Federal Court of Australia

HealthX Group Pty Ltd v Palling [2025] FCA 298

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s interlocutory application filed on 19 February 2025 be dismissed.

2.    The applicant pay the respondent’s costs of the application, and the reserved costs of the case management hearing on 12 November 2024, to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

SARAH C DERRINGTON J:

Introduction

1    The application before the Court seeks orders for leave pursuant to rr 8.21 and 16.53 of the Federal Court Rules 2011 (Cth) for the applicant to amend its originating application and statement of claim filed on 22 January 2024 to add a new claim for relief and a new foundation in law for a claim for relief, in circumstances where the matter has already had two sets of trial dates vacated.

2    For the reasons which follow, the application ought to be refused.

Nature of the claims currently pleaded and amendments sought

3    The applicant seeks various forms of relief against the respondent, a former employee and the company’s General Manager/CEO, for alleged breaches of her employment contract. As currently pleaded, the applicant’s claims principally concern an alleged breach of a notice requirement contained in clause 18.1 of that agreement and/or an implied term of reasonable notice, and enforcement of a non-competition restraint contained in clause 14.1(a)(iii). It bears noting in respect of the latter claim that the contractual restraint is, on the pleaded case, due to expire on 25 April 2025. By the respondent’s cross-claim, there is also a dispute as to whether or not the respondent was entitled to be paid a bonus in respect of the first quarter of FY23 in accordance with her employment contract.

4    As currently pleaded, the applicant’s position is that it is entitled to declaratory relief and damages in respect of the respondent’s resignation (it says, without sufficient notice), and injunctive relief prohibiting the respondent from being employed by her current employer, the Acacium Group (the trading name for ICSG Ltd incorporated under the laws of England and Wales) until 25 April 2025.

5    The proposed amendments to the originating application are substantial and are twofold. First, the applicant proposes to amend paragraph 5 such that the injunction it seeks would prohibit the respondent from being employed by the Acacium Group permanently, rather than merely until 25 April 2025 as initially sought. Secondly, the applicant wishes to insert a new paragraph 5A to bring a new claim for relief in the form of an injunction prohibiting the respondent from using or disclosing confidential information to any person, save to the extent that the information is publicly available.

6    As regards the statement of claim, the principal amendments sought by the applicant are to add a new paragraph 20A to plead a case founded on an alleged breach of clause 11 of the employment contract – which concerns the respondent’s obligations as an employee to keep confidential and prevent disclosure of all confidential information – and new paragraphs 24B to 24D to plead a breach of an equitable obligation of confidence concerning that information.

7    An associated amendment is sought to be made by the inclusion of a new paragraph 21(q), which the applicant submitted provides greater specificity as to the alleged confidential information, namely information concerning the applicant’s strategy for expanding into the USA and Singapore, and information concerning the applicant’s plans with respect to the Pacific Australia Labour Mobility (PALM) Scheme.

8    Further amendments sought to the statement of claim include additional material being pleaded at paragraphs 22A and 23 in relation to the respondent’s employment with the Acacium Group following her departure from the applicant.

9    It is clear that the applicant now seeks to substantially recast its case, including by seeking to rely on a new foundation in law for a claim for relief in equity, quite distinct from its existing contractual claim.

Procedural history to the amendments

10    It is worth briefly revisiting the history of this proceeding in order to place the proposed amendments to the pleadings in their proper context. The respondent submitted, correctly in my view, that the Court should have regard to the history of the proceeding in exercising the discretion to grant or refuse leave to amend.

11    The respondent tendered her resignation to the applicant on 1 February 2023, and was placed on “gardening leave” immediately thereafter because the applicant’s Chairman, Mr Quinlan, suspected she had accepted a role with the Acacium Group. No further inquiries were made as to the truth of that suspicion at the time. The respondent’s employment ceased on 25 April 2023, and she commenced her current employment from 1 May 2023.

12    On 20 June 2023, the applicant’s Chairman had a conversation with Mr Barnard, CEO of the Acacium Group, during which it was confirmed that the respondent had commenced employment with the latter on 1 May 2023. Despite the applicant’s apparent concern as to the respondent’s possession of its confidential information and potential use of that information to the benefit of their competitor, it took no urgent steps to address that concern – indeed, its next step was apparently to instruct its solicitors to write to the respondent’s solicitors on 27 October 2023. That letter was significant in the following ways:

(a)    The applicant raised concerns as to confidential information held by the respondent and her “detailed and intimate” knowledge of the applicant’s business operations and strategies, including with respect to the PALM Scheme.

(b)    The applicant made explicit reference to the respondent’s commencement of employment with its direct competitor, the Acacium Group, including Pulse Australia as an associated entity, in May 2023.

(c)    The applicant referred to the possibility of applying for pre-litigation discovery under the Rules, including to seek discovery of any employment contract between the respondent and any Acacium Group entity and a description of her position, and invited the respondent to provide copies of such documents within seven days.

(d)    The applicant set out the causes of action it would have against the respondent, including contractual claims and breaches of fiduciary duties, and the relief to which it would be entitled on those claims, including injunctive relief.

13    The respondent’s solicitors replied to that correspondence on 7 November 2023, including by briefly outlining the scope of the respondent’s new role and by refuting any suggestion that her knowledge of the PALM Scheme was relevant to her work with Pulse Australia. Whatever concerns the applicant may have had following that response, it took no further step until 22 January 2024, when it commenced this proceeding by way of its originating application and statement of claim. It must be said that the applicant has acted without any real urgency in advancing the matter thereafter, which sits squarely at odds with the immediate risk it says it faces.

14    Following the commencement of the proceeding, the parties exchanged pleadings and engaged in discussions concerning further particulars being provided by the applicant. It is not unfair to observe that, since at least mid-2024, the proceeding has been characterised by repeated and unexplained failures on the applicant’s part, with several delays in adducing its evidence and a lack of clarity in its communications with the respondent concerning that evidence, and various unexplained changes in position, including an insistence upon confidentiality orders which was later abandoned.

15    From at least the last case management hearing on 12 November 2024, the parties and the Court had understood that the matter would be ready for trial in March 2025 with ample time for both parties to deliver their further evidence and submissions.

16    In accordance with the Orders made in November, the applicant filed further evidence on 15 November 2024 (although did not attempt to explain why it had not filed that evidence with its earlier materials), and the respondent put on her evidence and submissions in December 2024. The applicant was required by those Orders to put on its reply evidence and outline of submissions by 24 January 2025, but only the former was forthcoming. It appears from the court file that while on that date the applicant foreshadowed an application to amend its pleadings, it did not in fact make that application until 19 February 2025. That conduct, it must be said, is wholly unsatisfactory in circumstances where the parties had discussed with me some months earlier that March trial dates would be given (which, by 24 January 2025, had been communicated to the parties to be narrowed down to a proposed two-day window between 12 and 14 March 2025). The present application was made, therefore, a mere three weeks prior to the scheduled commencement of trial.

Should leave to amend be granted?

17    The respondent opposes the application for leave to amend on three bases:

(a)    First, because the proposed pleadings lack proper particulars.

(b)    Secondly, because the causes of action sought to be added enjoy no reasonable prospects of success or do not demonstrate a prima facie case.

(c)    Thirdly, because of case management considerations including the unexplained delay in the applicant seeking leave, potential prejudice to the respondent, and broader public interest considerations in the way in which litigation is conducted before the Court.

Relevant principles

18    The parties directed the Court’s attention to the Full Court’s decision in Tamaya Resources Limited (in liq) v Deloitte Touche Tohmatsu (a firm) [2016] FCAFC 2, in which the Full Court noted the following principles articulated by the High Court in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 as being relevant considerations in deciding whether amended pleadings ought to be permitted:

(1)     The nature and importance of the amendment to the party applying for it;

(2)     The extent of the delay and the costs associated with the amendment;

(3)     The prejudice that might be assumed to follow from the amendment, and that which is shown;

(4)     The explanation for any delay in applying for leave;

(5)     The parties’ choices to date in the litigation and the consequences of those choices;

(6)     The detriment to other litigants in the Court; and

(7)     The potential loss of public confidence in the legal system which can arise where a court is seen to accede to applications made without adequate explanation or justification.

19    In Cement Australia Pty Ltd v Australian Competition and Consumer Commission [2010] FCAFC 101; 187 FCR 261 at [51], the Full Court acknowledged that the weight to be given to these considerations both individually and in combination, and the outcome of the required balancing process, may vary depending on the facts of the individual case.

20    The recent statement of Derrington J in Murden v NM Superannuation Pty Ltd as trustee of the AMP Super Fund [2025] FCA 148 at [26] is an apt summary of the task which Aon requires:

When one considers the observations of the High Court in Aon in the context of the earlier, but not that much earlier, decision in Queensland v JL Holdings Pty Ltd (1997) 190 CLR 146, the essence of Aon is that emphasis should now be placed upon ascertaining whether a party has had a sufficient opportunity to present their case: Aon, 214 – 215 [102], 217 [112]. A party who fails to take advantage of that opportunity, without reason or reasonable cause, cannot then complain that they have been denied the procedural fairness that the court process offers: Cauldron Energy Ltd v Beijing Joseph Investment Co Ltd (2016) 110 ACSR 576, 595 – 596 [137].

(Emphasis added.)

21    The Full Court also observed in Tamaya at [122] that the Court’s discretion is not at large, and that the objectives in s 37M of the Federal Court of Australia Act 1976 (Cth) are to be sought in the exercise of the discretion. In Murden, Derrington J, correctly with respect, identified (at [23]) that it is therefore relevant to have regard to s 37N of the Act, which requires parties before the Court to conduct proceedings in a way that is consistent with the overarching purpose found in s 37M.

22    It was also submitted by the applicant, and I accept, that the Court must have regard to whether the amendments sought arise out of the same or substantially the same factual basis (see eg, Darcy v Medtel Pty Ltd (No 3) [2004] FCA 807 at [30] per Sackville J), or in other words if they arise out of “substantially the same story” as that which supports the original cause of action (see Bryant (Liquidator) v L.V. Dohnt & Co Pty Ltd, in the Matter of Gunns Limited (in liq) (Receivers and Managers Appointed) [2018] FCA 238 at [71] per Davies J, citing Draney v Barry [1999] QCA 491 at [57]). While that may be correct, that is one necessary but not sufficient factor for the applicant to make out its case that leave should be granted.

Lack of proper particulars

23    The first basis on which the respondent opposed the grant of leave was that the proposed pleadings lack proper particulars.

24    The respondent submitted that the proposed new matters in the pleadings all depend upon the definition of “confidential information” as pleaded in paragraph 21 of the statement of claim, including the proposed additions to that definition in paragraph 21(q). That is plainly correct. Attention was then directed to two consequences of permitting the amendments.

25    First, the respondent submitted that she will be entitled to either apply for particulars of paragraph 21 and/or seek to have it struck out. The decision in Research in Motion v Samsung Electronics Australia [2009] FCA 320; 176 FCR 66 at [21]-[22] was cited by the respondent in support of its contention that the Court should not grant leave to amend where the amended pleading would as a result be liable to being struck out. The statement of Kenny J there has been cited with approval numerous times, most recently by the Full Court in KTC v David [2022] FCAFC 60 at [111], and there can be no doubt as to its force.

26    Secondly, the respondent submitted that paragraph 21 of the statement of claim is cast in the broadest possible terms, which if permitted would introduce imprecision, uncertainty and ambiguity. In the recent decision of Fortrend Securities Pty Ltd v Wollermann (No 2) [2025] FCA 96, O’Callaghan J made clear that confidential information in a case such as the present “must be identified with precision” so as to avoid the bringing of actions that are merely speculative in character, and to prevent “a former employer from using a generally worded claim to stifle the right of an employee to use his or her accumulated knowledge, skill and experience” (at [71]-[72]). That is precisely the risk of the proposed amendments here.

27    The applicant submitted as to the first point that paragraph 21 is properly particularised, though I am not persuaded that is correct. Counsel for the applicant during the oral hearing rightly conceded that there may be difficulties as to the specificity of the matters sought to be pleaded at paragraph 21, but submitted that even if such an issue arises, the applicant could simply combat it by a further re-pleading. In support of that position, the applicant placed reliance upon the judgment of Rangiah J in Braun v St Vincent’s Private Hospital Northside Ltd [2023] FCA 166, where at [78] his Honour granted leave to amend without confining the applicant to the particular form of the proposed amended pleading he sought to rely upon. However, that finding was made in the context of his Honour’s later comment at [81] that the proposed amended pleading, being some 118 pages in length, was “unnecessarily prolix and complex”. Justice Rangiah went on to note that the proposed pleading was capable of being much more succinct, and therefore was not in accordance with r 16.02(1)(b) of the Rules. It was for this reason that his Honour did not grant leave to amend in the particular form proposed by the applicant, but instead granted leave on the “expectation [that] the amendments [would] take into account” that requirement (at [82]).

28    By contrast, in the present case, the identified deficiencies would require the drawing of a more detailed pleading with more precise particulars. In other words, the proposed amendments are not presently sufficiently particularised. The applicant’s Counsel came close to conceding in oral argument that this is indeed the position. He submitted that if the respondent made an application to strike out the amended pleading following a grant of leave, “then we would have an argument as to whether they’re sufficient, or whether a further amended pleading would need to be filed”. Consequently, unlike the saving of costs and the Court’s resources which resulted from the grant of leave to amend in Braun, the converse seems the more likely course here. That is an entirely unsatisfactory state of affairs at this stage of the proceeding.

29    The applicant submitted as to the second point that its claims concerning confidential information do not require greater precision. In that regard, the applicant submitted that in Transpacific Industries Pty Ltd v Whelan [2008] VSC 403, the Court dealt with a claim concerning confidential information which was alleged at no greater a level of precision than “the plans and strategies of the business”. With respect, I am not convinced that this case assists the applicant’s position. As the respondent rightly pointed out, Whelan involved a hearing brought before the Court urgently, with the Court noting that the imprecision of the allegations was a result of that urgency and that the parties had done their best in the limited time available to them. Further, the injunction ultimately granted in that case was made in respect of specific plans of the business, while the Court refused to grant broader relief because other categories of allegedly confidential information suffered from a lack of particularisation (at [4], [15], [87]-[93]). Those circumstances are quite apart from the present case, where the applicant seeks wide-reaching restraints without precision as to what information allegedly is confidential, and where the applicant has had more than enough time to particularise those claims.

30    The matters proposed to be pleaded clearly suffer from a lack of proper particulars. Further, and more significantly, the lack of particulars must be seen in light of paragraph 23 of the statement of claim in which the applicant concedes (and indeed, agitates the fact) that the respondent’s new employer acquired significant confidential information during discussions as to a possible acquisition of the applicant’s business. Those discussions occurred while the respondent was still in the employ of the applicant. At hearing, Counsel for the applicant was unable to articulate what confidential information is alleged to remain in residue within the respondent’s knowledge, which was not disclosed during those discussions. Unfortunately for the applicant, it therefore appears that the proverbial horse has bolted with respect to its confidential information. If there is anything that the applicant can identify that is left to protect, it is incumbent on the applicant to particularise those matters with specificity. It has not done so.

No reasonable cause of action or prima facie case

31    The respondent submitted that leave also ought to be refused because the proposed agitation of a permanent injunction restraining her employment has no reasonable prospects of success. As a general rule, leave to amend will not be granted where the proposed amendments would be futile, including where the pleading does not disclose a reasonable cause of action (Walker v Southcott Pty Ltd [2022] FCA 864 at [25] per Besanko J, citing Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd [1995] FCA 1368; 58 FCR 26).

32    The applicant for its part contended that it would be premature to determine the prospects of the proposed claims at this stage of the proceeding, as the question of whether the claims are established is properly a matter for substantive hearing. That proposition can readily be accepted. However, the applicant bears the onus of satisfying the Court that it has a prima facie case in respect of the new causes of action now sought to be advanced in order to justify that leave be granted to permit their inclusion.

33    To that end, the applicant drew the Court’s attention to four decisions which it claimed sufficed to show that permanent injunctions were not unreasonable, but rather are readily available, and indeed granted, in cases concerning the use of confidential information.

(a)    First, the Supreme Judicial Court of Massachusetts decision in Curtiss-Wright Corporation v Edel-Brown Tool & Die Co, Inc. (1980) 407 NE 2d 319. Even putting to one side the non-binding nature of that authority in this jurisdiction, the decision is distinguishable in that the Court there was dealing with a claim for permanent injunctions to restrain the use of trade secrets of a former employer, which is a context distinct from confidential information simpliciter.

(b)    Secondly, the Victorian Supreme Court decision in Whelan. As mentioned above, while a permanent injunction was granted in that case, the scope of that relief was limited to a narrow category of information concerning specific plans of the former employer. It was not an injunction which restrained the former employee from their employment generally, as the applicant seeks here.

(c)    Thirdly, the NSW Court of Appeal decision in Worth Recycling Pty Ltd v Waste Recycling and Processing Pty Ltd [2009] NSWCA 354. While applicable to the present case to the extent that it involved a “danger of misuse” of confidential information, this decision is otherwise, with respect, irrelevant to the present circumstances. It involved a permanent injunction on a solicitor which restrained him from acting for a plaintiff in a particular proceeding due to confidentiality concerns arising from an engagement in previous proceedings opposite the same defendant. Accordingly, the findings of the Court of Appeal in that case should be viewed strictly in the context of a solicitor’s obligation of confidence, and the particular terms of the relevant settlement agreement, which prohibited the use of a clearly-defined scope of confidential information acquired in the course of a mediation. That comes far short of demonstrating that the acquiring of broadly-described confidential information by an employee in the course of their employment warrants a permanent injunction restraining their employment altogether.

(d)    Fourthly, the decision of this Court in Liberty Financial Pty Ltd v Jugovic [2021] FCA 607. The applicant relied on the fact that, in assessing a claim for breach of confidence by a former employee, Beach J there made a passing reference to the “inevitable disclosure doctrine” (at [264]). However, it is readily apparent on reviewing the reasons of Beach J that his Honour, after surveying US jurisprudence on the issue, did not apply the “foreign doctrine”, acknowledging that to do so would be to engage in “innovative incrementalism” (at [268]). Accordingly, reference to that doctrine, not being a part of Australian law, does not assist the applicant here.

34    The various authorities on which the applicant sought to rely do not demonstrate that the claim for a permanent injunction restraining the respondent from employment with her current employer has reasonable prospects. Noting again the applicant’s inability to identify the remaining confidential information in the respondent’s knowledge not already disclosed to her new employer in the course of takeover negotiations, it is significant that a corpus of case law has made clear that a former employee is generally entitled to use their accumulated skill and knowledge in competition with a former employer (see eg, Southern Cross Financial Group (Newcastle) Pty Ltd v Rodrigues (2005) 66 IPR 166 at [62]-[63]; I F Asia Pacific Pty Ltd v Galbally (2003) 59 IPR 43 at [220]; Hartleys Ltd v Martin [2002] VSC 301 at [78]-[84]).

35    The applicant has not provided an adequate explanation which, even on a prima facie basis, would raise the prospect that it is entitled to the extraordinary relief which it now seeks.

Unexplained delay

36    Finally, and in my view most significantly, the respondent opposed the grant of leave on the basis of the applicant’s unexplained delay in seeking leave. It is well-established that an applicant seeking leave to amend its pleadings is required to explain any delay in applying for leave (see eg, Tamaya at [125]). The Full Court in Tamaya also noted (at [155]) that the explanation of delay must come from the party itself, rather than its solicitor or counsel, and that the period prior to the commencement of proceedings is a relevant factor in the exercise of the discretion (at [120], [128]–[129]).

37    In Murden, Derrington J described as “insurmountable” the difficulty which the applicant there faced in seeking leave to amend in the absence of any explanation as to why it did not earlier plead, or at least seek to plead, the radically different claim later sought to be made (at [28]). The same may be said for the applicant in the present case.

38    As the respondent identified, the unexplained delay is a particularly overwhelming factor where the applicant has since at least late 2023 been aware of almost all of the matters which it now seeks to rely upon to found new claims for relief and a new cause of action in equity.

39    The applicant contended, placing reliance on the outcome in Braun at [79]-[80], that delay is but one relevant factor, and that there have been instances where leave to amend has been granted notwithstanding that no satisfactory explanation for a significant delay has been offered by the applicant. In Braun, for example, the applicant took some ten months from the commencement of the proceeding to bring his application to amend, and did not provide any satisfactory explanation for what Rangiah J deemed a “considerable delay”. However, the authorities make clear that each case must be evaluated on its own facts, and as such, a mere comparison with the period of delay acceded to in another case is not necessarily informative. Indeed, regard must properly be had to the conduct of the litigation as a whole. To that end, Rangiah J in Braun clearly was cognizant of the overall costs and resources burdens of refusing leave and thereby requiring two sets of proceedings to continue concurrently. His Honour’s willingness to permit an amended pleading despite the substantial and unexplained period of delay in that case must be viewed in that unique context.

40    In any event, the applicant submitted that the delay in bringing its application is explicable by the fact that it was unaware of the terms of the respondent’s current employment contract with the Acacium Group, only receiving a copy of that contract when it received her evidence in December 2024. It also contended that there were inconsistencies between the terms of that contract and previous representations made by the respondent’s solicitors as to the scope of her role in their letter of 7 November 2023. I do not accept that purported explanation to be sufficient for several reasons.

41    First, the applicant did not at any stage request a copy of that contract nor apply for disclosure. Despite having been on notice since 20 June 2023 at the latest that the respondent had taken up employment with its competitor, and despite the apparently desperate concerns held as to the potential for misuse of confidential information in that role, the applicant was seemingly content to rely upon the summary of the respondent’s new role which had been provided by her solicitors in the 7 November 2023 letter. Indeed, the pre-proceeding exchange of correspondence clearly formed the basis for the allegations pleaded in the original Statement of Claim filed on 22 January 2024. If the applicant considered, after receipt of that correspondence, that it still faced a dearth of information concerning the respondent’s employment with the Acacium Group, and that such an issue would inhibit its ability to properly plead its case concerning the threat of misuse of its confidential information, then it ought to have exercised reasonable diligence by taking further steps to clarify the position prior to its institution of these proceedings. Its failure to do so, in the absence of any explanation, may reasonably be assumed to be the result of forensic choices as to the information the applicant considered necessary to establish its entitlement to relief on the bases first advanced.

42    Secondly, there is no material inconsistency between the representations in the 7 November 2023 letter and the terms of the respondent’s current employment contract. In this regard, it became apparent during the hearing that the respondent’s current employer has only recently entered into the PALM Scheme, sometime in late-2024. Accordingly, in light of what is contained in Schedule B of the respondent’s employment contract with the Acacium Group, her solicitors’ statement in the correspondence as to the irrelevance of the PALM Scheme to “the role currently being performed by [the respondent] for Acacium” (emphasis added) was correct; at the time the statement was made, the respondent’s roles and responsibilities with the Acacium Group did not concern (and could not have concerned) the PALM Scheme, but rather focussed on the recruitment of nurses and other staff, with the role largely being based in the UK and USA.

43    Further, while the applicant’s submission that the respondent, by the remuneration terms of her current employment contract, has a direct financial interest in the Acacium Group successfully competing against the applicant, including in PALM Scheme business, is plainly correct, I am not persuaded that this bears out any inconsistency with previous representations that her role does not relate to the PALM Scheme. Further, I am not convinced that the other alleged inconsistencies raised by the applicant, namely those pertaining to the geographic scope of the respondent’s responsibilities and her precise functions within the Acacium Group business, are sufficient to explain the extent of the amendments sought. That is so because, while those matters may have borne out previously-unknown material facts concerning the extent of the threat that confidential information may be misused, they ought not to have been so substantial as to have caused the applicant to fundamentally re-plead the basis for and nature of the relief sought.

44    Thirdly, many of the proposed amendments to the pleadings do not relate to the terms of the respondent’s current employment contract, but instead relate to her previous contract of employment with the applicant. The proposed additions to the statement of claim at paragraphs 20A, 21(q), 23 and 24A concern matters which clearly were in the contemplation of the applicant at the time of filing the statement of claim, as revealed by the correspondence which preceded it by some months. As for the proposed addition of paragraphs 24B – 24D, which raise a new claim founded on an equitable obligation of confidence, the applicant provided no explanation for why it only now seeks to bring that cause of action on the eve of trial, other than general statements that claims concerning the protection of confidential information may be brought in equity alongside those brought in contract. But that correct statement of law does not assist the applicant here. Rather, it must reasonably be assumed that the exclusion of those matters from the original pleading was the result of a conscious, forensic decision on the part of the applicant as to how it was to agitate its case. That is particularly so where the applicant accepts that there is no evidence of any actual misuse of confidential information by the respondent, but rather contends that there is a prospective risk of disclosure.

45    Fourthly, and as a corollary of the three points above, the proposed amendments which do relate to the respondent’s employment contract with the Acacium Group could have been sought much earlier with appropriate due diligence on the applicant’s part. The respondent submitted, and I accept, that at its highest the only genuinely “new” matter raised by the proposed amended pleadings is paragraph 22A, which concerns allegations as to the precise terms of the respondent’s employment contract. As the Full Court identified in Tamaya, where a fact could or should have been known earlier with due diligence, including in the period before the proceeding was commenced, that is a matter which is relevant to and tells against the exercise of the discretion (at [132], [133] and [136]).

46    Finally, even if I were to accept the applicant’s position, it does not account for the full delay between the original pleadings being filed on 22 January 2024 and the application to amend being filed on 19 February 2025. As the respondent has rightly identified, there was still a substantial delay of some two months between the applicant receiving a copy of the relevant employment contract in evidence filed in December 2024 and it seeking leave to amend on 19 February 2025. It was also the case that the applicant took some four weeks to file its application after it had foreshadowed doing so on 24 January 2025. All of that delay must be viewed in the context that the applicant knew, since the last case management hearing in November 2024, that a trial would be listed in March 2025. As such, even if there is some explanation for the absence of the proposed amendments prior to receipt of the employment contract in December 2024, none has been proffered for the months thereafter.

47    All of the above matters demonstrate that the applicant has failed to provide a satisfactory explanation for its delay in applying for leave to amend. The submissions of the applicant relied on the impending expiry of the alleged contractual restraint as necessitating a change in emphasis, but that exceedingly obvious proposition entirely fails to explain why it did not earlier apprehend that issue and correct course accordingly. The applicant should not now be permitted to depart from its decisions in the conduct of its case.

Prejudice

48    The respondent also contended that leave should separately be refused on account of the prejudice she would suffer if the amendments were to be permitted.

49    While the applicant submitted that the respondent would not suffer any real prejudice in circumstances where the proposed amendments are closely connected with the existing claims in the proceeding, the respondent identified that the consequences to her of permitting the amendments would be that: (a) the parties will incur the additional work and cost of amending their pleadings, adducing new evidence and conducting further trial preparation; (b) much of the previous work in the conduct of this proceeding will be rendered nugatory, given that the respondent put on her evidence and generally conducted herself in response to the confined way in which the applicant previously had framed its case; and (c) any contractual restraint on the respondent, running until 25 April 2025, will now inevitably expire prior to the Court making a substantive decision in this proceeding given the abandonment of the March trial dates.

50    I accept that these matters would amount to prejudice to the respondent. Such outcomes should not be seen to be countenanced by this Court.

Detriment to other litigants

51    There also other factors outlined in Aon which ought to be considered in the evaluative task, such as the wasting of the Court’s resources by twice-abandoned trial dates and the consequent detrimental impact on the Court’s calendar.

52    In the applicant’s written submissions, and initially in oral submissions, the applicant sought to argue that there would not be detriment by the disruption of trial dates in circumstances where the trial was adjourned with the respondent’s consent. That argument is misguided in at least two respects: (a) the respondent in my view had no choice but to consent to an adjournment in circumstances where the applicant has failed to file its written outline and other trial materials in accordance with my Orders of November 2024; and (b) in any event, this factor is not evaluated by considering detriment inter partes, but instead requires the Court to have regard to detriment to other litigants appearing before it.

53    In respect of the latter point, Counsel for the applicant quite properly conceded that the late abandonment of trial dates is necessarily a cause of detriment to other litigants presently before the Court, in the sense that they have been deprived of the allocation of the Court’s limited resources which could otherwise have been made available to them across the now-abandoned trial dates, and that such case management considerations ought not to be diminished.

Proper opportunity for the applicant to present its case

54    Against the preceding factors, the applicant urged that leave to amend should nevertheless be granted to afford it a proper opportunity to put its case, especially in view of the importance to it of the amendments sought. It was submitted that this ought to be the “overriding consideration” which should not be trumped by considerations of delay and case management concerns.

55    In this regard, the applicant relied on Allianz Australia Insurance Limited v Mashaghati [2017] QCA 127; 1 Qd R 429, where at [101] the President of the Queensland Court of Appeal said that Aon:

“stand[s] for the proposition that a just resolution of proceedings remains the paramount objective and that while speed and efficiency, in the sense of minimum delay and expense, are essential to a just resolution, these factors must not detract from a proper opportunity being given to the parties to put their case. The scope of such an opportunity will be limited by a consideration of delay and cost in any particular case.”

56    It should be noted that the above passage was immediately followed by the President noting that delay and cost were not factors relevant in Mashaghati. The same cannot be said here, where those factors are significant in determining whether to grant leave, and therefore are substantial in limiting the scope of the opportunity afforded to the applicant to re-plead.

57    In any event, I am satisfied that the applicant has been given a proper opportunity to put its case here. For the reasons already addressed, I am not persuaded that the new relief sought in the form of a permanent injunction, which would have the effect of requiring the respondent’s resignation from her place of employ for the past two years and would restrain her employment with that employer permanently, anywhere in the world, enjoys reasonable prospects of success. Separately, the applicant’s proposed addition at the eleventh hour of a new cause of action founded on an equitable obligation of confidence is unjustifiable, particularly in circumstances where it is clearly aware that such claims properly ought to be raised in parallel with contractual claims, and yet where more than a year passed between the commencement of this proceeding and the filing of this application to amend to bring about its inclusion.

58    As a result, the applicant has had a proper opportunity to put its case. It is simply the case that, in view of considerations of the significant delay and cost associated with the amendments now sought, the applicant’s case will be restricted to that it initially chose to plead.

DISPOSITION

59    For the foregoing reasons, the applicant is unable to discharge the onus of demonstrating that the discretion to grant leave to amend should be exercised favourably to it.

60    The application to amend should be dismissed with costs. It is also appropriate to order that the applicant pay the costs of the case management hearing on 12 November 2024 which were reserved.

Associate:

Dated:    2 April 2025