Supreme Court New South Wales Medium Neutral Citation: Skye Group Pty Ltd v Michael Doherty [2014] NSWSC 1486 Hearing dates: 27, 28 October 2014 Decision date: 28 October 2014 Jurisdiction: Equity Division - Duty List Before: Slattery Decision: See paragraphs [37] and [38]. Catchwords: PROCEDURE - interlocutory issues - plaintiff seeks injunction to restrain defendant, a former employee, from using confidential information and from breaching a restraint in a contract of employment - whether a serious question to be tried - whether the balance of convenience favours the grant of an injunction. Legislation Cited: Contracts Review Act 1980 (NSW) Cases Cited: Kolback Securities Ltd v Epoch Mining (1987) 8 NSWLR 533 Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 Category: Interlocutory applications Parties: Plaintiff: Skye Group Pty Ltd (ACN 066 197 037) Defendant: Michael Gerard Doherty Representation: Counsel: Plaintiff: R. Goot SC, S. Prince, M. Kloucek Defendant: T. Brennan Solicitors: Plaintiff: Jane Zylstra, Brand Boutique Lawyers Defendant: Steven Marc Penning, HWL Ebsworth File Number(s): 2014/303022 Publication restriction: No EX TEMPORE Judgment 1The defendant in these proceedings, Mr Michael Doherty, formerly worked for the plaintiff, Skye Group Pty Ltd (Skye). He separated from his employment on 7 October this year. He had worked for Skye since March 1996. 2Skye brings proceedings for interlocutory relief to restrain Mr Doherty from using confidential information that Skye alleges he acquired in the course of his employment and to restrain him from breaching certain restraint provisions in his alleged contract of employment. His new employer is a company Denstock Pty Ltd (Denstock). 3The matter commenced by way of summons which came before Rein J for leave for short service on 15 October and for hearing on 17 October. His Honour made orders on that occasion for the delivery up of certain confidential information by 20 October and for the non-disclosure of the plaintiff's confidential information by the defendant. These orders were made by consent on 17 October. The matter returned to the duty list yesterday because Skye contends that further relief is now warranted. The further relief it wants is contained in draft order 12 of the short minutes of order provided to the Court, which is the following: "12. Order that (without any derogation from the consent orders made on 17 October 2014), pending the interlocutory hearing or further order of the Court, the defendant will not directly or indirectly canvas, solicit, or compete for the custom of or exploit or engage in business with any of the following clients or suppliers of the Plaintiff: (i)Anaconda Unit Trust (ii)Super Retail Group Limited (iii)Myer Holdings Limited (iv)Parsons Logistik Pty Limited (v)Fire & Safely Solutions Pty Limited (vi)Stewart and Heaton Clothing Company Co. Pty Ltd (vii)The Walking Company (viii)Jolly Swagman (ix)Hoys Ski (x)Rays Ski Shop (xi)Auski" 4All the other orders and directions about which the parties have put submissions to the Court are now the subject either of agreement or orders. They are mainly procedural directions designed to prepare for an interlocutory hearing, which is planned to take place next Monday 3 November, or such time shortly thereafter as the Court is able to accommodate the parties. This will still only be an interlocutory hearing and whatever happens then, a case of this kind should be a candidate for going into the Expedition List for an early final hearing. 5The defendant, Mr Doherty, has responded in the course of argument by making an open offer of disclosure of certain information before the final hearing. This was done in the form of certain short minutes of order, which the defendant proffered to the plaintiff and to the Court to satisfy questions of the balance of convenience. Those orders were as follows: "1. The defendant will file and serve by 4pm on 29 October 2014 an Affidavit which describes any confidential information of the Plaintiff within the meaning of that term in the document which appears at pages 15 to 22 of the Affidavit of John Huxtable Zylstra sworn 15 October 2014 which is in his possession. 2. The Defendant will file and serve by 9am on 3 November 2014 an Affidavit in which he describes any meeting or communication that he has had as an employee of Denstock to that time with any of: (i)Anaconda Unit Trust; (ii)Super Retail Group Limited; (iii)Myer Holdings Limited; (iv)Parsons Logistik Pty Limited; (v)Fire and Safety Solutions Pty Limited; (vi)Stewart and Heaton Clothing Company Co Pty Limited; (vii)The Walking Company; (viii)Jolly Swagman; (ix)Hoy Skiing; (x)Ray's Ski Shop; (xi)Auski" 6These two short minutes define the different contentions of the parties. The Court is guided in the granting of interlocutory relief by the decision of the High Court in Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199. The Court must consider whether there is a serious question to be tried and whether the balance of convenience warrants the grant of an interlocutory injunction. What is sought is a present restraint, and the restraint if wholly or partly granted it is one that may have implications for the disposition of the matter at final hearing, the Court is mindful of the following comments made by McLelland J in Kolback Securities Ltd v Epoch Mining (1987) 8 NSWLR 533 to the effect that Court is entitled in such circumstances to take into account the prospect of success of the parties at final hearing when granting or refusing interlocutory relief: "As I see it, the position is as follows. Where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which theplaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled: see, eg, Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 at 216; A v Hayden (No 1) (1984) 59 ALJR 1 at 4-5; 56 ALR 73 at 79. Where the uncertainty depends in whole or in part on a contested question of fact it is not appropriate for theCourt to decide that question on the interlocutory application. Where the uncertainty depends in whole or in part on a contested question of law, it may or may not be appropriate for the Court to decide that question on the interlocutory application, depending on circumstances, eg, whether the question is novel or difficult, or is susceptible of resolution on the present state of the evidence, or whether the urgency of the matter renders it impracticable to give proper consideration to the question: see, eg, A v Hayden (No 1) (at 4; 78); Cohen v Peko-Wallsend (1986) 61 ALJR 57 at 59; 68 ALR 394 at 397. If the Court does decide the question of law the uncertainty is to that extent removed. Unless the plaintiff shows that there is at least a serious question to be tried which if resolved in its favour would entitle it to final relief, then the requirements of justice as between the parties will dictate that an interlocutory injunction should be refused: Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; 46 ALR 398; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283; 52 ALR 651; A v Hayden (No 1); Castlemaine-Tooheys Ltd v South Australia (1986) 60 ALJR 679; 67 ALR 553 and Cohen v Peko-Wallsend Ltd. Apart from this, although normally the Court "does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case" (Beecham Group Ltd v Bristol LaboratoriesPty Ltd (1968) 118 CLR 618 at 622), there are some kinds of case in which for the purpose of seeing where lies the balance of convenience (or more specifically"the balance of the risk of doing an injustice" - see per May LJ inCayne v Global Natural Resources plc [1984] 1 All ER 225 at 237, cf per Brennan J in Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1983) 57 ALJR 288 at 292; 46 ALR 279 at 285), it is desirable for the Court to evaluate the strength of the plaintiff's case for final relief: see, eg, Brayson Motors Pty Ltd v Federal Commissioner of Taxation (at 292; 285); Castlemaine-Tooheys Ltd v South Australia at 682; 559. One class of case to which this applies is where the decision to grant or refuse an interlocutory injunction will in a practical sense determine the substance of the matter in issue: see, eg, NWL Ltd v Woods [1979] 1 WLR 1294 at 1306-1307; [1979] 3All ER 614 at 625-626 per Lord Diplock; Cayne v Global Natural Resources plc. The present is such a case. The substantial matter in issue is whether Epoch should be permitted to proceed with the issue of non-renounceable rights in accordance with the announcement of 13 March 1987. That will be irrevocably determined in a practical sense by the grant or refusal of an interlocutory injunction." 7That is not to say the Court is predetermining matters that will be in issue at a final hearing, but the issues at final hearing are not irrelevant. The parties, to a large extent, approached the regarding a serious question to be tried issue on that basis. Quite extensive arguments were put from both sides of the bar table of a kind that would be heard at final hearing. 8Some more background is necessary. Background Facts 9Skye is a privately owned company which wholesales and retails what it describes as "branded apparel and footwear". The joint managing director of Skye, Mr John Huxtable Zylstra, has deposed to the recent history of the group, which is largely uncontested. He started the business in 1994 with his brothers, Phillip and David, when they purchased an existing clothing neck tie manufacturing company. At the time, Skye designed, manufactured and distributed outdoor swimwear, fitness wear and gym wear clothes. It is now an official distributor of "Columbia" and other sportswear brands. Skye owns retail stores in Australia and has sold footwear for some years. One of Skye's main competitors in the Australian market is a footwear vendor, Denstock, the company that now employs Mr Doherty. 10Mr Doherty commenced employment with Skye in 1996. On 1 August 2014 he was appointed the National Sales Manager - Swimwear for Skye. His sole responsibility was, according to Mr Zylstra, to work strategically to "select and sell to existing customers and new customers and managing ... existing programs across that division", that is, swimwear and outdoor wear. 11Recent events helped to define the nature of the contest between these parties. Mr Zylstra deposes to the fact - and Mr Doherty does not contest - that in July of this year a request was made for Mr Doherty and other top level managers to sign an agreement to protect the company because of some recent experiences the company had with another employee. The document was dated 17 July 2011. The defendant challenges whether the document is legally binding upon the plaintiff. But it may relevantly usefully be set out now: "Following a recent audit of our records, it has come to our attention that not all of our Managers have appropriate confidentiality and restraint agreements in place with us. Skye Group Pty Limited ('Skye') vests a great deal of trust in its Managers and exposes them to a significant amount of Confidential Information in the course of building skills and running Skye's Business. The fiduciary nature of your position at Skye requires you to respect Skye's confidential business information. However, to avoid any confusion, we'd like to set out what we consider to be your confidentiality obligations in writing. It has also become necessary for us, in keeping with market practices, to introduce a period of restraint and garden leave for senior management. In consideration of your employment by Skye and in particular your remuneration package, Skye would like you to acknowledge the terms and conditions upon which we employ our staff, as set out in this latter, and to acknowledge your acceptance of the terms and conditions by counter signing and returning a copy of this letter to us. 1.CONFIDENTIALITY 1.1 You acknowledge that the Confidential Information and affairs of Skye are the sole property of and confidential to Skye and remains the property of Skye after termination of expiration of employment with Skye. 1.2 You declare, undertake and agree that you will at all times during your employment with Skye and thereafter, faithfully and honestly keep secret the Confidential Information and will use your best endeavours to prevent the publication, disclosure, loss, theft or misuse of any such Confidential Information. ... 1.4 You agree to deliver to Skye upon termination of your employment with Skye, or at any other time Skye may request, all memoranda, notes, plans, records, documentation and other materials containing Confidential Information no matter where such material is located and no matter what form the material may be in, which you may then possess or have under your control. If requested by Skye, you will provide Skye with written confirmation that all such material s have been delivered to Skye. 1.5 Without limiting this clause 1, you will not at any time, without the prior written consent of Skye: (b)Directly or indirectly divulge to any person whomsoever or use any of the Confidential Information or affairs of Skye of which you may become aware, for your own or for another's benefit; (c)Directly or indirectly communicate with any member of the media, or disclose to same any information of any nature whatsoever relating to Skye or its clients or customers; (d)Accept any employment, appointment or position during the Restraint Period within the Restraint Area, which requires the use or disclosure by you directly or indirectly or any Confidential Information or affairs of Skye. ... RESTRAINT 2.1 You acknowedge that you have been placed in a nposition with Skye whereby you will have persona l contact and establish relationships with principals, agencies, suppliers, customers, clients and persons in the habit of dealing with Skye and that these contacts and relationships form part of the goodwill of Skye which is of great value to Skye. 2.2 You warrant and covenant that during your employment with Skye, you will not solicit or exploiut or enageg in business with, or prepare for soliciting or exploiting or engaging in business in the future, with principals, agencies, competitors, suppliers, customers or clients of Skye or persons otherwise who have dealt with or who are in the habit of dealing with Skye. 2.3 For the periods set out in item 1 of Annexure 1 from the date of the termination of your employment with Skye and within the areas set out in item 2 of Annexure 1, you must not either directly or indirectly as principal, agent, employee, contractor, officer or shareholder, in competition with Skye's business: (a)Without prior written consent of Skye, canvass, solicit or compete for the custom or or exploit or enagge in business with a person, firm or corporation who or which at any time during the 12 months preceding the termiantion of your emplopyment with Skye, was a customer or client of Skye or who purchased or supplied goods or services from or to Skye; (b)Without the written consent of Skye either directly or indirectly in any capacity carry on, be associated with, consult to, or be employed, engaged, or interested in or with a person, firm or corporation with competes Skye in connecton with Skye's business". ... 4.2 You agree that for a period commencing the date of this Agreement and ending one year after you cease to be employed by Skye, you will not directly or indirectly negotiate or deal, or form any business relationship whatsoever, with any person or company with whom Skye has a distribution relationship or agency agreement and that you will not attempt in any way to solciit any distribution rights or agency ararngements or have any other form of busienss dealing with any of Skye's principals, agents or business associates. Definitions and Interpretation ... 'Competing Business' means any business or commercial activity or transaction of whatsoever nature which is or is substantially similar to or competitive with Skye's Business. 'Confidential Information' means any information not generally known, regarding the current or future interests of Skye and its Related Corporations, acquired directly or indirectly by you as an employee of Skye including, but not limited to: products; services; designs; analyses; drawings; photographs; reports; computer software, including operating systems, object codes, source codes applications, program listings, flowcharts, manuals and documentation; data bases; business and operating plans; inventions and new developments and methods, whether patentable or unpatentable and whether or not reduced to practice; formulas; all copyrightable works; trade secrets; trade connections; clients or customers; prices; costs; suppliers; certifiers and certification processes; contractors; employees; principals; marketing; merchandising or financial and accounting details. 'Skye's Business' means the business of creating, producing, manufacturing, wholesaling, retailing, advertising and distributing branded apparel;" 12It was not long after the signing of this agreement that relationships between Mr Doherty and Skye appear to have soured, according to both sides. Mr Zylstra's version, which Mr Doherty does not so far seem to be strongly contesting, is that on 8 August 2014, Mr Zylstra met with Skye's New South Wales State Manager and other persons, and had a conversation with Mr Doherty to the following effect: "John Zylstra: Michael you will continue to manage all major customers for swimwear, including David Jones, Myer and Rebel and you and Dean will jointly be responsible for managing all independent customers nationwide in outdoor and swimwear. Rather than managing Super Retail Group and Anaconda, I would like you to focus on building the swimwear business in Europe. Michael Doherty: I will be happy to do whatever you think I need to do for the business." 13This change was then announced to the employees of the plaintiff, Skye. This appears, in the historical context, to have been unsatisfactory to Mr Doherty, who decided to resign from his employment with Denstock on 28 August, effective from 30 September. This resignation may have been independent of the restructuring of his job functions. But there is evidence that on the last date of his employment, 30 September, Mr Doherty said to Mr Zylstra words to the effect: "Michael Doherty: I'm not going to work for the next month as I have enough money and I think I'll then sell some investment properties in real estate and decide what to do in November". The Course of the proceedings 14These proceedings have been brought on very quickly, as such proceedings often are. The efficiency of the lawyers on both sides has produced, even in that short time, a great deal of material for the Court's consideration. This is an interlocutory judgment and it is neither necessary nor desirable for the Court further to analyse that material in this context. That would be done either at a further interlocutory hearing or at a final hearing, but there is certainly some evidence before me that prior to the termination of his employment, Mr Doherty had placed some sales orders for at least one customer of Skye, into what may be described as a personal drop box account apparently by means of using an iPad, which had been supplied to him in the course of his employment by Skye. The drop box account was not known to the employer. The other material before the Court shows that this drop box account had been used a number of times back in June of this year. There is then other evidence from late September of contact between Mr Doherty and some of the customers of the plaintiff. 15Skye only became aware that Mr Doherty was working for Denstock about 8 October. There were then some demands and responses between lawyers about Mr Doherty giving up confidential information, including the iPad, which the defendant used in the course of his employment. Eventually, as earlier indicated, proceedings were commenced and orders made on 17 October. 16The defendant, Mr Doherty, was faced with an urgent application yesterday in a situation where he did not have an adequate opportunity to put on evidence in relation to the balance of convenience. When the matter came on yesterday, I was concerned about that matter. It seemed to me that in face of the orders which have been sought, he should have an opportunity to put such evidence on. Very substantial efforts have now been made by him and his lawyers overnight to produce his affidavit of today's date which sets out his account of recent events, and explains the distinction between "apparel" and "footwear", a matter to which I will shortly come. 17It is not in issue in these proceedings that many of the customers Skye's proposed order 12 are the plaintiff's customers. They are also existing customers of Denstock, which is principally a vendor of footwear, rather than other forms of merchandise. 18With this background the Court considers the arguments of both parties under the two major headings that are required: a serious question to be tried and balance of convenience. Serious Question to Be Tried 19In relation to the issue of whether there is a serious question to be tried Skye says that there is evidence that Mr Doherty used its confidential information both before and after the end of his employment with Skye. The evidence in my view, sufficiently establishes that there is a serious question to be tried, that Mr Doherty used Skye's confidential information and is in breach of the restraints of his employment contract as is alleged. 20The arguments concerning the issue of whether there is a serious question to be tried turn on aspects of the 17 July 2011 document. They may be analysed under the four sub-issues under which they were argued: (1) whether the 17 July 2011 document is an alleged contract that is not supported by consideration; (2) whether upon its proper construction the restraint in clause 2.3 of the document, when read with the definition of "Skye's Business", is a restraint upon the supply of clothing rather than footwear, and does not therefore operate as a restraint against any of the defendant's current activities selling footwear for Denstock; (3) that the document is one which may be set aside under the Contracts Review Act; (4) whether the document, even if it is a contract, is a contract that has been repudiated, and in accordance with accepted contractual principles, future obligations under that contract are dissolved, including any obligation to observe the strictures of any restraint on Mr Doherty's future employment. 21I will deal with each of these in turn. The parties should not take these observations as factual findings or conclusions of law binding upon the parties as at a final hearing. But they are merely in the nature of elucidation of the facts alleged and the issues that will be in play at a final hearing. 22As to sub-issue (1), although the defendant contends that the 17 July 2011 document is one not supported by consideration, there is a serious question to be tried as to whether it is. And it is certainly arguable, with some force by the plaintiff, that the continuing provision and acceptance of employment on the terms expressed on page one of the 17 July 2011 document is arguably sufficient consideration. Not least of the arguments which may be deployed for Skye is that the defendant had the opportunity to receive confidential information relating to the client Columbia after the signing the 17 July 2011 document. 23As to sub-issue (2) the question of apparel, the parties have dazzled the Court with an illuminating array of meanings for the word "apparel". Mr Goot contends that in this contract apparel means both clothing and footwear. Mr Brennan said that, as he says his client thought at the time, that the word only covered clothing and not footwear, and is why he went to work for a footwear company, so he would not be caught by any past restraint. 24The parties' industry in coming up with etymology, interpretations, the application of tariff laws, the wording of trademark applications, and the usage by the parties themselves in their own affidavits, sufficiently illustrates that there is fertile ground for contest on this issue. 25One interesting consideration is that a Court at a final hearing will have to determine just what these parties did mean by that restraint, if it is a valid one, in a context where the plaintiff had been selling both clothing and footwear for a number of years. But that is not a matter to be decided now. 26As to sub-issue (3), Mr Doherty's contention on the Contracts Review Act point is not sufficiently strong at an interlocutory hearing to show that there is not an arguable case for the plaintiff, and I will not consider it further. 27Finally, as to sub-issue (4) on the question of repudiation, Skye is able to say with some force that this point is at least arguable on the basis that on one view, the conversation restructuring Mr Doherty's job on 11 August, did not take place in terms that cry out as a repudiation of the existing contract. Nor is it one that seems to have been treated immediately that way by the defendant, who was content to call it a restructuring. But these are merely observations and not findings, as I have said. 28In my view there is a serious question to be tried. Balance of Convenience 29I now turn to the issue of the balance of convenience. Consideration of that falls under three headings. There is the contest as to: (1) whether there has been any change since Rein J's order on 17 October; (2) whether there has been serious impact on the third party Denstock; and (3) whether there has been serious impact on Mr Doherty himself. 30The Court's conclusion on the first of these three matters may be shortly stated. The plaintiff has made two kinds of discovery, it says, since Rein J's orders on 17 October. One further discovery is that of a letter to potential employers before Mr Doherty ended his employment with Skye. If one can accept Mr Brennan's persuasive submissions on the issue, this letter may merely have been one exploring other possible forms of employment, which any employee is entitled to pursue at any time during the course of employment, without disclosure to an employer. But Skye contends that it has also discovered the drop box account. It is accepted that Skye did not know about this before 17 October. And depending on further facts coming to light about the operation of the drop box, it may base the inference of misuse of Skye's confidential information before the ending of Mr Doherty's employment. Certainly it is a new fact, in my view, which enables the Court to reconsider the nature of the interlocutory relief granted on 17 October. 31The questions of impact on Denstock and the impact on Mr Doherty are related. I will consider them together briefly. It is clear that Denstock does, to a considerable extent, depend upon Mr Doherty in Victoria, but it is not clear that Denstock does not have other customers that Mr Doherty cannot deal with, if a restraint on the 10 customers, the subject of order 12, is granted. It is not clear on the evidence that Denstock cannot make some other arrangements to service these 10 Denstock customers, although there is evidence that there will be difficulties. 32I balance that against the fact that the restraint is currently sought until 3 November when the next hearing will take place - not a particularly long period in itself. Of course the counter argument is that Skye will not suffer much damage in that period either, and Mr Brennan has bolstered that by his client's offer of a degree of transparency over what will occur during that period and in the wider past. 33The impact on Mr Doherty himself is, to a significant extent, to be judged by the nature of the contract he signed which made him a probationary employee who could be terminated as an employee on terms that are more uncertain for him than for a non-probationary employee, such as he was with Skye; a situation to a large extent of his own making. 34It is not clear that his employment with Denstock will be terminated if an injunction is granted. Indeed, there is a clause in his agreement which makes it clear that his employer can only give him lawful directions. And it seems to me there would be some legal and practical restraint upon an employer dealing with him adversely under that contract simply because he is the subject of the proposed order of the Court. Orders 35Balancing all those matters, as I must, in my view this is a matter in which I should make the orders which are sought, which will be made until 5.00 pm on 3 November 2014. I will reserve costs. 36Accordingly I make the following orders: 1Leave is granted to the Plaintiff to file and serve an Amended Summons in the form served on the defendant on 24 October 2014. 2The defendant to produce to the Court all items and documents pursuant to the Notice to Produce issued to the defendant on 24 October 2014 as amended on 28 October 2014 (the Amended Notice to Produce), no later than 4 pm, 28 October 2014, provided that the ipad and the mobile phone rerferredf to in paragraphs 1 and 5 respectively of the Notice to Produce will be given to a carrier no later than 4pm 28 October 2014, for delivery to Michael Green. 3Access to the material produced in accordance with order 2 above is granted to the Plaintiff save that, the material produced pursuant to items numbered 1, 5 and 9 of the Amended Notice to Produce, is to be produced to Michael Green of Counsel (13 St James Hall Chambers) who is to inspect the items and provide to the Plaintiff's and the Defendant's counsel (who, subject to agreement by the parties or further order of the Court, are not to disclose to or inform any officer of the plaintiff and shall otherwise keep that information confidential), any data relating to: a.Any communication between 1 August 2014 and 28 October 2014, between between the defendant and: i.0404420034, ii.0299826021, iii.1800355291, iv.any email at an address including the domain denstock.com.au; or v.dohert1@me.com; b.The Plaintiff's business including but not limited to customers listed in item 12 of these Short Minutes of Order; and/or products or brands listed in item 8 of the Amended Notice to Produce. 4The plaintiff have leave to issue the Subpoena to Produce to Telstra Corporation filed in Court on 28 October 2014 which is to be returnable before the Registrar on 31 October 2014. 5The plaintiff to file and serve evidence upon which it relies by 4 pm, on 27 October 2014. 6The plaintiff to file and serve any expert evidence upon which it relies no later than noon, Thursday 30 October 2014. 7The defendant to file and serve lay affidavit evidence upon which he seeks to rely at the interlocutory hearing, by no later than 30 October 2014. 8The defendant to file and serve its expert report no later than 4pm on 31 October 2014. 9Adjourn the matter to the Duty Judge in Equity on 3 November 2014 at 10 am for hearing of the plaintiff's interlocutory application for relief. 10Costs to be reserved. 11Liberty to apply on short notice. 12Order that (without any derogation from the consent orders made on 17 October 2014), pending the interlocutory hearing or further order of the Court, the defendant: will not directly or indirectly canvas, solicit, or compete for the custom of or exploit or engage in business with any of the following clients or suppliers of the Plaintiff: (I) Anaconda Unit Trust (ii) Super Retail Group Limited (iii) Myer Holdings Limited (iv) Parsons Logistik Pty Limited (v) Fire & Safely Solutions Pty Limited (vi) Stewart and Heaton Clothing Company Co. Pty Ltd (vii) The Walking Company (viii) Jolly Swagman (ix) Hoys Ski (x) Rays Ski Shop (xi) Auski THE COURT NOTES the usual undertaking as to damages provided by the Plaintiff by its counsel. 37I adjourn these proceedings to Monday 3 November 2014 at 10.30am. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 October 2014