Federal Court of Australia

University of New England v Boerner [2026] FCA 1107

ORDERS

THE COURT ORDERS THAT:

1.    The interlocutory application of the second cross-respondent filed on 22 May 2026 be dismissed.

2.    The second cross-respondent is to pay the costs of the first cross-claimant of and incidental to the interlocutory application, as agreed or taxed.

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

REASONS FOR JUDGMENT

HALLEY J:

A.    Introduction

1    By an interlocutory application dated 22 May 2026, the second cross-respondent, Aarhus University, seeks an order that the cross-claim brought by the respondent/first cross-claimant, Dr Vinzent Boerner, be permanently stayed against it. The interlocutory application is based on an exclusive jurisdiction clause in an employment agreement entered into by Dr Boerner with Aarhus (Aarhus employment agreement).

2    Aarhus relies on two affidavits affirmed by its solicitor, Jonanthan Ariel Feder, a partner of K&L Gates, on 22 May 2026 and 15 July 2026 in support of the interlocutory application.

3    Dr Boerner contends that the Court should exercise its discretion not to stay the proceeding. He relies on an affidavit affirmed by his solicitor, Mark Andrew Vincent, a principal of Spruson & Ferguson Lawyers Pty Ltd, on 22 June 2026.

4    Dr Boerner initially also contended that the claims advanced in the cross-claim did not fall within the exclusive jurisdiction clause. In the course of oral submissions at the hearing of the interlocutory application, however, Dr Boerner, by his senior counsel, Julian Cooke SC, accepted for the purposes of the determination of the interlocutory application that the claims did fall within the exclusive jurisdiction clause.

5    For the reasons that follow, I have concluded that the stay of the cross-claim sought by Aarhus in the interlocutory application should not be granted.

B.    Background

6    After obtaining preliminary discovery from both Dr Boerner and Aarhus in an earlier proceeding brought in this Court, VID 581/2023 (Preliminary Discovery Proceeding), the applicant, the University of New England (UNE), commenced this proceeding against Dr Boerner.

7    Dr Boerner was employed by UNE from around 29 March 2011 to 31 March 2021 pursuant to a series of engagement, appointment, extension and variation agreements (UNE Employment Agreements).

8    The claims brought against Dr Boerner in the proceeding concern his conduct during his employment by Aarhus as an Associate Professor, in the period between 1 January 2019 and 31 December 2023. During that period, Dr Boerner developed a software product for Aarhus (Linear Models Toolbox or LMT Software).

9    During approximately 90% of the period that he was employed by Aarhus, Dr Boerner was located in Australia and close to 100% of the work that he performed was work developing the LMT Software for Aarhus.

10    Following the receipt of the statement of claim filed by UNE in this proceeding, Dr Boerner filed the cross-claim against UNE and Aarhus.

11    By the cross-claim, Dr Boerner seeks indemnification from Aarhus in respect of all losses, liability and expenses incurred by him in relation to this proceeding and the Preliminary Discovery Proceeding.

12    The Aarhus Employment Agreement was in the form of a standard letter addressed to him from Aarhus dated 13 December 2018, which set out various terms. The Aarhus Employment Agreement was signed by an Aarhus representative, but not by Dr Boerner.

13    Although Dr Boerner was still employed by UNE at the time the Aarhus Employment Agreement was sent to him, UNE was not stated to be a party to the agreement.

14    The Aarhus Employment Agreement included the following exclusive jurisdiction clause:

The employment is governed by Danish law. Any disagreements must be settled according to Danish law and by the competent Danish court.

C.    The claims advanced and the relief sought by UNE

15    The central allegation advanced by UNE against Dr Boerner in this proceeding is that he developed the LMT Software using the source code for the relevant components of UNE’s BREEDPLAN and OVIS software products (Analytical Software Source Code) that was confidential to UNE and the Animal Genetics and Breeding Unit (AGBU) and was provided to him only for the purpose of undertaking tasks under the UNE Employment Agreements. The AGBU is a research and development institute operated by UNE in a joint venture with the New South Wales Department of Primary Industry.

16    UNE contends that by reason of that conduct, Dr Boerner breached express terms of the UNE Employment Agreements in relation to confidentiality, loyalty and good faith and implied terms in relation to acting in the interests of UNE in good faith and fidelity and not using the information of UNE to gain an advantage for himself or a third party, or to cause detriment to UNE.

17    Next, UNE contends that by reason of that conduct, Dr Boerner breached (a) fiduciary duties that he owed to UNE not to place himself in a position of conflict and not to take advantage of his position as an employee of UNE to benefit himself or a third party, and (b) an obligation of confidence to keep the Analytical Software Source Code confidential and not to use it for the benefit of any person or entity other than UNE or any other person not authorised by UNE.

18    Further, UNE contends that Dr Boerner did not have reasonable grounds to have represented to UNE that the work that he had been engaged by Aarhus to perform (a) would be complementary to, and not detract from, his employment by UNE, (b) would not conflict with, or be to the detriment of, the commercial interests of UNE and/or AGBU, and (c) would not involve any use of confidential information of UNE.

19    UNE seeks declarations that Dr Boerner breached the express and implied terms of his UNE Employment Agreements, fiduciary duties and obligations of confidence, outlined above, and engaged in conduct that was misleading or deceptive, or likely to mislead or deceive, in contravention of s 18 of the Australian Consumer Law (ACL), as found in Sch 2 of the Competition and Consumer Law 2010 (Cth).

20    UNE also seeks (a) an order restraining Dr Boerner from disclosing or making any use of the Analytical Software Source Code, except to the extent required by law or permitted by the prior written consent of UNE, (b) damages for breach of contract and damages or equitable compensation for breach of contract and/or breach of fiduciary duty, and (c) damages pursuant to s 236 of the ACL.

D.    Relevant principles

21    It is well established that, in the usual course, a party seeking to oppose a stay of proceedings brought contrary to the provisions of an exclusive jurisdiction clause must establish substantial grounds and strong countervailing circumstances as to why they should not be held to their contractual bargain: Incitec Ltd v Alkimos Shipping Corporation (2004) 138 FCR 496; [2004] FCA 698 at [42]-[43] (Allsop J); Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197; [1988] HCA 32 at 224, 230-1 (Brennan J) and 259 (Gaudron J).

22    Any default starting position that the Court should start with a prima facie presumption in favour of a stay, however, does not apply when not all the parties to the proceeding are parties to the agreement containing an exclusive jurisdiction clause. In Epic Games, Inc v Apple Inc (2021) 286 FCR 105; [2021] FCAFC 122, a Full Court of this Court at [69] (Middleton, Jagot and Moshinsky JJ), referred with approval to the following observations of Bell P in Australian Health & Nutrition Association Ltd v Hive Marketing Group Pty Ltd (2019) 99 NSWLR 419; [2019] NSWCA 61 at [90]:

In cases such as the present, when not all parties to the proceedings are party to an exclusive jurisdiction clause, the court should not, in my view, start with a prima facie disposition in favour of a stay of proceedings, which is the default starting point where the litigation only involves parties who are bound by the exclusive jurisdiction clause (cf the various formulations collated by Spigelman CJ in Global Partners set out at [79] above). In the passage from Lord Bingham’s speech in Donohue v Armco, which I have cited at [78] above, his Lordship was careful to qualify his observations with the phrase “and the interests of other parties are not involved”. The importance of holding parties to their bargain is a very powerful consideration but is not one that should be elevated or given some special status in the hierarchy of factors where not all parties to the dispute are parties to the exclusive jurisdiction clause.

23    The following further considerations would usually provide strong reasons or at least weigh in favour of not granting a stay to give effect to an exclusive jurisdiction clause:

(a)    the risk of courts reaching different conclusions on the same facts and the same or different evidence: Incitec at [62]; A Nelson & Co Ltd v Martin & Pleasance Pty Ltd (Stay Application) [2021] FCA 754 at [11] (Perram J);

(b)    the desirability of avoiding the fragmentation of a dispute into several courts, where one court can conveniently and promptly deal with the whole controversy: Incitec at [62] and [66]; A Nelson at [12];

(c)    the possibility, if not probability, of duplicated litigation, given rising to additional cost and inconvenience of litigation: Incitec at [62] ;

(d)    the difficulty of ruling out the possibility that third parties, whether as witnesses or as parties, might also become involved in duplicated proceedings, leading to additional cost and inconvenience for them: Incitec at [62];

(e)    the possibility, if not probability, of witnesses being cross-examined twice on similar issues in two different proceedings and providing different answers: A Nelson at [15];

(f)    the potential for parties to view the interconnection and overlap between cases as a “field of potential tactical advantage”: Incitec at [62].

E.    Consideration

E.1.    Principal contentions of the parties

24    Aarhus contends that the cross-claim, as against it, should be stayed because (a) the exclusive jurisdiction clause was an essential part of the bargain it struck with Dr Boerner, and he should be held to that bargain, (b) the question of Dr Boerner’s entitlement to any indemnity from Aarhus is governed by Danish law, and the Danish courts are the natural forum to answer that question, (c) it would be inefficient and costly for the question of Danish law to be determined by this Court, (d) there are unlikely to be any overlapping issues between this proceeding and any proceeding in a Danish court, (e) any cost or inconvenience incurred by Dr Boerner in bringing a proceeding for indemnity in the Danish courts would only arise as a result of “the direct consequence of the bargain entered” into by Dr Boerner and can be put to one side, and (f) there are no public policy considerations weighing in favour of an exercise of discretion not to grant a stay.

25    Dr Boerner contends that the Court should exercise its discretion not to grant a stay of the cross-claim as against Aarhus because there are strong countervailing reasons, namely, (a) even if the cross-claim against Aarhus is stayed, this proceeding will remain on foot because UNE is not a party to the Aarhus Employment Agreement, (b) if the cross-claim against Aarhus is stayed, Dr Boerner will have to commence separate proceedings in Denmark to seek an indemnity from Aarhus, rather than this Court resolving in “one convenient location” all factual and legal issues relating to Dr Boerner’s conduct during his employment by Aarhus, (c) there are overlapping issues between the claims made in the proceeding by UNE against Dr Boerner and the claim for indemnity advanced by Dr Boerner in the cross-claim against Aarhus, (d) the quantum of any indemnity to be determined by a Danish court necessarily could not be completed until after the completion of this proceeding, and (e) the Court cannot be certain that UNE or third party witnesses would not become involved in any Danish proceeding.

E.2.    The likelihood of overlapping issues

26    The critical issue for determination is the likelihood of there being overlapping issues to be determined in this proceeding and any proceeding brought by Dr Boerner for indemnification against Aarhus in a Danish court. The other contentions advanced by Dr Boerner raise much less significant matters and largely reflect the consequences of the bargain that Dr Boerner reached with Aarhus that disputes arising under his employment with Aarhus would be determined under Danish law and exclusively by the courts of Denmark.

27    Mr Feder gave evidence that in his experience, the cross-claim, insofar as it contained claims by Dr Boerner against Aarhus, contained “no overlapping legal or factual issues with the claims being advanced” in the proceeding by the other parties and “[a]s a result, there is no risk of inconsistent findings being made by Australian and Danish courts”.

28    I do not accept that evidence of Mr Feder. The determination of the nature and the extent of Dr Boerner’s liability is a necessary element that would need to be established in any proceeding in Denmark brought by Dr Boerner for indemnification.

29    Senior counsel for Aarhus submitted that there was no duplication or risk of conflicting determinations by an Australian court and a Danish court on the nature and extent of Dr Boerner’s liability to Aarhus, either because Aarhus could provide an undertaking to the Court and Dr Boerner that it would not contest any findings on liability brought by UNE against Dr Boerner or, alternatively, that the Court, as a condition of any stay, could require such an undertaking to be given. The possible offer of an undertaking, however, was only made orally in the course of senior counsel’s address at the hearing of the interlocutory application, in circumstances where no instructions to provide such an undertaking had been given and where the precise form of the possible undertaking was not explained.

30    I raised with the parties the possibility of providing Aarhus with an opportunity to propose a form of undertaking and a timetable for further written and potentially oral submissions to address how this self-evident overlap might be addressed in such a way that the parties could be confident that issues of Dr Boerner’s liability to UNE would not be duplicated. The course was opposed by Dr Boerner and, in any event, for the following reasons, I was not persuaded of the utility of the course I had proposed.

31    I am not persuaded, and certainly not persuaded in the absence of a form of any proposed undertaking, that it is possible to isolate and quarantine all issues concerning the liability of Dr Boerner to UNE from issues that might arise in the determination of any claim for indemnification from Aarhus in a Danish proceeding.

32    For the purposes of the hearing of the interlocutory application, the parties proceeded on the assumption that Danish law as to the indemnification of employees by employers is the same as Australian law, which, again, for the purposes of the interlocutory application, they were prepared to accept could be expressed as follows:

The employer’s implied contractual duty to indemnify extends to unlawful acts committed by an employee in the course of employment, provided that the employee is not aware of the unlawful character of the act.

33    Aarhus submitted that any knowledge that Dr Boerner might have had that his conduct was unlawful was not relevant to the breach of fiduciary duty, breach of contract and misleading and deceptive s 18 ACL claims advanced by UNE, as knowledge of unlawfulness was not an element of any of those claims. I accept that, as a matter of principle, that is correct. However, for the following reasons, I am not persuaded that the provision of an undertaking, as suggested by senior counsel for Aarhus, could be expected to eliminate the possibility, if not the probability, that there would be overlapping matters between this proceeding and any proceeding in Denmark cannot be accepted.

34    First, the material facts relied upon by UNE against Dr Boerner extend in para 8 of the statement of claim to allegations that the Analytical Software Source Code was disclosed or otherwise made available to him in circumstances, where he knew or ought to have known that (a) the code was confidential to UNE, and (b) it was provided to him solely for the purpose of enabling him to undertake the tasks for which he was employed under the UNE Employment Agreements.

35    If Dr Boerner was not aware that the Analytical Software Source Code was confidential to UNE and provided to him solely for the purpose of undertaking tasks under the UNE Employment Agreements, then an essential foundation of much of UNE’s case against Dr Boerner would fall away. Knowledge that the Analytical Software Source Code was confidential to UNE and only made available for the purpose of performing tasks under the UNE Employment Agreement is thus plainly of central relevance to the claims brought by UNE against Dr Boerner. It is also of central relevance in any claim for indemnity against Aarhus because it will largely determine whether Dr Boerner was “aware of the unlawful character” of his conduct in developing the LMT Software.

36    If an undertaking were to extend to not challenging findings to that effect by this Court, there would appear to be little utility to any subsequent proceeding for indemnification in a Danish court, assuming that questions of Dr Boerner’s state of mind would also arise in any Danish proceeding. If the undertaking did not unequivocally extend to such findings, the prospect of duplicative and inconsistent findings on matters of central importance to both proceedings would be self-evident.

37    Second, not least because of the allegations in para 8 of the statement of claim which concern claims advanced principally for misuse of confidential information, it is inherently likely that factual findings will be made in this proceeding that would be relevant to any determination of whether Dr Boerner was aware that his conduct in developing the LMT Software for Aarhus was unlawful. Again, in the absence of an unequivocal undertaking not to challenge any findings in this Court that might be relevant, expressly or by implication, to a determination of whether Dr Boerner was aware that his conduct in developing the LMT Software was unlawful, the prospect of duplicative and inconsistent findings on matters of central importance to both proceedings would be self-evident.

38    Third, at least with respect to the equitable claims advanced by UNE against Dr Boerner, there is the possibility, if not likelihood, that the Court in this proceeding will have to make findings as to the knowledge of Dr Boerner in addressing the unclean hands contention raised in para 9 of the reply (a) by reason of his conduct in developing the LMT Software without the knowledge or approval of UNE, and (b) in using the Analytical Software Source Code, as alleged in paras 24 and 25 of the statement of claim. Again, findings made by this Court as to whether Dr Boerner had developed the LMT Software using the Analytical Software Source Code without the knowledge or approval of UNE would likely be of central relevance to any consideration by a Danish court of whether, in all the circumstances, Dr Boerner was aware that his conduct in developing the LMT Software was unlawful.

39    For the foregoing reasons, I am satisfied that there would likely be a material and significant overlap in the issues to be determined in this proceeding and any Danish proceeding brought by Dr Boerner against Arhus for indemnification.

E.3.    A stay of the cross-claim should not be granted

40    Given that UNE is not a party to the agreement containing the exclusive jurisdiction clause and the likely material and significant overlap between the issues to be determined in this proceeding and any Danish proceeding brought by Dr Boerner against Aarhus for indemnification, I am satisfied that the grant of the stay sought by Aarhus would raise the possibility, if not probability, of (a) different conclusions being reached by different courts on potentially different evidence; (b) significantly increased cost and inconvenience due to duplicated litigation; and (c) the fragmentation of a dispute into several courts where this Court, with the benefit of expert evidence on a discrete aspect of Danish law, could conveniently and promptly deal with the whole controversy.

41    Further, if this Court dealt with the whole controversy, it would reduce the probability of at least Dr Boerner being cross-examined twice on issues relevant to his knowledge of unlawful conduct, in particular, whether he was aware that the Analytical Software Source Code was confidential to UNE and AGBU and made available to him solely for the purpose of undertaking tasks for UNE pursuant to the UNE Employment Agreements.

42    I am satisfied that these reasons provide substantial and strong countervailing reasons why Dr Boerner should not be held to his contractual bargain with Aarhus, and a stay of the cross-claim against Aarhus should be refused.

F.    Disposition

43    For the foregoing reasons, the interlocutory application is to be dismissed, and Aarhus is to pay the costs of Dr Boerner of and incidental to the interlocutory application.

Associate:

Dated:    12 August 2026

SCHEDULE OF PARTIES