Eltrak International and Staff Pty Ltd v Collins (No 2) [2023] FCA 1612

Federal Court of Australia

Eltrak International and Staff Pty Ltd v Collins (No 2) [2023] FCA 1612 File number: QUD 138 of 2021

Judgment of: THOMAS J

Date of judgment: 15 December 2023

Catchwords: PRACTICE AND PROCEDURE – where orders were made for the production of devices – where respondent deposes to providing all devices in possession – where there is conflicting evidence – witnesses cross-examined in interlocutory hearing – not sufficient doubt to make orders sought – application dismissed

Legislation: Federal Court of Australia Act 1976 (Cth)

Cases cited: Eltrak International and Staff Pty Ltd v Collins [2021] FCA 484 Wu v Avin Operations Pty Ltd (No 3) [2006] FCA 1321

Division: General Division

Registry: Queensland

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 105

Date of last submission/s: 24 March 2022

Date of hearing: 17 March 2022

Counsel for the Applicant: Mr A Denton

Solicitor for the Applicant: EMA Legal

Counsel for the Respondent: Mr G Sheahan

Solicitor for the Respondent: van de Graaff Lawyers

ORDERS QUD 138 of 2021

BETWEEN: ELTRAK INTERNATIONAL AND STAFF PTY LTD Applicant

AND: BRETT JOHN COLLINS Respondent

order made by: THOMAS J DATE OF ORDER: 15 DECEMBER 2023

THE COURT ORDERS THAT:

1. The interlocutory application filed on 14 October 2021 be dismissed. 2. Costs be reserved. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

THOMAS J: 1 Mr Brett Collins is a former employee of Eltrak International & Staff Pty. Ltd., which traded as Vater Hardware and conducted the business of Vater Corporation (Aust.) Pty. Limited (Eltrak). In their evidence, many of the parties use Eltrak and Vater interchangeably. 2 Eltrak claims that Mr Collins failed to return Eltrak's confidential information upon his departure from Eltrak. Mr Collins' last day working for Eltrak was on 23 March 2021 and he now provides consultancy work for a company called Oxworks. 3 A number of electronic devices and email addresses were relevant to the interlocutory hearing, as follows: (a) Mr Collins' wife's TPG email address; (b) Mr Collins' iCloud email address (iCloud1 email); (c) Mr Collins' other iCloud email address (iCloud2 email); (d) the first work mobile phone given to Mr Collins by Eltrak; (e) the replacement work mobile phone given to Mr Collins after the first work mobile phone was returned (the iPhone 6); (f) Mr Collins' personal mobile phone; (g) the HP computer given to Mr Collins by Eltrak (HP Laptop); (h) Mr Collins' wife's computer; (i) USB Device 1 – serial number 00000000000F5B; (j) USB Device 2 – serial number 070187F6E2CC7E16; and (k) USB Device 3 – serial number 00018131100420145744. 4 Evidence was led from Mr Mark Gare, who provided details of his qualifications, including that he holds a Bachelor of Applied Science in Computer Studies, a Master of Business Administration and a Certificate III in Investigative Services and a South Australian Investigation Agents License. 5 It is clear from the material that Mr Gare has a connection with Eltrak and has been involved with other similar matters in the past when he has advised Eltrak and protected its interests. Mr Gare is not an independent expert but more likely a witness as to fact. Unless admitted, his evidence regarding the operation of computer systems and access to files will likely, as the matter progresses, require analysis and opinion from an independent expert.