Federal Court of Australia

Macsteel International Australia Pty Limited v Oliver [2026] FCA 1300

ORDERS

PENAL NOTICE

Pursuant to r 41.06 of the Federal Court Rules 2011 (Cth)

THE COURT NOTES THAT:

A.    The applicant gives the usual undertakings as to damages.

B.    In the orders below:

(a)    MIAUS Confidential Information means any information obtained or downloaded from MIAUS’ Microsoft Azure cloud computing platform, including the documents listed in Confidential Exhibit TK-2 to the affidavit of Tom Keller affirmed on 13 August 2026;

(b)    Cloud Storage Facility means any online data storage facility, including email accounts, iCloud, Dropbox, Google Drive and Microsoft OneDrive; and

(c)    Electronic Device means any device capable of electronically storing information, including a computer, tablet device, hard drive, portable storage device, disk or smartphone.

THE COURT ORDERS THAT:

Injunction

1.    Pending the hearing and determination of this proceeding, the respondent, whether by himself or agents, be restrained from, directly or indirectly, disclosing or using the MIAUS Confidential Information.

Inspection of property

2.    Pursuant to r 14.01 of the Federal Court Rules 2011 (Cth) and/or s 193 of the Evidence Act 1995 (Cth), on 27 August 2026 the respondent is to attend Syme & Associates Lawyers’ offices at Level 1, Suite 9/214 Bay Street, Brighton VIC 3186 to make available to computer expert, Official Intelligence Pty Ltd (Official Intelligence), any Electronic Devices in the possession, power, custody or control of the respondent for the purpose of:

(a)    preserving the evidence contained on them; and

(b)    taking all necessary steps to make a forensic copy of all of the data, which may or may not include unallocated bytes on any Electronic Device and Cloud Storage Facility in order to identify the location, and use, of any MIAUS Confidential Information.

3.    For the purpose of making a full forensic copy of the data stored on any Electronic Device and Cloud Storage Facility, the respondent must do all things necessary to enable Official Intelligence to access, authenticate and download the data stored on the Electronic Device and Cloud Storage Facilities in his control, including:

(a)    hermanoliver@outlook.com;

(b)    herman@choliver.me.

4.    Within one business day of copies being made pursuant to order 2(b), all Electronic Devices are to be returned to the respondent, should any be retained or delivered.

5.    Within two business days of copies being made pursuant to order 2(b), Official Intelligence is to:

(a)    conduct an electronic search for the MIAUS Confidential Information;

(b)    apply the search parameters set out at Annexure A to those digital copies;

(c)    provide a copy of the electronic material captured by the searches in (a) and (b) (Electronic Listed Things) to the respondent.

6.    Within three business days of being provided with the Electronic Listed Things pursuant to order 5(c), the respondent is to inform the applicant’s solicitors of any claim to privilege by which the respondent objects to inspection by the applicant or its solicitors of any of the documents in the Electronic Listed Things, including the basis for such a claim (Objection Notice).

7.    Within four business days of being provided with the Electronic Listed Things pursuant to order 5(c), or upon being provided with a copy of the Objection Notice (if any), the applicant’s solicitors may inspect and make copies of the Electronic Listed Things, other than the documents contained in the Objection Notice.

Disclosure

8.    By 4:00pm on 5 September 2026, the respondent is to make discovery of all documents in his possession, power, custody or control that contain or refer to the MIAUS Confidential Information, or part of it, or any information derived from the MIAUS Confidential Information or part of it.

9.    By 4:00pm on 5 September 2026, the respondent is to file and serve an affidavit:

(a)    identifying any person to whom he has disclosed the MIAUS Confidential Information or any part of it; and

(b)    identifying any use that he has made of the MIAUS Confidential Information, or any part of it, including any person whom he has contacted using the MIAUS Confidential Information.

Miscellaneous

10.    The proceeding is listed at 2.15pm on 10 September 2026 for:

(a)    the resolution of the Objection Notice; and

(b)    further case management of the proceeding.

11.    Costs reserved.

12.    Liberty to apply.

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

REASONS FOR JUDGMENT

NESKOVCIN J:

1    By interlocutory application filed on 14 August 2026, the applicant sought interlocutory orders against the respondent pursuant to r 14.01(1) of the Federal Court Rules 2011 (Cth) or alternatively s 193 of the Evidence Act 1995 (Cth) for the inspection of electronic devices in the respondent’s possession, power, custody or control. The applicant also sought an interlocutory injunction order to prevent the respondent from disclosing or using the “MIAUS Confidential Information”. The respondent opposed the application.

2    The applicant (or MIAUS) carries on business as a steel trader.

3    On 3 April 2018, the respondent commenced employment with the applicant as a management accountant. He was promoted to Chief Financial Officer (CFO) on 1 January 2022 and remained in that role until he ceased employment with the applicant on 24 December 2025.

4    On 22 June 2026, following an investigation by its IT Department which was sparked by a wave of resignations of steel traders, the applicant says that it became aware that the respondent had, between June and November 2025, downloaded approximately 9,784 unique documents from the applicant’s online systems onto his personal laptop. The applicant says these documents contained highly confidential information, constituting MIAUS’ commercial, financial, and operational blueprint, including financial reporting information, strategic planning and strategy documents and personal information of MIAUS staff (MIAUS Confidential Information).

5    The applicant commenced this proceeding by way of Originating Application, and Concise Statement dated 6 July 2026, seeking relief against the respondent for alleged breaches of contractual, equitable and statutory obligations. The Originating Application and Concise Statement were served on the respondent on about 8 July 2026. Shortly after that, the application was foreshadowed and later filed.

6    At a case management hearing on 14 August 2026, timetabling orders were made for the filing of materials and the application was listed for hearing on 26 August 2026.

7    The applicant relied on affidavits of Tom Keller affirmed on 13 August 2026, George Collier affirmed on 13 August 2026 and Karlena Fuata affirmed on 26 August 2026, together with an outline of submissions. The respondent filed an affidavit sworn on 24 August 2026, together with an outline of submissions.

8    Following the hearing, I made orders substantially in the form of the orders sought by the applicant. These are my reasons for doing so.

THE APPLICATION

9    By the application, the applicant sought orders:

(a)    for the respondent to make available any electronic devices and associated cloud-storage facilities in his possession, power, custody or control for forensic preservation and copying, pursuant to r 14.01 of the Rules and/or s 193 of the Evidence Act (inspection orders);

(b)    restraining the respondent from using or disclosing the MIAUS Confidential Information (injunctive orders); and

(c)    for the respondent to discover any documents relating to the MIAUS Confidential Information and to provide affidavit evidence of any use or disclosure of that information (disclosure orders).

10    As already mentioned, the respondent commenced employment with the applicant as a management accountant in April 2018 and was promoted to CFO in January 2022.

11    Between June and November 2025, the respondent downloaded approximately 9,784 unique documents containing the MIAUS Confidential Information from MIAUS' online systems onto his personal laptop.

12    On 26 November 2025, six days after the applicant says that the respondent made the final identified download, the respondent gave notice of his resignation. On 27 November 2025, the respondent was placed on gardening leave until the termination of his employment on 24 December 2025.

13    From 4 May 2026 to 8 June 2026, MIAUS experienced a wave of mass resignations of its steel traders. The applicant said that, within that period, eight of MIAUS’s fifteen traders resigned and a number of them received offers of employment from Peter Cremer Australia Pty Ltd. The applicant says that this was unprecedented.

14    The mass resignations sparked an investigation by the applicant’s IT Department. It was as a result of that investigation that the applicant became aware, on 22 June 2026, of the download of the MIAUS Confidential Information onto the respondent’s personal laptop between June and November 2025. Mr Keller gave evidence that the MIAUS Confidential Information downloaded on to the respondent’s personal laptop included the names of key suppliers and customers, contracts and other order information concerning them, and the terms and conditions of some of the applicant’s employees. Mr Keller also gave evidence that he understood that several former MIAUS employees have commenced employment with Cremer.

15    The Court was told that Cremer's core business in Australia is grain trading and that historically it has had a minimal presence in the Australian steel market. However, further investigations by the applicant have revealed that the respondent had numerous dealings with senior Cremer employees, from February to September 2025, in circumstances in which he had no legitimate business reason to have such dealings. The investigations also revealed that Cremer has recently contacted MIAUS customers and suppliers.

16    MIAUS submitted that this extraordinary download of documents, and mass exodus of employees to one of its competitors, provides reasonable grounds to suspect that there is an imminent risk of harm to MIAUS’ business and an inferential case that the respondent has already misused the MIAUS Confidential Information. Alternatively, and at the very least, the applicant submitted, in light of the evidence of the respondent’s contact with senior Cremer employees, there is a significant risk to MIAUS’s business posed by the respondent’s potential misuse of the MIAUS Confidential Information.

17    For these reasons, MIAUS sought orders to secure the MIAUS Confidential Information pending the final determination of the proceeding and for discovery and the inspection of the respondent’s electronic devices to enable MIAUS to obtain and preserve an accurate understanding of what, if any, misuse has been made of the MIAUS Confidential Information to date and to prevent any further misuse from occurring. In addition, MIAUS sought an interlocutory injunction restraining the respondent from using or disclosing the MIAUS Confidential Information pending final determination of the proceeding.

The respondent’s submissions

18    The respondent initially opposed the application and orders sought. The respondent denied that he had knowingly downloaded documents to the extent alleged by MIAUS. The respondent also stated that he did not own any personal devices to produce for inspection. As the respondent explained, he returned all electronic devices that belonged to the applicant when he ceased employment. Further, the hard-drive of his personal laptop was deleted and formatted before he sold the device in February 2026, which was before the allegations in the proceeding were raised with him. Finally, the only devices in his possession are devices that belong to his current employer, which came into his possession after he left the applicant (and self-evidently after the alleged downloads). The respondent submitted that, for those reasons, the devices which belong to his employer should not be the subject of any orders for inspection.

19    At the hearing, however, the respondent’s counsel indicated that the application was not opposed but requested that the orders for inspection be limited to two electronic devices, namely a mobile phone and laptop computer which belong to the respondent’s employer, being the only devices in the respondent’s possession. The respondent, through his counsel, said that the inspection of those two devices would show that there was “nothing to see”.

CONSIDERATION

20    There was no dispute as to the Court’s power under r 14.01 of the Rules to make orders for the inspection of property. The applicant relied on AEI Insurance Group Pty Ltd v Martin (No 2) [2023] FCA 277 at [24], where Thawley J outlined the applicable considerations as follows:

Whether an order should be made under r 14.01 depends, of course, on all of the relevant circumstances. Considerations which are often relevant include: whether the evidence demonstrates that the order is necessary or desirable; the utility of the order, including the likelihood that compliance will advance the resolution or determination of the proceedings; the extent of inspection to be allowed, having regard in particular to the interests of the defendant; and what measures can or should be adopted for the proper protection of the defendant's interests.

21    Similarly, there was no dispute regarding the principles applicable to the grant of interlocutory injunctions. In summary, the applicant must demonstrate that they have a prima facie case and that the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [65] – [72] (Gummow and Hayne JJ), [19] (Gleeson CJ and Crennan J). Whether the applicant has made out a prima facie case, and whether the balance of convenience and interests of justice favours the grant of an injunction, are related inquiries. The question of whether there is a serious question or a prima facie case should not be considered in isolation from the balance of convenience: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [67] (Dowsett, Foster and Yates JJ).

22    The respondent, as the CFO of the applicant, occupied a senior position within the applicant’s business. The downloads occurred during the course of the respondent’s employment using his personal laptop, although the respondent explained that he used his personal laptop when he was travelling for work. Nevertheless, there was no reasonable explanation proffered for downloading what objectively constitutes an extraordinary number of documents, and indeed the respondent does not deny that he had possession of confidential information belonging to the applicant. Nor did the respondent proffer any explanation for downloading information regarding employment contracts, beyond a suggestion that this may have occurred through automatic synchronisation. He also did not deny or seek to explain the contact he had with senior Cremer employees from February to September 2025 during his employment with the applicant.

23    It is also material that, prior to the commencement of the proceeding, the applicant sought a sworn statutory declaration from the respondent addressing what confidential information had been downloaded to his personal laptop, and how the confidential information had been used including whether it had been disclosed to third parties. The applicant also sought signed undertakings that the respondent would refrain from using or disclosing the MIAUS Confidential Information. On 3 July 2026, the respondent said in an email: “I confirm and undertake… not to use or disclose any MIAUS confidential information” and asserted that, to the best of his knowledge, he had never disclosed the confidential information. He did not, however, provide the signed undertaking or a sworn statutory declaration as requested.

24    In my assessment, the applicant has demonstrated a prima facie case regarding the use or disclosure of confidential information belonging to the applicant, including because the respondent failed to return such information downloaded to his personal laptop. I accept the applicant’s submission that the coincidence between the download of information regarding the applicant’s employment contracts, the respondent’s unexplained contact with senior Cremer employees and the mass exodus of the applicant’s steel traders, some of whom have gone to Cremer, provides a reasonable basis to infer a risk of use or disclosure of confidential information belonging to the applicant.

25    I am satisfied that the balance of convenience and interests of justice favour making an order restraining the respondent from using or disclosing the MIAUS Confidential Information. The order protects the applicant against any potential further harm to its interests from unauthorised use or disclosure of its confidential information, and the respondent ultimately did not oppose the order.

26    I am also satisfied that there is utility in making the inspection orders sought by the applicant because this course has the potential to narrow the issues in the proceeding if the inspection orders reveal that the confidential information has not been copied on to the devices in the respondent’s custody, power or control, as he contends. The imaging process will be undertaken by an IT expert, who will seek to preserve the integrity of the data on the electronic devices pending the final determination of the proceeding. The process will not involve unrestricted access to the data on the device, and will instead involve the use of targeted search parameters seeking to capture relevant information. Although the orders will no doubt cause some inconvenience, the applicant’s IT expert will have the devices for a relatively brief period of time.

27    The applicant also sought disclosure orders requiring the respondent to make discovery of any documents containing or referring to the MIAUS Confidential Information and to file an affidavit identifying any use or disclosure of the MIAUS Confidential Information to third parties. The respondent did not oppose these orders, and they are appropriate given the applicant has established a prima facie case and the orders will assist the applicant to understand the extent of any misuse of its confidential information.

28    Taking all of those matters into account and on the basis of the evidence, in my assessment it was appropriate to grant the inspection orders, injunctive orders and disclosure orders sought by the applicant.

conclusion

29    For those reasons, I made orders substantially in the form sought by the applicant.

Associate:

Dated:    2 September 2026