Xchanging Integrated Services (Australia) Pty Limited v Dale Williams

[2015] NSWSC 692

Supreme Court

New South Wales

Medium Neutral Citation:	Xchanging Integrated Services (Australia) Pty Limited v Dale Williams [2015] NSWSC 692
Hearing dates:	29 May 2015
Date of orders:	29 May 2015
Decision date:	29 May 2015
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Injunction granted and ancillary orders made (see paragraph [19]
Catchwords:	CIVIL LAW – Injunction – defendant threatening to copy and distribute confidential information about a third party – material obtained by mistake – injunction granted to restrain publication
Category:	Principal judgment
Parties:	Plaintiff - Xchanging Integrated Services (Australia) Pty Limited Defendant - Dale Williams
Representation:	Counsel: Plaintiff – Mr BF Katekar Defendant – no appearance
File Number(s):	2015/131996

EX TEMPORE Judgment

1. HIS HONOUR: By notice of motion filed shortly after close of business today 29 May 2015, the plaintiff seeks urgent injunctive relief attempting to restrain the defendant from publishing, copying, reproducing, distributing or disseminating certain documents.

2. Those documents are the subject of proceedings commenced by summons filed on 4 May 2015, being a cause of action in detinue or detention of goods.

3. The matter is listed before the court on 15 June 2015, that being the first return date.

4. At this stage the plaintiff has filed affidavit evidence in support of its claim made in the summons and on the urgent injunction application reads those affidavits, as well as an affidavit prepared specifically in support of the notice of motion.

5. I should record that those affidavits are by Elias Yamine (that being simply an affidavit of service), James Mattson, Rana King and Kobus Ehlers. They are the affidavits which go to the summons itself. In addition there is an affidavit of Mr Prescott which relates specifically to the notice of motion and concerns the events which give rise to what the plaintiff says are the urgent circumstances requiring relief.

6. In view of the time and urgency of the matter, it is unnecessary or at least inappropriate for me to go through the detail of the matter in any great way but, in short, the plaintiff conducts certain workers' compensation services on behalf of, or as delegated by, WorkCover. In that capacity the plaintiff had dealings with and made decisions in relation to Mr Williams (the defendant).

7. A decision was taken and confirmed following an internal review, that the defendant's workers' compensation payments be terminated. He was notified of that by way of a letter dated 26 February 2015.

8. What should have been attached to that letter were certain documents of a private and confidential nature relating to the defendant himself. As a result of some form of bureaucratic mistake or clerical mistake, what was in fact attached were confidential documents concerning another person. I do not propose to name her in this judgment.

9. Sometime after that, the defendant made contact with the plaintiff and disclosed in clear if colourful language, that he had received the wrong documents and not very long after that, which is to say on 2 March 2015, the person whose name I have not mentioned wrote in equally robust and colourful language to the plaintiff asking:

“How the fuck did some stranger who also has a claim with you end up with a copy of my entire fucking file! This guy now knows all of my personal details and has pictures of inside my house.”

10. The letter goes on with a justifiably angry tone.

11. The plaintiff immediately took steps to attempt to obtain the return of the documents. Those steps are set out in careful detail in the affidavit material. Those steps did not bear fruit.

12. There are a number of exchanges of correspondence and the defendant failed to comply with certain demands made by the solicitors then engaged by the plaintiff for return of the documents of the other person.

13. So it was that on 4 May 2015 the plaintiff brought the action in detinue to this Court.

14. The case would have proceeded in the ordinary way until the events of the last couple of days. Those events are set out in detail in the affidavit of Mr Prescott and culminated in the defendant threatening to distribute the documents he had received by mistake.

15. He said, amongst other things, “I have nothing to lose. I am going to go to Office Works and have some fun with them."

16. He was told on the same date, but in a different conversation, that he may be "breaching rights if he distributes the material" to which he replied:

"I don't fucking care cunt. I have the documents ready and an email ready and I will send the documents off."

17. That exchange prompted the solicitors for the plaintiff to seek orders, amongst other things, that restrain the defendant from doing just that or something similar.

18. I was satisfied at the outset that the urgency of the case was such that the case should be heard ex parte. The urgency derives, not so much from the rights of the plaintiff, but from the rights of the innocent third party whose documents have mistakenly fallen into the hands of the defendant.

19. I propose in the circumstances to make the orders sought in the notice of motion, subject to minor amendment. The orders are these:

1.   Service of the Notice of Motion dated 29 May 2015 be dispensed with.

2.   The Notice of Motion be heard instanter and ex parte.

3.   Until further order the defendant be restrained from copying, reproducing, distributing, or disseminating in any way the documents attached to the letter dated 26 February 2015 from the plaintiff to Mr Dale Williams PO BOX 584, Camden, NSW 2570. That is, the documents referred to in paragraph 24 of the Affidavit of Kobus Ehlers sworn 23 April 2015 being confidential exhibit 1 to that affidavit.

4.   Service of a sealed copy of this order on the defendant to be effected by (a) posting the documents to the defendant at PO BOX 584, Camden, NSW, 2570; (b) emailing the documents to the defendant at [email protected] ; and, (c) by sending a text message or SMS to the defendant on mobile number 0404 170 389 stating that a summons has been issued and that the Documents have been emailed to [email protected] .

5.   Costs are to be the costs in the cause.

6.   The orders are to be entered forthwith.

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Decision last updated: 04 June 2015