Qantas Airways Ltd v Lucinda Holdforth
[2015] NSWSC 821
•24 June 2015
Supreme Court
New South Wales
Medium Neutral Citation: Qantas Airways Ltd v Lucinda Holdforth [2015] NSWSC 821 Hearing dates: 24 June 2015 Date of orders: 24 June 2015 Decision date: 24 June 2015 Jurisdiction: Equity Division Before: Bergin CJ in Eq Decision: Interim injunction extended; affidavit not read
Catchwords: PRACTICE AND PROCEDURE – where parties reached agreement on interim regime – application to read affidavit – where no dispute presently before Court for determination – affidavit not read Category: Procedural and other rulings Parties: Qantas Airways Ltd (Plaintiff)
Lucinda Holdforth (Defendant)Representation: Counsel:
Solicitors:
MJ Darke SC/CO Gleeson (Plaintiff)
GR Rubagotti (Defendant)
Minter Ellison (Plaintiff)
Kennedys (Defendant)
File Number(s): 2015/184599 Publication restriction: Nil
Judgment – EX TEMPORE
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This matter came before me as Duty Judge yesterday at which time the plaintiff relied upon the affidavit of Beverley Ruth Newbold, sworn on 23 June 2015 in support of an application for an injunction restraining the defendant from disclosing the plaintiff’s confidential information. Ms Newbold's affidavit includes correspondence between the plaintiff and the defendant in respect of the proposed publication of the defendant's manuscript entitled "Fighting Words".
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The defendant, by email dated 19 June 2015, wrote as follows:
Next week I understand the strategy Board meeting will take place where you, Alan, and Andrew Finch and presumably the Chairman will have the opportunity to consider this issue.
As I made clear to Wes, Fighting Words will enter the public domain. It’s now a question of how that happens.
OPTION ONE
Qantas grants permission for publication of the book via a note to me from you or Alan. The book comes out next year, published by UQP, at a date we agree. It will be an election year and the book will attract interest but not hysteria.
I work with Andrew Finch to make the reasonable changes necessary to assuage his concerns, and work cooperatively with Corporate Comms to handle any issues that may emerge on publication.
If you like, I sever my formal ties with Qantas in an amicable fashion so that Qantas has distance.
Alan is portrayed as an excellent leader.
OPTION TWO
Qantas refuses permission for publication and/or attempts to get me to sign an extraordinary piece of paper committing to destruction of the MS.
I refuse to be bullied or bribed and take the matter public.
Qantas issues a cease and desist letter. I make it clear that Qantas has known for years that I have been writing the book and until now done nothing. I ignore it.
Qantas goes to court seeking a suppression order. Qantas has a very flimsy case, frankly, and might well lose. If it wins, I ignore the order.
Public interest is heightened as to what could possibly make Qantas want to gag this document.
At a time of my choosing this year, the book is released online and gets far more interest and scrutiny than it would otherwise attract.
Then Qantas goes back to court calling for a contempt of court order and I am either fined or jailed.
REALLY?
I hope sanity prevails and this can be finalised without further nonsense. In my view this is a PR problem not a legal one. The choice is simple – Qantas wins (or suffers minimal inconvenience) next year, or faces a very awkward situation this year.
The easiest way to make this all go away for nearly a year is to agree now to publication.
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On 23 June 2015, on the plaintiff through its counsel giving the usual undertaking as to damages, an order was made that up until 12 noon tomorrow, 25 June 2015, the defendant was restrained by herself, her servants, her agents and otherwise from publishing, disseminating, disclosing or using or causing to be published, disseminated, disclosed or used, the manuscript entitled "Fighting Words" or any other document containing the contents of the manuscript written by the defendant.
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The matter was made returnable today at 12 noon, at which time the defendant appeared represented by Ms Rubagotti, of counsel. I was informed by the parties that there had been some discussions and that a proposal had been put to the defendant which she was considering. The matter was stood down at the request of the parties until 2.15 pm. At 2.15 pm, Mr Darke SC, for the plaintiff, advised that the parties had reached agreement in respect of the interim regime between now and 6 July 2015 when the matter is to return to Court. That regime, which will be the subject of orders that I am to make shortly, is a continuation of the injunction without admissions with an additional injunction preventing the defendant from disclosing or publishing or otherwise disseminating any information obtained by her in the course of her employment with the plaintiff from 4 February 2008 and contained in the manuscript, but excluding information which has come into the public domain other than by breach of confidence.
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The parties, having asked the Court to make those orders, entered into a consensual regime to govern their relationship until the next time they return to Court. However, Ms Rubagotti then sought to read the affidavit of the defendant's solicitor, Anthony Roger O'Reilly, sworn on 24 June 2015.
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Mr Darke submits that the affidavit contains material that falls within the category of confidential information, the subject of the defendant's employment contract with the plaintiff, and in those circumstances, it would be inappropriate for the affidavit to be read in the circumstances that now pertain because there is nothing before the Court. That is true, the parties have reached agreement, the orders are to be made by consent.
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Ms Rubagotti submits that what the affidavit does is to place her client's conduct in a context, in particular, having regard to the extracted email above. That may be so but in the circumstances, it is not appropriate simply to read an affidavit when there is no dispute between the parties presently before me. However I have allowed Ms Rubagotti to make the submission that she would make in reliance upon the affidavit that her client, the defendant, was willing to negotiate with the plaintiff in respect of the plaintiff's concerns about the content of the manuscript, and indeed was willing to do so up until that email was sent on 19 June 2015.
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The circumstances of the hearing today is not the relevant occasion upon which to analyse whether that particular communication meant that the plaintiff could no longer accept that the defendant was willing to negotiate, but rather, having received the email, the plaintiff became very concerned that the manuscript might be published online at any time, and/or even if it obtained the Court order, the defendant may, as she said in her email, ignore it.
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The defendant has had the opportunity to indicate to the Court through her counsel that she was willing to negotiate with the plaintiff.
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In the circumstances, it is not appropriate that the affidavit be read for the purpose for which Ms Rubagotti has outlined. The affidavit of Anthony Roger O'Reilly will not be read at this stage.
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Upon the plaintiff by its counsel giving to the Court the usual undertaking as to damages, I make the orders in paragraphs 1 to 4 inclusive in the Short Minutes of Order initialled by me and dated today. I grant the liberty in paragraph 5 of those Short Minutes.
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I order that until further order, there be no disclosure or publication of the contents of the affidavit of Anthony Roger O'Reilly sworn on 24 June 2015 filed in Court on 24 June 2015.
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Decision last updated: 25 June 2015
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