Secure Logic Pty Limited v Paul William Noble (No. 3) [2021] NSWSC 675

Supreme Court New South Wales

Medium Neutral Citation: Secure Logic Pty Limited v Paul William Noble (No. 3) [2021] NSWSC 675 Hearing dates: 29, 30, 31 July 2019, 1, 2, 5, 6, 7, 8, 9, 12, 13, 14 & 19 August 2019 and 15 November 2019 Date of orders: 11 June 2021 Decision date: 11 June 2021 Jurisdiction: Equity Before: Slattery J Decision: Parties directed to bring in short minutes of order to give effect to these reasons. Catchwords: CONFIDENTIAL INFORMATION – the plaintiffs are members of a group of companies providing information security services to the IT industry – the plaintiffs claim the first and third defendants each diverted and misused the plaintiffs' confidential information – the plaintiffs seek a permanent injunction to restrain further misuse – whether the information was confidential – whether the information was misused – whether a permanent injunction should be granted against the first and third defendants in the absence of the plaintiffs seeking relief against other persons to prevent the misuse of the plaintiffs' confidential information obtained through the first and third defendants. PRACTICE AND PROCEDURE – judgments and orders – the plaintiffs' confidential information is transferred to the first defendant's personal laptop and associated hard drive – the Court considers making orders for the production of the personal laptop and hard drive – first defendant destroys the personal laptop and hard drive before the orders are perfected and notified to him – what did the first defendant know of the Court's prospective orders of the time that he destroyed the personal laptop and hard drive – whether the first defendant's conduct was designed to frustrate the making of future Court orders for production of the personal laptop and hard drive – what inferences should be drawn about the information on the personal laptop and hard drive at the time he destroyed the hard drive. CONTRACTS – Construction – employment contract made between the third plaintiff and the first defendant – whether the employment contract is wholly in writing – whether the full terms of a written contract bind the first defendant and the second plaintiff, a subsidiary of the first plaintiff, or whether only certain numbers recorded in the written form of contract were binding between them – whether the first defendant is entitled to a non-discretionary allowance under the employment contract. CONSUMER LAW – MISLEADING AND DECEPTIVE CONDUCT – whether the plaintiffs/cross-defendants made representations as to the financial benefits the first defendant/cross-claimant would be likely to derive from taking employment with the plaintiffs' group – whether the representations were made – whether they were representations as to future matters – whether they were misleading or deceptive – whether the first defendant/cross-claimant relied upon the representations and whether he suffered any loss or damage as a result. EVIDENCE – Admission – Improperly obtained evidence – whether employer contravened Workplace Surveillance Act 2005, s 19 by authorising covert surveillance of employee's work and personal laptops – whether evidence gathered by employer from employee's laptops was illegally obtained under Evidence Act 1995, s 138 – whether such evidence is now inadmissible – whether employer's conduct also contravened Criminal Code Act 1995 (Cth), s 478.1 for unauthorised access of restricted data. Legislation Cited: Workplace Surveillance Act 2005, Part 4, Division 2, ss 3, 5, 10, 12, 16, 19, 23 Evidence Act 1995, ss 138, 138(1), 138(3), 140(2) Criminal Code Act 1995 (Cth), s 478.1(1) Crimes Act 1900, s 308H Cases Cited: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 Blank v Commissioner of Taxation (2016) 258 CLR 439 Briginshaw v Briginshaw (1938) 60 CLR 336 Campbell v Back-Office Investments Pty Ltd (2009) 238 CLR 304 Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 Doherty v Allman & Dowden (1878) 3 App Cas 709 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd & Ors (1992) 110 ALR 449 Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181 Marks v GIO Australia Holdings Ltd (1998) 196 CLR 494 Moorgate Tobacco Co Ltd v Philip Morris (No. 2) (1984) 156 CLR 414 Neilson v Overseas Projects Corp (Vic) Ltd (2005) 223 CLR 331 Orleans Investments Pty Ltd v Mindshare Communications Ltd (2009) 254 ALR 81 Palmer v Dolman; Dolman v Palmer [2005] NSWCA 361 Robinson v Woolworths Ltd (2005) 227 ALR 353 Roderick v Washington H Soul Pattison and Company Limited (No 2) [2020] NSWSC 1224 Secure Logic Pty Limited v Paul William Noble [2019] NSWSC 991 Silverbrook Research Pty Limited v Lindley [2010] NSWCA 357 Weatherill v Bartlett [2017] NSWCA 1754 Category: Principal judgment Parties: First Plaintiff/Cross-Defendant: Secure Logic Pty Limited (ACN 154 505 030) Second Plaintiff/ Cross-Defendant: Secure Logic Technologies Pty Ltd Third Plaintiff/ Cross-Defendant: Secure Logic Pte Ltd Fourth Plaintiff/ Cross-Defendant: Plush Hosting Pty Ltd First Defendant/Cross-Claimant: Paul William Noble Second Defendant/Cross-Claimant: Peach Tree Bay Pty Limited (ACN 132 097 647) Third Defendant/Cross-Claimant: John Russell Pankhurst Representation: Counsel: Plaintiffs: M.R. Elliott SC; S. J. Hallahan First & Second Defendants: B. DeBuse