Federal Court of Australia

Lamson Concepts Pty Ltd v Oscuro [2025] FCA 579

ORDERS

THE COURT ORDERS THAT:

1.    The respondent's application for an order that the search orders made by Justice Stellios on 8 April 2025 be set aside is dismissed.

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

REASONS FOR JUDGMENT

VANDONGEN J:

1    On 8 April 2025, the applicant, Lamson Concepts Pty Ltd (Lamson), obtained ex parte search orders from Stellios J, who was then acting in his capacity as general duty judge. Those search orders required that the respondent, Nicholas Oscuro, who is one of Lamson's former employees, permit a search for electronic documents to be carried out at his home. Lamson alleged that those documents recorded its confidential information.

2    Mr Oscuro has now applied for an order that the search orders be set aside because Lamson made several material non-disclosures at the hearing of its application for search orders.

3    Contrary to Mr Oscuro's contentions, there were no material non-disclosures. It follows that Mr Oscuro's application for an order that the search orders be set aside must be dismissed.

Background

4    Lamson installs, maintains and repairs materials handling solutions and systems. Lamson's core product is a pneumatic tube system, and it operates in various industries, including healthcare, retail, hospitality and manufacturing.

5    Mr Oscuro was employed by Lamson as a business development manager, before he resigned in December 2024. During his employment, Mr Oscuro was given access to confidential information that belonged to Lamson.

6    In early April 2025, Lamson commenced these proceedings against Mr Oscuro. Lamson alleges that on or about 18 November 2024, Mr Oscuro obtained possession of Lamson's confidential information with the intention of improperly using it to advance the interests of a business he set up in competition with Lamson, with a David Schmidt, another former employee who resigned at or about the same time as Mr Oscuro. Lamson alleges that Mr Oscuro acted in breach of various obligations, including his fiduciary duties of fidelity and good faith and his obligations as an employee under s 183 of the Corporations Act 2001 (Cth) to not make improper use of information.

7    After Lamson discovered that Mr Oscuro had set up a business in competition with it, the work laptops that Mr Oscuro and Mr Schmidt both returned to Lamson at the end of their period of employment were forensically reviewed. According to Lamson, the forensic review demonstrates that Mr Oscuro's work laptop had been wiped using data destruction software or that it had been subjected to some form of hardware level erasure process. It is Lamson's case that Mr Oscuro had never been directed to wipe, reformat or delete any of Lamson's information from his work laptop.

8    Lamson also alleges that the forensic review demonstrates that shortly before resigning, Mr Oscuro downloaded a significant number of confidential documents when there was no plausible business reason for that to have occurred. Lamson contends that the documents were downloaded to a device that Lamson did not own and had never issued to Mr Oscuro. Lamson also alleges that the work laptop Mr Oscuro returned on the last day of his employment was not the work laptop he had regularly been seen using during his employment. In other words, Lamson alleges that the documents that were downloaded were not downloaded to the work laptop Mr Oscuro returned on his last day of work.

9    Lamson intends ultimately inviting the Court to find that Mr Oscuro (and Mr Schmidt) have used its confidential information in pursuit of their new venture together, in direct competition with Lamson. Lamson seeks various forms of relief, including orders that Mr Oscuro pay damages, that there be an account of profits and that he pay equitable compensation.

10    As I have already noted, Lamson applied on an ex parte basis before Stellios J on 8 April 2025, for search orders pursuant to Div 7.5 of the Federal Court Rules 2011 (Cth). Specifically, Lamson sought orders requiring Mr Oscuro to permit a search to be carried out at his home for electronic documents. As counsel who appeared on behalf of Lamson on 8 April 2025 explained, Lamson sought the search orders to preserve the 'evidentiary trail' of what had happened to its confidential information.

11    After hearing from Lamson's counsel, Stellios J made the search orders in the terms sought. An order was also made that the search orders were to have effect up to and including 15 April 2025. It was contemplated that a further hearing would be conducted on that date, on an inter partes basis. However, Stellios J subsequently made orders extending the operation of the search orders, as well as other orders requiring that the property seized during the execution of the search orders (and any copies of such property) be delivered to an independent lawyer until further order of the Court. Other orders were also made requiring Mr Oscuro to file any application to set aside the search orders by 29 April 2025. Subsequently, on 6 May 2025, the parties agreed that Mr Oscuro should be permitted to file any application to set aside the search orders by 19 May 2025.

12    Mr Oscuro filed an interlocutory application seeking an order that the search orders be set aside, together with various other ancillary orders, on 19 May 2025. That application is one of two interlocutory applications that I have now dealt with on an urgent basis since the matter was allocated to my docket.

13    Mr Oscuro contends that the search orders must be set aside because there was material non-disclosure at the ex parte hearing before Stellios J on 8 April 2025. In support of his application, Mr Oscuro relies on his affidavit dated 29 April 2025.

14    In resisting Mr Oscuro's application, Lamson relies on the affidavit of its general manager, Glenn Lucas, dated 7 April 2025.

Relevant principles

15    The principles to be applied in determining whether an ex parte order should be set aside on the ground that there has been some material non-disclosure are well-settled and are not in dispute. A comprehensive summary of those principles can be found in the recent judgment of Markovic J in Fortescue Limited v Element Zero Pty Limited (No 2) [2024] FCA 1157 at [19]-[33], which I gratefully adopt without reproducing.

16    A party seeking ex parte orders is obliged to bring forward all material facts that the absent party would have brought forward in defence to the application: Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955 (Walter Rau) at [38]. This amounts to an obligation to squarely put the opposing party's case against the making of the orders sought in a way that the Court can understand, having regard to the urgent context in which the orders are sought: Walter Rau at [38].

17    In Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; (2005) 12 VR 639 (Savcor) at [22], Gillard AJA (with whom Ormiston and Buchanan JJA agreed) said that when deciding if there has been material non-disclosure, the Court's function is to determine, on the material that was placed before the judicial officer at first instance, whether a party has discharged the obligation of making a full and fair disclosure to the Court of all material facts within its knowledge. Where a court sets aside an ex parte order, it does so because of some irregularity and not on the merits.

18    A material fact is a matter which is relevant to the Court's determination. To be material, it would have to be a matter of substance in the decision-making process: Savcor at [35] (Gillard AJA). In Naidenov, in the matter of 30 Denham Pty Ltd (in liq) [2023] FCA 134 at [10], after observing that just what is 'material' has been put in different ways in the authorities, Stewart J said that he did not consider that there is anything of substance in those differences. His Honour then said at [11] that he took what had been said in Savcor to mean that the matter 'must be material in the sense of being capable of having affected the court's decision, and not that it would have affected the decision'.

19    Even if there has been a material non-disclosure, the Court has a discretion to not set aside an ex parte order: Savcor at [28] (Gillard AJA). While each case will depend on its own facts, relevant considerations are likely to include the practicality of setting aside the order (including the potential for a further application to be made), whether the disclosure was deliberate or inadvertent, the significance of the omitted fact in the decision-making process and any hardship that may be occasioned by setting aside an order: Savcor at [31]-[33] (Gillard AJA).

20    The party seeking to set aside an ex parte order on the basis of material non-disclosure bears the onus of establishing that there was material non-disclosure: Skytraders Pty Ltd v Ian Wallace Meyer [2021] NSWSC 1670 at [39] (citing Showcase Realty Pty Ltd v Nathan Circosta [2021] NSWSC 355 at [5]; and Brags Electrics Pty Ltd trading as Inscope Building Technologies v Steven Mark Gregory [2010] NSWSC 1205 at [10]).

21    Having summarised the relevant principles, it is now necessary to consider the various grounds on which Mr Oscuro contends that the search orders should be set aside.

Alleged material non-disclosures by Lamson

22    In his written submissions, Mr Oscuro identified five matters that he said were material and which Lamson had failed to disclose. However, at the hearing of the application, counsel said that one of those grounds was not pressed. During his oral submissions, Mr Oscuro's counsel also referred to three other matters which he submitted were not disclosed, although none of those matters were the subject of any of his written submissions.

23    I will deal with each of the matters that were ultimately relied on, in turn.

Lamson failed to disclose that it had given Mr Oscuro permission to clear personal data from his work laptop

24    At the ex parte hearing before Stellios J, Lamson argued that the evidence upon which it relied established that there was a strong prima facie case that Mr Oscuro had downloaded and then retained confidential information belonging to Lamson. Lamson further argued that there was a strong inference that Mr Oscuro intended to use that information in pursuit of a business venture in competition with Lamson, and that the potential for actual loss or damage may be serious if the search orders were not made.

25    Lamson also relied on evidence of a forensic examination of the work laptop that Mr Oscuro returned to Lamson on the last day of his employment, which examination tended to establish that the laptop had been completely wiped. Lamson submitted that this evidence established that there was a real possibility that Mr Oscuro might destroy any confidential information he still had in his possession or that he might take steps to make that information unavailable for use by Lamson in these proceedings.

26    It is in this context that Mr Oscuro submits that Lamson failed to disclose that Mr Lucas had in fact permitted Mr Oscuro to clear or wipe his work laptop. The basis for this submission is Mr Oscuro's own evidence and, in particular, a passage in his affidavit dated 29 April 2025, which was sworn after the ex parte search orders were executed. In that passage, Mr Oscuro responded to evidence given by Mr Lucas in his affidavit dated 7 April 2024. To understand Mr Oscuro's submissions, it is necessary to reproduce the relevant passages of each of those affidavits:

27    At para 35 of Mr Lucas' affidavit, he says as follows:

35.    I was in the Victorian branch on 18 and 19 December 2024. I made arrangements for [Mr Oscuro] to return the company devices in his possession to Steve Ward, the Victorian Operations Manager. I recall saying to [Mr Oscuro] on 19 December 2024 something to the effect of 'tomorrow Steve will go through the property check list with you, make sure you bring all your stuff with you'. I did not provide any directions to [Mr Oscuro] about deleting or destroying company information or documents, or wiping or clearing his work laptop before he returned it. However, I knew that Steve would ask [Mr Oscuro] if he had returned all confidential information and intellectual property of the business because the Property Return Checklist requires that this be addressed during the property return.

28    At para 152 of his affidavit dated 29 April 2025, Mr Oscuro replied by saying:

152.    […] This is incorrect. I had a meeting with Glenn Lucas on the 19th of December 2024 (see GL at 35). I recall I had said to Glenn Lucas words to the effect of 'I am going to have my work laptop wiped before I return it as I have had lots of personal photos and documents on it over the years, wiping the work laptop is the only way to ensure my personal files and documents are completely deleted'. Glenn looked at me and said 'ok'. He made no objection to me 'wiping' the computer whatsoever.

29    Accordingly, on the one hand Mr Oscuro's position is that Mr Lucas effectively gave him permission to completely wipe his work laptop when they spoke on 19 December 2024. On the other hand, Mr Lucas says, in effect, that he did not provide any directions to Mr Oscuro about wiping or clearing everything from his work laptop.

30    As counsel for Lamson properly accepted at the hearing of this application, if Mr Lucas had given Mr Oscuro permission to wipe his work laptop as alleged by Mr Oscuro, that fact ought to have been disclosed during Lamson's ex parte application. If Stellios J had been told that Mr Lucas had given Mr Oscuro permission to completely wipe his work laptop then that is a matter that could have affected the Court's decision whether to grant the search orders sought.

31    The question that arises is whether, on all the evidence, Mr Oscuro has discharged his onus of establishing that Lamson failed to disclose that Mr Lucas gave him permission to completely wipe his work laptop, as he has alleged, contrary to Mr Lucas' evidence.

32    Mr Oscuro and Mr Lucas did not give viva voce evidence before me. This means that I am left to determine whether Mr Oscuro has discharged his onus of establishing that Lamson failed to discharge its responsibility of candour when it applied for the search orders, in circumstances in which I have not had the benefit of seeing and hearing the two people who were party to the critical conversation they say took place on or about 19 December 2024. I have also not had the opportunity of seeing their respective versions being tested in cross-examination.

33    The totality of the evidence of both Mr Oscuro and Mr Lucas about the conversation they say took place about the work laptop on or about 19 December 2024 is confined to one solitary paragraph in each of their respective affidavits. Unsurprisingly, neither Mr Oscuro or Mr Lucas purport to recall exactly what was said. Further, there is no supporting testimony, no contemporaneous records and no objectively established facts that support either version of the conversation, and there is nothing in the apparent logic of events that suggests that either version should be preferred.

34    Mr Oscuro did rely on a passage in Lamson's written submissions in opposition to the application to set aside the search orders, in which counsel for Lamson wrote (at para 15):

It was never contemplated by the parties that [Mr Oscuro] or Mr Schmidt would entirely wipe the company issued laptops prior to their return. Rather, it was only agreed that [Mr Oscuro] and Mr Schmidt could remove personal items from their laptops.

35    Counsel for Mr Oscuro argued that this submission, in effect, constitutes an acceptance by Lamson of Mr Oscuro's version of the conversation with Mr Lucas. Counsel also argues that the submission supports Mr Oscuro's evidence that Mr Lucas gave him permission to completely wipe his work laptop.

36    I do not accept that argument. While Lamson's written submission suggest that it is common ground that there was a conversation between Mr Oscuro and Mr Lucas about 'wiping' data from Mr Oscuro's work laptop, Lamson plainly does not accept that Mr Oscuro was authorised by Mr Lucas to completely wipe his work laptop. Lamson's position is that Mr Oscuro was only permitted to remove his personal items from his work laptop before returning it at the end of his employment.

37    There is a conflict in the evidence of Mr Lucas and Mr Oscuro about exactly what was said when they discussed Mr Oscuro's work laptop on or about 19 December 2024. However, no version of that conversation was challenged in cross-examination, and there is nothing in the balance of the evidence before me that suggests that either version should be preferred. In those circumstances, I am not satisfied that Mr Oscuro has discharged his onus of establishing that Lamson failed to disclose that Mr Lucas gave him permission to completely wipe his work laptop.

38    In the circumstances of this matter, this conclusion does not completely deal with Mr Oscuro's submission that Lamson failed to discharge its obligation of disclosure. This is because it is common ground that Lamson did not inform Stellios J that Mr Lucas had given Mr Oscuro permission to remove his personal information from his work laptop. The question that arises is whether this means that there was a material non-disclosure justifying the setting aside of the search orders.

39    In my view, the fact that Stellios J was not informed that Mr Lucas gave Mr Oscuro permission to remove his personal information from his work laptop does not mean that there was a material non-disclosure that justifies setting aside the search orders. This is because that information was not capable of affecting the Court's decision whether to grant the search orders. The fact that Mr Lucas gave Mr Oscuro permission to delete his personal information from his work laptop is not a fact that was capable of logically affecting the capacity of the evidence relied on by Lamson to establish that there was a risk Mr Oscuro might destroy or remove relevant electronic documents or information, were he to be given prior notice of those orders having been made.

40    In any event, if Mr Oscuro was only given permission to remove his personal information from his work laptop, and he then deliberately wiped the entire contents of his work laptop, this would be a factor in favour of, rather than against, the granting of the search orders. This is because such conduct would tend to demonstrate that Mr Oscuro had deliberately exceeded the limit of the authority to remove information from his work laptop that Lamson had conferred on him.

Lamson failed to disclose that it gave Mr Oscuro confirmation that he had returned all confidential information and intellectual property

41    Mr Oscuro submits that Lamson failed to inform Stellios J that on 20 December 2024 it had confirmed to Mr Oscuro, in writing, that he had returned all of Lamson's confidential information and intellectual property that he had in his possession.

42    To understand this contention, it is first necessary to refer to the relevant evidence that was before Stellios J and, in particular, to Mr Lucas' affidavit dated 7 April 2025. In that regard, Mr Lucas said the following, at paras 35-37 of his affidavit:

35.    I was in the Victorian branch on 18 and 19 December 2024. I made arrangements for [Mr Oscuro] to return the company devices in his possession to Steve Ward, the Victorian Operations Manager. I recall saying to [Mr Oscuro] on 19 December 2024 something to the effect of 'tomorrow Steve will go through the property check list with you, make sure you bring all your stuff with you'. I did not provide any directions to [Mr Oscuro] about deleting or destroying company information or documents, or wiping or clearing his work laptop before he returned it. However, I knew that Steve would ask [Mr Oscuro] if he had returned all confidential information and intellectual property of the business because the Property Return Checklist requires that this be addressed during the property return.

36.    I had asked Steve to ensure that when [Mr Oscuro] returned the company property in his possession, that Steve complete the Property Return Checklist. 20 December 2024 was the last day in the office prior to the office shutdown period. Annexed and marked 'GL-8' is a copy of the Property Return Checklist that Steve completed, and a photo of the property that was returned to him by [Mr Oscuro].

37.    On reviewing the checklist and photo, I can see that [Mr Oscuro] returned a laptop and a SIM card, in addition to chargers and other devices, keys and swipe fobs.

43    Annexure GL-8, which is referred to at para 36 of Mr Lucas' affidavit, consists of a two-page document that is entitled 'Property Return Checklist'. Mr Oscuro's name appears in handwriting at the top of the first page, together with a date of 20 December 2024. It also records at the top of the first page that: '[t]he following property of Lamson Concepts Pty Ltd … must be recovered or actioned prior to the employee leaving. The responsible manager must initial and tick the appropriate columns'.

44    The balance of the document comprises a checklist that refers to various items such as uniforms, keys, 'staff ID', electronic equipment and documents. Corresponding with each item are three check boxes that appear in three columns headed 'Issued', 'Returned', and 'Not Applicable', respectively. Several check boxes have been marked in pen.

45    At the bottom of the second page is a section titled 'Confidential information and intellectual property', which appears as follows:

Confidential information and intellectual property

30.    All confidential information of the business    □    □    □

31.    All Intellectual property of the business        □    □    □

46    The first two check boxes of both items are marked with pen, indicating that each of them were both 'Issued' and 'Returned'.

47    At the bottom of GL-8 is a signature in the name of Steve Ward, and a date of 20 December 2024. Lamson did not adduce any evidence from Mr Ward at the ex parte hearing or in reply to Mr Oscuro's application to set aside those orders before me.

48    As I understood it, counsel for Mr Oscuro submitted that the completion of the document annexed at GL-8 to Mr Lucas' affidavit amounted to confirmation by Lamson that Mr Oscuro had returned all of its confidential information and intellectual property. On that basis, counsel for Mr Oscuro submitted that there had been a material non-disclosure because Lamson had misrepresented to Stellios J that GL-8 was evidence that Mr Oscuro had informed Lamson that he had returned all of its confidential information and intellectual property.

49    To some extent, counsel's submission is inconsistent with Mr Oscuro's own evidence about how GL-8 was completed, which appears at paras 154-155 of his affidavit:

154.    It was after that I dropped the Lamson laptop off at [the Victorian branch] wiped at around 12pm that day. I met Steve Ward there and we conducted the hand-over of my Lamson possessions. He had a checklist and would go through it and tick items off as showed to him. That checklist can be found as [Annexure] GL8.

155.    Steve went through each line on his checklist, asking me questions such as 'do you have a parking permit', etc. He did not ask me any questions about lines 30 or 31 on his checklist, simply checked them off and then signed the checklist. I certainly made no representations or said anything whatsoever about lines 30 or 31 on his checklist.

50    Therefore, Mr Oscuro's evidence is that he returned all of the property that had been issued to him in the course of his employment, including his recently wiped work laptop. He also says that he was not asked any questions about confidential information or intellectual property. In those circumstances, it is difficult to understand how it could reasonably be concluded that GL-8 amounts to confirmation given by Lamson that it had received all of its confidential information and intellectual property that had been issued to Mr Oscuro. In any event, having regard to Mr Lucas' evidence, GL-8 itself, and Mr Oscuro's evidence, I am far from persuaded that Mr Oscuro has discharged his onus of establishing that Lamson misrepresented the true effect of its own document.

51    The evident purpose of GL-8 is to record the various items of property issued to an employee during their employment, and to later record the return of those items of property at the end of the employment. In that way, GL-8 contains both representations by the employee that they have returned identified items of Lamson's property, and confirmation by Lamson that it has received that property. However, in the case of confidential information and intellectual property, it is non-sensical to construe GL-8 as constituting confirmation by Lamson that an employee had returned all such property, particularly where it is in electronic form. How would Lamson ever know, for example, that an employee had not surreptitiously retained electronic or other copies of its confidential information or intellectual property?

52    In my view, the purpose of that part of GL-8 that is concerned with confidential information and intellectual property is to provide some measure of comfort to Lamson that such information and property has been returned and that it will not be misused by a former employee or disclosed to others after they have departed. It achieves that purpose by obtaining representations from departing employees that they have indeed returned all such information.

53    Mr Oscuro says in his evidence that he did not make any representations to Lamson about whether he had returned its confidential information and intellectual property. To that extent, he appears to make a further suggestion that Lamson made a material misrepresentation at the hearing before Stellios J about the effect of GL-8. According to Mr Oscuro, Mr Ward went through all of GL-8 and asked him questions about each item, but did not ask him any questions about confidential information or intellectual property. Mr Oscuro says that Mr Ward simply checked those items off without any input from Mr Oscuro, and that Mr Ward then signed the checklist.

54    Even if I were to accept Mr Oscuro's evidence in this respect, I would still not be satisfied that Mr Oscuro discharged his onus of proving that Lamson made any material misrepresentations at the ex parte hearing about GL-8.

55    Based on his own evidence, Mr Oscuro was an active participant during the handover of Lamson's possessions and the completion of GL-8. In his affidavit, Mr Oscuro says that Mr Ward went through GL-8 with him and ticked off the various items listed in that document as Mr Oscuro showed the items to him. Accordingly, even if Mr Ward did not ask Mr Oscuro any specific questions when he ticked off the items in GL-8 concerning Lamson's confidential information and intellectual property, Mr Oscuro's silence may be taken as amounting to acceptance that Mr Ward had correctly filled out that part of the form. In that regard, Mr Oscuro does not suggest that he ever told Mr Ward that this or any other part of GL-8 contained any inaccurate or incomplete information.

56    In those circumstances, I am not satisfied that Mr Oscuro has established that Lamson made any material misrepresentation about GL-8 in its application for search orders.

Lamson failed to disclose an alternative explanation for the downloading of documents

57    In support of its application for search orders, Lamson alleged that shortly before he resigned, Mr Oscuro downloaded several confidential documents onto a computer that was not his work laptop, and that he then subsequently set up a business in competition with Lamson. However, Mr Oscuro submits that Lamson failed to inform the Court that the downloading of the documents may have had an innocent explanation. In that regard, the following contention appears in Mr Oscuro's written submissions:

Arguably, most person [sic] who work with cloud based storage systems sooner or later feel the need to download documents to a system that allows them off-line work. However, [Lamson] has chosen to ignore that simple explanation and only offered the Court the version most likely to advance its interests[.]

58    There is no evidence to support this contention. In that regard, Mr Oscuro does not appear to dispute that Lamson's documents were downloaded. However, although Mr Oscuro would appear to be in the best position to explain why that occurred, even he does not suggest that documents were downloaded to enable him to work offline. Instead, at para 135 of his affidavit, he says that while he has occasionally downloaded files in order to be able to work on them offline, he 'do[es] not actually recall why exactly [he] downloaded these files'.

59    In any event, the contention that Lamson failed to disclose that there was an alternative explanation for the fact that certain documents were downloaded shortly before Mr Oscuro's departure is based on pure speculation. As counsel for Lamson submitted, it was not incumbent on Lamson to 'gaze into a crystal ball as to a myriad of unbelievable explanations that [Mr Oscuro] might offer concerning his conduct'. In discharging its obligation of candour, Lamson was only required to disclose material facts and matters relevant to the question of whether the orders sought should be made, of which it was aware.

60    Mr Oscuro has fallen well short of establishing that there was a material non-disclosure because Lamson did not disclose the existence of an alternative explanation for the downloading of documents to the Court.

Lamson failed to disclose that its financial situation was such that any undertaking it gave as to damages might be of little value

61    Mr Oscuro claims that Lamson failed to disclose to Stellios J that its financial situation was 'stressed', and that any undertaking as to damages that it would be required to give may therefore be of little value.

62    Although Mr Oscuro bears the onus of proving that there was material non-disclosure at the time the search orders were made, he has not adduced any evidence about the financial position of Lamson at the time it gave the usual undertaking as to damages. In support of his contention, counsel for Mr Oscuro attempted to rely on a passage taken from Shaleen Charan v Lamson Concepts Pty Ltd [2024] FWC 2708 (Shaleen Charan), a case about whether a former employee of Lamson had genuinely been made redundant. Counsel referred to [15] of the reasons in Shaleen Charan, where the Deputy President of the Fair Work Commission referred to evidence adduced by Lamson that apparently disclosed that it was experiencing 'difficult financial circumstances'.

63    However, it is difficult to see how a passage from that decision is admissible in these proceedings to prove that Lamson was experiencing difficult financial circumstances. In that regard, s 91 of the Evidence Act 1995 (Cth) relevantly provides that a finding of fact in a proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding. In any event, even if it were admissible in these proceedings, the passage referred to in Shaleen Charan falls well short of establishing that Lamson had or may have had insufficient assets within the jurisdiction of the Court to provide substance for the usual undertaking as to damages at the relevant time.

64    In those circumstances, I am not satisfied that Lamson made any material non-disclosure on this basis.

Lamson failed to disclose that it was not possible to wipe part of the information on Mr Oscuro's work laptop, namely his personal information, without wiping all of the information on that device

65    Mr Oscuro contends that Lamson failed to inform Stellios J that it was not possible to wipe some of the information on his work laptop without wiping all of the information that was on that device and says that this amounted to a material non-disclosure.

66    This contention may be dealt with shortly. There is no evidence that it was not possible for Mr Oscuro to wipe his personal information from his work laptop without completely wiping all of the information on that device, let alone any evidence that this was something Lamson was aware of at the time it applied for the search orders. In any event, Mr Oscuro does not himself suggest that he wiped the entire contents of his work laptop because it was not otherwise possible to remove his personal information. Mr Oscuro's position is that 'I said I would have the computer cleared of all information, and that's what I did': para 153 of Mr Oscuro's affidavit of 29 April 2025.

67    It follows that I am not satisfied that Lamson made a material non-disclosure on this basis.

Lamson failed to disclose that the information on Mr Oscuro's work laptop had been backed up

68    Mr Oscuro submits that Lamson failed to draw Stellios J's attention to evidence in the affidavits that were before him that the company information on Mr Oscuro's work laptop had been 'backed up on a cloud'. It was submitted that this was a material matter that should have been disclosed because it 'takes the sting out of the alleged heinousness' of Mr Oscuro's conduct in wiping the work laptop.

69    In my view, the fact that the information on Mr Oscuro's work laptop was backed up is not a factor that was capable of affecting the Court's decision on whether to make the search orders. Lamson did not seek search orders for the purpose of enabling it to retrieve confidential information to which it no longer had access because of Mr Oscuro's alleged actions. Instead, Lamson sought the search orders so that it might retrieve any confidential information that was still in Mr Oscuro's possession, to protect itself against that information being misused, and to preserve any potential evidence that such information had already been misused.

70    I would not set aside the search orders on this basis.

Lamson failed to disclose that the information on Mr Oscuro's work laptop was of no relevance

71    Mr Oscuro submits that Lamson failed to disclose that the information that had been wiped from Mr Oscuro's work laptop was 'not of any relevance to the company'. Mr Oscuro says that the irrelevance of the material is in some way demonstrated by the fact that Lamson did not examine the work laptop until approximately four months after he had returned it to Lamson.

72    As there is no dispute that Mr Oscuro deliberately caused his work laptop to be completely wiped, it is not easy to see how Lamson could have possibly known that the information that was previously on the work laptop was of no relevance, or how, in those circumstances, it could be said that it was under an obligation to disclose that fact to the Court. In any event, the relevance of the information that was on the work laptop before it was wiped was not a matter that was of any significance in the context of Lamson's application for search orders. What was of significance was the evidence that Mr Oscuro had downloaded Lamson's confidential information to a computer other than his work laptop very shortly before he left its employment, and that he then commenced a business in competition with Lamson a few months later. The fact that the work laptop had been wiped demonstrated that there was a need for steps to be taken on an ex parte basis to preserve any confidential information that still remained in Mr Oscuro's possession, and any evidence of what had been done with Lamson's confidential information.

73    The fact that Lamson did not examine the work laptop until some months after its return does not establish that the information that was previously on that device was of no relevance. No such inference can properly be drawn from the time it took Lamson to have the laptop examined. Lamson understandably only had the laptop examined after it became aware in March 2024 that Mr Oscuro had become a competitor.

74    I am not persuaded that I should set aside the search orders on this basis.

Conclusion

75    Mr Oscuro has not satisfied me that Lamson failed to disclose any material factors in its ex parte application for the search orders. I would dismiss his interlocutory application to set aside the search orders made by Stellios J on 8 April 2025, as varied by the orders of 15 April 2025.

76    I will hear from the parties as to the form of the orders to be made to give effect to my reasons and as to the appropriate order for costs.

Associate:

Dated:    4 June 2025