Landmark Underwriting Agency Pty Ltd v Kilborn [2006] NSWSC 1108

New South Wales Supreme Court

CITATION : Landmark Underwriting Agency Pty Ltd v Kilborn [2006] NSWSC 1108

HEARING DATE(S) : 11, 12 September 2006

JUDGMENT DATE : 23 October 2006

JURISDICTION : Equity Division

JUDGMENT OF : Young CJ in Eq

DECISION : Plaintiff is entitled to injunction to restrain defendants from involvement with other companies in the industry for four months. Set aside notice to produce relevant documents of legal advice because there was no waiver of privilege.

CATCHWORDS : CORPORATIONS [105]- Officers' duties- Whether breach of statutory duty by using confidential information for own purposes- Held "Yes", but duty no higher than general law- However consequences flow from finding- Corporations Act, 2001 (Cth) ss 182, 183, 1317E. EQUITY [34]- Fiduciary obligations- Employees- Covenant to be loyal and keep confidences- Employees taking steps whilst still employed, but outside work hours to initiate new rival business to commence when employment terminated- Use of some of employer's information to do so- Employer traded with brokers- Employees intended to trade with brokers' customers directly- Whether employees' business competing. EVIDENCE [75]- Professional legal privilege- Legal advice referred to in employees' business plan- As supporting plan- Plan annexed to affidavit- Production sought of documents recording that advice- Whether waiver of privilege- Disclosure of "substance" of advice or merely the effect of advice- Borderline case- Held privilege not waived- Evidence Act 1995, s 122(2). INTELLECTUAL PROPERTY [112]- Confidential information- Employer, insurance underwriter of agricultural insurance, holding information as to weather conditions and claims details- Information held confidential. WORDS & PHRASES- "Client"- Who is client A or B where A submits insurance proposal through B a broker- Held, in circumstances, B is client.