Supreme Court New South Wales Medium Neutral Citation: Stapleton v City of Parramatta Council [2019] NSWSC 895 Hearing dates: 10 July 2019 Decision date: 10 July 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. The cross-defendant is to deliver up the following documents or things to Darren Gardner, Partner, Bartier Perry Lawyers, Level 10, 77 Castlereagh Street Sydney NSW 2000 immediately, and no later than 14 days from the date of these orders: a. All property of the City of Parramatta Council (the Council) in the cross-defendant's possession including the following devices: i. An iPad Air (serial number: DMPTC0ECHLJL); and ii. An iPhone X (serial number: F2MVXFMJJCL7). b. All confidential information of the Council as described in Schedule A to this Order, including any copies of that confidential information, in the cross-defendant's possession. 2. The cross-defendant is not to disclose, disseminate, copy or otherwise use any confidential information of the Council at any time, including before delivery up of the documents or things pursuant to Order 1. 3. The cross-defendant is not to destroy or damage any property of the Council in the Cross-defendant's possession, or erase, remove or otherwise make unavailable any document or file on, or change any password, code or other information required to access: i. the iPad Air (serial number: DMPTCOECHLJL); and ii. the iPhone X (serial number: F2MVXFMJJCL7), at any time, including before delivery up of the property pursuant to Order 1. 4. No later than 14 days within the date of this order, the cross-defendant serve on the Council an affidavit sworn or affirmed by the cross-defendant identifying: a. any disclosure by the cross-defendant of the information described in Schedule A to this Order: i. prior to 21 February 2019, to any person, other than in the proper performance of the cross-defendant's duties as an employee of the Council; and ii. or after 21 February 2019, to any person, (collectively, the Disclosures); b. the date of any of the Disclosures; c. the identity of any person to whom the Disclosures were made; d. any record of the Disclosures; e. the purpose of the Disclosures; f. all copies, transmissions, extracts and notes of or recordings of the information described in Schedule A to this Order made by the cross-defendant; g. the location of all copies, transmissions, extracts and notes of or recordings of the information described in Schedule A to this Order; h. the date that any such copies, transmissions, extracts, notes or records were made; i. the purpose for which, and the manner in which, any such copies, transmissions, extracts, notes or recordings were made. 5. If the cross-defendant wishes to object to complying with Order 4 on the grounds that some or all of the information required to be disclosed may tend to prove that he: a. has committed an offence against or arising under an Australian law or a law of a foreign country; or b. is liable to a civil penalty, the cross-defendant must: c. disclose so much of the information required to be disclosed to which no objection is taken; and d. prepare an affidavit containing so much of the information required to be disclosed to which objection is taken, and deliver it to the Court in a sealed envelope; and e. file and serve on each other party a separate affidavit setting out the basis of the objection. 6. The cross-defendant to pay the cross-claimant's costs on the Cross-summons agreed or assessed. 7. Liberty to restore the cross-summons on 3 days' notice. 8. The plaintiff's summons filed in Court 11 February 2019 is dismissed. 9. The plaintiff to pay the Council's costs of and incidental to the Notice of Motion filed 15 April 2019 on an indemnity basis. 10. List Council's Cross-summons for directions at 9:00am on 27 August 2019. 11. Note that these orders are to be served on the plaintiff/cross-defendant in accordance with the previous orders for substituted service and at the email address disclosed in the plaintiff's 6 July 2019 email communication. Catchwords: CIVIL PROCEDURE – Summary disposal – Dismissal of proceedings – No reasonable cause of action disclosed – Non-appearance of plaintiff – Want of due despatch COSTS – Party/Party Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 59, 60, 98 Health Records and Information Privacy Act 2002 (NSW), Sch 1 Local Government Act 1993 (NSW), ss 440, 449 Local Government General Regulation 2005 (NSW) Privacy and Personal Information Protection Act 1998 (NSW), ss 17, 18, 19 Public Interest Disclosure Act 1998 (Cth), s 22 Uniform Civil Procedure Rules 2005 (NSW), rr 4.6, 7.26, 7.28, 12.7, 13.4, 42.5 Cases Cited: Bulldogs Rugby League Club v Williams [2008] NSWSC 822 Coco v AN Clark (Engineers) Pty Limited (1969) RPC 41 Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; [1964] HCA 69 Ghosh v NineMSN Pty Ltd [2015] NSWCA 334 Hamod v State of New South Wales [2002] FCAFC 97 Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 Stapleton v City of Parramatta Council [2019] NSWSC 123 Stollznow v Calvert [1980] 2 NSWLR 749 Streetscape Projects (Australia) Pty Limited v City of Sydney [2013] NSWCA 2 X v Twitter [2017] NSWSC 1300 Category: Procedural and other rulings Parties: Mark Stapleton (Plaintiff) (Cross-defendant) City of Parramatta Council (Defendant) (Cross-claimant) Representation: Counsel: D Tang (Defendant) Solicitors: Bartier Perry Lawyers (Defendant) File Number(s): 2019/00045920 Publication restriction: Nil Judgment 1. HER HONOUR: This matter was listed before me for hearing of a notice of motion filed on 15 April 2019 by the defendant, the City of Parramatta Council (the Council), seeking, relevantly, orders that the proceedings brought against the Council by the plaintiff (Mr Stapleton) be wholly dismissed pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) for want of due despatch or otherwise pursuant to rr 13.4 (1)(b) or 13.4(1)(c) of the UCPR as disclosing no reasonable cause of action or for abuse of process. The Council has also filed a cross-summons in the proceedings seeking relief, to which I will refer in due course; and sought orders, at the hearing before me, of relief claimed in the cross-summons including for the return of Council property and the making by Mr Stapleton of an affidavit deposing to any disclosure by Mr Stapleton of certain information. 2. There has been no appearance by the plaintiff on this application (as indeed there has been no appearance by the plaintiff on the last few occasions when the matter has been before the Court). 3. The Council relies in support of its application on the affidavits of the Manager of Legal Services of the Council, Ian Ernest Woodward, sworn 15 April 2019 and 20 May 2019 and the affidavits of its solicitor, Andrew Finlay Yahl, affirmed 8 April 2019, 29 April 2019, 27 May 2019, 1 July 2019 and 9 July 2019. 4. I am satisfied, on the evidence that has been filed, that the plaintiff is on notice of the applications that the Council is here making, and is on notice of the fact that the matter has been listed for hearing, and that in circumstances where Mr Stapleton has taken no step in the proceeding since April 2019 and does not now appear, it is appropriate to proceed to hear the matter and determine it in Mr Stapleton's absence. Background 1. Mr Stapleton and the Council entered into a Contract of Employment dated 27 June 2018. A copy of the Contract of Employment is annexed to Mr Woodward's 15 April 2019 affidavit. Pursuant to the Contract of Employment, Mr Stapleton was appointed as the General Manager of the Council for a period from 10 July 2018 to 9 January 2021. (He is also known as the Chief Executive Officer of the Council.) 2. Relevantly, the Contract of Employment contains the following provisions. Clause 6 sets out the duties and functions of Mr Stapleton as an employee. Pursuant to cl 6.1.2, Mr Stapleton is obliged to comply with the provisions of the Code of Conduct. (The Code of Conduct is defined in the Definitions as the Model Code. The Model Code is a reference to the Model Code of Conduct for Local Councils in New South Wales prescribed by the Local Government General Regulation 2005 (NSW).) 3. Pursuant to cl 14 of the Contract of Employment, Mr Stapleton is obliged not to divulge any confidential information about the Council, either during or after the term of his employment under the contract. Confidential Information is defined as meaning any and all confidential information, data, reports, operations, deals, records and material, plans, statistics, finance or other agreements, and things other than that which is already in the public domain (whether written or oral), and whatever type or nature relating to the properties, assets, finances, dealings or functions of Council, or any undertaking primarily carried out by Council. 4. Clause 10 of the Contract of Employment sets out the termination provisions. In particular, cl 10.1 obliges Mr Stapleton "[o]n termination of [the] contract, for any reason" immediately to return to the Council all property of the Council in his possession, including intellectual property and confidential information, and obliges him not to keep or make any copies of such property or information. There are provisions in cl 10 for summary dismissal but, relevantly, cl 10.3 empowers the Council to terminate Mr Stapleton's contract before the termination date by giving 38 weeks' written notice or, alternatively, by termination payment under cl 11.3; see cl 10.3.5. 5. In or around August and September 2018, various allegations were made in the media that Mr Stapleton's curriculum vitae, which informed his appointment as Chief Executive Officer, was incorrect in material respects. Reference was made to those matters in Stapleton v City of Parramatta Council [2019] NSWSC 123 (at [9] per Kunc J). Those media publications are the subject of defamation proceedings currently on foot brought by Mr Stapleton in the Federal Court of Australia against Fairfax Media Publications and the journalist in question (NSD 1749/2018). 6. I interpose here to note that there is evidence that Mr Stapleton is continuing to prosecute those proceedings by reference to the case management record of steps taken in those proceedings to date, which indicates that a statement has been filed on behalf of Mr Stapleton in or about May this year. 7. On 7 September 2018, the Lord Mayor of the Council called an Extraordinary Council Meeting at which a resolution was passed that included, inter alia, the following: 1. that Council does not accept the veracity of the allegations made against the Chief Executive Officer; and 2. that an Independent External Review be conducted to confirm the authenticity of the work experiences, qualifications, references and associated claims provided by Mr Stapleton in relation to his application for the role of Director of Property and Significant Assets and Chief Executive Officer of the City of Parramatta Council. 1. It was resolved that an Independent External Review also be conducted into the accuracy of Mr Stapleton's declaration of interests under s 449 of the Local Government Act 1993 (NSW) (Local Government Act) and into all aspects of the recruitment of Mr Stapleton to the said roles. It was resolved that the Council suspend Mr Stapleton on full pay effectively immediately. 2. On 4 February 2019, copies of the report of the Independent External Review were made available to councillors on a confidential basis at a Council meeting. (Kunc J noted these at [12] of his Honour's reasons published in February 2019.) Following this, the Council resolved to negotiate with Mr Stapleton in relation to his Contract of Employment. 3. At this point, Mr Stapleton commenced proceedings in this Court, by summons filed before the duty judge on 11 February 2019, seeking urgent ex parte interlocutory relief. The interlocutory relief sought in the summons included an order that the Council be prevented from terminating the employment of Mr Stapleton as the Chief Executive Officer of the City of Parramatta until seven days after the determination of these proceedings or until further order of the Court, whichever was the earlier. Kunc J granted that interlocutory relief on the usual undertaking as to damages. 4. The matter then came back before his Honour on 18 February 2019. On that occasion, the Council was represented and opposed any continuation of the interlocutory relief. It was submitted to his Honour that none of the matters the subject of Mr Stapleton's submissions to the Court disclosed a cause of action. 5. Kunc J, for the reasons that his Honour published on that day, accepted the Council's submissions, generally for the reasons advanced by Senior Counsel then appearing for the Council. His Honour noted (at [16]-[24]) that there were four reasons for that conclusion: first, that the evidence did not disclose any imminent threat to terminate Mr Stapleton's employment, second, and related to the first, that there was no evidence that would enable his Honour to find that the Council had departed from its stated intention to negotiate with Mr Stapleton (as expressed in its resolution of 4 February 2019); third, that to justify an injunction of the kind which Mr Stapleton sought there must be prima facie evidence that his employment was about to be wrongfully terminated, and there was no evidence that suggested that that would be the case; and, fourth, that his Honour did not accept the submission that Mr Stapleton's Contract of Employment should be protected by an injunction because his Honour was not satisfied that damages would not be an adequate remedy. His Honour was not satisfied that there was a serious question to be tried that a wrong had been or would be committed that would give rise to an entitlement to damages and his Honour considered that, in general, the Court would not grant specific performance of contracts of employment. 6. His Honour noted, amongst other things, that cl 10.3.5 provided a complete answer to the submission advanced for Mr Stapleton in this regard because, under cl 10.3.5, the Council could terminate the contract without cause. His Honour was unable to see how the principles concerning specific performance of employment contracts in extraordinary situations could be invoked in the present case in the face of cl 10.3.5. 7. His Honour also accepted that it was appropriate to make such an order, and did make such an order, for Mr Stapleton to pay the Council's costs on an indemnity basis and that those costs be payable forthwith as assessed or agreed. His Honour then, relevantly for present purposes, made orders for the ongoing progress of the proceedings, including an order for the plaintiff to file and serve a statement of claim by 11 March 2019 and for the matter to be listed for directions before the Equity Registrar on 8 April 2019. 8. I should note that, in the summons filed on 11 February 2019, the following was sought by way of final relief: in prayer 10, a declaration that the resolutions of the Council made at its Extraordinary Council Meeting of 7 September 2018 and 4 February 2018 are unlawful, and/or a null and void, and that Mr Stapleton may continue his employment as Chief Executive Officer of the Council pursuant to the Contract of Employment; and, in prayer 11, that the Council provide to the plaintiff specific performance of the Contract of Employment up until the conclusion on 9 January 2021 of that Contract of Employment (such that, unless pursuant to court order, the Council would be prevented from terminating the employment of Mr Stapleton as Chief Executive Officer and the contract was to run its full term until its conclusion on 9 January 2021). 9. What followed the refusal of Kunc J to continue the injunctive relief that had earlier been granted was that, on 21 February 2019, the Council terminated the plaintiff's employment in accordance with cl 10.3.5 of the Contract of Employment and Mr Stapleton was paid the sum of 38 week's remuneration in lieu of notice pursuant to cl 11.3 of the Contract of Employment. By the letter dated 21 February 2019, the Council sought the return of all property and confidential information of Council in Mr Stapleton's possession. That letter included the following: You should not delete, modify or provide any person any records, documents or property of Council in your possession and, also, such materials must be returned. This includes all notes, Council papers, documents and records (whether confidential or not) and in (original or copy) electronic form, equipment, property, keys, mobile phones, laptops, protective clothing, manuals and so on. The records, documents and other property of the Council should be returned in person or by courier to the acting CEO at a specified address by 22 February 2019. 1. Mr Stapleton was expressly reminded in that letter of his obligations under cll 13 and 14 of the Contract of Employment, which continued after termination of employment. 2. Mr Woodward (at [8] of his first affidavit) has deposed to enquiries having been made and to having conducted searches of Council systems. Mr Woodward's belief is that Mr Stapleton has not returned the following property devices to the Council: an iPad Air with a specified serial number; and an iPhone X with a specified serial number. 3. On 4 April 2019, the solicitor on the record for Mr Stapleton in these proceedings served on the Council a Notice of Ceasing to Act. (A Notice of Intention to File a Notice of Ceasing to Act had been earlier filed and served on 5 March 2019.) The Notice of Ceasing to Act specified the residential or business address of Mr Stapleton last known to his solicitor as an address in Clontarf. 4. By letter dated 4 April 2019, the Council's solicitors wrote to Mr Stapleton at that Clontarf address averting to Mr Stapleton's non-compliance with Court orders, in particular his failure to file by 11 March 2019 a statement of claim in accordance with the directions made by Kunc J on 19 February 2019. The letter stated that "[w]e consider you are not prosecuting proceedings with due despatch" and put Mr Stapleton on notice that, unless he had remedied this default within 14 days, the Council might seek to have the matter dismissed pursuant to r 12.7 of the UCPR. 5. The letter also noted that, despite the direction in the Council's letter dated 21 February 2019 for Mr Stapleton to return to the Council records, documents and property in his possession, only one keyboard had been returned to the Council and no other property. The letter demanded the return of all property to Council immediately, and requested an acknowledgment of the receipt of the correspondence. 6. That letter was sent by courier to the Clontarf address. The report provided to the Council's solicitors by the courier was that a lady who was said to currently live at the Clontarf address had told him that Mr Stapleton was "currently living in Europe". 7. The matter was next before the Court at a directions hearing before the Equity Registrar on 8 April 2019. There was no appearance by Mr Stapleton. On that occasion, orders were made for substituted service on Mr Stapleton by way of service at other addresses (including service at his former solicitor's office). 8. On 1 May 2019, the Council filed its cross-summons in these proceedings. The cross-summons requires the delivery up of specified documents and orders for the non-disclosure, dissemination, copying or otherwise use of any confidential information of the Council; as well as an order that Mr Stapleton not destroy or damage any property of the Council in his possession or to take other steps in relation to that information before delivery up of the property; and seek an order for Mr Stapleton to serve an affidavit on the Council identifying any disclosure by Mr Stapleton of the information described in the schedule to the orders (the confidential information) and certain other information in relation to any such disclosure. 9. The schedule to the cross-summons identifies "all confidential information" of the Council including, but not limited to, confidential information, as the term is defined in the Contract of Employment; confidential information, as the term is used in the Model Code of Conduct for Local Councils in New South Wales; and information that is confidential, as the term is used in the Local Government Act. (An amended version of the schedule was before me at the hearing, specifying with more particularity the confidential information the subject of the relief sought.) 10. Letters enclosing the 29 April orders and the cross-summons were sent to a number of addresses: to the solicitor formerly acting for Mr Stapleton in the present proceedings; to the solicitor acting for Mr Stapleton in the defamation proceedings in the Federal Court; and at the legal practice of a law firm (Harper James Law Group) in Bankstown. The documents or some of the documents were also emailed to certain email addresses. 11. On 20 May 2019, Mr Woodward filed his second affidavit in the proceedings. That affidavit was served on Mr Stapleton in accordance with the orders for substituted service on 21 May 2019. 12. The only response that the Council has received from Mr Stapleton since the date on which his solicitor filed a Notice of Ceasing to Act has been an email sent to an officer of the Council from an email address that appears (from its name) to be Mr Stapleton's email address, on 6 July 2019 at 7.31am. That communication includes the following: I received a legal letter regarding the tail end of this email and felt I should respond. With everything going on at that time, I didn't have an opportunity: 1. During the STAPLETON employment period (inclusive of the suspension), I misplaced the items you refer to below. 2. For the record, and the cop [Council of Parramatta] security, it is important to note that the actual night of my suspension, within an hour, the City of Parramatta IT ensured me all of my devices were disconnected. Parramatta IT Services rendered the devices void inactive for any email or other functions. 3. STAPLETON packed the items away as they were inactive during the suspension period. Several months later, and a house move, the items have become misplaced. 4. This was not reported by STAPLETON as an employee at the time to the cop. Given the multiple legal investigations underway by Parramatta against STAPLETON, and the stress STAPLETON was under, he overlooked it. I would trust the respective insurances held by the COP will cover the costs 'given STAPLETON was an employee at the time'. If you need anything further in this regard, please advise. 1. That email was responding to an email of 7 March 2019 sent to Mr Stapleton from an officer at the Council attaching weekly pay slips requested, and expressly taking the opportunity to remind Mr Stapleton "about the outstanding Council IT property that we are waiting for you to return - an iPhone, a laptop. Please return to Council at your earliest convenience". 2. As adverted to; the Council's cross-summons seeks the return of Council property and confidential information in the possession of Mr Stapleton, obtained by him during the course of his employment as Chief Executive Officer. The Council submits that Mr Stapleton is required to do so on the basis of his contractual obligations or, in the alternative, on the basis of an equitable obligation of confidence. 3. I have referred above to the provisions of Mr Stapleton's Contract of Employment which oblige him to return Council property including confidential information and which impose an obligation on Mr Stapleton to maintain confidentiality in respect of that information (in particular, cll 10.1 and 14 of the contract, and cl 6.1.2 which obliges to Stapleton to comply with the Model Code of Conduct). The Model Code of Conduct imposes obligations on Mr Stapleton as an employee of the Council, it being a public sector agency; see cll 7.9 to 7.11 of the Model Code of Conduct. Reference is also made to s 440(5) of the Local Government Act which requires compliance with the Model Code of Conduct. 4. The evidence before me establishes that, for the purposes of his employment as Chief Executive Officer, the Council provided Mr Stapleton with Council property including an iPad Air and an iPhone X. Mr Stapleton's most recent communication appears to concede, and is relied upon by the Council in this regard as an admission, that he has held those items and that he did not return them (his explanation in that email being that they have been "misplaced"). 5. Mr Stapleton was also provided with Council computer systems during the course of his employment. 6. The Council identifies four categories of confidential information to which Mr Stapleton has had access during the course of his employment with the Council: 7. First, confidential papers provided to Council as for discussion in closed Council meetings, see [7]-[12] of Mr Woodward's second affidavit, in respect of which it is noted that information disclosed referred to or relied upon in such meetings is confidential under s 10A of the Local Government Act and the further restrictions imposed under cl 20 of the Council's Code of Meeting Practice. 8. Second, financial data (commercial and confidential) concerning the Council, as referred to at [13]-[17] of Mr Woodward's second affidavit. It is noted that commercial and confidential information data includes information not publicly available and that, if such information were to be publicly released, it could mislead the public or prejudice the proper functioning of the Council in preparing its financial reports as required under the Local Government Act. 9. Third, personal information under the Privacy and Personal Information Protection Act 1998 (NSW) (Privacy and Personal Information Protection Act) and all health information under the Health Records and Information Privacy Act 2002 (NSW) (Health Records and Information Privacy Act) of Council staff, and members and ratepayers. Reference is made to this in [18]-[24] of Mr Woodward's second affidavit. It is noted that, in carrying out the functions of the Council under the Local Government Act, the Council holds personal information of employees, and ratepayers and other individuals. Under s 17 of the Privacy and Personal Information Protection Act, that personal information may only be used for specified purposes and can only be disclosed in the matter; see ss 18 and 19 of that Act. Similarly, restrictions apply to health information held by the Council; see Sch 1 of the Health Records and Information Privacy Act. Compliance with the Council's Privacy Management Plan and these pieces of legislation are specifically referred to and contractually required to be complied with under cl 7.1 of the Model Code of Conduct. 10. Fourth, the last category of confidential information to which Mr Stapleton can be understood to have access during the period of his employment is information about the Code of Conduct Complaints and the Management and Investigation of the Code of Conduct Complaints; see [27] of Mr Woodward's second affidavit. It is noted that information about the Code of Conduct Complaints and the management and investigation of those complaints are matters that are confidential under Pt 13 of the Procedures for Administration of the Model Code of Conduct, and that additional confidentiality obligations are prescribed concerning certain kinds of compliant under s 22 of the Public Interest Disclosure Act 1998 (Cth). 11. It is submitted that, because of those statutory obligations, when each of those four categories of information identified above was acquired by the Council, they were imparted in circumstances imposing on the Council an obligation of confidentiality, and that when Mr Stapleton accessed or acquired those categories of information, again the information was imparted in circumstances that imposed an obligation of confidentiality on him. 12. It is submitted that it can be inferred, given the functions and responsibilities of Mr Stapleton as Chief Executive Officer of the Council, that he did access and acquire confidential information of the kind referred above in the course of his employment as Chief Executive Officer. It is also said that it is more likely than not that he downloaded that information in the course of carrying out his role as Chief Executive Officer onto the iPad and iPhone X that were provided to him by the Council. 13. There is evidence as to the steps that were taken to disable Mr Stapleton's access to information (including "Info council" information, and financial data including draft financial data) when he was suspended on full pay. Nevertheless, it is submitted that it can be inferred that until that time Mr Stapleton could have downloaded confidential Council information onto those devices and would then have had access to the information on his devices during the time that he was suspended. It is not known what use, if any, Mr Stapleton may have made of any such information. 14. The evidence to which I have referred in relation to the disabling of Mr Stapleton's access to all Council systems is that contained in Mr Woodward's first affidavit at [14] (which was corrected in his second affidavit at [28] to note that the access to all Council systems was disabled at about 8.30pm on 7 December 2018 not 2019 as had been incorrectly stated in the first affidavit). 15. I have referred above to the letter of termination dated 21 February 2019 in which the Council sought the return of Council property and reminded Mr Stapleton of his obligations under cl 14 of the Contract of Employment, and to the letter of 4 April 2019 in which the Council's solicitor reminded Mr Stapleton of his obligations in that regard. 16. I am satisfied that the evidence (not least being the email from Mr Stapleton of 6 July 2019) comfortably supports the conclusion that, Mr Stapleton has not returned the iPad Air and iPhone X (which he says he has misplaced). I am satisfied that orders to enforce cl 10.1 of the Contract of Employment and for the delivery up of the iPad Air and iPhone X should be made. 17. It is not necessary for those purposes to consider in detail the submissions that have been made by the Council as to the alternative basis on which the Council seeks to have those delivery up orders made, which is pursuant to the equitable duty of confidence said to be imposed upon Mr Stapleton in accordance with the principles in Coco v AN Clark (Engineers) Pty Limited (1969) RPC 41 at [47]. However, I note that had I not otherwise been satisfied that I should make the orders sought by the Council to enforce Mr Stapleton's contractual obligations in relation to the property, then I would have made the orders in the exercise of the general equitable jurisdiction to grant relief based upon the fact that I am satisfied that the information in question was provided to Mr Stapleton in circumstances in which an equitable duty of confidence has arisen. 18. I note that in Streetscape Projects (Australia) Pty Limited v City of Sydney [2013] NSWCA 2 at [158]-[159] reference was made to the requirement for there to be sufficient particularity of confidential information sought to be the subject of an order of this kind. I am satisfied that, in the material put forward by the Council, and in the Council's submissions, there has been sufficient identification of the material the subject of the obligations of confidentiality for the purpose of the making of the orders that have now been sought. 19. I should add that I have been taken to authorities where consideration has been given to the utility of granting injunctive relief against a party outside the jurisdiction and, in particular, I refer to what was said in Bulldogs Rugby League Club v Williams [2008] NSWSC 822 by Austin J at [70]ff, noting that, in the present case, Mr Stapleton has clearly submitted to the jurisdiction since Mr Stapleton is the party who commenced the proceedings in the first place; and also noting what his Honour said (at [68]-[69]), in particular that the Court should not contemplate that its orders will be disobeyed or are likely to be disobeyed. 20. In that regard, I note that, despite the fact that Mr Stapleton has asserted to the Council that the devices are contained in a box that has been mislaid, there is nothing to suggest that he is not capable of making further enquiries in order to locate the missing box(es) and, in any event, he has not gone on oath or made an affirmation deposing to the circumstances in which the devices are said to have been mislaid or the whereabouts or potential whereabouts of the box(es) in which the devices are said to have been placed. 21. I also was referred to the decision of Pembroke J in X v Twitter [2017] NSWSC 1300 at [21]ff, as to the jurisdiction of the Court to entertain a claim or injunction intended to restrain conduct outside of Australia. 22. Accordingly, I will make orders in terms of the Short Minutes of Order handed up in relation to the delivery up of the documents in question. They will include an order for the payment of costs of and incidental to the notice of motion filed 15 April 2019 under an indemnity basis, but I will deal with the question of costs in more detail after I deal with the notice of motion filed 15 April 2019. 23. The notice of motion filed 15 April 2019, as noted earlier, seeks an order for the dismissal of the plaintiff's summons filed 11 February 2019, and an order that the plaintiff pay the Council's costs of and incidental to the motion on an indemnity basis. The order dismissing the summons is sought on three alternative bases. First, for want of due despatch (r 12.7 of the UCPR); second, on the basis that it discloses no reasonable cause of action (r 13.4 of the UCPR); and, third, that the proceedings are an abuse of process (r 13.4(1)(c) of the UCPR). 24. In relation to the claim for the proceedings to be dismissed for want of due despatch, it is noted that, since the decision by Kunc J (on 18 February 2019) to refused a continuation of the interlocutory relief, Mr Stapleton has taken no steps in the proceedings. Mr Stapleton has failed to file a statement of claim as directed; and has, thus, not articulated in any pleading the legal basis for his claim for specific performance in relation to his Contract of Employment or his claim for declaratory relief as to the efficacy of the resolutions made by the Council to which I have earlier referred. 25. Since 18 February 2019, the proceedings have been before the Court on four occasions. They were before the Equity Registrar on 8 April, 29 April and 27 May. They were before me in the applications list on 2 July and again today. There has been no appearance for or by Mr Stapleton on any of those occasions. 26. I have already referred to the fact that the plaintiff's previous solicitor on the record filed a Notice of Ceasing to Act on 17 March 2019. That notice was served on the Council on 4 April 2019. The plaintiff has taken no steps to advise of any change of an address for service as contemplated by r 4.6 of the UCPR. Nor has there been any notice of change or appointment of a solicitor filed, as contemplated, under rr 7.26 and 7.28 of the UCPR. 27. Notwithstanding that, there is evidence that the plaintiff is continuing to prosecute his defamation proceedings in the Federal Court and has solicitors on record acting for him in relation to that matter. I was also taken to a communication from the solicitor on the record in that matter to the plaintiff's former solicitor in these proceedings, namely, an email of 2 May 2019 in which there is reference to a complaint by the former (Ms Youssef) about the latter (Ms Khoury) making contact with her client and advising that any correspondence should be directly to the former's office. However, a copy of that email was not forwarded at the time to the Council's solicitors. 28. The Council notes that the best evidence before the Court is that the plaintiff is no longer in Australia, pointing to the evidence as to what the courier was informed at the time the 4 April 2019 letter was sought to be served at the Clontarf address (that being the last residential address nominated by Mr Stapleton's previous solicitor) and to the reference to Mr Stapleton currently being in Dubai, but points out there is no indication that that is a permanent change of abode. I have already noted that orders were obtained for substituted service. 29. It is submitted by the Council that, having regard to the efficient use of judicial resources and the overriding purpose specified in s 56 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act), and the fact that Mr Stapleton is in significant default of court orders, an order should be made for dismissal of the proceedings under r 12.7 of the UCPR. 30. The discretion to do so was considered in the Court of Appeal in Ghosh v NineMSN Pty Ltd [2015] NSWCA 334 (at [40]-[42]). In particular, there it was noted by Macfarlan JA, with whom Leeming JA and Adamson J agreed, that the discretion to dismiss proceedings under this rule is broad and should not be confined by rigid formulae (reference being made there to the earlier rules to dismiss for want of prosecution in Stollznow v Calvert [1980] 2 NSWLR 749 at 751 and Micallef v ICI Australia Operations Pty Ltd [2001] NSWCA 274 at [51]). Relevant delay in this context is said to be not simply a lack of activity but extending to a delay arising out of a want of constructive activity. 31. Macfarlan JA also there noted that: …s 59 of the Civil Procedure Act requires delay to be eliminated so far as possible and s 60 requires the Court to take into account the object of "resolving the issues between the parties in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute". 1. In circumstances where there has been no action whatsoever by Mr Stapleton to prosecute these proceedings since he was ordered to file and serve a statement of claim in the proceedings, and where Mr Stapleton has been reminded and is on notice of the requirement to take steps to prosecute the proceedings, it is appropriate that the proceedings be dismissed for want of due despatch. 2. In this regard it is relevant to note that the final relief that was sought in Mr Stapleton's summons includes relief requiring specific performance of a contract which, as Kunc J noted in his reasons in February 2019, is in any event terminable without cause on the giving of notice, that such notice was given, and that the plaintiff has been paid the termination amount payable under the Contract of Employment. 3. In any event, even without the obvious difficulties in terms of the prospects of success of Mr Stapleton's claim for the relief sought in the summons, the stark fact is that he has taken no steps whatsoever in the proceedings since then (and, I might add, shows no intention of doing so in the future). 4. The Council has been put to considerable expense, not only in attending on the various occasions when the matter has been before the Court (amongst other things, to obtain orders for substituted service and the like) but also in preparing for this application. 5. In my opinion, there is no doubt that Mr Stapleton's summons should be dismissed pursuant to r 12.7 of the UCPR. 6. It is not necessary in those circumstances to address in detail the alternative bases on which the Council seeks to have the proceedings dismissed, namely, that no reasonable cause of action is disclosed and that the proceedings are an abuse of process. 7. However, it is relevant to observe the likelihood that the proceedings would have been dismissed in any event on the basis that no reasonable cause of action is disclosed, having regard to the right of termination under cl 10.3.5, (and I here note the Council's submission that the existence of that clause in the contract renders any claim that the plaintiff might have had as to specific performance of his employment contract obviously untenable within the meaning in General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 at 129-130; [1964] HCA 69). 8. It is also submitted by the Council that non-compliance by the plaintiff with orders to articulate his asserted claim against the Council (and his non-engagement in the court process since the dismissal of the urgent interlocutory injunction application) amounts to an abuse of process which would warrant exercise of the Court's discretion to dismiss the summons under r 13.4.1(c) of the UCPR but, as I have noted, it is not necessary to determine the matter on that basis. 9. Finally, in relation to costs, the Council seeks an order in favour of its costs on the indemnity basis pursuant to s 98(1)(c) of the Civil Procedure Act and r 42.5 of the UCPR, referring to the well-known authorities in relation to the power to award indemnity costs including: Colgate-Palmolive Co v Cussons Pty Ltd (1993) 46 FCR 225 at 233 and Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Ltd (1988) 81 ALR 397 at 401, and authorities considered by the Full Court of the Federal Court in Hamod v State of New South Wales [2002] FCAFC 97 at 20. 10. It is noted that circumstances in which indemnity costs may be awarded include where a party has made allegations that ought never to have been made; where an action has been commenced or continued where the applicant, properly advised, should have known the applicant had no chance of success; where proceedings have been commenced in wilful disregard of known facts or clearly established law, including refusal of an offer of compromise. 11. It is also noted that indemnity costs serve the purpose of compensating a party fully for costs incurred when the Court takes the view that it was unreasonable for the party against whom the order was made to have subjected the innocent party to the expenditure of the Court. 12. In the present case, the Council submits that an indemnity costs order is warranted because Mr Stapleton should have known when he commenced his proceedings, and then continued them, that he had no chance of success and where his conduct in the proceedings to date has unreasonably and unnecessarily subjected the Council to the expenditure of costs. (Certainly, he should have been on notice of this after Kunc J's February 2019 decision, which pointed clearly to the difficulties in Mr Stapleton's claim – from which an available inference might be that Mr Stapleton is no longer interested in pursuing his claim.) 13. It is noted that Mr Stapleton has never articulated a legal basis for his commencement of the proceedings or any cause of action upon which the final relief he is seeking in the summons is grounded, having failed to file and serve a statement of claim as ordered, and has continued to fail to engage with the litigation process. 14. I am of the view that in all the circumstances the Council should have its costs of and incidental to the motion filed 15 April 2019 on an indemnity basis and that, for similar reasons, the Council should have its costs, albeit on the indemnity basis, of the cross-summons to the extent that it has now in part been determined. 15. For those reasons I make orders in accordance with the short minutes of order. I note that that will dispose of Mr Stapleton's summons but will leave on foot the balance of the relief claimed in the Council's cross-summons. I will list the Council's cross-summons for directions at 9am on 27 August 2019. 16. These orders are to be served on the plaintiff/cross-defendant in accordance with the previous orders for substituted service and at the email address disclosed in Mr Stapleton's 6 July 2019 email communication. ********** Schedule A All confidential information of the Council, including but not limited to: (1) Confidential information as the term is defined in the employment agreement between the cross-defendant (Mr Stapleton) and the Council dated 27 June 2018; (2) information that is protected from disclosure under the Privacy and Personal Information Protection Act 1998 (NSW), the Health Records and Information Privacy Act 2002 (NSW) and/or the Public Interest Disclosures Act 1994 (NSW); (3) information that must not be disclosed unless such disclosure is in accordance with s 664 of the Local Government Act 1993 (NSW). 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: 16 July 2019