Blue Badge Insurance Australia Pty Ltd v Farnan [2017] NSWSC 688

Supreme Court New South Wales

Medium Neutral Citation: Blue Badge Insurance Australia Pty Ltd v Farnan [2017] NSWSC 688 Hearing dates: 30 May 2017 Date of orders: 30 May 2017 Decision date: 30 May 2017 Jurisdiction: Equity Before: Kunc J Decision: Orders for delivery up of confidential information made Catchwords: SPECIFIC PERFORMANCE – Contract – Independent contractor to insurance business –Enforcement of obligation to deliver up confidential information – No issue of principle Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Farnan v Insurance Logic Pty Ltd & Blue Badge Insurance Pty Ltd [2017] FCCA 595 Category: Principal judgment Parties: Blue Badge Insurance Australia Pty Ltd (Plaintiff) Christine Ellen Farnan (Defendant) Representation: Counsel: A R Davis (Plaintiff)

Solicitors: DLA Piper (Plaintiff) File Number(s): 2015/300688 Publication restriction: No

EX TEMPORE Judgment

Summary 1. By summons filed on 14 October 2015, the plaintiff, Blue Badge Insurance Australia Pty Ltd ("Blue Badge"), sues the defendant, Ms Christine Farnan ("Ms Farnan"), to ensure the recovery or destruction of Blue Badge's confidential information that was provided to or generated by Ms Farnan in the course of her providing services to Blue Badge. Blue Badge is entitled to the relief which it seeks and Ms Farnan should pay the costs of the proceedings on the indemnity basis.

Procedural history 1. Before turning to the facts, it is necessary to say something about the procedural history of these proceedings. They were fixed some time ago for hearing before me today with an estimate of three days. Ms Farnan has not appeared. By reason of the matters which I shall now briefly set out, the Court is satisfied that Ms Farnan was aware of today's hearing and that it is appropriate to have proceeded in her absence. 2. This is the second attempt at the hearing of these proceedings. They were originally fixed for hearing for three days before Slattery J commencing on 14 September 2016. His Honour had made a number of orders against Ms Farnan by way of preparation for that hearing. She did not comply with them. 3. Shortly before the hearing before Slattery J, Ms Farnan sent an email with an unsigned motion and affidavit requesting an adjournment of the hearing. The basis for her request was her allegation that she was suffering various psychological difficulties that prevented her proper preparation for, and attendance at, the hearing. His Honour acceded to her adjournment application. 4. On 15 November 2016, the matter was then fixed for hearing before me by the Registrar. 5. Blue Badge listed the proceedings before me for directions on 23 March 2017. The reason for that being done was what I might neutrally refer to as Ms Farnan's continued lack of engagement in the proceedings. Ms Farnan did not appear on that day, notwithstanding that she had been given notice of that listing to an email address from which she had sent correspondence. On that day I made a number of directions with a view to the preparation of the matter for hearing before me today. Insofar as those directions required Ms Farnan to do anything, she has not complied with any of them. 6. Yesterday afternoon my Associate emailed the parties and their legal advisers to inquire whether the matter would be proceeding today. That email was sent at 3.24pm. At 9.32pm last night Ms Farnan sent this email in reply, in what appears to have been an attempt by her to reprise what occurred before Slattery J: "Dear Associate I am unable to attend tomorrow's hearing due to ill mental health and being overseas. Further, in correspondence dated 13 April 2017 the Plaintiff's lawyer DLA Piper have stated that I will be arrested – copy of their letter is attached. This has impacted on my mental state of health and capacity – I was admitted to a Mental Health unit in Melbourne Oct 2016 (letter on file). If the Court grants the orders sought, I will be at risk of being wrongfully arrested as the orders are an abuse of process of law and are deceptive and misleading. I can never ever fulfil the proposed orders. In written evidence by way of my numerous affidavit's, I have confirmed that I hold none of the records sought by Mr Cotis affidavits' and even had to destroy my old computer (so I cannot hand it over) and brought a new one (which has no records on it) It is a continuing unreasonable overreach to have this or any of my future computers checked – I was terminated in Nov 2014. I also recall using two other computers between 2004 and 2013/4, as well as computers in various internet cafes and elsewhere, etc, etc none of which is relevant. I also note in submissions made today by the Plaintiff that they are also seeking now to broaden the orders and have my FCC case records permanently destroyed wherein the judgement is in the public domain on the FCC website and this evidence's further abuse of the legal processes. I had to bring this case to get paid for work completed and sought to ascertain whether I was an employee or contractor. I seek more time to evaluate this latest submission. I seek to retain all of my legal case files until all fair and reasonable legal processes are dealt with and seek the Court's permission to send my legal files to the Human Rights Commission, ASIC and to Lloyd's of London. The confidential deed met its single purpose on the date of its signing and thereafter no contract of confidentiality was ever entered into between the parties and I commenced paid work shortly thereafter. As a self-represented defendant, I need to ascertain with my doctor upon returning to Melbourne whether I am mentally fit to attend Court in NSW. I shall be returning to Australia shortly in early June for further medical treatment. I have very limited access to the internet whilst overseas and will check any updates. Kind regards" 1. Ms Farnan's reference to an "FCC case" means proceedings brought by her in the Federal Circuit Court against Blue Badge to which I refer in paragraph [16] below. 2. When the proceedings were called on for hearing before me this morning, Ms Farnan was called outside the Court. There was no appearance. Mr A R Davis of Counsel appeared for Blue Badge. 3. Mr Davis submitted that the hearing should proceed in Ms Farnan's absence. He submitted that, to the extent it was relevant, Ms Farnan's email of last night did not, in terms, apply for the adjournment of today's hearing. That is true. Nevertheless, but for the history of this matter, I might have been inclined to treat it as an application for the adjournment of the hearing. However, it is that history which I have set out above which persuaded me that it was appropriate to proceed, provided that Blue Badge was able to demonstrate formally that Ms Farnan had had adequate notice of today's hearing. I say "adequate" because her email of last night proves that she knew about today's hearing at least from yesterday because of my Associate's email. 4. Mr Davis tendered an affidavit and other material which satisfied me that Ms Farnan had received Blue Badge's submissions and the court book (both of which had been prepared in anticipation of the hearing before Slattery J) in good time before the adjourned September 2016 hearing. Other material demonstrated that Ms Farnan had received notice on or about 15 November 2016 of the listing of the hearing before me today. She was also clearly on notice of the hearing which took place before me on 23 March 2017. The orders which I made on that day, which included confirming today's hearing date, were personally served on her on 26 April 2017. Insofar as an additional affidavit was to be relied upon today by Blue Badge, the evidence satisfies me that it had been emailed to Ms Farnan on 7 April 2017 and had been personally served upon her on 26 April 2017. 5. There is a serious incongruity in the first sentence of Ms Farnan's email of yesterday evening. She states that she is unable to attend "due to ill mental health and being overseas." I find it difficult to reconcile the two reasons which she has given. The Court finds that Ms Farnan has had proper, and more than adequate, notice of today's hearing and that, for reasons best known to herself, she has chosen to leave the country at this time. 6. Blue Badge has already been put to the trouble and expense of one hearing that was aborted at the last minute. It would be completely inconsistent with the overriding purpose under s 56 the Civil Procedure Act 2005 (NSW) to deprive Blue Badge of a final hearing today when no proper reason has been proven by Ms Farnan for her absence. I am satisfied that she has deliberately refused to engage with the processes of the Court. The consequence is that the case was heard today in her absence.