Broadband Solutions Pty Ltd v Ramirez [2024] FCA 1009

Federal Court of Australia

Broadband Solutions Pty Ltd v Ramirez [2024] FCA 1009 File number(s): NSD 1164 of 2024

Judgment of: THAWLEY J

Date of judgment: 30 August 2024

Catchwords: CORPORATIONS – application for interlocutory relief – employment contract – restraint and confidentiality clauses – alleged breaches of contract – prima facie case established – balance of convenience favours granting of injunction

Legislation: Corporations Act 2001 (Cth) s 183

Cases cited: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; 227 CLR 57 Bullock v Federated Furnishing Trades Society of Australasia (No 1) [1985] FCA 258; 5 FCR 464 GlaxoSmithKline Australia Pty Ltd v Reckitt Benckiser Healthcare (UK) Ltd [2013] FCAFC 102; 305 ALR 363 Samsung Electronics Co v Apple Inc [2011] FCAFC 156; 217 FCR 238 Warner-Lambert Co LLC v Apotex Pty Ltd [2014] FCAFC 59; 106 IPR 218

Division: Fair Work Division

Registry: New South Wales

National Practice Area: Employment and Industrial Relations

Number of paragraphs: 39

Date of hearing: 30 August 2024

Counsel for the Applicant: Mr D Ratnam

Solicitor for the Applicant: Memcorp Law

Counsel for the Respondent: There was no appearance from the Respondent

ORDERS NSD 1164 of 2024

BETWEEN: BROADBAND SOLUTIONS PTY LTD (ACN 114 405 248) Applicant

AND: ANDRES JULIAN HERNANDEZ RAMIREZ Respondent

order made by: THAWLEY J DATE OF ORDER: 30 august 2024

THE COURT ORDERS THAT:

1. The respondent be restrained from using, accessing, disclosing, deleting or reproducing any: (a) Confidential Information belonging to the applicant; (b) Intellectual Property belonging to the applicant; and (c) documents, files or written materials, whether in hard copy or electronic form, in his possession, custody or control, concerning the business or financial affairs of the applicant, its clients, and employees, its trade secrets, information technology resources and protocols, customer lists, databases and interfaces operated by the applicant, system passwords to access any software, systems or encryptions used or operated or licensed by the applicant and any information obtained, accessed or acquired by the respondent from the applicant's records including its database for the applicant's Managed Services division during and after his employment with the applicant. 2. On and from 16 September 2024, the respondent be restrained for a period of six months and within the Geographic Area from, directly or indirectly, engaging, alone or jointly with or on behalf of anybody else in any capacity, carrying on, operating or being engaged, interested or employed in a business that competes with the division of the applicant in which the respondent worked during the last 12 months of his employment. 3. Reserve liberty to the respondent to apply in relation to Order 2 on 24 hours' notice with the intention that such liberty be exercised should the respondent wish to challenge Order 2 before that order comes into effect. 4. The respondent be restrained: (a) for the Restraint Period from, either directly or indirectly, approaching, soliciting or enticing away (or attempting to approach, solicit or entice away), any person or entity who was a client with whom the respondent, or personnel reporting to the respondent, had work-related dealings during the last 12 months of the respondent's employment; and (b) providing a service or services or products to any person or entity who was a client with whom the respondent dealt during the last 12 months of the respondent's employment, that are the same as or substantially similar to those provided by the applicant. 5. The respondent deliver up to the applicant all documents, files or written materials, whether in hard copy or electronic form, in his possession, custody or control, which: (a) were downloaded from, or otherwise accessed using, the applicant's database for the applicant's Managed Services division by the respondent during and/or after his employment with the applicant; and (b) contain information about the applicant's business or customers which the respondent acquired: (i) during or as incidental to his employment with the applicant; (ii) by reason of the respondent accessing the applicant's Broadband's database for the applicant's Managed Services division during and/or after his employment with the applicant. 6. That the respondent file and serve an affidavit by 4:00pm on 13 September 2024 identifying: (a) if he has used, accessed and/or otherwise disclosed to any person (individual or corporation) any of the matters referred to in Order 1(a) - (c); (b) if he has transferred to any storage device and/or person (individual or corporation) or deleted any of the matters referred to in Order 1(a) - (c); (c) the names of the individual(s) or corporation(s) that he has disclosed any of the matters referred to in Order 1(a) - (c), and in doing so disclose particulars of, (i) when and how he used, accessed or transferred any of the matters referred to in Orders (1) – (c) above; (ii) when and how (method) he disclosed to any party the matters referred to in Order 1(a) - (c) above; (iii) the date, time and means of every communication of any matter encompassed by Order 6(c); (iv) the identity and location of every electronic device on which any such information has ever been stored; and (v) where any such information is currently stored or kept in any form. 7. The words Confidential Information, Intellectual Property, Restraint Period and Geographic Area have the meanings set out in the Employment Agreement executed between Broadband Solutions Pty Ltd (ACN 114 405 248) and Andres Julian Hernandez Ramirez which appears at pages 8 to 22 of Exhibit MB-1 (Employment Agreement). 8. Unless the respondent applies for a different order as to costs on or before 4:00pm on 16 September 2024, the respondent pay the applicant's costs of this application for interlocutory relief. 9. These orders together with the three affidavits read in Court today be served on the respondent, by email, by 5:00pm today using the same email address set out in order 4(a)(i) of Cheeseman J's orders dated 23 August 2024. 10. These orders together with the three affidavits read in Court today be served personally at the respondent's residential address as soon as reasonably practicable but in any event by 5:00pm on 6 September 2024. 11. The reasons for decision on the application for interlocutory relief be served on the respondent by email as soon as reasonably practicable after those reasons become available in written form. 12. The Originating Application be stood over to the General Duty Judge at 10:00am on 16 September 2024. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.