Ecolab Pty Ltd v Klen International Pty Ltd [2007] FCA 1376

FEDERAL COURT OF AUSTRALIA

Ecolab Pty Ltd v Klen International Pty Ltd [2007] FCA 1376

PRACTICE AND PROCEDURE – interim injunction – employment contract – copying of confidential information onto CD‑ROMs by employee – employee resigning to join competitor – injunction to restrain disclosure of confidential information and solicitation of former customers – whether evidence supports serious question to be tried – injunction granted Corporations Act 2001 (Cth) s 183 Community and Public Sector Union v Commonwealth of Australia (2006) 157 IR 470 Dalgety Wine Estates Pty Ltd v Rizzon (1979) 141 CLR 552 Doherty v Allman [1878] 3 App Cas 709 Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 Australian Administration Services Pty Ltd v Korchinski [2007] FCA 12 Barrett v Ecco Personnel Pty Limited[1998] NSWSC 545 ECOLAB PTY LTD (ACN 000 449 990) v KLEN INTERNATIONAL PTY LTD (ACN 009 067 556), KLEN INTERNATIONAL (74) PTY LTD (ACN 008 776 681) AND CRAIG ALLAN COLTON WAD 130 OF 2007

SIOPIS J

17 AUGUST 2007

PERTH IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 130 OF 2007

BETWEEN: ECOLAB PTY LTD (ACN 000 449 990)

Applicant

AND: KLEN INTERNATIONAL PTY LTD (ACN 009 067 556)

First Respondent

KLEN INTERNATIONAL (74) PTY LTD (ACN 008 776 681)

Second Respondent

CRAIG ALLAN COLTON

Third Respondent

JUDGE: SIOPIS J

DATE OF ORDER: 17 AUGUST 2007

WHERE MADE: PERTH

Upon the applicant undertaking to submit to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation thereof), and to pay the compensation referred to above to the person there referred to, THE COURT ORDERS THAT: 1 The third respondent be restrained until further order from divulging or making use of any of the following items of information of the applicant acquired during the third respondent's employment with the applicant: (a) information in respect of the applicant's dry lubrication technology for use in bottling and canning factories; (b) details of the applicant's site specific tailored management and development program known as the Q Program; (c) the applicant's sales budget, gross profit ratios and price lists; (d) details in respect of the Passivation of 304 or 316 Stainless Steel Surfaces using Super Stonekleen or Citri-CIP; (e) details of the dealings between the applicant's employees and the applicant's customers and prospective customers; (f) strategy, commercial business information and tactical plans about the conduct of the applicant's operations and future sales; and (g) information as to the operation of Challenge Dairy Co-operative Ltd ("Challenge") (including any defects, shortcomings or possible improvements) identified during the audit of the operations of Challenge during February 2007 and information as to the applicant's pricing of products to Challenge ("the Confidential Information"); unless such information is or becomes public knowledge other than by direct or indirect disclosure by the third respondent. 2 The first respondent and the second respondent be restrained until further order from, whether by themselves, their servants or agents or howsoever otherwise using or divulging the information disclosed by the third respondent to Mr R McGuire regarding the potential improvements to storage and handling operations at Challenge, unless such information is or becomes public knowledge other than by direct or indirect disclosure by the third respondent. 3 The third respondent be restrained until further order from soliciting or assisting in soliciting on his own account, or for any other person, including the first respondent or second respondent or any associated entity, the custom of any person within Western Australia who was a customer of the applicant, or of whom he gained any knowledge, at any time during the period of the third respondent's employment with the applicant. 4 The first respondent and the second respondent be restrained, whether by themselves, their servants or agents or howsoever otherwise until further order from: (a) inducing the third respondent to solicit or assist in soliciting on his own account, or for any other person, including the first respondent or second respondent or any associated entity, the custom of any person within Western Australia who was a customer of the applicant, or of whom he gained any knowledge, at any time during the period of the third respondent's employment with the applicant; (b) inducing the third respondent to disclose or use for the benefit of any person, including the first respondent or second respondent or any associated entity, the Confidential Information. 5 The costs of the application for interlocutory relief be reserved. 6 There be liberty to apply on 48 hours notice.