Wu v United Overseas Bank Ltd, Sydney Branch (No 2)
[2021] FedCFamC2G 264
•17 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wu v United Overseas Bank Ltd, Sydney Branch (No 2) [2021] FedCFamC2G 264
File number(s): SYG 1844 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 17 November 2021 Catchwords: INDUSTRIAL LAW – FAIR WORK – Practice and procedure – application for interlocutory injunction to restrain applicant, a former employee of the respondent, from using information claimed to be confidential to the respondent employer – whether respondent has made out prima facie case for relief in circumstances where applicant has asserted a right under whistleblower laws to use information contained in documents – limited injunctive relief granted. Legislation: Banking Act 1959 (Cth) s 11AF
Corporations Act 2001 (Cth) ss 58AA, 183, Pt 9.4AAA, 1317AA, 1317AAA, 1317AAB, 1317AAC, 1317AADA, 1317AB, 1317AC, 1317ADA,
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 10(1)(b), 134, 140
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 4.03
Cases cited: Australian Broadcasting Corporation v O’Neill [2006] HCA 46
Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618
Castlemaine Tooheys Limited v South Australia [1986] HCA 58; (1986) 161 CLR 148
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434
Gold Titan Pty Ltd v Lopez [2021] FCA 918
John Fairfax Publications Pty Limited v Birt and 6 ors [2006] NSWSC 995
Kitoko v University of Technology Sydney [2021] FCA 360
Maggbury Pty Ltd v Hafele Aust Pty Ltd [2001] HCA 70
Mortensen v Enviro Water Tanks Pty Ltd & Anor [2020] FCCA 1951
Optus Networks Pty Ltd (ACN 008 570 330) v Telstra Corporation Ltd (ACN 051 775 556) [2010] FCAFC 21
Rana v Google Inc [2017] FCAFC 156
Robb v Green [1895] 2 QB 315
Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317
Wu v United Overseas Bank Ltd, Sydney Branch [2021] FedCFamC2G 209
Division: Division 2 General Federal Law Number of paragraphs: 106 Date of hearing: 12 November 2021 The Applicant: Appeared in person, by telephone Counsel for the Respondent: Ms K Nomchong SC, by telephone Solicitor for the Respondent: Allens ORDERS
SYG 1844 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: CHAOXIAN WU
Applicant
AND: UNITED OVERSEAS BANK LTD, SYDNEY BRANCH
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
17 NOVEMBER 2021
THE COURT ORDERS THAT:
1.The laptop and its contents the applicant delivered up to the care of the respondent’s solicitors pursuant to order 2 made on 29 October 2021 be returned to the respondent.
ON THE RESPONDENT BY ITS COUNSEL GIVING THE USUAL UNDERTAKING AS TO DAMAGES, THE COURT ORDERS THAT:
2.Up to and including 5:00 pm on 25 November 2021 the applicant, by herself and by her agents, is restrained from using information in her possession that directly or indirectly concerns the business of the respondent.
THE COURT ORDERS THAT:
3.By 12:00 pm on 24 November 2021 the applicant file and serve an affidavit in which she lists every document that contains information that she has acquired from the respondent during or because of her employment with the respondent.
4.By 4:00 pm on 24 November 2021 the respondent file and serve a response pursuant to r 4.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) setting out the orders it claims in relation to the confidential information it alleges the applicant holds, and the basis on which the respondent claims such orders.
5.The balance of the application in a proceeding the respondent filed on 1 November 2021 be listed at 9:30 am on 25 November 2021 to determine what further, if any, interlocutory orders should be made.
6.The applicant’s application for interim relief on her claims under the Fair Work Act 2009 (Cth) be listed for directions at 9:30 am on 25 November 2021.
7.The affidavits filed by the applicant on 8 and 12 November 2021 be removed from the Electronic Court File and be internally retained by the Court as documents marked “MFI2” and “MFI3”.
8.The costs of the application for interim relief are reserved.
THE COURT NOTES THAT:
9.These are orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
In the circumstances set out later in these reasons for judgment, the respondent (UOB) applies for various interlocutory orders in relation to documents (documents in question) UOB claims are in the possession or control of the applicant, Ms Wu, a former employee of UOB, and which UOB claims contain information confidential to it.
Ms Wu accepts she holds the documents in question, and that she obtained them while she was an employee of UOB. Ms Wu claims, however, that she lawfully came into the possession of the documents in question by exercising rights she claims she has under laws relating to the protection of whistleblowers (whistleblower laws) and under her contract of employment; and Ms Wu further claims the whistleblower laws and her contract of employment confer on her rights to keep and to disclose the documents in question to a number of regulatory authorities, and, in the circumstances provided by the whistleblower laws, to journalists. Ms Wu further claims the whistleblower laws confer a right on Ms Wu to refuse to disclose to UOB the identity of the documents that comprise the documents in question, and to refuse to return to UOB the documents in question. Ms Wu consequently submits the Court cannot compel her to disclose the identity of the documents in question, or to return those documents to UOB.
I will proceed as follows. First, I will consider whether this Court has jurisdiction to decide all of the issues that arise on UOB’s application for interlocutory relief. Second, I will set out in narrative form the facts as they appear from the evidence. Any fact I state should be treated as facts only for the purpose of deciding UOB’s application for interlocutory relief. The statements of fact are not intended to bind the parties for the purposes of any final hearing. Third, I will set out the course of the proceeding before this Court, and in particular the hearing on 12 November 2021, and the evidence on which the parties rely. Fourth, I will identify the principles that govern the granting of interlocutory injunctions. Fifth, I will outline the legal bases of UOB’s claims, and Ms Wu’s responses. This will require me to consider not only the principles relating to the protection of confidential information, but also to identify the whistleblower laws on which Ms Wu relies. Sixth, I will consider whether, given the matters on which Ms Wu relies, UOB has a prima facie case or a good arguable case sufficient to warrant the granting of an interlocutory injunction and the other interlocutory relief UOB claims and whether, given such findings, I should make any one or more of the interlocutory orders UOB seeks
JURISDICTION
Ms Wu invoked this Court’s jurisdiction by filing an application seeking relief under the Fair Work Act 2009 (Cth) (FW Act). UOB’s application for interim relief arises out of substantially the same facts out of which Ms Wu’s claims for relief under the FW Act arise. UOB’s and Ms Wu’s claims, therefore, form part of the one matter, and this Court, therefore, has jurisdiction to entertain UOB’s claims for relief.[1]
[1] Mortensen v Enviro Water Tanks Pty Ltd & Anor [2020] FCCA 1951, at [19]-[23]
Ms Wu’s response to UOB’s claim for interim relief raises, or potentially raises, a matter under Part 9.4AAA of the Corporations Act 2001 (Cth) (Corporations Act); and UOB alleges Ms Wu has contravened s 183 of the Corporations Act. This Court is not a “Court” within the meaning of s 58AA of the Corporations Act, which means this Court is not one of the Courts in which jurisdiction is conferred under Subdivision B of Part 9.6A of the Corporations Act. That does not mean, however, this Court does not have jurisdiction to determine the issues that arise out of UOB’s application for interim relief to the extent Ms Wu relies on Part 9.4AAAA of the Corporation Act and UOB relies on s 183 of that Act. The source of such jurisdiction would be s 134 Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act), which provides:
To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is invoked.
Section 134 of the FCFC Act is equivalent to s 32 of the Federal Court of Australia Act 1976 (Cth) (FC Act). The jurisdiction s 134 confers is distinct from the jurisdiction this Court has over a matter that includes a non-federal claim. Addressing s 32 of the FC Act the Full Federal Court said:[2]
[T]he “associated jurisdiction” conferred under s 32 of the Federal Court of Australia Act is not concerned with the conferral of jurisdiction to determine non-federal matters that are said to be associated with a federal matter . . . It is not a synonym for “accrued” jurisdiction. The effect of s 32 is to confer jurisdiction to deal with a federal matter for which jurisdiction has not been conferred upon the Court where it is associated with another federal matter for which jurisdiction has been so conferred . . .
[2] Rana v Google Inc [2017] FCAFC 156, at [23]
The Federal Court is a “Court” within the meaning of s 58AA of the Corporations Act, which means it has jurisdiction under Subdivision B of Part 9.6A of the Corporations Act. I am satisfied that the issues that arise under Part 9.4AAA and s 181 of the Corporations Act are associated with the issues that form part of the matter that is before this Court. In these circumstances, the effect of s 134 of the FCFC Act is to confer on this Court essentially the same jurisdiction as the Federal Court has under the Corporations Act in relation to the issues that arise under Part 9.4AAA and s 183 of the Corporations Act.[3]
FACTS AND ASSERTED FACTS
[3] See Kitoko v University of Technology Sydney [2021] FCA 360, at [130] in a context not involving the Corporations Act
21 January 2010 – Ms Wu commences employment with UOB
On 21 January 2010 Ms Wu accepted an offer of employment made by UOB by letter dated 21 January 2010.[4] The position which was offered to Ms Wu, and which she accepted, was “Vice President, Project Finance & Syndications”.
[4] Affidavit J C Liles 01.11.2021, [2]; annexure JL-1
The letter of offer also attached a document titled “United Overseas Bank Ltd (UOB) Employee Agreement” (Employment Agreement). Particularly relevant to these reasons for judgment is cl 11, which is as follows:
11. Confidentiality
It is a condition of your employment with UOB that you shall not during or after the period of your employment with UOB, except in the proper course of your duties or as permitted by UOB or as required by law or Australian prudential standards, divulge to any person or use any confidential information concerning:-
·The business or financial arrangements or position of UOB and any related body corporate.
·Any of the dealings, transactions or affairs of UOB and any related body corporate.
·Any of UOB's customers.
You shall also during your employment with UOB, use your best endeavours to prevent the publication, use or disclosure of any confidential information of UOB and any related body corporate.
When you leave the employment of UOB, you shall not represent yourself as being in any way connected with or interested in the business of UOB and any related body corporate.
For the purposes of this Agreement:-
“confidential information” means all trade secrets, written information received by UOB, or disclosed to you, which is marked or identified as “confidential” or “secret” and all other information including without limitation, written oral or visual information, however recorded, generated or stored, relating to the business, customers or operations of UOB that is identified as confidential at the time of the disclosure, or is reasonable to infer is of a confidential nature.
“related body corporate” has the meaning set out in the Corporations Act.
Also relevant is cl 22 of the Employment Agreement, which provided:
If you leave UOB, you will be required to deliver to UOB, without demand:-
·Any documents in your possession relating in any way to any confidential information or to the business affairs of UOB and its clients.
·All work product, whether it is completed or not.
·Any other property of UOB.
If you fail to return UOB property or repay money owed to UOB, then UOB may withhold any money you may have otherwise been entitled to (eg: payment in lieu of notice, outstanding salary).
17 March 2014 – Ms Wu is appointed to compliance role
On about 17 March 2014 Ms Wu was appointed to the position of “Manager, Compliance (VP1)”, with effect from 18 March 2014.[5]
[5] Affidavit J C Liles 01.11.2021, annexure JL-1, page 24
31 March 2021 – Ms Wu sends email to Mr Gullickson alleging under resourcing of compliance function
On 31 March 2021 Ms Wu sent an email to Mr Gullickson, who I assume was the person to whom Ms Wu then reported. Ms Wu referred to discussions on 17 March 2021. Ms Wu there alleged what she claimed to be a breach of paragraph 43 of “CPS 220”. That is a reference to “Prudential Standard CPS 220 Risk Management”, paragraph 43 of which is as follows:
An APRA-regulated institution must have a designated compliance function that assists senior management of the institution in effectively managing compliance risks. The compliance function must be adequately staffed by appropriately trained and competent persons who have sufficient authority to perform their role effectively, and have a reporting line independent from business lines.
Ms Wu claimed there was an under resourcing of UOB’s compliance functions.
June 2021 - Ms Wu given laptop
According to the affidavit of Mr Liles, UOB’s Chief Executive Officer for Australia and New Zealand, in around June 2021 Ms Wu was provided with a HP Elitebook 840 G6 laptop (the Laptop) for the purposes of her employment.[6] An operator who used the Laptop had access to UOB’s internal computer system, including emails; information relating to the business or financial arrangements or position of UOB and its related companies; information relating to dealings, transactions, and affairs of UOB and its related companies; customer information; and information to which cl 11 of the Employment Agreement refers. Ms Wu, therefore, having been given the Laptop had access to information of this kind.
23 June 2021 – Ms Wu is informed of outcome of investigations in response to complaints made by Ms Wu
[6] Affidavit J C Liles 01.11.2021, [4]
According to an email Ms Wu sent on 15 July 2021 to a number of officers of UOB, sometime before 23 June 2021 Ms Wu made complaints about being bullied, her excessive workload, and her performance rating for 2020. On 23 June 2021 Ms Wu attended by conference call a meeting with a number of UOB officers where Ms Wu was advised that “GHR has conducted [an] independent and thorough investigation” the result of which were findings Ms Wu’s bullying complaint was not substantiated; although Ms Wu’s workload was substantial, it was not excessive; and Ms Wu’s performance rating remained at 2.
12 July 2021 – UOB offers new position to Ms Wu
On 12 July 2021, Ms Choo sent an email to Ms Wu attaching a “letter of appointment for the new role in Risk & Governance Assurance Department”, noting that Ms Wu would be reporting to the General Manager, Operations & Corporate Services.
15 July 2021 – Ms Wu disputes outcome of investigation and makes demands
Ms Wu responded to these findings by email sent on 15 July 2021. Ms Wu noted she had undertaken “further extensive legal due diligence, including consulting with a few employment lawyers”, and she further noted “[t]hey are of the view” Ms Wu has “a 95% chance of winning the case”. Ms Wu then set out matters to support the contention she made towards the end of her email that her bullying complaint against her manager was “not unsubstantiated”, the performance rating of 2 was “not substantiated”, and there was “no denying facts evidencing that the workload is truly excessive”. Ms Wu demanded “GHR, Branch CEO and SOOA cum Head of Group International management” do a number of things, including directing the applicant’s manager “to stop his aggressive and unreasonable behavior [sic]”, to “reinstate [the applicant’s] bonus for 2020” and to allow the applicant “the off-cycle salary adjustment that are [sic] available to Branch staff at VP level or below”. Ms Wu concluded her email as follows (emphasis, underlining, and errors in original):
I reserve my rights to escalate to the Group Internal Audit via the Whistleblowing line, and externally to the Fair Work Commission, APRA (with respect to resourcing for compliance function)
As the above matters involve breach of regulatory requirements and internal policies, If in the unlikely scenario that you are still going to treat me unfairly despite all the above analysis, then I reserve my rights per internal policy to escalate the matter via the Whistleblowing Line to Group IA and potentially directly to the Group CEO.
Depending on the outcome, I may also choose to escalate the matter to Fair Work Commission, Safe Work NSW and APRA. In addition to seeking compensation for the hurt and loss as a result of bullying and bullying investigation, I am also entitled to seek compensation/days off in lieu for 7 years continuous working 10-14 hours as a result of the significant under-resourcing.
You would also note the recent criminalization of and severe penalties for wage theft via the introduction of Wage Theft Act in a few states in Australia.
I am open to provide you any further evidence for the above, upon request.
13 August 2021 – Mr Liles requests Ms Wu sign and return letter of appointment to new position
On 13 August 2021 Mr Liles sent an email to Ms Wu noting that it had been more than 4 weeks since Ms Wu had been provided with the letter of appointment to the new position in Risk & Assurance, but that Ms Wu had not yet signed it. Mr Liles requested that Ms Wu sign and return the letter of appointment by 5:30 pm on Monday 16 August 2021, after which Mr Liles said “we will conclude the terms of the appointment are not acceptable to you and the offer will lapse”.
16 August 2021 and after – Ms Wu demands higher remuneration for new role
Ms Wu responded with an email she sent to Mr Liles at 2:10 pm on 16 August 2021. Ms Wu raised a number of questions, after which Ms Wu said she would “like to have more clarity about the scope, and the allocation of task amongst the 3 of us”. Ms Wu, however, also said as follows (emphasis in original):
7. As I have indicated earlier, I am happy to take up the role, but not happy to continue at current salary level. I have been trying to negotiate a pay review for the new role.
My current rate is clearly well below market. I have lots of evidence for that. The new role attracts even higher rate on the market.
8. The Branch's Remuneration Policy clearly specified that the bank will remunerate staff at competitive levels, under the following chapters, and there are specific provisions relating to Risk personnel like myself.
Does this mean that the Branch is not willing to follow its Remuneration Policy?
On 18 August 2021 Ms Wu sent another email to Mr Liles, in which she stated (emphasis in original):
In case you are of the view that Branch's Remuneration Policy is irrelevant for my current pay or the pay of the new role, and mentioning it is far-fetched and ridiculous.
I have consulted lawyers, and the enforceability of employer's internal policies and procedures as part of employment contract have been ordered by Australian courts- in both cases of:
a. such statement of complying with internal policies is explicitly stated as part of employment contract; or
b. not explicitly stated, but court still ordered that the policies and procedures be followed by employers, even though there was no express obligation to comply in the employment contract or the package given to employees.
As such internal policies relating to employment or other matters are enforceable and binding. In the case of my current pay and the pay for the new role, the Remuneration Policy of the Branch is enforceable and binding.
Failure to comply with it would constitute a breach of employment contract on the part of the employer.
Breach of internal policies relating to employment/employee will constitute breach of employment contract.
Ms Wu referred to additional reasons in support of her contentions that she should be offered a higher salary for the proposed new position.
On 27 August 2021 Ms Wu sent another email to Mr Liles in which she set out further reasons for UOB offering Ms Wu a higher salary, Ms Wu concluded her email with the following (emphasis in original):
If despite the above, you are not prepared to provide me a salary that is commensurate with the wider responsibilities of the new role, then perhaps we should do the following and let’s part our ways afterwards:-
1). To go to APRA and get a verdict about whether my workload in the Compliance function until 4/2021 has been excessive or not, as:
a. you guys don’t think that it is excessive;
b. the resourcing of the compliance function is under the purview of APRA under paragraph 43 of the CPS 220; and
c. APRA would be in the best position to opine on this, as they know the level of resourcing at other foreign banks in Australia, and they would fully understand the extent of the work required;
2) If you are still not prepared to reverse my performance rating of 2, despite it being unsubstantiated (no facts, evidence were provided to me till today after 3 times request to Neville), then, let’s go to Fair Work Commission for a fair trial to restore my professional reputation, and also get a fair trial on the bullying complaint.
3). I would also like to file a lawsuit with respect to my employment contract, and related breaches by the bank, including continuously excessive hours worked, unfair below market pay (against the Branch Remuneration Policy), non-compliance with the Banking, Finance and Insurance Award, failure to comply with internal policies with respect to handling of bullying complaint, HR PEAK Handbook, Branch Employee Handbook, etc, breaches of regulatory obligations on multiple fronts.
Per legal advice received, the above aspects not only represent breaches of regulatory obligations, internal policies and procedures, but also represent breaches of my employment contract, and I am entitled to claim for damages over the years, as a result of the breaches.
If this does eventuate, it may be a blessing in disguise for me, as I can be freed up to pursue other alternative routes in life outside a typical corporate position.
I can also live a more meaningful life and contribute more to my preferred charity – The Fred Hollows Foundation.
If I do get any compensation from the settlement, I will dedicate 100% of it to the Fred Hollows Foundation.
If I do win the lawsuit, then I may also feel that I have done something for humanity, as the court case will be publicized, and will serve as a deterrence to any employer, that might want to exploit their employee, by working them too hard, and not paying them market rate, despite that the business is very profitable.
Please let me know your position sooner.
UOB terminates Ms Wu’s employment
At 11:17 am on 16 September 2021 Mr Liles sent a letter to Ms Wu terminating her employment. The letter stated as follows (emphasis in original).[7]
[7] Affidavit J C Liles 01.11.2021, [7]; annexure JL-2
The purpose of this letter is to inform you that United Overseas Bank Limited (UOB) has decided to exercise its contractual right to terminate your employment for the reasons set out in this letter.
Your inappropriate conduct
In accordance with the UOB Code of Conduct and values, employees are required to uphold the highest professional and ethical standards. As you know, one of UOB's core values is behaving honourably.
Following an email from you on 14 July 2021, in which you made disparaging comments about your colleagues, on 27 July 2021 you were warned that:
·your personal comments about your colleagues were inappropriate, unprofessional and disparaging;
·your actions and behaviour were not aligned to the UOB values; and
·if you persisted with that behaviour, you may be subject to disciplinary action.
Despite the above warning, your subsequent email communications continue to be inappropriate, unprofessional and disrespectful towards your colleagues and UOB. For example:
·you have repeatedly made disparaging comments about your colleagues of the very same nature as the comments that you had already been warned about; and
·you made disparaging comments about Group HR, including by implying that it had protected an employee's dishonesty.
Your uninvited personal views of your colleagues expressed in your email communications and your comments about Group HR, and the overall nature of your email communications, have continued to be highly inappropriate, insulting and offensive to UOB and your colleagues.
In addition, in the context of being offered a new role with UOB, you have repeatedly demanded an increase to the salary set for that role. You also described your salary movement as 'pathetic'.
Your existing base salary of $161,604 is commensurate with the duties of both your existing role and the new role. UOB has already explained to you, on multiple occasions, that an increase to the salary for the new role is not warranted, that this would be a lateral move and that the new role is also at VP2 level. While you are entitled to be dissatisfied, in your email of 27 August 2021 you threatened that unless UOB accedes to your demands and increases your salary, you would bring your allegation of your workload and UOB's compliance resourcing to APRA and to take legal action.
UOB requires that its employees comply with, and to assist UOB to comply with, all regulatory obligations, which includes calling out, if there is a proper and legitimate basis for concern, any compliance issue. The way in which you have threatened UOB in order to exert pressure for an unwarranted pay rise is entirely inappropriate and unacceptable. More critically, the fact that you have offered to set aside your compliance concerns (assuming that there is a legitimate basis for those concerns, which we do not accept) in exchange for personal gain by way of a pay rise, is offensive and dishonourable.
UOB's opinion is that your email communications have displayed a continued pattern of behaviour by you and your conduct overall are not aligned with UOB Group's values and are entirely incompatible with the continuation of your employment.
Termination of your employment
For the reasons set out above, UOB has decided to terminate your employment in accordance with clause 19 of your employment contract dated 21 January 2010 (Employment Contract). This letter serves as formal notice of the termination of your employment.
In accordance with your Employment Contract, UOB will pay you in lieu of 5 weeks' notice period and your employment will end at close of business today 16th September 2021.
As soon as practicable after the Termination Date, UOB will arrange to pay you an amount (less applicable tax) made up of the following components:
·5 weeks' pay in lieu of notice;
·any outstanding salary as at the Termination Date; and
·any unused annual leave and long service leave that you have accrued up to and including the Termination Date.
UOB will make any required superannuation contributions in respect of the payments made to you.
Please ensure that all UOB property currently in your possession or under your control is returned as soon as possible. For that purpose, we can arrange for a courier to collect any property from your home at a convenient time.
You are also reminded of your continuing obligations to UOB after your employment ends, including but not limited to your obligations under clause 11 (Confidentiality) and clause 22 (Documents and other property of UOB) of your Employment Contract.
If you have any questions about this letter, please contact me.
By 12:35 pm on 16 September 2021 the Laptop was “disabled”, with the consequence that Ms Wu could not use the Laptop to access information contained in UOB’s computer system.[8] Ms Wu could, however, have continued to access documents she may have downloaded onto the hard drive of the Laptop.[9] That means that if Ms Wu downloaded onto the Laptop’s hard drive information she obtained by accessing UOB’s computer system, such information would be in Ms Wu’s possession while she retained the Laptop; and is information Ms Wu has the power to disseminate.
[8] Affidavit J C Liles 01.11.2021, [8]; annexure “JL-3”
[9] Affidavit J C Liles 01.11.2021, [14]
At 1:24 pm Ms Wu sent an email to a number of officers of UOB. Ms Wu said:
I would need to protect my own rights.
If you don't reverse the illegal termination action taken by the Branch, I will lodge a lawsuit, report to local regulators (APRA, ASIC, Fair Work Australia), MAS, or even media to disclose the wrong, illegal and unethical conducts of UOB Sydney Branch.
Ms Wu purported to identify a number of breaches of the law in addition to those she “identified up to 3/2021”.
Between 16 September and 20 September 2021 emails passed between Ms Choo, UOB’s Human Resources Manager, and Ms Wu in relation to the applicant’s returning the Laptop:[10]
[10] Affidavit J C Liles 01.11.2021, [13]; annexure “JL-4”
(a)At 5:39 pm on 16 September 2021 Ms Choo sent an email to Ms Wu stating UOB had arranged to collect from Ms Wu’s home all the items belonging to UOB that are in Ms Wu’s possession “ie: laptop, office keys etc”.[11] Ms Wu responded by email at 5:50 pm stating she could not cope with that “tomorrow”.[12] Ms Choo sent an email at 6:00 pm stating a courier had been ordered and requested Ms Wu comply with the requirement that she return the Bank’s property.[13] Ms Wu responded by email sent at 6:20 pm (errors in original):[14]
[11] Affidavit J C Liles 01.11.2021, [13]; annexure “JL-4”, page 44
[12] Affidavit J C Liles 01.11.2021, [13]; annexure “JL-4”, page 45
[13] Affidavit J C Liles 01.11.2021, [13]; annexure “JL-4”, page 45
[14] Affidavit J C Liles 01.11.2021, [13]; annexure “JL-4”, page 45
I am sorry I can’t. there are legal dispute involved here, and the way you guys handled the termination, and the reason for the termination is illegal.
I won’t be going into the office unless I advise you and when you are in office to collect my personal belongings.
there is nothing really with me other than the laptop- which is locked and I will keep it in good order.
There is nothing downside I can do to the bank by delaying it a little bit.
(b)After Ms Choo sent an email at 8:06 pm on 16 September 2021 again requesting Ms Wu return UOB’s property, Ms Wu responded with the following email (errors and underlining in original):
If you feel unsafe, please withhold all my annual leave and long service leave entitlements. Please don’t make any payment to me, as I have not agreed to the offer.
I would not have to do so if you guys have complied with laws and regulations in the first place.
I promise to keep it in good order, and promise to return it to you in good condition later on.
there is no way i could access the laptop now, again there is no downside for the Bank.
(c)At 7:40 am on 17 September 2021 Ms Wu sent an email to Ms Choo and Mr Liles stating that “yesterday was one of the most stressful days” for Ms Wu since “the joining of Neville Gullickson to the Bank” and, given her 11 years and 8 years of service to UOB, Ms Wu requested she attend to her personal items left at the branch at which the applicant worked, under Ms Choo’s or some other person’s supervision. Ms Choo responded by email sent at 1:20 pm on 17 September 2021 stating that Ms Wu’s belongings had been packed, and UOB would arrange a courier to deliver them to Ms Wu “early next week”; and Ms Choo attached a list of Ms Wu’s personal belongings. Ms Choo also said that UOB “will arrange for the collection” of the Laptop from Ms Wu “sometime next week”. Ms Wu responded with the following email at 2:22 pm on 17 September 2021 (underlining in original):
Thank you for arranging to do this. However, the items on the list appear to be those on Level 8.
When I moved from Level 9, I have lots of bits and pieces left on Level 9 in a few drawer cabinets.
It is quite personal and I feel it quite embarassing [sic] and seriously don't want other people to pack it for me.
I sincerely hope that you respect my privacy and feeling, [sic] especially at this stressful stage in time.
This is especially so when the termination was so sudden and unlawful per local laws.
(d)Ms Choo responded by email at 5:02 pm on 17 September 2021. She said as Ms Wu no longer had access to UOB’s office, Ms Choo would personally pack the remainder of Ms Wu’s belongings and “include them in the courier”. Ms Wu responded by email sent at 9:32 am on Monday 20 September 2021 stating she did not feel comfortable for Ms Choo to personally pack Ms Wu’s belongings. As for the Laptop, Ms Wu said that “due to the abrupt and unlawful termination” she “would need to keep it for now, pending decision on which way to take to resolve the dispute”. Ms Wu reiterated she will keep the Laptop “in good order in the interim”. In an email sent to Ms Choo at 9:43 am on 20 September 2021 Ms Wu said she “has escalated the matter to Group Head of HR and the Group CEO”, and she was still awaiting a response from them. Ms Wu said that, if she remembered correctly, “the Bank’s Whistle Blowing [sic] Policy does allow ex-employee to do so” and, “from this perspective also, it is not illegal or inappropriate for” Ms Wu “to keep the company laptop, with a promise not to damage it in anyway”.
In the meantime, on 17 September 2021 an employee of UOB working in the “Group Information Security Scheme” sent an email to Mr Liles regarding “Data Loss Prevention (DLP) and printer events by your resigned staff”, and provided a list of questions for completion by Mr Liles, one set of which were to be answered if the identified activities were “Potential/Confirmed Case[s] of data Leakage”. The questions for such a case were whether the data consists of customer related information and whether the data consists of “UOB Confidential information”.[15] The email identified the following documents were sent to Ms Wu’s personal email address:
(e)UOB Sydney Branch - CPS 220 Comprehensive review-2020-Signed.pdf;
(f)UOB CPS220 Report - Sydney Branch - 22.12.2017 - Final.pdf; and
(g)AR-2020-UOB SydneyRpt.pdf
[15] Affidavit J C Liles 01.11.2021, [16]; annexure “JL-5”
Mr Liles has deposed that the documents are “confidential expert and audit reports relating to [UOB’s] risk management and framework assessments”; they would only have been available to Ms Wu because of her employment with UOB; they each contain sensitive commercial information directly related to the business and management of UOB; they were each marked “Confidential”; and they are not documents that are available in the public domain.[16]
[16] Affidavit J C Liles 01.11.2021, [17]
On 24 September 2021 Mr Liles sent a letter to Ms Wu that included the following:[17]
[17] Affidavit J C Liles 01.11.2021, [20]; annexure JL-6
It has also come to UOB's attention that on 16th September 2021 you forwarded two emails from your UOB email account to your personal email account. In particular, you forwarded the following documents to your personal email account:
·UOB Sydney Branch - CPS 220 Comprehensive review-2020-Signed.pdf
·UOB CPS220 Report - Sydney Branch - 22.12.2017 - Final.pdf; and
·AR-2020-UOB SydneyRpt.pdf.
As you know, you owe obligations to UOB under your Employment Contract and general law to protect UOB's confidential information during your employment. You remain bound by those obligations even after your employment has ended. Those obligations include, but are not limited to, those set out under clause 11 of your Employment Contract:
. . . .
I remind you also of the ongoing obligations imposed by sections 182 and 183 of the Corporations Act I remind you also of the ongoing obligations imposed by sections 182 and 183 of the Corporations Act 2001 (Cth), which prohibit the use of your position or information obtained by you during the course of employment to gain an advantage for yourself or someone else or to cause detriment to UOB.
Further, UOB's Group Information Technology Security Management and Cyber Resiliency Policy (Technology Policy) prohibits using email to transfer confidential or proprietary information to an unauthorised person or organisation (clause 2.7 .7(d)).
UOB takes any breach of such obligations extremely seriously. By forwarding confidential information belonging to UOB to your personal email account, you breached your ongoing confidentiality obligations to UOB and UOB's Technology Policy.
In light of the above, UOB requires that you delete and destroy all electronic copies of documents or information belonging to UOB from any computer, telephone or other electronic device that is in your possession, power or control, and confirm in writing to UOB by 27th September 2021 that you have done so.
30 September 2021 – Ms Wu commences proceeding under FW Act
Ms Wu did not respond to Mr Liles’ letter. Instead, on 30 September 2021 Ms Wu lodged an application invoking this Court’s jurisdiction under the FW Act. That application was accompanied by a Form 2 titled “Claim under the Fair Work Act 2009 alleging dismissal in contravention of a general protection” (Form 2). Ms Wu alleges UOB suddenly terminated her employment, and denied her access to her laptop and emails that evidence “a multitude violation of laws and regulations, a multitude breach of internal policies and procedures, and [the applicant’s] email correspondence with [her] ex-Head of Compliance/supervisor”. Ms Wu alleges UOB’s termination of her employment constituted its taking adverse action against Ms Wu; and UOB took such adverse action because Ms Wu had lodged complaints about bullying and about “the employer violating many laws”. Ms Wu claims an interim injunction in the form of an order that her employment be reinstated, an order preventing UOB from destroying Ms Wu’s work emails, and an order “to allow me to preserve the evidence I have kept in the laptop”. The application was listed for a first court date before me on 28 October 2021.
1 October 2021 – UOB again demands return of the Laptop
On 1 October 2021 Mr Liles sent another letter to Ms Wu, in which he stated the following (among other things):[18]
[18] Affidavit J C Liles 01.11.2021, [22]; annexure JL-7
In your email to us dated 20 September 2021 you stated that you intend to retain UOB's laptop “pending decision on which way to take to resolve the dispute”'. This is not a legitimate basis for you to retain UOB's property. Refusing to return UOB's property on any basis, including those you allege, is entirely inappropriate and unacceptable. You are no longer employed by UOB and it is reasonable for UOB to require a former employee to return its confidential information and other property.
You are on notice that your actions, both in retaining UOB property without permission and your refusal to return UOB property on its demand, are unlawful. UOB reserves its rights in respect of this matter.
Next steps
In our letter to you on 24 September 2021 on the breach of your obligations, you were requested to confirm in writing by 27 September that you had deleted and destroyed all electronic copies and documents or information belonging to UOB from any computer, telephone or other electronic device that is in your possession, power or control. To-date, UOB has not received any confirmation from you to that effect.
In light of the above, UOB requires that you:
·confirm that you had deleted and destroyed all electronic copies and documents or information belonging to UOB from any computer, telephone or other electronic device that is in your possession.
·deliver to UOB all of its confidential information and other property that is in your possession, power or control, including but not limited to the laptop and all documents and information that directly or indirectly concern the business of UOB (except for any record of your employment terms and condition with UOB, including your employment contract).
To comply with the above demands, UOB requires that you agree to an arrangement for a courier to collect UOB’s confidential information and other property from your residence. A courier will attend your residence between 10:00 am to 5:00 pm on 5 October 2021.
If you do not comply with the above steps, UOB will consider taking further legal action.
UOB reserves all of its rights.
Ms Wu responded by email she sent at 11:55 am on 1 October 2021. Ms Wu said she was not in a position to return the Laptop to UOB “as it contains some evidence I have for the legal disputes we have”.[19]
[19] Affidavit J C Liles 01.11.2021, [23]; annexure JL-8
14 October 2021 – UOB’s lawyer demands return and destruction of confidential information
By letter dated 14 October 2021 UOB’s lawyer demanded Ms Wu do the following (emphasis in original):[20]
•you deliver up to UOB all of its confidential information and other property that is in your possession, power or control, including but not limited to its laptop and all documents and information that directly or indirectly concern the business of UOB (except for any record of your employment terms and conditions with UOB, including your Employment Contract) by delivering or arranging by courier the delivery of the property by no later than Wednesday, 20 October 2021 to our offices at:
. . . .
•delete and destroy all electronic copies of documents or information belonging to UOB from any personal email account, computer, telephone or other electronic device that is in your possession, power or control in such a way that the documents or information cannot be recovered or in any way reconstructed or reconstituted; and
•sign the undertakings set out in the schedule to this letter and email a copy of the signed undertakings to . . . . by 4pm on Wednesday, 20 October 2021.
[20] Affidavit J C Liles 01.11.2021, [25]; annexure JL-9
The undertaking the letter demanded Ms Wu give is as follows:
I, Chassin Wu, undertake to the United Overseas Bank Limited (UOB) that:
1.I have delivered up to UOB all of its confidential information and other property that is in my possession, power or control, including but not limited to its laptop and all documents and information that directly or indirectly concern the business of UOB (except for any record of my employment terms and conditions with UOB, including my employment contract); and
2 I have deleted and destroyed all electronic copies of documents or information belonging to UOB from any personal email account, computer, telephone or other electronic device that is in my possession, power or control in such a way that the documents or information cannot be recovered or in any way reconstructed or reconstituted.
Ms Wu did not give the undertaking UOB, through its lawyers, demanded she give. Instead, at 1:32 pm on 15 October 2021, Ms Wu sent an email stating it has been almost one month after 16 September 2021, the day she received the letter terminating her employment, when she had escalated the matter to Mr Wee and Mr Tong. Ms Wu also referred to her having received a further letter demanding the return of the Laptop. Ms Wu offered to place a deposit of $5,000 “as a collateral for the laptop that I am keeping in the interim pending the case be handled by UOB Whistleblowing/Internal Audit, as well as the Fair Work Commission, and potentially the Federal Circuit Court of Australia”. Ms Wu also said (emphasis and errors in original):
Further, I might add that,
1. the emails that I forwarded to my hotmail account, was done shortly after UOB Sydney sent me the unlawful termination email on 16 September.
2. the emails that I forwarded was pertaining to my employment with UOB, including the dispute with respect to the bullying complaints, and complaints with respect to violation of a multitude of laws and regulations.
1. I have asked UOB Sydney a few questions with respect to the new job offer -Senior Manager, Governance and Risk Assurance, in my emails since 16 August 2021, and afterwards , but never received any response from them.
At 5:11 pm on 15 October 2021, Ms Wu sent an email to Mr Liles and Ms Choo.[21] Ms Wu said she had not been sent her contract of employment as she had previously requested. Ms Wu then stated: “[b]elow is what I salvaged after receiving the termination email from you on 16 Sep 2021”. Ms Wu then reproduced emails she sent on 27 August 2021, 18 August 2021, and 16 August 2021, and emails she received on 13 August 2021 and 12 July 2021.
[21] Affidavit J C Liles 01.11.2021, [25]; annexure JL-10
COURSE OF PROCEEDING
On 19 October 2021 Ms Wu sent an email to Mr Liles attaching her application for an interim injunction for reinstatement.[22] Ms Wu said that “the 2 internal documents you mentioned was [sic] sent only after I received the unlawful termination by you on 16 Sept 2021, sent to my hotmail account”.
[22] Affidavit J C Liles 01.11.2021, [28]; annexure JL-11
The proceeding came before me on 28 October 2021. On that day I granted two interlocutory injunctions against Ms Wu. The first required Ms Wu to make available the Laptop for collection by UOB by 4:00 pm on 29 October 2021. The second injunction restrained Ms Wu, up to 5:00 pm on 2 November 2021, from using information relating to UOB’s business. As I noted in the reasons for judgment I published on 29 October 2021 (earlier reasons),[23] I granted these injunctions after Ms Wu made statements that suggested she had in her possession documents that arguably contained information that was confidential to UOB; and that Ms Wu intended to use that information in a manner not authorised by UOB. I also made orders that UOB file and serve an application for relief in relation to the confidential information UOB claimed Ms Wu held, and that the application be made returnable before me at 2:00 pm on 2 November 2021.
[23] Wu v United Overseas Bank Ltd, Sydney Branch [2021] FedCFamC2G 209
On 29 October 2021, on my initiative, the matter was listed before me for the reasons I have set out in the earlier reasons. I discharged the injunctions I granted on 29 October 2021, and granted injunctions to the same effect.
On 1 November 2021 UOB filed an application for various interlocutory orders, together with a supporting affidavit, and the application came before me at 2:00 pm on 2 November 2021. At the hearing Ms Wu requested time to answer the affidavit UOB filed in support of its application in a proceeding. I made orders requiring Ms Wu to file and serve affidavits on which she intended to rely by 2:00 pm on 5 November 2021, set down for hearing on 8 November 2021 UOB’s application in a proceeding, and continued the injunctions I had granted on 29 October 2021 up to and including 5:00 pm on 8 November 2021.
The matter came before me again on 8 November 2021. By that time Ms Wu had filed an affidavit. Senior counsel for UOB submitted Ms Wu did not, in her affidavit, identify the documents or information she held. Ms Wu submitted she was not obliged to do so. After I satisfied myself Ms Wu considered she had filed all the evidence she believed was necessary in relation to UOB’s application, I set down for hearing at 2:00 pm on 12 November 2021 UOB’s application in a proceeding.
At the hearing on 12 November 2021 UOB moved on the application it filed on 1 November 2021, but sought orders in terms of those set out in its written submissions filed on 10 November 2021. UOB relied on two affidavits made by Mr Liles, one on 1 November 2021, and one on 10 November 2021. Ms Wu relied on three affidavits. One is the affidavit Ms Wu made on 21 October 2021, and which she filed on 25 October 2021. I read the affidavit, over objection, subject to relevance. I took that affidavit to include the annexures to which the affidavit referred. It does not appear, however, the annexures were filed with the affidavit. I have therefore marked the annexures in chambers as “exhibit A”.
Ms Wu also relied on affidavits filed on 8 November 2021 and 12 November 2021. Senior counsel for UOB objected to my reading the affidavits in part because they contained scandalous allegations against UOB’s lawyers and in part because the affidavits were irrelevant. I did not read the two affidavits, but marked the affidavits “MFI2” and “MFI3”, and reserved my judgment on the objections Senior Counsel for UOB made. The affidavits are wholly inadmissible as affidavits because they contain contentions rather than evidence; and they contain allegations that are scandalous. I have considered the submissions contained in the affidavits; but, given they contain scandalous allegations, I propose to order that they be removed from the Electronic Court File.
PRINCIPLES FOR GRANTING INTERLOCUTORY INJUNCTIONS
This Court has power under s 140 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act) to grant, among other things, “interlocutory orders”. Being a court of law and equity,[24] the power to grant “interlocutory orders” includes the power courts of equity have traditionally exercised to grant injunctions to preserve the status quo pending the determination of a claim for a remedy.
[24] FCFC Act, s 10(1)(b)
A commonly referred statement of the relevant principles for the granting of an interlocutory injunction is that given by Mason ACJ in Castlemaine Tooheys Limited v South Australia:[25]
In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.
[25] Castlemaine Tooheys Limited v South Australia [1986] HCA 58, at [11]; (1986) 161 CLR 148, at page153
The reference in this passage to “prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief” is taken from the judgment of the High Court in Beecham Group Ltd v Bristol Laboratories Pty Ltd.[26] The meaning of that passage was explained by Gummow and Hayne JJ in Australian Broadcasting Corporation v O'Neill:[27]
By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:
“How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.”
[26] Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1, at [4]; (1968) 118 CLR 618, at page 622
[27] Australian Broadcasting Corporation v O’Neill [2006] HCA 46, at [65] (footnotes omitted)
The strength of the case an applicant must demonstrate will vary with “the nature of the rights [the applicant] asserts and the practical consequences likely to flow from the order [the applicant] seeks”.[28] One potential practical consequence that must be borne in mind is whether the grant or refusal of an interlocutory injunction, in effect, would dispose of the action finally in favour of whichever party succeeded on that application.[29]
[28] Beecham Group Limited v Bristol Laboratories [1968] HCA 1, at [4]; (1968) 118 CLR 618, at page 622
[29] Australian Broadcasting Corporation v O’Neill [2006] HCA 46, at [72], per Gummow and Hayne JJ
UOB’S CLAIMS
UOB relies on two sets of causes of action.
Causes of action based on misuse of confidential information
The first set is based on misuse of information UOB claims is confidential to it; and here UOB relies on contract, on s 183 of the Corporations Act, and on the general equitable obligation to maintain confidences.
Contractual claims
UOB’s contractual claim is based on cl 11 of the Employment Agreement, and on an implied duty not to use information that is confidential to the employer except for purposes of the employer’s business. UOB alleges that under cl 11 of the Employment Agreement Ms Wu was bound during, and continues to be bound after, her employment with UOB not to divulge any “confidential information”, as that expression is defined in cl 11 of the Employment Agreement, in relation to the business or financial arrangements or position of UOB and any of its related bodies corporate, or in relation to any dealings, transactions, or affairs of UOB or any of its related bodies corporate, or in relation to any of UOB’s customers. UOB further alleges that, contrary to cl 11 of the Employment Agreement, Ms Wu is in the possession of such confidential information, and that, unless restrained, Ms Wu will divulge the information.
Courts will enforce an express term of a contract that purports to impose an obligation of confidentiality, unless the term is an unreasonable restraint of trade;[30] and courts will also enforce an employee’s duty not to misuse information confidential to the employee’s employer.[31] A court having equitable jurisdiction may enforce an express or implied term to preserve or not use confidential information other than for the purposes of an employer by an injunction, provided that the information that is claimed to be confidential can be sufficiently identified and described so as to be the proper subject of an injunction. This point was made by Brereton J in John Fairfax Publications Pty Limited v Birt:[32]
A plaintiff who seeks to restrain a former employee from using confidential information must identify with specificity, and not merely in global terms, the relevant information [Saltman Engineering Co Limited v Campbell Engineering Co (1948) 65 RPC 203, 215; Corrs Pavey Whiting and Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434, 443 (Gummow J); Rosewood Advertising Pty Limited v Hannah Marketing Pty Limited [2000] NSWSC 1034, [8]]. Although those cases were concerned with the circumstances in which, even in the absence of a contract, equity imposes an obligation of confidence, the requirement for specificity is no less where a contractual obligation is sought to be enforced. One reason for this is that an injunction in general terms restraining a former employee from using the employer’s “confidential information”, would inappropriately leave, to an application for contempt, determination of whether particular information was or was not confidential [Twenty-First Australia Inc v Shade (NSWSC, Young J, 31 July 1998, unreported, BC9803667); Cactus Imaging Pty Limited v Peters [2006] NSWSC 717, [14]].
[30] See, for example, Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317; Maggbury Pty Ltd v Hafele AustPty Ltd [2001] HCA 70; John Fairfax Publications Pty Limited v Birt and 6 ors [2006] NSWSC 995; Gold Titan Pty Ltd v Lopez [2021] FCA 918, at [80]
[31] See, for example, Robb v Green [1895] 2 QB 315
[32] John Fairfax Publications Pty Limited v Birt and 6 ors [2006] NSWSC 995, at [19]
Equitable claim
UOB also relies on the well-established principles originating in the exclusive jurisdictions of equity that identify the circumstances in which a person will come under an obligation to keep information confidential, a breach of which may be restrained by an injunction. The circumstances in which such obligation of confidence arises were described by Gummow J in Corrs Pavey Whiting & Byrne v Collector of Customs(Vic):[33]
It is now settled that in order to make out a case for protection in equity of allegedly confidential information, a plaintiff must satisfy certain criteria. The plaintiff: (i) must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; and must also be able to show that (ii) the information has the necessary quality of confidence (and is not for example, common or public knowledge); (iii) the information was received by the defendant in such circumstances as to import an obligation of confidence; and (iv) there is actual or threatened misuse of this information . . . .It may also be necessary, as Megarry J thought probably was the case (Coco v A N Clark (Engineers)Ltd [1969] RPC 41 at 48), and as Mason] (as he then was) accepted in the Fairfax decision was the case (at least for confidences reposed within government), that unauthorised use would be to the detriment of the plaintiff. This last aspect may be put to one side in the present case
[33] Corrs Pavey Whiting & Byrne v Collector of Customs(Vic) (1987) 14 FCR 434, at page 443
These principles apply, not only where there is no contractual relationship between the parties, but also, at least in most cases, where there is a contractual relationship between the parties.[34]
[34] Optus Networks Pty Ltd (ACN 008 570 330) v Telstra Corporation Ltd (ACN 051 775 556) [2010] FCAFC 21, at [38]: “The notion that no equitable duty of confidence arises where there is a comparable contractual duty is opposed to much authority. Dr Dean says that “Equitable protection … may be used in preference to an existing contractual obligation or alongside a contractual obligation”: Dean, The Law of Trade Secrets and Personal Secrets (2nd ed, 2002) at [2.55] where many examples in the case law are recorded.
Section 183 of the Corporations Act
UOB also relies on s 183 of the Corporations Act, which provides:
(1) A person who obtains information because they are, or have been, a director or other officer or employee of a corporation must not improperly use the information to:
(a) gain an advantage for themselves or someone else; or
(b) cause detriment to the corporation.
(2) A person who is involved in a contravention of subsection (1) contravenes this subsection.
This Court is not a “Court” within the meaning of s 58AA of the Corporations Act which means this Court is not one of the Courts in which jurisdiction is conferred under Subdivision B of Part 9.6A of the Corporations Act. It may be, however, that jurisdiction to hear and determine a claim that Ms Wu has contravened s 183 of the Corporations Act may be founded on the “associated” jurisdiction conferred on this Court by s 134 of the FCFC Act.[35]
[35] See Mortensen v Enviro Water Tanks Pty Ltd & Anor [2020] FCCA 1951, at [24]-[27], [44]
Cause of action based on cl 22 of the Employment Agreement
The second cause of action on which UOB relies is cl 22 of the Employment Agreement, which obliges Ms Wu, among other things, to deliver to UOB without demand “any documents in [Ms Wu’s] possession relating in any way to any confidential information or to the business affairs of UOB and its clients”.
MS WU’S ASSERTED JUSTIFICATIONS
As I have already noted, Ms Wu relies on whistleblower laws. In particular, she relies on Part 9.4AAA of the Corporations Act and Prudential Standard CPS 510, being a standard made by the Australian Prudential Regulation Authority (APRA) pursuant to s 11AF of the Banking Act 1959 (Cth).
Part 9.4AAA of the Corporations Act
Part 9.4AAA of the Corporations Act (Part 9.4AAA) is directed to the “disclosure of information” (disclosable information) “by an individual”, which Part 9.4AAA identifies as an “eligible whistleblower”, to one or more of a number of persons or classes of persons. Part 9.4AAA’s principal objective is to protect an “eligible whistleblower” against detriment which, but for the operation Part 9.4AAA, the “eligible whistleblower” would or might suffer by disclosing disclosable information. Part 9.4AAA protects the “eligible whistleblower” against two types of detriment. The first is legal liability which, but for the operation of Part 9.4AAA, would or might attach to the “eligible whistleblower” by his or her disclosing disclosable information. Here, Part 9.4AAA protects the “eligible whistleblower” by immunising him or her from any such legal liability. The second type of detriment is that which another person may inflict, or threaten to inflict, on an “eligible whistleblower” because the person believes or suspects the “eligible whistleblower” has disclosed or proposes to disclose disclosable information. In that circumstance, Part 9.4AAA protects the “eligible whistleblower” by rendering the other person’s conduct unlawful, and conferring on the “eligible whistleblower” the right to apply to a court for remedies.
The operation of Part 9.4AAA, therefore, turns on the meaning of “eligible whistleblower”; the type of information that qualifies as disclosable information; the person or persons to whom the “eligible whistleblower” may disclose such information; the immunities Part 9.4AAA confers on the “eligible whistleblower” in relation to the disclosure; and the elements of the conduct Part 9.4AAA renders unlawful. I will examine each of these matters.
“Eligible whistleblower”
The expression “eligible whistleblower” is defined in s 1317AAA of the Corporations Act. For the purposes of these reasons, it is sufficient to refer to s 1317AAA(a) and (b) which respectively identify “an officer of the regulated entity” or “an employee of the regulated entity” as an “eligible whistleblower”. That directs attention to “regulated entities”, and these are the entities identified in s 1317AAB of the Corporations Act. Among those entities identified are “a company”, and an “ADI (within the meaning of the Banking Act 1959), an authorised NOHC (within the meaning of that Act) or a subsidiary of an ADI or an authorised NOHC”.
Disclosable information
Next, there is the type of information that qualifies as disclosable information; that is, the information the “eligible whistleblower” may disclose, and in relation to the disclosure of which Part 9.4AAA protects the “eligible whistleblower”. The disclosable information is generally defined in s 1317AA(4) of the Corporations Act, and then more specifically in s 1317AA(5):
(4)This subsection applies to a disclosure of information if the discloser has reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances, in relation to:
(a) the regulated entity; or
(b) if the regulated entity is a body corporate—a related body corporate of the regulated entity.
(5)Without limiting subsection (4), this subsection applies to a disclosure of information if the discloser has reasonable grounds to suspect that the information indicates that any of the following:
(a)the regulated entity, or an officer or employee of the regulated entity;
(b) if the regulated entity is a body corporate—a related body corporate of the regulated entity, or an officer or employee of a related body corporate of the regulated entity;
has engaged in conduct that:
(c) constitutes an offence against, or a contravention of, a provision of any of the following:
(i) this Act;
(ii) the ASIC Act;
(iii) the Banking Act 1959;
(iv) the Financial Sector (Collection of Data) Act 2001;
(v) the Insurance Act 1973;
(vi) the Life Insurance Act 1995;
(vii) the National Consumer Credit Protection Act 2009;
(viii) the Superannuation Industry (Supervision) Act 1993;
(ix) an instrument made under an Act referred to in any of subparagraphs (i) to (viii); or
(d) constitutes an offence against any other law of the Commonwealth that is punishable by imprisonment for a period of 12 months or more; or
(e) represents a danger to the public or the financial system; or
(f) is prescribed by the regulations for the purposes of this paragraph.
It will be seen that s 1317AA(4) and (5) of the Corporations Act defines “information” by reference to the state of mind of the “eligible whistleblower”: it must be information of which the “eligible whistleblower” is aware; the information must be information in relation to which the “eligible whistleblower” has a particular attitude, namely, a suspicion that the information concerns misconduct, or an improper state of affairs or circumstances in relation to a regulated entity or related body corporate of the regulated entity, including misconduct or a state of affairs identified in s 1317AA(5); and the suspicion the “eligible whistleblower” holds must be based on “reasonable grounds”.
Persons to whom disclosable information may be disclosed
Section 1317AA identifies three classes of persons to whom an “eligible whistleblower” may disclose disclosable information. The first are the public authorities identified in s 1317AA(1) of the Corporations Act, namely, the Australian Securities and Investment Commission (ASIC), APRA, and any Commonwealth authority prescribed by regulation. The second class of persons are those s 1317AA(2) identifies as an “eligible recipient”. That expression is defined in s 1317AAC of the Corporations Act. The third class of persons are those identified in s 1317AA(3), namely, legal practitioners to whom disclosure is made for the purpose of the “eligible whistleblower” to obtain legal advice or legal representations in relation to the operation of Part 9.4AAA.
“protection under this Part”
Subsections 1317AA(1), (2), and (3) of the Corporations Act respectively provide that a disclosure of disclosable information by an “eligible whistleblower” to any public authority or eligible recipient, or to a legal practitioner (for the purpose of obtaining advice or representation in relation to the operation of Part 9.4AAA), “qualifies for protection under this Part”. Excluded from such protection, however, is the disclosure of information that concerns “a personal work-related grievance”. The exclusion is made by s 1317AADA of the Corporations Act, which provides (emphasis in original):
(1) Subsections 1317AA(1) and (2) do not apply to a disclosure of information by an individual (the discloser) to the extent that the information disclosed:
(a)concerns a personal work‑related grievance of the discloser; and
(b) does not concern a contravention, or an alleged contravention, of section 1317AC that involves detriment caused to the discloser or a threat made to the discloser.
(2)For the purposes of subsection (1), the information disclosed concerns a personal work‑related grievance of the discloser if:
(a) the information concerns a grievance about any matter in relation to the discloser’s employment, or former employment, having (or tending to have) implications for the discloser personally; and
(b) the information:
(i) does not have significant implications for the regulated entity to which it relates, or another regulated entity, that do not relate to the discloser; and
(ii) does not concern conduct, or alleged conduct, referred to in paragraph 1317AA(5)(c), (d), (e) or (f).
The protections afforded by Part 9.4AAA
Part 9.4AAA confers on an “eligible whistleblower” a number of protections. One protection is that of legal immunity under s 1317AB of the Corporations Act, which provides:
(1)If a person makes a disclosure that qualifies for protection under this Part:
(a) the person is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the disclosure; and
(b) no contractual or other remedy may be enforced, and no contractual or other right may be exercised, against the person on the basis of the disclosure; and
(c) if the disclosure qualifies for protection under this Part under subsection 1317AA(1) or section 1317AAD—the information is not admissible in evidence against the person in criminal proceedings or in proceedings for the imposition of a penalty, other than proceedings in respect of the falsity of the information.
(2) Without limiting subsection (1):
(a) the person has qualified privilege in respect of the disclosure; and
(b) a contract to which the person is a party may not be terminated on the basis that the disclosure constitutes a breach of the contract.
A second protection is that provided for by s 1317AC(1) of the Corporations Act. It prohibits a person (first person) from engaging in conduct that causes any detriment to another person (second person) when the first person, when engaging in the conduct he or she “believes or suspects that the second person or any other person, may have made, proposes to make or could make a disclosure that qualifies for protection under this Part”, and the first person’s belief or suspicion is “the reason or part of the reason, for the conduct”. “Detriment” is non-exclusively defined in s 1317ADA.
A third protection is that provided for by s 1317AC(2) of the Corporations Act, which prohibits one person from making a threat to cause any detriment to another person because the other person makes a disclosure that qualifies for protection under Part 9.4AAA, or because the other person may make such disclosure.
UOB submits there is nothing in Part 9.4AAA that permits the unlawful removal, copying, or retention by a former employee for the purpose of making a disclosure. UOB submits that the appropriate procedure would be for (a former employee) to make a disclosure after which it would be up to APRA or ASIC to make the request for relevant documents under the compliance and enforcement powers in the legislation.
UOB’s submission is not supported by the text of any provision of Part 9.4AAA. Part 9.4AAA is directed to the protection of an “eligible whistleblower” in relation to his or her disclosure of disclosable information. That implies the existence of disclosable information in the hands of the “eligible whistleblower” immediately before he or she discloses such information. That, in turn, implies a process by which the “eligible whistleblower” has acquired the disclosable information he or she discloses. Such process will range from the “eligible whistleblower” retaining in his or her memory things he or she has seen or heard, to the “eligible whistleblower” actively memorising information, and to the “eligible whistleblower” copying onto media in his or her control information that is stored in other media to which the “eligible whistleblower” has had access. Part 9.4AAA says nothing about the circumstances in which the “eligible whistleblower” comes to hold the disclosable information; and given s 1317AB of the Corporations Act confers civil and criminal immunity in relation to the disclosure of disclosable information, it could with some confidence be concluded that Part 9.4AAA contemplates that the “eligible whistleblower” would acquire the disclosable information in circumstances which, but for s 1317AB, would be unlawful.
Prudential Standard CPS 510
Ms Wu also relies on Prudential Standard CPS 510 (CPS 510), and in particular, paragraphs 110 and 111, which provide:
No prospective, current, or former officer, employee or contractor (including professional service provider) of an APRA-regulated institution may be constrained or impeded, whether by confidentiality clauses or other means, from disclosing information to APRA, from discussing issues with APRA of relevance to the management and prudential supervision of the institution, or from providing documents under their control to APRA, that may be relevant in the context of the management or prudential supervision of the institution. Such persons are not to be constrained or impeded from providing information to, as applicable, auditors, the Appointed Actuary and others, who have statutory responsibilities in relation to the institution.
An APRA-regulated institution must ensure that the institution’s internal policy and contractual arrangements do not explicitly or implicitly restrict or discourage auditors or other parties from communicating with APRA.
As with Part 9.4AAA, UOB submits there is nothing in CPS 510 that permits the unlawful removal, copying, or retention by a former employee for the purpose of making a disclosure; and that the appropriate procedure would be for (a former employee) to make a disclosure after which it would be up to APRA to make the request for relevant documents under the compliance and enforcement powers in legislation. That submission is not supported by the text of paragraphs 110 and 111 of CPS 510.
PRIMA FACIE CASE?
Identification of documents in question
There are a number of items of evidence that are relevant to identifying or at least to describing the documents in question. First, there is the email Ms Ng from “Group Information Security Scheme” sent to Mr Liles on 17 September 2021 which identified three documents Ms Wu sent to her personal email address, namely, the “UOB Sydney Branch - CPS 220 Comprehensive review-2020-Signed.pdf”, “UOB CPS220 Report - Sydney Branch - 22.12.2017 - Final.pdf”, and “AR-2020-UOB SydneyRpt.pdf”. Ms Wu, in the email she sent to Mr Liles on 19 October 2021, referred to “two internal documents” Ms Wu says Mr Liles mentioned. It is reasonable to infer that this is a reference to at least two of these documents. In the email she sent to Mr Wee and Mr Tong at 1:32 pm on 15 October 2021, Ms Wu acknowledged she had sent the documents to her personal email account.
Second, there is the Laptop. It is reasonable to infer that in the course of her employment Ms Wu downloaded to the hard drive of the Laptop documents relating to UOB’s business. This inference is strengthened by Ms Wu’s having resisted returning the Laptop until she was ordered to do so, and she represented in her emails she required the Laptop in relation to legal proceedings she intended to take or had taken. This inference is further strengthened by the email Ms Wu sent to Mr Liles at 5:11 pm on 15 October 2021 in which she identified documents Ms Wu said she had “salvaged” after she received UOB’s letter dated 16 September 2021 terminating her employment.
Third, at the hearing before me on 28 October 2021 Ms Wu made the following statements (errors in original):[36]
MS WU: Yes. Okay. Sure, sure. Can I ask you, your Honour, that I don’t believe, under my employment contract and also if you look at section – sorry, the CDS 510 and also the whistleblowing – whistleblower protection regime, I actually do have access to the – to the documents that I’m proposing to report to the – to the regulator. And that is actually any confidentiality agreement cannot – that is actually overarching compared to any confidentiality agreement in the – in the employment agreement or any other.
HIS HONOUR: All right.
MS WU: If you look – if I refer to the CDS 510, now, that’s my legitimate right. I haven’t done proper due diligence about the whistlebowers protection act but I’m pretty sure that under the 510 – CDS 510 I am definitely entitled ‑ ‑ ‑
HIS HONOUR: All right. All right.
[36] 28.10.2021 T12.40-T13.5
Later in the hearing, in response to my question whether Ms Wu was prepared to give an undertaking that, until further order, she would not do anything with the information concerning UOB Ms Wu accepted she holds, Ms Wu said (emphasis added):[37]
MS WU: Can I – can I reclarify here because I’m also as the applicant for the Fair Work Commission and as the applicant for this interim injunction. I’m also seeking legal advice for – I need to disclose a lot of such information to my – to my lawyer. And I don’t believe I should be restricted from disclosing such information. And also I’m also seeking, like, compensation for underpayment from the Fair Work Ombudsman, which is separate to the Fair Work Commission, and I don’t believe I – I – I should be restricted from doing that given what has happened to me over the last seven and a half years especially, and there is also a six year ..... for me to make such claims. I shouldn’t be prejudiced in such a way that because of the court order I can’t even go to the Fair Work Commission or the Fair Work Ombudsman to make – to disclose such information and make such claims. And for that matter I don’t believe I – I should be restricted from doing that.
And also – can I also say that, your Honour, that yesterday because I was really forced to – to follow up with my communication with APRA and also APRA referred me to ASIC as well because it’s such a massive and wide-ranging violations of law and Prudential Standards and I have clear – I can act from a reasonable person’s perspective and being somebody has got – that has got 23 years plus experience in banking, including nearly eight years as Senior Manager just immediately below the head of compliance, and being the most experienced, you know, non-departmental head level person and now frontline at the bank, I am actually – can safely say what’s happening and especially when I can – your Honour, I can also safely say that there are massive, massive failings at this bank with respect to labour law related compliance and what – you know, include work health safety, Fair Work Act, National Employment Standards and Banking and Finance Insurance Sector Industry Award.
These are massive, massive breaches. I can clearly say I’m barely scratching the surface. I can see a lot already. And can I also say that as a long term serving employee of this bank for 11 and a half years I – even though I’m in compliance, until November – early November last year when my – it was only after my repeated demand that my HR department
[37] 28.10.2021 T15.
Fourth, in her affidavit made on 5 November 2021 Ms Wu refers to a number of documents Ms Wu described as follows:
Branch Employee Handbook (leave, work hours, overtime, flexible work arrangements, disciplinary action, etc)
Work Health and Safety Policy (last amended in 2014)
Workplace Surveillance Policy (last updated in 2009 -despite there being new legislations introduced, from memory in 2012 and 2017)
Bullying Harassment Policy and Procedure
. . .
Branch Compliance Manual
Branch Employee Handbook
Employee PEAK Handbook
Regulatory Breach escalation procedures
Failure to escalate some breaches / incidents and input into GRC per operating manuals
Overseas Branches Compliance Manual
Bullying and Harrasment [sic] Policy and Procedures
Further, Ms Wu refers to a specific number to denote UOB’s cost to income ratio, suggesting Ms Wu may have access to accounting information relating to UOB’s business.
These statements suggest, and I find there is a prima facie case, that Ms Wu has in her custody or control not only the documents she has described in her emails and in her affidavit, but other documents relating to the internal management and processes of UOB that Ms Wu has not disclosed. I am satisfied that the documents are sufficiently identified or described to permit the framing of an injunction, assuming UOB otherwise establishes a ground for obtaining an interlocutory injunction.
Are the documents in question confidential?
Mr Liles has given evidence relevant to the confidentiality of the documents. In relation to the documents identified in the email of 17 September 2021 from Ms Ng of the “Group Information Security Scheme”, Mr Liles has deposed these documents are in “the nature of confidential expert and audit reports relating to the Respondent's risk management and framework assessments”, each of which contains sensitive commercial information directly related to UOB’s business, and which otherwise are not in the public domain.[38] In relation to the documents Ms Wu described in her second affidavit that relate to UOB’s policies and procedures, Mr Liles has deposed the documents relate to confidential policies, procedures, and emails governing the internal business processes of UOB; they are marked “for internal use only”; and they are not in the public domain.
[38] Affidavit J C Liles 01.11.2021, [17]
I am satisfied, on the basis of Mr Liles’ evidence, the nature of the documents Ms Wu herself has described, and the fact that Ms Wu came into the possession of the documents only because she was an employee of UOB, there is a prima facie case the documents in question fall within the definition of “confidential information” within the meaning of cl 11 of the Employment Agreement, and that in any event they have the quality of confidence quite apart from the Employment Agreement such as may be protected by injunction.
Misuse of confidential information?
The conduct (impugned conduct) in which UOB alleges Ms Wu has engaged which constitutes her misusing UOB’s confidential information consists of Ms Wu sending to her personal email account documents belonging to UOB, after UOB purported to terminate her employment; Ms Wu’s retaining property of UOB, namely the Laptop, on which there is stored documents that are confidential to UOB; and Ms Wu refusing to give the undertakings demanded of her that she return and destroy the documents in question. UOB also alleges there is a risk Ms Wu will use the confidential documents she has in her possession for purposes foreign to the purposes of any whistleblower laws.
The evidence establishes a prima facie case that Ms Wu has engaged in the impugned conduct; and the evidence indicates that Ms Wu proposes to disclose the documents in question at the very least to APRA, and to use the documents in support of her application to the Fair Work Commission (FWC) and in this Court for relief under the FW Act. Ignoring the potential application of Part 9.4AAA and CPS 510, UOB, therefore, has established a prima facie case that Ms Wu possesses UOB’s confidential information, and, unless restrained, there is a serious risk she will use that information in a manner not authorised by UOB. The question that arises is whether Part 9.4AAA or CPS 510 apply to deny what would otherwise be a prima facie case of a threatened misuse of confidential information.
Part 9.4AAA
I first consider Part 9.4AAA. Ms Wu’s communicating to her personal email address UOB’s documents after her employment was terminated, and her retaining the Laptop, does not constitute any disclosure of information because this did not constitute a communication between Ms Wu and any persons of the kind identified in s 1317AA(1)(2), or (3) of the Corporation Act. I leave to one side the question whether s 1317AB may apply to this part of Ms Wu’s conduct if she engaged in it for the purposes for which she says she did, namely, to disclose the information to APRA, and the information contained in the documents constituted disclosable information.
The next question is whether Part 9.4AAA would apply to Ms Wu’s now disclosing to APRA any information contained in the documents in question. If the information Ms Wu intends to disclose to APRA is disclosable information, it would be strongly arguable that s 1317AB would apply. Even though Ms Wu is no longer an employee of UOB, an “eligible whistleblower” includes a former employee of a regulated entity; and s 1317AB(1)(b) provides that if a person makes a disclosure that qualifies for protection under Part 9.4AAA, “no contractual or other remedy may be enforced, and no contractual duty or other right might be exercised, against the person on the basis of the disclosure”. Although s 1317AB(1)(b) of the Corporations Act expressly applies only after a disclosure is made, it would practically apply to prevent the granting of an interlocutory injunction to restrain a threatened disclosure of disclosable information on the ground that it would be in breach of a contractual obligation of confidence. That is so because s 1317AB(1)(b) would prevent the Court from granting any final relief.
That, then, leads me to consider whether there is any evidence that the information Ms Wu intends to disclose is disclosable information. Ms Wu has asserted a belief that the documents in question disclose misconduct by, and an improper state of affairs within, UOB. The difficulty, however, is that, even if it is accepted Ms Wu holds such belief, Ms Wu has not adduced evidence on the basis of which it is possible to determine whether she has a reasonably arguable case that she has reasonable grounds to suspect the documents in question contain information that concerns misconduct, or an improper state of affairs, or circumstances, in relation to UOB or any related body corporate of UOB, or whether UOB or any of its officers have contravened any provision of any of the Acts identified in s 1317AA(5)(c) of the Corporations Act.
First, both in the emails Ms Wu sent to Mr Liles before UOB terminated her employment, and in the submissions Ms Wu has made in her affidavits, Ms Wu makes claims of misconduct and breaches without providing any particularity or evidence.
(a)In her email of 15 July 2021, after making a number of allegations and contentions, Ms Wu asserted that the “above matters involve breach [sic] of regulatory requirements and internal policies”, but Ms Wu did not identify the regulations or internal policies she alleged had been breached, or the manner in which she claimed they had been breached.
(b)In her email of 18 August 2021 Ms Wu, at least implicitly, claimed UOB was not complying with its procedures, and in particular with its remuneration procedures because she asserted UOB was paying her below market rate. The only stated basis for this assertion, however, was Ms Wu’s claim that UOB had not offered her a salary increase that she believed to be the market rate. That is no basis for finding Ms Wu has an arguable case that she has reasonable grounds to suspect that UOB was not abiding by its remuneration or other policies, or that in some way such policies manifested misconduct or an improper state of affairs described in s 1317AA(4) or (5) of the Corporations Act.
(c)In her email sent on 27 August 2021 Ms Wu alleged UOB had engaged in breaches of various laws, including Ms Wu’s continuously working excessive hours, UOB paying Ms Wu below market rate, contrary to UOB’s remuneration policy, UOB’s failing to comply with an award, UOB failing to comply with its internal policies in relation to the handling of her bullying complaint, and “breaches of regulatory obligations on multiple fronts”. Ms Wu, however, did not identify the particular regulations, laws, or policies she claimed UOB breached, or any of the information that could identify to anyone the acts or omissions that constituted such breaches. That is so, even though Ms Wu referred to her having received legal advice.
(d)In her affidavit of 5 November 2021 Ms Wu makes a number of assertions, including “quite likely dishonest conducts [sic]”, a “multitude of regulatory breaches of” UOB’s procedures, “Systematic breaches of various policies and procedures”, breach of explicitly stated ethical standards and values”, but there is no evidence or particulars that are reasonably capable of establishing Ms Wu has reasonable grounds for making these assertions, or that she has reasonable grounds for suspecting the assertions are true. Ms Wu makes more specific assertions, but, again, these are not supported by particulars or evidence.
A second difficulty is that, even if it could be said that Ms Wu has articulated in some meaningful way misconduct by, and an improper state of affairs within, UOB, Ms Wu has not identified the information contained in the documents in question which she claims “concerns” such misconduct or improper state of affairs within UOB, or the manner in which any such information is said to “concern” misconduct or an improper state of affairs within UOB.
I am therefore satisfied that the material before me is incapable or supporting a reasonably arguable case that Ms Wu has reasonable grounds to suspect that any of the information contained in any of the documents in question concerns misconduct, or an improper state of affairs or circumstances, in relation to UOB or any related body corporate of UOB; or that Ms Wu has any reasonable ground to suspect that any such information indicates that UOB, or any of its officers, or employees, or any body corporate related to UOB, contravened any of the Acts identified in s 1317AA(5)(c) of the Corporations Act.
Prudential Standard CPS 510
Paragraphs 110 and 111 of CPS 510 in effect prohibit a current or former officer of an “APRA-regulated institution” from being constrained or impeded from disclosing information to APRA, including disclosing documents, relevant “to the management and prudential supervision of the institution”. I am satisfied on the material before me that there is an arguable case that at least some of the documents in question Ms Wu has identified in her affidavits relate “to the management and prudential supervision of the institution”, and that cl 11 of the Employment Agreement, therefore, could not prevent Ms Wu from disclosing such documents to APRA.
Employment Agreement
Ms Wu submits that cl 11 of the Employment Agreement confers on her the right to communicate to APRA and ASIC the disclosable information. Ms Wu’s submission turns on construing “as required by law or Australian prudential standards” to mean “as permitted by law or Australian prudential standards”. That construction is not arguable. Clause 11 of the Employment Agreement applies only where Australian law or an Australian prudential standard requires the disclosure of “confidential information”, as defined in cl 11.
Conclusion on prima facie case based on confidential information
My conclusions on this part of the case are as follows:
(a)UOB has a prima facie case that Ms Wu holds documents that contain information that is “confidential information” within the meaning of cl 11 of the Employment Agreement, and which is otherwise confidential to UOB.
(b)UOB has a prima facie case that Ms Wu has breached cl 22 of the Employment Agreement by not returning documents she holds in her possession that are confidential to UOB.
(c)There is a high probability that, unless restrained, Ms Wu will use the documents in question in a manner not permitted by cl 11 of the Employment Agreement: Ms Wu has already indicated she intends to communicate them to regulators, and that she intends to use the documents in question in proceedings she has commenced in the FWC and in this Court; and Ms Wu has expressed the belief in uncompromising terms that she is entitled to use the documents in question in such manner as she considers necessary to protect her rights as she sees them.
(d)I am satisfied there is a tangible prospect that, unless restrained, Ms Wu will disclose at least some documents in question to persons in addition to APRA, ASIC, the FWC, or some other regulator, or to a lawyer for the purpose of her receiving legal advice or representation in relation to the grievances she has expressed against UOB. I rely not only on Ms Wu’s belief that she is entitled to use the documents in question in such manner as she considers necessary to protect her rights as she sees them, but also on her having stated in her email to Mr Liles Ms Wu sent on 16 September 2021 that if UOB did not reverse its termination of her employment she would “lodge a lawsuit, report to local regulators . . . or even [to] media to disclose the wrong, illegal and unethical conducts [sic]”.
(e)The material before me is incapable of supporting a reasonably arguable case that Ms Wu has reasonable grounds to suspect that any of the information contained in any of the documents in question concerns misconduct, or an improper state of affairs or circumstances, in relation to UOB or any related body corporate of UOB; or that Ms Wu has any reasonable ground to suspect that any such information indicates that UOB, or any of its officers, or employees, or any body corporate related to UOB, contravened any of the Acts identified in s 1317AA(5)(c) of the Corporations Act. Thus Part 9.4AAA is not available as a reason for not granting an injunction restraining Ms Wu from disclosing the documents in question to ASIC or APRA, assuming UOB has otherwise established its entitlement to an injunction.
(f)There is a reasonably arguable case that at least some of the documents in question may contain information relating to the “management and prudential supervision” of UOB. It is therefore reasonably arguable that paragraphs 110 and 111 of CPS 510 operate to remove cl 11 of the Employment Agreement, and any other obligation of confidence, as an impediment to Ms Wu communicating to APRA such of the documents in question that relate to the “management and prudential supervision” of UOB.
FORM OF RELIEF
I will now identify the interlocutory orders UOB seeks and consider whether, given the findings I have made, and the form of the orders UOB seeks, it is appropriate to make any of the orders UOB seeks. Any question concerning adequacy of damages and balance of convenience will arise only if I am satisfied it might be appropriate to grant some interlocutory relief.
UOB’s proposed orders
UOB seeks orders in the following terms (proposed orders).
For the purpose of these orders:
“Documents” mean:- all documentation including (but without limiting the generality) the following:- correspondence, emails, memorandums, letters, notes, meeting agenda, meeting minutes, working papers, research, spread sheets, bank statements, market analysis, records, reports, plans, diary entries, file notes, working notes, computer printouts, payment calculations and valuations.
“Confidential Information” has the meaning attributed to that term in Clause 11 of the Employment Agreement between the Applicant and the Respondent dated 21 January 2010.
1.An order that the laptop and its contents that was delivered up to the care of the Respondent’s solicitors pursuant to Order 2 made by the Court on 29 October 2021 be returned to the Respondent.
2.An order that the Applicant by herself, her servants or agents be restrained from passing on, publishing, communicating, using, or otherwise disclosing to any person or entity outside the Respondent’s organisation, any Confidential Information of the Respondent whether in Documents or otherwise which is in the possession [sic] of the Applicant that directly or indirectly concerns the Respondent’s business, operations, management and/or employees save for:
(a) any document which contains the Applicant’s terms and conditions of her employment;
(b) a disclosure to APRA pursuant to CPS 510;
(c) a protected disclosure under Part 9.4AAA of the Corporations Act; or
(d) the provision to a legal practitioner for the purposes of obtaining advice as to whether those documents fall within the information which may be disclosed to APRA or ASIC as set out in Order 2(b) or (c) or to obtain advice about this litigation or the Applicant’s application in the Fair Work Commission.
3.An order that by 4.00pm on 19 November 2021 the Applicant deliver to the Respondent all Documents which could in any manner constitute Confidential Information or property (specifically including but not limited to intellectual property) of the Respondent including all originals, hard copies and soft copies of any document in any format whatsoever, including but not limited to paper copies, electronic code copies whether stored on any medium allowing the information to be read by a computer or other device including but not limited to memory sticks, hard drives, CD, DVD, floppy disk, or other storage device howsoever described save for any document which contains the Applicant’s terms and conditions of her employment; to be delivered to the United Overseas Bank Limited Sydney Branch marked for the attention of John Liles at UOB Building, Level 9, 32 Martin Place, Sydney, New South Wales or, for electronic copies, to [email address].
4.An order that the Respondent shall preserve the Documents delivered to it pursuant to Order 3 until the final determination of these proceedings.
5.Forthwith upon compliance with Order 3 the Applicant delete and destroy all electronic copies of documents or information belonging to the Respondent from any personal email account, computer, telephone or other electronic device that is in her possession, power or control in such a way that the documents or information cannot be recovered or in any way reconstructed or reconstituted, including but not limited to the documents titled 'UOB Sydney Branch - CPS 220 Comprehensive review-2020-Signed.pdf, UOB CPS220 Report - Sydney Branch - 22.12.2017 - Final.pdf and AR-2020-UOB SydneyRpt.pdf.
6.An order that by 4.00pm on 19 November 2021 the Applicant file and serve an Affidavit specifying that, save for any protected disclosure within the meaning of CPS 510 or Part 9.4AAA of the Corporations Act, or any disclosure to a legal practitioner for the purposes of obtaining advice as to whether Documents in the custody of the Applicant fall within the information which may be disclosed to APRA or ASIC:
(a) the precise nature of any Confidential Information that directly or indirectly concerns the Respondent’s business, operations, management and/or employees that the Applicant has given third persons or entities during the period from 16 September 2021 to 19 November 2021;
(b) all Documents which could in any manner constitute Confidential Information or the property (specifically including but not limited to intellectual property) of the Respondent that the Applicant has given third persons or entities during the period from 16 September 2021 to 19 November 2021;
(c) the names of the third persons or entities to whom that Confidential Information and/or those Documents were provided by the Applicant;
(d) the dates on which that Confidential Information and/or those Documents were provided by the Applicant to those third persons or entities; and
(e) any other use that the Applicant has made of the Respondent’s property, intellectual property and/or Confidential Information during the period from 16 September 2021 to 19 November 2021.
7. Costs reserved.
As senior counsel for UOB submitted, order 1 of the proposed orders is an order for final relief. I propose to make such order. There is no dispute the Laptop is the property of UOB; and the Laptop is no longer in the custody of Ms Wu.
Ms Wu objected to my making an order in terms of proposed order 1. She submitted the Laptop contains documents she was entitled to send to APRA under CPS 510, and, for that reason, the documents contained in the Laptop are under her control. I do not accept that submission. Ms Wu does not exercise any control over the Laptop, and could not be said to exercise such control even if the Laptop records documents Ms Wu would be entitled to send to APRA as envisaged by CPS 510. Ms Wu also submitted that if an order in terms of proposed order 1 is made there is a risk UOB will interfere with its contents. There is no basis for this assertion, and I do not accept it.
Proposed orders 2, 3, 4, 5, and 6 appear to have been framed to give effect to the submission made in paragraph 66 of UOB’s written submissions:
Having said that, whilst the Respondent contends that neither CPS 510 nor Part 9.4AAA of the Corporations Act 2001 (Cth) permits or sanctions the unlawful removal, copying or retention of documents by the Applicant in contravention of her Employment Agreement, the Respondent has taken the decision that it will not press for orders that prohibit the Applicant from providing the documents she has taken to:
(a) APRA;
(b) ASIC;
(c) a legal practitioner for the purposes of obtaining advice as to whether those documents fall within the information which may be disclosed to APRA or ASIC or in relation to this litigation and the Applicant’s application in the Fair Work Commission.
There are, however, a number of difficulties with proposed orders 2, 3, 4, and 5.
(a)Proposed order 2 does not reflect, or at least does not clearly reflect, the intention expressed in paragraph 66 of UOB’s written submissions. If the intention of order 2 is to exclude from its operation Ms Wu providing the documents she has taken from UOB to APRA, or to ASIC, or to a legal practitioner for the purposes stated, the order should in terms so state.
(b)The exception proposed order 2 provides for is expressed in terms of a disclosure “pursuant to CPS 510”, and “protected disclosure under Part 9.4AAA of the Corporations Act”. In other words, proposed order 2, if made, would purport to restrain Ms Wu from using UOB’s confidential information unless Ms Wu’s use of its information is sanctioned by the provisions of CPS 510 or of Part 9.4AAA. An order in this form, if made, would amount to an order that Ms Wu not use the documents in question other than in a manner permitted by law. That would be unreasonably uncertain; and courts do not, as a matter of practice, grant injunctions that in effect do no more than order a person to obey the law.
(c)Given that one of the exclusions relates to disclosing information to a legal practitioner for the purposes of Ms Wu obtaining advice as to whether those documents fall within the information which may be disclosed to APRA or ASIC, proposed order 2 suggests that the intended exclusion is narrower than paragraph 66 of UOB’s written submissions contemplates.
(d)Proposed order 2 conflicts, or at least potentially conflicts, with proposed orders 3, 4, and 5. Proposed order 3 would require Ms Wu to return “all Documents” to UOB, and proposed order 5 would require her to destroy documents she retains in electronic form. On its face, these would include documents paragraph 66 of UOB’s written submissions contemplate Ms Wu would be at liberty to provide to ASIC and APRA, and to a legal practitioner, not only in relation to obtaining legal advice as to what documents may be disclosed to ASIC or APRA, but in relation to the proceedings Ms Wu has commenced in the FWC. That contemplates that Ms Wu would be permitted to hold and use the documents in question for the purposes, and the duration, of the proceedings before the FWC and, if the proceeding is not successfully conciliated, before this Court.
I therefore do not propose to make orders in terms of proposed orders 2, 3, 4, and 5.
There are also difficulties with proposed order 6. First, it excludes from its operation “any protected disclosure within the meaning of CPS 510 or Part 9.4AAA”. For the reasons I have already given, this is unreasonably uncertain. Second, proposed order 6 is premised on a finding there is a prima facie case that Ms Wu has disclosed documents to persons other than to APRA, ASIC, the FWC, or to a legal practitioner for the purpose of obtaining advice and representation. I have made no such finding and, for that reason, it would not be appropriate, at least at this stage, to make an order in terms of proposed order 6.
What orders should be made?
On the findings I have made, and subject to questions relating to the adequacy of damages, and the balance of convenience, it would be open to me to order that the injunction that is currently in place continue until further order. My making such an order, however, does not appear to reflect the intention UOB has expressed in paragraph 66 of its written submissions. If paragraph 66 of UOB’s submissions correctly represents UOB’s intentions, it will be necessary to frame orders that accurately reflect its intentions. In those circumstances, it would be appropriate to adjourn the proceeding until 9:30 am on 25 November 2021 to give UOB an opportunity to formulate orders that reflect the findings I have made in these reasons for judgment, and the intention UOB expressed in paragraph 66 of its written submissions; and to order that the injunction that is currently in force be extended up to and including 5:00 pm on 25 November 2021.
I understand that the proceeding Ms Wu filed with the FWC is before the FWC on 18 November 2021, and Ms Wu has indicated she desires to use the documents in question in that proceeding. My continuing the injunction will prevent Ms Wu from doing that. I am satisfied, however, that my continuing the injunction will not prejudice Ms Wu in the FWC. From what Ms Wu told me, the proceeding is before the FWC on 18 November 2021 for a conciliation. Given the purpose of conciliations, it is most unlikely that the contents of the documents in question could be relevant to the conduct of the conciliation. On the other hand, if the injunction is not continued, but UOB ultimately succeeds, damages would not be an adequate remedy for the use Ms Wu may have made of the documents in question. For these reasons, the balance of convenience favours my continuing the injunction up to an including 5:00 pm on 25 November 2021.
On the findings I have made, it would also be open to make an order compelling Ms Wu to file and serve an affidavit disclosing each and every document relating to UOB’s business she currently holds that falls within cl 22 of the Employment Agreement. Such an order would be made as an aid to the remedy to which UOB would be entitled on its claim based on Ms Wu’s not complying with cl 22 of the Employment Agreement, namely, that Ms Wu return to UOB documents containing confidential information. There is no dispute Ms Wu holds information that relates to UOB, and there is a prima facie case the documents she holds contain “confidential information” within the meaning of the Employment Agreement. There would be no prejudice to Ms Wu if such an order were made now. Ms Wu has admitted she holds documents belonging to UOB; and she has stated she intends to disclose documents she holds to APRA, ASIC, and other bodies. Compelling Ms Wu to disclose the documents could not by itself act as a deterrent to her communicating documents to APRA, ASIC, and other bodies. If, on the other hand, no such order is now made, UOB would have no way of determining the extent to which Ms Wu has failed to comply with cl 22 of the Employment Agreement. That would deprive UOB of what is likely to be the only practical remedy that would be available to it if it succeeds on its cause of action based on Ms Wu breaching cl 22 of the Employment Agreement, namely, an order requiring Ms Wu to deliver up documents covered by cl 22 of the Employment Agreement.
Disposition
I propose to make the following orders on UOB’s interlocutory application:
(a)An order in terms of proposed order 1.
(b)An order continuing the injunction that is currently in place up to and including 5:00 pm on 25 November 2021.
(c)An order that by 2:00 pm on 24 November 2021 Ms Wu file and serve an affidavit in which she lists every document that contains information that she has acquired from UOB during or because of her employment with UOB.
(d)The balance of the application in a proceeding UOB filed on 1 November 2021 be listed at 9:30 am on 25 November 2021 to determine what further, if any, interlocutory orders should be made.
These orders will be made in response to an interlocutory application UOB has filed which presupposes a substantive application for relief. UOB, however, has not filed any document seeking substantive relief, and this omission should be remedied. I will therefore also order that by 4:00 pm on 24 November 2021 UOB file a response pursuant to r 4.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) setting out the orders it claims in relation to the confidential information it alleges Ms Wu holds, and the basis on which UOB claims such orders.
Finally, I reserve costs, and will list Ms Wu’s application for interim relief under the FW Act for directions at 9:30 am on 25 November 2021.
I certify that the preceding one hundred and six (106) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 17 November 2021
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