Wu v United Overseas Bank Ltd, Sydney Branch (No 3)
[2021] FedCFamC2G 294
•24 November 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Wu v United Overseas Bank Ltd, Sydney Branch (No 3) [2021] FedCFamC2G 294
File number(s): SYG 1844 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 24 November 2021 Catchwords: INDUSTRIAL LAW – FAIR WORK – Practice and procedure – form of interlocutory orders that should be made to give effect to concessions and previous reasons for judgment – interlocutory injunction granted. Legislation: Corporations Act 2001 (Cth) Pt 9.4AAA Division: Division 2 General Federal Law Number of paragraphs: 17 Date of hearing: 24 November 2021 The Applicant: Appeared in person, by telephone Solicitor for the Respondent: Ms V Siow of Allens, by telephone
Table of Corrections 25 November 2021 Order 2(b)(iv) of the orders made on 24 November 2021 has been amended by substituting “s 1317AAA” with “s 1317AAC”. 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:
24 NOVEMBER 2021
THE COURT ORDERS THAT:
1.Order 2 of the orders made on 17 November 2021 is discharged.
ON THE RESPONDENT BY ITS SOLICITOR, MS VERONICA SIOW, GIVING THE USUAL UNDERTAKING AS TO DAMAGES, THE COURT ORDERS THAT:
2.Until further order, the applicant by herself, her servants or agents is 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 of the applicant that directly or indirectly concerns the respondent’s business, operations, management and/or employees, save for:
(a)a disclosure to the Australian Prudential Regulation Authority (APRA) which the applicant believes she is entitled to make pursuant to Prudential Standard CPS 510;
(b) a disclosure to any one or more of the following persons:
(i) the Australian Securities and Investments Commission (ASIC);
(ii) APRA;
(iii)a Commonwealth authority prescribed for the purposes of s 1317AA(b)(iii) of the Corporations Act 2001 (Cth); and
(iv)any one or more of the persons or classes of persons specified in s 1317AAC of the Corporations Act 2001 (Cth);
which the applicant believes she is entitled to make pursuant to Part 9.4AAA of the Corporations Act 2001 (Cth);
(c)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 the persons referred to in (b) or in relation to this proceeding and the applicant’s application in the Fair Work Commission.
3.Orders 5 and 6 of the orders made on 17 November 2021 are vacated.
4.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 16 December 2021.
THE COURT NOTES THAT:
5.The respondent, by its solicitor Ms Veronica Siow, undertakes to the Court that the respondent confirms that the laptop that is the subject of order 1 of 17 November 2021 has not been accessed since it was returned to it on 18 November 2021, and undertakes not to access the laptop until the matter is determined.
6.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
On 17 November 2021 I made a number of orders (Orders). These included an order restraining the applicant, Ms Wu, from using information concerning the business of the respondent (UOB), and an order requiring Ms Wu to file and serve an affidavit disclosing documents. The injunction was granted until 5:00 pm on 25 November 2021, and Ms Wu was required to file and serve the affidavit by 12:00 pm on 24 November 2021. The matter was listed at 9:30 am on 25 November 2021 to determine what further, if any, interlocutory orders should be made.
On Monday 23 November 2021 there came to my notice a number of emails Ms Wu had sent to the Court Registry. It appeared to me that Ms Wu wished to apply for an order extending the time by which she was required to file the affidavit because she disagreed with the order I had made that she file and serve such affidavit; and I further came to understand that Ms Wu intended to appeal that order, and some of the other Orders.
In those circumstances I arranged to have the matter listed before me at 10:00 am on 24 November 2021. At that time Ms Wu appeared for herself, and Ms Siow appeared for UOB. In the course of the hearing Ms Siow indicated she had a form of injunction UOB submitted the Court should make, having regard to the concessions UOB was willing to make. I also heard submissions about order 1 of the Orders. That order related to a laptop Ms Wu used during her employment with UOB and which, pursuant to orders I made on 29 October 2021, Ms Wu made available for collection to be held by UOB’s lawyers until further order. Order 1 of the Orders permitted UOB to obtain possession of the laptop. Ms Wu asked UOB give an undertaking or undertakings to the effect that UOB has not accessed and will not access the laptop. Ms Siow said she would seek instructions.
I then adjourned the hearing for around a half an hour to give Ms Siow an opportunity to email to Ms Wu the form of injunction UOB was seeking, and to give Ms Wu time to consider the form of injunction. By the time the hearing resumed, Ms Wu had sent an email to my associate and to Ms Siow setting out her response to the proposed injunction, and also a form of undertaking she was prepared to give. I then heard further submissions.
At the conclusion of the hearing I made an order discharging the order that required Ms Wu to file an affidavit by 12:00 pm on 24 November 2021. I also made an order which permitted UOB to file a response by 29 November 2021. I then reserved my judgment on whether I should grant an injunction in the form submitted by UOB, and on any other outstanding matters in relation the application in a proceeding UOB filed on 1 November 2021.
In these reasons for judgment, therefore, I consider whether I should grant an injunction in the form urged by UOB, and refer to an undertaking UOB proffered through Ms Siow in relation to the laptop.
SHOULD AN INJUNCTION BE GRANTED?
The form of injunction UOB submitted I should make is as follows:
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 of the Applicant that directly or indirectly concerns the Respondent’s business, operations, management and/or employees save for:
(a) a disclosure to APRA pursuant to CPS 510;
(b) a protected disclosure under Part 9.4AAA of the Corporations Act; or
(c)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 or in relation to this litigation and the Applicant’s application in the Fair Work Commission.
This is substantially in the same form as the injunction to which I refer in paragraph 94 of my reasons for judgment of 17 November 2021 (17 November judgment).
As I have already noted, Ms Wu provided a response to the proposed form of injunction in an email, which contained the following (emphasis and underlining in original):
I have 2 points I would like to mention or seek clarity on:
1. clarity on "this litigation":
With respect to iii below, as I have been issued a certificate by the FWC on 23 Nov, and I have 14 days to lodge a formal lawsuit with respect to the disputes with the Respondent, not just limited to FW Act related matters, Can I assume or confirm that "this litigation" comprises any further lawsuit I may lodge with the court(s) with jurisdiction for such matters?
If not, I would like this to be amended to accommodate the above lawsuits as well.
2. As UOB is regulated by both Australian and Singapore regulators that are applicable to the Respondent, I would like to also make sure that I am not unduly impeded or restrained from reporting or whistleblowing to such appliable regulators, as permitted by applicable laws or regulations.
Order 3 of the Orders made on 17 Nov 2021:
Separately, with respect to Order 3 in the 17 Nov 2021 order,
I propose to undertake that:
"I will not disclose any documents under my custody to any party, that is not legally permitted."
with the expectation for the Order 3 to be invoked or withdrawn by the Judge, if the Respondent so agree.
Putting the legality of that Order 3 aside, this may serve the following purposes:
1). may provide comfort to the Respondent;
2). is consistent with the implied intention of the Proposed Order by Ms. Siow; and
3). will prevent further undue taxing of court resources if I were to be forced to seek appeal, which would be time consuming and taxing further on all parties involved.
Your kind consideration to the above seemingly reasonable request for clarity or proposal for Order 3 is much appreciated!
Ms Siow indicated UOB did not accept the undertaking Ms Wu offered.
In the course of submissions Ms Wu said she wanted to reserve to herself the right to use UOB’s information to the extent she was legally entitled to do so. I asked Ms Wu who is to determine whether the use she intended to make of such information would be lawful. Ms Wu said she would do this by herself exercising due diligence and to the extent, for example, regulators in Singapore inform her it would be legal for her to use such information. Ms Wu also repeated her desire to use the information for the purpose of any litigation she intended to initiate or consider initiating.
The matters Ms Wu raised in her email, and the submissions Ms Wu made to me, suggest that Ms Wu may believe the laws that protect whistleblowers have a wider operation than they in fact do. As my brief analysis in the 17 November judgment shows, the protections afforded by Part 9.4AAA of the Corporations Act 2001 (Cth) (Part 9.4AAA), although extensive, are not boundless. They are bounded by reference to information, by the persons who may make a protected disclosure, and by the persons or class of persons to whom information may be disclosed. The scope of Prudential Standard CPS 510 (CPS 510) is in one respect narrower, being restricted to disclosure to the Australian Prudential Regulation Authority. Ms Wu has not pointed to any provision of any whistleblower law which would apply to disclosures to overseas regulators. Further, the matters Ms Wu raised in her email, and the submissions Ms Wu made to me, confirms that Ms Wu is intent on exercising rights she believes she has under the whistleblower laws as she views those rights.
In these circumstances, I continue to be satisfied of the matters stated in paragraph 92 of the 17 November judgment. If anything, the matters Ms Wu submitted to me today lead me to assess there is a greater probability that, unless restrained, Ms Wu will use information that is arguably confidential to UOB in a manner not permitted by any whistleblower laws. That will be so even though Ms Wu might have every intention of making only what she believes will be lawful use of such information. For these reasons, I am satisfied that an interlocutory injunction should be granted restraining Ms Wu from using the arguably confidential information she obtained from UOB other than is permitted under the whistleblower laws.
The next question is whether the injunction should be in the form UOB has proposed. In the 17 November judgment I expressed the view that the proposed exceptions to the operation of an injunction by reference to disclosures made “pursuant to CPS 510”, and “protected disclosure under Part 9.4AAA of the Corporations Act” would render the injunction unreasonably uncertain. That view is particularly relevant given my assessment that Ms Wu may have an incorrect understanding of the whistleblower laws. This uncertainty, however, may be mitigated by framing the exceptions to the operation of the injunction by reference to the persons to whom disclosures will be permitted to be made, and also by reference to a belief by Ms Wu that she is entitled to so disclose the information to such persons under either Part 9.4AAA or CPS 510. I therefore propose to formulate the exceptions to the injunction in this way. I also propose to modify the form of the injunction by substituting “this proceeding” for “this litigation”.
OTHER MATTERS
In the course of the hearing Ms Siow arranged the following email to be sent to my associate:
Further to our email below and today's hearing, we are instructed that the Respondent is prepared to give an undertaking to the effect of the below:
“That the Respondent confirms that the laptop that is the subject of Order 1 of 17 November 2021 has not been accessed since it was returned to it on 18 November 2021 and undertakes not to access the laptop until the matter is determined.”
I propose to note UOB gives this undertaking to the Court.
DISPOSITION
I propose to discharge order 2 of the Orders, and grant an injunction in the form I have discussed. I will also vacate orders 5 and 6 of the Orders, and list the applicant’s application for interim relief on her claims under the Fair Work Act 2009 (Cth) at 9:30 am on 16 December 2021.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Associate:
Dated: 25 November 2021
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