Federal Court of Australia
Alzheimer’s Association of Queensland Inc v Nabelsy [2023] FCA 851
ORDERS
ALZHEIMER'S ASSOCIATION OF QUEENSLAND INC Applicant | ||
AND: | Respondent | |
DATE OF ORDER: |
THE COURT NOTES THE UNDERTAKING TO THE COURT OF THE RESPONDENT THAT:
(1) Within two days he will deliver up to AAQ any AAQ confidential information in his possession or control and the Jotform username and password;
(2) In the event that there is no information in 1 to return, he will file and serve an affidavit to that effect within two days;
(3) He undertakes to the Court and to AAQ that he will not use or disclose any confidential information of AAQ for his own benefit or for the benefit of anyone else.
THE COURT ORDERS THAT:
(1) The applicant have leave to file and serve a further amended originating application substantially in the form served on the respondent on 13 July 2023.
(2) The applicant pay costs thrown away by reason of the amendment to the originating application in order 1.
(3) The amended interlocutory application filed by the applicant on 14 July 2023 otherwise be dismissed.
(4) The applicant pay the respondent’s costs of the interlocutory application, such costs to be payable forthwith.
(5) The proceedings be listed for case management at 9.30am on 4 August 2023.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
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[55] |
BURLEY J:
1 Alzheimer’s Association of Queensland Inc (AAQ) seeks interlocutory orders against the respondent, Haissam Nabelsy, pursuant to r 14.01(1) of the Federal Court Rules 2011 (Cth) (FCR) or alternatively s 193 of the Evidence Act 1995 (Cth) for the inspection of certain electronic devices and electronic storage accounts used by him. The respondent opposes the grant of these orders.
2 AAQ is a dementia association and a not-for-profit organisation providing care services, education and training. The respondent was engaged as an employee by AAQ in the position of “Case Manager”.
3 The proceedings were commenced by the filing of an originating application on 24 March 2023 in which AAQ and also Dementia and Aged Care Services Australia Ltd (DACSA) seek a declaration that they own copyright in all documents developed or prepared by the respondent for or on behalf of the applicants using the online platform “Jotform” between 11 January 2023 and 10 March 2023. They also seek a declaration that the respondent had used, copied or removed the applicants’ confidential information comprising a username and password associated with a Jotform subscription that the respondent had purchased on 11 January 2023 using a work email address (work email) allegedly in breach of cl 13.3 of his employment agreement. They also contend that the respondent refused to disclose the username and password to the applicants in breach of cl 14.1 of the employment agreement. In addition the applicants seek delivery up of the username and password, documents prepared by the respondent using the Jotform platform and any material and intellectual property created or related to the use of the username and password.
4 On 24 March 2023, the applicants obtained ex parte orders for short service of the originating application and an affidavit in support prepared by Luke Forsyth, a solicitor representing AAQ (Forsyth #1). The duty judge also made orders requiring the respondent to preserve data and information relating to the Jotform platform and documents identified in [9] of Forsyth #1 and any material and intellectual property created by using or related to the username and password.
5 By interlocutory application dated 13 April 2023, the applicants sought leave to rely on an amended originating application. DACSA was dropped as an applicant to the proceedings and additional interlocutory orders were sought compelling the respondent to permit AAQ by its solicitors or any digital forensics experts engaged by them to attend his premises (located near Jervis Bay, in the south coast of New South Wales) to inspect any computer, tablet or mobile device owned or used by him and make copies of any material stored on it. The interlocutory application was supported by a second affidavit of Mr Forsyth dated 12 April 2023 (Forsyth #2). The ambit of the inspection orders sought was subsequently adjusted in an amended interlocutory application dated 14 July 2023.
6 On 27 June 2023, orders were made with a timetable for the filing of evidence in support of the interlocutory application by 24 July 2023. The applicant was to file and serve its evidence in reply by 12 July 2023.
7 On 14 July 2023, the applicant served an amended form of the interlocutory application, which included an application for leave to file a further amended originating application.
8 I heard the interlocutory application on 24 July 2023. Mr I Neil SC and Ms R Kumar appeared for the applicant, and Mr R C Gration appeared for the respondent.
9 AAQ relies on Forsyth #2, an affidavit from Charlotte Clark dated 8 June 2023, which annexes a copy of a report by an independent computer expert, Mr Jarrett Le Roux dated 9 May 2023, and two affidavits of Amy Prasad, Queensland State Director for AAQ dated 13 July 2023 and 20 July 2023.
10 AAQ also sought to read an affidavit of Lisa Sharp dated 19 July 2023, a second affidavit from Charlotte Clark dated 20 July 2023 and also an affidavit of Simone Watson dated 19 July 2023. Counsel for AAQ frankly conceded that these affidavits were not in reply and were served outside the time required by the timetable. He also accepted that they raised issues that were not previously raised. For reasons that I explained ex tempore during the course of the hearing, I declined AAQ leave to rely on these affidavits and also refused an application made by AAQ to adjourn the application.
11 The respondent relied on an affidavit sworn by himself on 5 July 2023.
3. THE INTERLOCUTORY APPLICATION
12 The amended interlocutory application seeks the following orders pursuant to FCR 14.01(1) or s 193 of the Evidence Act. No submissions were made in respect of the application of the latter.
2. An order… that in the week beginning [left blank] on a date to be agreed by the parties, the respondent is to permit an independent computer expert agreed by the parties (the independent expert) to:
a. attend the premises located at [the respondent’s home address] to inspect any computer, tablet or mobile device owned or used by him (including, by as may be required, providing or inputting usernames and passwords to the devices); and
b. make copies of any material, data or information stored on the computer, tablet or mobile devices.
3. An order… that in the week beginning [left blank] on a date to be agreed by the parties, the respondent is to provide the independent expert with access to:
a. the Organisational Account referred to in paragraph [11](b) of the affidavit of Luke Timothy Forsyth affirmed 12 April 2023 (including, as may be required, providing or inputting usernames and passwords) to:
i. inspect the organisational account and perform searches of the Organisational Account using search terms…; and
ii. make copies of any material, data or information relating to the organisational account.
b. any email accounts used by the respondent and any local, cloud and backup storage services used by the respondent or to which the respondent uploaded any documents between 10 March 2023 to 4 April 2023 inclusive (including as may be required, providing or inputting usernames and passwords) to:
i. inspect any email accounts and any local, cloud and backup storage services used by the respondent; and
ii. make copies of any material, data or information stored therein.
4. For the purposes of orders 2 and 3 above:
a. the access provided to the independent expert in accordance with those orders is to continue until the inspection and other activities referred to in those orders are complete; and
b. the independent expert is to be permitted by the respondent to have access to the devices referred to in order 2 and the Organisational Account referred to in order 3 each weekday between 9:00 am and 5:00 pm (or as otherwise agreed between the First Applicant and the Respondent).
5. Once the independent expert has completed the process as set out in roders 2 and 3 above:
a. the independent expert is to provide the respondent with electronic copies of any documents photocopied or electronically scanned pursuant to orders 2 and 3 above within seven days, for the purpose of any claim by the respondent that the documents are subject to legal professional privilege or contain confidential information of the respondent or do not constitute ‘Documents’ as defined in the Amended Originating Application;
b. the respondent completes his review within seven business days of being provided with a copy of the documents in the preceding sub-paragraph;
c. upon completion of his review, the respondent identifies any items subject to a claim made by the respondent under (a) above; and
d. save for any document subject to a claim as referred to in (c), the independent expert may deliver to AAQ and its solicitors a copy of the documents photocopied or electronically scanned pursuant to orders 2 and 3 above, which copy AAQ and its solicitors may use only for the purpose of these proceedings.
13 The case advanced by the applicant as succinctly summarised by Mr Neil SC is that on or around 11 January 2023 the respondent purchased a subscription or licence for the online platform “Jotform” using his work email address. He was reimbursed for his purchase. He then used Jotform to create about 34 custom online forms to be used by AAQ in the course of its business between 9 January and 10 March 2023. During the time of his employment he did not provide AAQ with the username and password associated with the subscription. The respondent’s employment was terminated by email sent at 6.04pm AEDT on 10 March 2023.
14 From 13 March 2023, AAQ employees were no longer able to access the Jotforms account. On 16 March 2023, AAQ contacted the respondent requesting that he provide the username and password. He responded suggesting that he and AAQ could come to “some terms” by which he would permit AAQ to use or access the Jotform account. The following day AAQ’s solicitors wrote to the respondent, demanding that he provide the username and password, at which point he indicated that he had deleted all documents, data and information belonging to AAQ promptly after being notified of the termination of his employment.
15 In April 2023, Mr Le Roux inspected the respondent’s work laptop. AAQ submits that Mr Le Roux’s report indicates that on the day that his employment was terminated the respondent accessed the One Drive Cloud Storage of AAQ and downloaded various company files and data. At least three removable USB hard drives were inserted into the computer on that day and documents were saved to at least one of those devices. The respondent frequently accessed Cloud Storage accounts, including Google Cloud Storage, Dropbox Cloud Storage and Box Cloud Storage.
16 AAQ submits that although the respondent contends that he does not have any property of AAQ in his possession or control, it is concerned that this is not the case, a concern that is warranted in circumstances where:
(a) the respondent has nowhere in his evidence explained his conduct in downloading various company files on 10 March 2023; and
(b) his claim on 17 March 2023 that he had deleted all documents, data and information belonging to AAQ after his termination is suggestive of dishonesty, given that he had on the previous day sought to extract a price from AAQ for the access to the Jotform account.
4.2 The respondent’s submissions
17 The respondent contends that the interlocutory order for inspection ought not to be granted. He submits that he has made several open offers to address all of AAQ’s stated concerns, most recently by offering the following, on 18 July 2023, in order to settle the whole of the proceedings:
(1) Within two days to deliver up to AAQ any AAQ confidential information in his possession or control and the Jotform username and password.
(2) In the event that there is no information in 1 to return (which he says is the case), to file an affidavit to that effect.
(3) To provide within 48 hours a written undertaking to the Court and to AAQ not to use or disclose any confidential information of AAQ for his own benefit or for the benefit of anyone else.
(4) The proceedings be dismissed with each party to bear their own costs.
18 The respondent in the present application has made an open offer to comply with orders 1, 2 and 3 forthwith.
19 The respondent points out that on 20 July 2023, AAQ made a counteroffer in response to this proposal which accepted its terms save that additionally it sought that the respondent pay the applicant’s costs of the proceedings. The respondent submits that acceptance of the offer, subject to costs, serves to demonstrate that the applicant does not have serious concerns about what information is held by the respondent, but simply wishes for its costs to be paid.
20 Furthermore, the respondent submits that the substantive relief that was sought by AAQ in its amended originating application was for the delivery up of any documents developed or prepared by the respondent for or on behalf of AAQ using the Jotform platform and any material and intellectual property created or related to the use of the username and password. The undertakings proffered in 1 – 3 above serve to provide final relief in this respect.
21 In that context, the respondent submits that the orders sought now, whereby a digital forensics expert is engaged to copy the entirety of the respondent’s privately owned electronic devices as well as any and all cloud services that he may have used in the past far exceeds the final relief to which AAQ would obtain.
22 Finally, the respondent submits that the evidence reveals that AAQ in fact has the Jotform documents that he created during his employment and that to the extent any Jotform templates remain on the Jotform platforms, AAQ will have access to those when he provides it the username and password. The respondent submits that it was not until 14 July 2023, well after AAQ had collected his work laptop in April 2023 and months after Mr Le Roux examined and gave his report in May 2023, that AAQ significantly changed its case from being one primarily concerned with the use and retention by the respondent of Jotform materials and the username and password to one that concerned his alleged making of unauthorised downloads of AAQ information. He submits, however, that AAQ has not demonstrated that it has an arguable case in this regard.
23 FCR Rule 14.01 provides:
14.01 Order for inspection etc of property
(1) A party may apply to the Court for an order:
(a) for any of the following:
(i) inspection of any property;
(ii) taking a sample of any property;
(iii) making an observation of any property;
(iv) trying an experiment on or with any property;
(v) observation of a process;
(vi) copying, transcription or production of a document or other material, data or information (however stored or recorded); or
(b) authorising a person to enter land, or do any other act or thing, for the purpose of gaining access to the property.
(2) An application under subrule (1) must be accompanied by an affidavit stating the following:
(a) the property to be inspected, sampled, observed or subject to experiment;
(b) the process to be observed;
(c) the document, material, data or information to be copied or transcribed;
(d) why the order is necessary;
(e) the access required for entry on to the land or for doing any other act or thing.
(3) In this rule:
property includes land, a document or any other thing, whether or not the land, document or other thing is in the possession, custody or power of a party to the proceeding.
24 In Career Step, LLC v TalentMed Pty Ltd [2017] FCA 492 at [14], Robertson J referred to the decision of Greenwood J in Norm Engineering Pty Ltd v Digga Australia Pty Ltd [2005] FCA 1378, as providing a convenient summary of the principles applicable to the grant of a similar order and summarising its effect as follows:
That judgment concerned an ex parte application. Having referred, at [13] and following to the strength of the case, his Honour said, at [21]: “Any question of whether an order should be made is to be assessed against the balancing factors designed to protect the interests of the respondent, the extent of inspection to be allowed, the strength of the applicant’s case and the utility and contribution the order might make, in a balanced way to the resolution of the issues in the matter.” See also at [25] and following dealing with how the discretion should be exercised in those circumstances under the then Rules. At [32] his Honour concluded:
It seems to me that the interests of the proceeding are served by enabling a step to take place which will be productive of the preservation of evidence and the inspection of any bucket of the applicant upon the respondent’s premises so as to enable a proper determination of one of the matters in question in the proceeding, namely, reproduction in a material form.
25 On 1 September 2022, the respondent was engaged in the position of Case Manager as a permanent part-time employee. He was to receive a gross ordinary salary of $42.00 per hour, excluding superannuation. The terms of his contract of employment included that he would not disclose or reveal to any person any confidential information (cl 13.3(c)) or copy or remove any confidential information from AAQ’s workplace (cl 13.3(d)). It also included terms that the respondent agreed that all material and intellectual property rights in material are owned by AAQ, that he assigned all present and future rights and interest to all material, including all intellectual property rights in the material to AAQ and that he would immediately disclose to AAQ (and no other person) all details of any material (cl 14.1).
26 During his employment, the respondent purchased a gold subscription or licence for the online platform Jotform, using his work email address, which was the respondent’s designated work email address. Between 11 January 2023 and 10 March 2023 he used the platform to create about 32 different custom online forms.
27 On 10 March 2023 at 6.04pm AEDT, the respondent received a letter of termination prior to the completion of his probation period, effective immediately.
28 There are two aspects of the substantive case advanced by AAQ as articulated in this application.
29 The first concerns the failure on the part of the respondent to hand over the username and password. The evidence discloses that after his employment was terminated, AAQ employees were unable to access the Jotform platform to utilise the online forms that had been created by the respondent. On 16 March 2023, Ms Watson emailed the respondent requesting the username and password to the Jotform account. On the same day, the respondent replied as follows:
Dear Simone
Glad to know that what I have created had a good impact on the operation of both companies AAQ & DACS.
However, the HCP Applications (using the JotForm platform) for both AAQ and DACS are not any entity or assets to either company. I have built these applications using my technical skills in my own time, and it is never been in my duties as a Case Manager, nor was I employed to develop such a project.
I allowed AAQ and DACS to use the applications, as my goodwill as a good employee sharing his knowledge and skill with his colleagues, providing creative and innovative solutions which AAQ & DACS has no idea of it existing.
However, if we agree to some term for use for both AAQ & DACS I am open to discuss.
Looking forward to hearing from you.
Kind regards…
30 AAQ submits that the suggestion in the penultimate sentence should be understood as suggesting that only in exchange for “terms”, most likely money, would the respondent provide the access sought. The respondent contends that it should not be construed in this way, but refers to the provision by him of further contracting services to complete the work he had started, which was at that time of his termination only in the “trial phase”.
31 On 17 March 2023, solicitors retained by AAQ wrote to the respondent, refuting the proposition that he owned the rights in the Jotforms that he had created during his employment, reminding him of his contractual obligations and demanding that he, by Monday 20 March 2023, provide access to the Jotform account which contains the AAQ information, including usernames and passwords.
32 In response, the respondent wrote on 20 March 2023:
After receiving my notice of termination by letter dated Friday, 10 March 2023, I promptly deleted all documents, data and information in my possession relating to Dementia and Aged Care Services (DACS) and Alzheimer’s Association of Queensland Inc (AAQ) as I was concerned not to retain any confidential information of DACS and AAQ. As part of that process, I deleted all DACS and AAQ-related information stored in my JotForm account ‘cloud’, including the Home Care Package applications that I had developed in my own (unpaid) time.
After receiving your letter of 17 March 2023, I contacted support at JotForm to enquire whether it would be possible to recover the deleted applications and was informed that it was not.
I note that DACS paid the cost of additional JotForm annual licence subscriptions on my personal JotForm account to allow additional numbers of users to access those applications that I had developed in my own (unpaid) time. As gesture of goodwill, given that DACS has had the benefit of only three months of that annual subscription, I am willing to make a payment to DACS of 75% of the subscription fee paid.
33 In response, on the same day, the solicitors for AAQ wrote, demanding that the respondent provide AAQ with the username and password so that the Jotform account could be reviewed and the contents of his letter verified. The solicitors subsequently noted that the representation that the content had been deleted was inconsistent with the respondent’s initial suggestion that he and AAQ “agree to some term for use” of the Jotform account.
34 What the applicant meant to suggest by “if we agree some term” in his 16 March 2023 email is unclear. However it is not necessary for present purposes to resolve this question, and is a matter for exploration at trial
35 On 21 March 2023, the respondent replied by saying that AAQ’s solicitors had been given incorrect instructions regarding his Jotform account. The respondent explained that he used his personal Jotform account, which he says he had created well before he started working with DACS and AAQ, and “took the initiative” in his own time to create forms on Jotform, which he thought “could potentially streamline some of DACS/AAQ data collection processes”. He also denied that his offer to “agree some term” was inconsistent with the statement that he had deleted the content, because he had thought it may be possible to ask Jotform to restore the deleted content, which Jotform later said was not possible.
36 In his second affidavit, Mr Forsyth identifies the materials that AAQ hopes to recover from an inspection of the respondent’s personal computers and devices. He gives evidence, on information and belief from Ms Watson (the director of Human Resources at AAQ), that the documents sought were those created by the respondent in connection with this preparation of the Jotform online forms and completion of those forms. He gives evidence that he is concerned that the completed forms contain information confidential to AAQ’s clients including medical information and payment details and that without the documents, AAQ would need to travel large distances to collect the information from clients. The information built into the documents include admission checklists, authorisations to send invoices, home safety checklist, lifestyle assessments and the like.
37 The evidence reveals that when Mr Le Roux examined the respondent’s work laptop he recovered, from files that “may have previously been deleted”, 33 of the 34 forms that AAQ said, via the first affidavit of Mr Forsyth, that it was seeking. The final form was never uploaded to Jotform, as Ms Prasad’s first affidavit at [35] acknowledges.
38 Accordingly, in the context of the first aspect of the case advanced, it would appear that:
(a) AAQ has recovered, in PDF form, the Jotform forms on the respondent’s work laptop which he said that he had deleted following his termination;
(b) although the respondent contends that he has otherwise deleted all other information relevant to it, the provision of the username and password by the respondent pursuant to his undertaking will ensure that AAQ has access to any such forms as may remain on the Jotform platform;
(c) there is an arguable case that the respondent by requesting “terms” sought to negotiate for payment from AAQ for the part of the Jotform subscription that he claimed to have paid, or for access to property that was rightfully AAQ’s being the online forms that he had created in the course of his employment.
39 The second aspect of the case advanced by AAQ is that the respondent is responsible for downloading, in breach of his employment obligations, large amounts of data from its servers. The ambit of what is said to have been downloaded is unclear. AAQ relies on the report of Mr Le Roux.
40 On 2 May 2023, AAQ’s solicitors engaged Mr Le Roux to perform a forensic analysis of the respondent’s work computer, looking for evidence that templates he created for AAQ on the Jotform platform have been downloaded or retained on his laptop or sent externally and also evidence that the respondent copied AAQ confidential information in the form of policies, contracts, client lists or the like.
41 On 9 May 2023, Mr Le Roux provided a report in which he provided recorded the USB activity related to the respondent’s computer. He reported:
22. I refer to ATTACHMENT_003_B and note that items number 2 through 190 in the spreadsheet (highlighted in blue) show the computer user downloading files relating to AAQ on 10 March 2023 to the computer users download folder. Some of the files were saved to a removable hard drive with the drive designation of D Drive. These items further show the computer user accessing files from the AAQ’s One Drive Cloud Storage account on 10 March 2023.
42 Exhibit 1 in the application is the spreadsheet to which this paragraph refers. The blue highlighted material is listed over several pages of closely typed line entries relevant to the respondent’s computer. However, as AAQ accepts, most of the line entries are time stamped as preceding the time when the respondent was informed of the termination of his employment. A more limited number of entries (about 50) are time stamped after the respondent was sent the letter of termination at 6.04pm AEDT.
43 Mr Le Roux at [22] says that of those entries highlighted in blue “some of the files were saved to a removable hard drive with the drive designation of D Drive”. However, none of those entries time stamped after 6.04pm AEDT are recorded as falling into this category.
44 The case that AAQ seeks to construct on the basis of this evidence is that the respondent knowingly and in breach of his obligation as an employee undertook systematic downloading of files upon becoming aware that he was to be dismissed from his employment. Yet the evidence as presently available provides no cogent basis to consider that before reading the letter of termination the respondent knew that he was to be dismissed. He was not dismissed for misconduct but, according to AAQ, was made redundant. The evidence of steps taken after he received notice of his termination does not reveal that he took such steps.
45 AAQ submits that the respondent has failed to provide any explanation for his conduct in downloading his files before receipt of his notice of termination. However, in this context I note that the case as advanced against him at the time that he gave his evidence was that he had failed to provide the username and password for Jotform. The second aspect of the case levelled against him emerged in the application to amend the amended originating application which was first notified to the respondent on 14 July 2023, a week before the hearing. This was in circumstances where AAQ had been in possession of the respondent’s computer since the beginning of April 2023 and Mr Le Roux’s report (upon which it relies for this aspect of its case) since 6 May 2023.
46 Given the obvious attention that AAQ by its lawyers has given to the case, it is difficult to reconcile its complaints about the seriousness of the respondent’s alleged misconduct with the lack of urgency to which they attached the content of the Le Roux report. Indeed, that may be explained because Mr Le Roux’s report indicates that no downloads of information were conducted by the respondent after he was notified of his termination.
47 This timing is also of relevance because the timetable for evidence required the respondent to file and serve his evidence by 5 July 2023, prior to the service upon him of the draft further amended originating application.
48 Against this background I now turn to the form of orders that have been sought by AAQ.
49 It may be seen that the orders are highly intrusive. Order 2 provides for an independent expert to visit the respondent in his home and require him to input usernames and passwords that would permit inspection to be made of all of his personal computers and devices in order, without limitation, to “make copies of any material, data or information stored on the computer, tablet or mobile devices”.
50 Although during the hearing AAQ modified the order to read “inspect any desktop or laptop” and deleted references to “tablet or mobile device”, adding “and any of the USB devices identified in Mr LeRoux’s report at [20]”, the terms of the order are highly intrusive. Order 3 is similarly open ended.
51 No evidence was given as to the mechanics of how the inspection would take place. As sought, it would involve the wholesale copying of all of the respondent’s personal and other data on his laptop and external drives. Furthermore, by order 4 the access would be provided to the independent expert “until the inspection and other activities” are complete, and may take place over several days. In addition, apparently to assist the respondent to identify information the subject of legal professional privilege, by order 5 he was to receive the scanned data and have seven days in which to review it for that purpose.
52 Against this background, I also consider the open offer made by the respondent. Plainly enough, no less than four days prior to the hearing of the interlocutory hearing, AAQ was prepared to accept the undertakings of the respondent as set out in his offer. The only thing that divided the parties was the question of costs. It is apparent that AAQ is prepared to accept the respondent at his word as to whether or not he has any confidential information claimed by them and his undertaking that he will not use any confidential information in the future. That paints a stark contrast to the position set out in AAQ’s submissions.
53 I have taken all of these matters into account in forming the view that it is not appropriate, on the basis of the evidence before me, to grant the inspection orders sought by AAQ. In my view, AAQ has not demonstrated a sufficiently strong case that the respondent has in his possession, or may have in his possession or control, documents either relating to his work using the Jotform platform or otherwise to warrant the making of such intrusive orders. Nor has it demonstrated beyond a highly speculative case that the respondent has dishonestly downloaded confidential information upon becoming aware of his termination. My view that the concerns as expressed by AAQ in its submissions are overstated is supported by its insouciance in bringing the matters upon which it now seeks to rely forward and also the fact that it has in its counteroffer of 20 July 2023 indicated that subject only to the question of costs, it would be prepared to accept undertakings offered by the respondent. Those undertakings were repeated by the respondent in the present application and are as follows:
(1) Within two days to deliver up to AAQ any AAQ confidential information in his possession or control and the Jotform username and password;
(2) In the event that there is no information in 1 to return (which he says is the case), to file an affidavit to that effect within two days;
(3) To provide within 48 hours a written undertaking to the Court and to AAQ not to use or disclose any confidential information of AAQ for his own benefit or for the benefit of anyone else.
54 Performance of these undertakings is tantamount to satisfaction of the final relief that AAQ seeks in its Amended Originating Application. The Court on 24 March 2023 ordered that the respondent preserve all data and other information identified in [9] of Forsyth #1. There is no suggestion that the respondent has failed to comply with this order. Balancing all of these matters, in my view, the intrusive orders sought are unwarranted.
55 Accordingly, save for the grant of leave to file and serve a Further Amended Originating Application in the form served on 13 July 2023, I decline to make the orders sought in the amended interlocutory application filed on 14 July 2023. The applicants must pay the costs of that application. I will note that the respondent undertakes to the Court and to AAQ:
(1) Within two days to deliver up to AAQ any AAQ confidential information in his possession or control and the Jotform username and password;
(2) In the event that there is no information in 1 to return, to file an affidavit to that effect within two days;
(3) To provide within 48 hours a written undertaking to the Court and to AAQ not to use or disclose any confidential information of AAQ for his own benefit or for the benefit of anyone else.
56 I will make orders that:
(1) The applicant have leave to file and serve a further amended originating application substantially in the form served on the respondent on 13 July 2023.
(2) The applicant pay costs thrown away by reason of the amendment to the originating application in order 1.
(3) The amended interlocutory application filed by the applicant on 14 July 2023 otherwise be dismissed.
(4) The applicant pay the respondent’s costs of the interlocutory application, such costs to be payable forthwith.
(5) The proceedings be listed for case management at 9.30am on 4 August 2023.
I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Burley. |
Associate:
