’s employment – no payment in lieu of notice – restraint clause is triggered by termination of employment not by cessation of attendance – restraints are reasonable for the protection of plaintiff’s confidential information, and not unreasonable in the interests of the public – unnecessary to resort to the Restraints of Trade Act – no warrant to extend the contractual restraint beyond the term on which the parties agreed.
LEGISLATION CITED:	Evidence Act s 121 Restraints of Trade Act, 1976 (NSW)
CASES CITED:	Attwood v Lamont [1920] 3 KB 571 Austin & Partners Pty Ltd v Spencer BC9806371 (NSWSC, 1 December 1998, Windeyer J) Buckley v Tutty (1971) 125 CLR 353 Business Seating (Renovations) Ltd v Broad [1989] ICR 729 Butt v Long (1952) 88 CLR 476 Commercial Plastics Limited v Vincent [1965] 1 QB 623 Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 Dixon v Stenor Ltd [1973] ICR 157 G W Ploughman & Sons Ltd v Ash [1964] 1 WLR 568; [1964] 2 All ER 10 Geraghty v Minter (1979) 142 CLR 177 Herbert Morris Ltd v Saxelby [1916] 1 AC 688 Home Counties Dairies Limited v Skilton [1970] 1 WLR 526 I F Asia-Pacific Pty Ltd v Galbally (2003) 59 IPR 43; [2003] VSC 192 Kerchiss v Colora Printing Inks [1960] RPC 235 Kone Elevators Pty Ltd v McNay (1997) ATPR 41-564 Leech v Preston Borough Council [1985] ICR 192 Lees v Arthur Greaves Ltd [1974] ICR 501 Lindner v Murdock’s Garage (1950) 83 CLR 628 Littlewoods Organisation Ltd v Harris [1977] 1 WLR 14 McLaughlin Consultants v Boswell [1989] 30 IR 417 Mills v Dunham [1891] 1 Ch 576 Nordenfelt v Maxim Nordenfelt Guns & Ammunition [1894] AC 535 Orton v Melman [1981] 1 NSWLR 583 Portal Software v Bodsworth [2005] NSWSC 631 Sharp v Cain [1924] SASR 203 Siagian v Sanel Pty Ltd (1994) 122 ALR 333 Tank Lining Corp v Dunlop Industrial Pty Ltd (1982) 140 DLR (3d) 659 Technograph Printed Circuits Ltd v Chalwyn [1967] RPC 339 Vandervell Products Ltd v McLeod [1956] RPC 185 Wood & Moore’s Stores Limited v Jones (1899) 81 LT 169 Woolworths Limited v Olson [2004] NSWCA 372 Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317
PARTIES:	Portal Software International Pty Ltd (plaintiff) Jason Bodsworth (defendant)
FILE NUMBER(S):	SC 3250/05
COUNSEL:	R Alkadamani (plaintiff) M White (defendant)
SOLICITORS:	Haywards Solicitors (plaintiff) Watkins Tapsell (defendant)