FEDERAL COURT OF AUSTRALIA

Australian Property Scout Pty Ltd v Titus [2026] FCA 1610

ORDERS

UPON THE UNDERTAKINGS TO THE COURT PROVIDED BY THE RESPONDENTS AS SET OUT IN ANNEXURE A, THE COURT ORDERS THAT:

1.    Within 28 days of the date of this order, the applicant is to engage an independent forensic examiner (“Examiner”) to be agreed between the parties or failing agreement appointed by the Court, in accordance with a protocol to be agreed between the parties or settled by the Court with the applicants to solely bear the costs of the Examiner.

2.    The Examiner is to be engaged for the purposes of taking the following steps in relation to any material obtained by reason of the forensic examination of the respondents’ devices pursuant to the Deed of Settlement:

(a)    search for any copy, extract or version of either Client List, including by filename, file hash, attachment identifier and known email event;

(b)    if responsive material is identified, report:

(i)    the location or file path on the device at which that copy or version was identified; and

(ii)    the metadata associated with that copy, extract or version; and

(c)    preserve any responsive artefact pending agreement or further order, without disclosing its substantive content to the Applicants unless the parties agree or the Court orders otherwise.

3.    Subject to Orders 5 and 6, pursuant to ss 37AF and 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), the content of the affidavit of Cody Morrow sworn 15 October 2026 and marked “Confidential”, and its annexures including but not limited to client lists annexed as CJM-47 to that affidavit, starting at pages 7 and 36 (“Client Lists”); the affidavit of Georgia Murray affirmed 15 October 2026 and marked “Confidential”, and its annexures; and any document which reproduces, or discloses the contents of, any part of the material included in those affidavits, but excluding any unredacted information or documents that are part of the affidavits of Cody Morrow sworn 13 October 2026 or the affidavit of Georgia Murray affirmed 14 October 2026 (“Confidential Material”) be kept confidential and not be provided or disclosed to any person until further order of the Court or with the written consent of the Applicants, other than:

(a)    names of any contact in the Client Lists in the Confidential Material (but not the contact information) may be shown to the First and/or Second Respondent at the offices of the Respondents’ solicitors for the purpose of obtaining instructions provided that the First or Second Respondent:

(i)    must not be provided a copy of the names of any contact in the Client Lists;

(ii)    must not make a copy of names of any contact in the Client Lists;

(iii)    must not reproduce any names of any contact in the Client Lists by making notes or otherwise;

(b)    to a solicitor or barrister acting for the Respondents or an expert retained for the purpose of this proceeding but only after such a person has signed an undertaking in the form of Annexure B.

4.    Nothing in these orders prevents a party from referring to the Confidential Material in evidence or in argument, but a party proposing to read or refer to its contents in open court must give not less than one business day’s notice to the other parties so that any application seeking to close the Court, or for any another order, may be made.

5.    By 4.00pm on 3 November 2026, the applicants are to file and serve a version of each of the affidavit of Cody James Morrow filed 13 October 2026 and the affidavit of Georgia Amelia Murray filed 14 October 2026 so as to remove any redactions covering the standard terms of the agency agreements exhibited to each of those affidavits and appearing at:

(a)    in relation to the affidavit of Cody James Morrow, exhibit CJM-7; and

(b)    in relation to the affidavit of Georgia Amelia Murray, exhibits GAM-2, GAM-6, GAM-8, GAM-10, GAM-15, GAM-19, GAM-21, GAM-22, GAM-23, GAM-24, GAM-27, GAM-34, GAM-36, GAM-38, GAM-41, GAM-42, GAM-49 and GAM-52.

6.    Order 5 does not require the removal of any redactions covering the contact information, address, property details, budgets, investment plans, or fee amounts of any party to the agency agreements referred to in Order 5.

7.    Costs reserved.

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

ANNEXURE A – UNDERTAKINGS BY THE RESPONDENTS

Without admissions, and upon the applicants by their counsel giving the usual undertaking as to damages in respect of undertakings 1 to 4 below, each Respondent provides the following undertakings to the Court:

1.    Until the conclusion of this Proceeding, or further order, the Respondents will not, whether by themselves, their servants, agents or otherwise howsoever, use, disclose, publish or reproduce the Client Lists (as defined in paragraph 9 of the Concise Statement filed in these proceedings), any copy or part of them, and any record or compilation into which the whole or any part of their contents has been transcribed, imported, exported or otherwise reproduced.

2.    Until the conclusion of this Proceeding, or further order, the Respondents will not delete, alter, overwrite or destroy any document or communication that contains or sends the Client Lists or any copy or part of them, or any record or compilation derived from them, and further will preserve all devices and accounts in their possession, power or control that contain any such document or communication or any accounts from which the business of the Third Respondent is, or has been, conducted, insofar as they concern any dealings with persons who the respondents are aware are clients or former clients of the First Applicant. For the avoidance of doubt, this undertaking will not prevent the respondents from using such devices and accounts in the ordinary course of business, provided that they do not delete or alter any communication that contains or sends the Client Lists or any copy or part of them, or that represents a dealing with persons or entities who the respondents are aware are clients or former clients of the First Applicant.

3.    Until the conclusion of this Proceeding, or further order, the Respondents will keep a record of all persons with whom they enter into an agreement to act as a buyer’s agent or otherwise to provide services, including the legal name of each such person and the fee or other consideration received from that person, including any cash, contra or other like payment or consideration.

4.    Until the conclusion of this Proceeding, or further order, the First and Third Respondents will not, whether by themselves, their servants, agents or otherwise knowingly induce any client of the First Applicant to breach an exclusive agency agreement with the First Applicant.

ANNEXURE B – CONFIDENTIALITY UNDERTAKINGS

Federal Court of Australia

District Registry: Queensland

Division: General

CONFIDENTIALITY UNDERTAKINGS

I, [name], [Solicitor/Barrister/expert], of [address], undertake to Australian Property Scout Pty Ltd (ACN 638 266 369), APS Group Payroll Pty Ltd (ACN 663 319 711) and Australian Property Scout Holdings Pty Ltd (ACN 663 223 425), (collectively, “Disclosing Parties”) and to the Federal Court of Australia, in relation to documents produced in proceeding QUD693/2026 (“Proceeding”) over which the Disclosing Parties claim confidentiality, being the Confidential Material defined in order 4 of the orders made on 27 October 2026, that:

1.    Subject to the terms of this Confidentiality Undertaking, I will keep the Confidential Material confidential at all times.

2.    I will not use the Confidential Material for any purpose other than for the purpose of this Proceeding.

3.    I will not make or permit the making of any copy of the Confidential Material, other than a copy reasonably required for the purposes of this Proceeding including for the purpose of providing a copy of the Confidential Material to a solicitor or barrister acting for the respondents or an expert retained by the respondents, providing that they signed an undertaking in terms substantially identical to this undertaking.

4.    I will comply with order 4 of the orders made on 27 October 2026 in respect of the circumstances in which the Respondents can be shown the names in the Client Lists in Confidential Material and I will not otherwise disclose the Confidential Material to the Respondents.

5.    I will keep a record of every copy of the Confidential Material made and of every person to whom it has been disclosed.

6.    Subject to paragraph 12, I will not disclose or discuss any Confidential Material or any part thereof to or with any person other than:

(a)    the Court;

(b)    the Disclosing Parties, their staff, consultants and legal advisors; and

(c)    any one or more of the following persons:

(i)    Johnsons Law Group, including any partner or employed solicitors, or law graduates or law clerks of the solicitors, providing that they signed an undertaking in terms substantially identical to this undertaking;

(ii)    Counsel briefed by the Respondents in the Proceeding, provided that each Counsel has signed an undertaking in terms substantially identical to this undertaking;

(iii)    any expert engaged by a party to the Proceeding providing that they signed an undertaking in terms substantially identical to this undertaking;

(iv)    any other person specifically approved in writing by the Court or the Disclosing Parties and who has signed an undertaking in terms substantially identical to this undertaking; and

(v)    a secretary, legal assistant or eDiscovery specialist employed by Johnsons Law Group solely to provide clerical or administrative assistance or database expertise to the persons listed in subparagraphs (i) to (iv) in relation to the Proceeding (together, “Authorised Persons”).

7.    If I disclose any Confidential Material to any Authorised Person, I will use my best endeavours to protect the confidentiality of the Confidential Material and ensure that the confidentiality is maintained.

8.    I will take reasonable steps to store the Confidential Material, and any documents or records created as a result of my access to them, so that persons other than Authorised Persons cannot obtain access. Without limiting the generality of this undertaking, references to documents, records or copies include information stored electronically.

9.    Within 28 days after the discontinuance, settlement or final determination of this Proceeding, I will ensure that all copies of the Confidential Material , and all documents created by me that refer to Confidential Material and remain in my possession or control, are returned to the solicitors for the Disclosing Parties or destroyed and I will certify in writing that the destruction of, every copy of the Confidential Material in my possession, custody or control, save for one copy which may be retained by that party’s solicitors on their file. For the purposes of this undertaking, this Proceeding is not finally determined until any appeal has been determined or the time for bringing an appeal has expired.

10.    The obligations of confidentiality imposed by this undertaking survive the destruction or delivery of the Confidential Material pursuant to paragraph 9 above.

11.    This undertaking does not extend to any Confidential Material, or any part thereof, where the document (or part thereof) or the information (or part thereof):

(a)    is already in the public domain, or comes into the public domain, other than by a breach of this undertaking or the breach of an obligation of confidence separately owed to me or the Disclosing Parties;

(b)    is in my lawful possession and not otherwise directly or indirectly subject to an obligation of confidentiality; or

(c)    is required to be disclosed by law (and then only to the extent that, and to the persons, required by law and in accordance with paragraph 12).

12.    If I am required by law to disclose any Confidential Material to a person other than an Authorised Person, I agree that before doing so I will, to the extent permitted by law:

(a)    notify Disclosing Parties or their legal representatives; and

(b)    notify the third person that the information is confidential information of the Disclosing Parties the subject of this undertaking and must be kept confidential.

13.    I will promptly notify the Disclosing Parties of, and will take all reasonable steps to prevent or stop, any breach of confidentiality in relation to the Confidential Material.

14.    Subject to paragraph 13, if any Confidential Material is to be referred to or otherwise used in the Proceeding, I will give the Disclosing Parties not less than one business days’ notice and take all reasonable steps within my power to ensure that the Confidential Material is not:

(a)    disclosed or referred to openly in Court, or

(b)    annexed to, reproduced in, excerpted or précised in, or referred to in, any court document (together, “used”); and

(c)    are only used as part of a confidential exhibit or annexure, or in a confidential section of a report, statement or submission in the Proceeding.

15.    I understand that nothing in this undertaking restricts my ability to refer to the existence of a Confidential Material, provided that doing so does not disclose any Confidential Material. However, where I propose to read or refer to the content of any Confidential Material in open Court I will give no less than one business days’ notice to the Disclosing Parties so that any application to close the Court, or seek another order, may be made.

REASONS FOR JUDGMENT

SNADEN J:

1    Collectively, the applicants own and operate a buyers’ agency business known as Australian Property Scouts. The first and second respondents, Mr and Mrs Titus, were once employed within that business. They now operate a much smaller business that operates in the same buyers’ agency landscape, namely the third respondent. It is convenient to refer to the applicants collectively (though singularly) as “APS”.

2    By an amended originating application dated 20 October 2026, APS moves for various forms of relief directed to protecting what it claims has been (and continues to be) a misuse by the respondents of its confidential information. Allied to those claims is an application for urgent interlocutory injunctive relief, which is the issue to which these reasons are directed. That application was the subject of consent orders made on Friday, 16 October 2026, by which, subject to undertakings provided by the respondents, the parties generously reserved for themselves a further hearing to take place during the week of 26 October 2026. That delay accommodated equally generous provision for the preparation of additional affidavit material and for the exchange of helpful written submissions.

3    It was that “urgent” hearing that was scheduled to take place on Tuesday, 27 October 2026. It—and the not insignificant volume of evidence and submissions that accompanied it—was to come before me as the court’s region two general duty judge for that week. Late in the evening of Monday, 26 October 2026, the parties advised my chambers that they had resolved their interlocutory dispute and asked that the court make orders consistent with that resolution. They were told that the court would do so and the hearing was vacated.

4    Because the orders to which the parties consent contemplate a form of relief under pt VAA of the Federal Court of Australia Act 1976 (Cth) (the “FC Act”), it is appropriate to publish reasons explaining why I am persuaded that it is appropriate to make them. Orders of that nature are often proposed by consent. Given the importance of the public interest in open justice, I consider that I should not indulge the parties’ consent without some recorded justification, which is to be found in the brief reasons that follow.

5    On 16 October 2026, a different duty judge made orders under s 37AI of the FC Act, which temporarily prevented the provision or disclosure of certain of the affidavit material upon which APS moved for interlocutory relief. Those restrictions were expressed to apply until 5.00pm today. APS now seeks ongoing orders under s 37AF of the FC Act.

6    That relief (both in its existing, provisional form and the form that APS now seeks on a more permanent basis) concerns two affidavits, namely an affidavit sworn by Cody James Morrow on 15 October 2026 and an affidavit sworn by Georgia Amelia Murray also on 15 October 2026. Variously exhibited to those affidavits are copies of lists of APS clients and other of its customer relationship management system records, each of which was to assume some significance to APS’s claim for interlocutory injunctive relief.

7    There is no question that the court should make the orders under pt VAA of the FC Act that the parties propose. It should do so because it is necessary in order to prevent prejudice to the proper administration of justice. That prejudice inheres in the prospect that applicants such as APS might have to think twice about commencing an action to vindicate their rights if there is some prospect that doing so will require that they make public what they would otherwise and legitimately wish to keep confidential. That “chilling” effect has long been recognised as a form of prejudice to the proper administration of justice: see generally Australian Securities and Investments Commission v eToro AUS Capital Limited [2025] FCA 100, [16] (Stellios J) and the authorities to which his Honour there refers. In order to prevent that prejudice, it is necessary for the court to grant relief under s 37AF and I shall do so notwithstanding the important public interest in open justice, which I acknowledge and take into account, as s 37AE of the FC Act requires.

8    The orders proposed also contained “timetabling” orders. Those can be reserved for consideration by the docket judge to whom the matter is allocated. I will otherwise make the orders that the parties propose.

Associate:

Dated:    27 October 2026