Transport Secretary (on behalf of the Government of New South Wales) v Srinivasa [2018] NSWSC 1494

Supreme Court New South Wales

Medium Neutral Citation: Transport Secretary (on behalf of the Government of New South Wales) v Srinivasa [2018] NSWSC 1494 Decision date: 04 October 2018 Jurisdiction: Equity Before: Pembroke J Decision: See paragraph [17] Catchwords: CONTEMPT OF COURT – procedural breach – failure to comply with order to serve affidavit by specified date – discretion to refrain from making declaration Cases Cited: Australian Securities and Investments Commission v Monarch FX Group Pty Ltd, in the matter of Monarch FX Group Pty Ltd [2014] FCA 1387 Construction, Forestry, Mining & Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261 Davis v Baillie [1946] VR 486 Fairclough & Sons v The Manchester Ship Canan Co (No 2) (1897) 41 Sol. Jo. 225 National Australia Bank Limited v Juric [2001] VSC 375 Perkins; Mesto v Galpin [1998] 4VR 505 Seven Network (Operations) Limited v Amber Harrison [2018] NSWSC 633 Texts Cited: Arlidge, Eady & Smith on Contempt, 4th edition (2011) Category: Principal judgment Parties: Transport Secretary (on behalf of the Government of New South Wales – plaintiff Vikram Srinivasa – defendant Representation: Solicitors: K&L Gates – for the plaintiff File Number(s): 2017/331547

Judgment

Introduction 1. This is a contempt application, which the parties are content to have determined on the papers. The contempt is constituted by a procedural breach – nothing more than the failure to comply with an order in relation to the provision of an affidavit by a specified date. Both parties provided written submissions. The plaintiff does not seek an order for punishment of the contempt. It seeks only a declaration of contempt – if I find that one is justified in the circumstances. 2. The underlying proceedings in which the contempt is alleged to have occurred relate to Mr Srinivasa' probationary employment as a project engineer with the plaintiff from 27 June to 21 September 2017. During that time he had access to confidential information in connection with the new Intercity Fleet of trains purchased by the State of New South Wales. 3. On 1 November 2017, the plaintiff sought and obtained interlocutory injunctions against Mr Srinivasa when it became apparent that he had sent approximately 600 emails from his account with the plaintiff to various personal accounts. The emails included sensitive commercial information such as Tender Schedules and contract details. 4. Subsequent forensic computer analysis revealed that additional devices and email accounts belonging to Mr Srinivasa may have been used to transmit and store the plaintiff's confidential information. On 12 April 2018, in response to a further application by the plaintiff, Parker J made the following orders: Order 1 1. on or before 17 April 2018, the Defendant is to attend the office of Nick Klein of Klein & Co at Suite 502, Level 5, 28 O'Connell Street, Sydney 2000 ("Computer Expert") to: a. deliver up to the Court (by way of production to the Computer Expert) the computers identified as "VIKRAM" and "Neema's MacBook Air" on page 2 of the Klein & Co letter to the Defendant's solicitor dated 4 December 2017 ("Computers") for the purposes of identifying and returning to the Plaintiff any of the Plaintiff's information identified in exhibit "JZ 3" to JZ 12" inclusive to the affidavit of James Zeng made 1 November 2017 ("Plaintiff's Information"); … Order 14 14. In the event the Defendant does not produce one or both of the devices identified in Order 1 above, the Defendant is to swear and serve, by 17 April 2018, an affidavit explaining why he has not done so. 1. Mr Srinivasa did not deliver up the computers referred to in the order – and appears not to have been in a position to do so. Nor did he swear and serve by 17 April an affidavit explaining why he had not done so. He eventually did do so, but his response was not timely. Although he appears to have taken the orders seriously, Mr Srinivasa was genuinely concerned about not being legally represented, and the effect in those circumstances of his ability to comply. 2. What he did do initially was to send emails to the plaintiff on 17 and 25 April. And on 24 May, he prepared an affidavit. That affidavit is not signed and it is not quite clear how it came into the plaintiff's possession. Eventually however, on 8 July, he prepared a lengthy affidavit, attended before a Justice of the Peace at the Epping Library to have it sworn and attested, and served it on the plaintiff. 3. In both affidavits, Mr Srinivasa apologised for not submitting his affidavit earlier. In the 8 July affidavit, he stated: My sincere apologies for not submitting the affidavit earlier, my intention was not being in contempt of course, if such was the case I would not have sincerely communicated to the K&L Gates lawyers and the court regarding my inability to get represented. I thought it was inappropriate to prepare an affidavit without seeking legal assistance, hence I have not submitted the affidavit earlier. I kindly request the court to accept my apologies. 1. In his written submissions, Mr Srinivasa reiterated his 'unconditional apology' for his non-compliance and submitted, with some justification, that it was not suggested that he had 'received any benefit or gain by filing the affidavit belatedly'. In the absence of a challenge to Mr Srinivasa's explanation in his affidavit, or some other evidence, I have proceeded on that basis. 2. As to the reason for not producing the computers, Mr Srinivasa said in both affidavits that: I have visited the office of Klein & Co in the afternoon of 17 April 2018, and informed Ms Balit of Klein & Co that I do not have computers and no information to provide in relation to the email accounts.