Smiths Detection (Australia) Pty Ltd v Basham [2020] NSWSC 500

Supreme Court New South Wales

Medium Neutral Citation: Smiths Detection (Australia) Pty Ltd v Basham [2020] NSWSC 500 Hearing dates: 10, 12 March 2020 Date of orders: 29 April 2020 Decision date: 23 April 2020 Jurisdiction: Equity Before: Rein J Decision: See [38] and [52] Catchwords: CIVIL PROCEDURE – Pleadings – Striking out – Where plaintiff company sued former employee (first defendant) alleging that he took the plaintiff's confidential information and gave it to his new employer, a rival group of companies (second to fourth defendants) – The present hearing concerned the plaintiff's motion to strike out the defendants' defences on grounds that the first defendant allegedly deleted the confidential information (held on USB sticks) which he is said to have taken from the plaintiff, thereby causing impairment to the case the plaintiff aims to prove – Where the corporate defendants, upon being told by the plaintiff of its allegations against the first defendant, took steps that included: immediately suspending the first defendant and specifically instructing him to preserve all documents he may have taken from the plaintiff and not delete any of them, and, a week or so later, the corporate defendants terminated his employment and redeployed another of their employees (with whom the first defendant had had contact) to an unrelated part of the business – Held: the plaintiff's strike out motion was rejected and the defendants' defences should not be struck out because, in relation to the corporate defendants, they should not, in all the circumstances, be deprived of the opportunity to contend that they are not to be held responsible for the first defendant's conduct and, further, in relation to all defendants, because it was not established on the evidence that the first defendant succeeded in permanently deleting any of the documents on his USBs (or that if he had permanently deleted some, that the plaintiff could not reproduce those documents in some way), and therefore the plaintiff had not established that its case was impaired by the first defendant's actions. Legislation Cited: Evidence Act 1995 (NSW) Cases Cited: Cactus Imaging Pty Ltd v Peters [2006] NSWSC 717; (2006) 71 NSWLR 9 Clark v State of New South Wales [2006] NSWSC 673; (2006) 66 NSWLR 640 Deatons Pty Ltd v Flew [1949] HCA 60; (1949) 79 CLR 370 Littlewoods Organisation Ltd v Harris [1977] 1 WLR 1472; [1978] 1 All ER 1026 Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 Moody Kiddell & Partners Pty Ltd v Arkell [2013] FCA 1066 New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 Red Bull Australia Pty Ltd v Stacey [2011] NSWSC 1212; (2011) 214 IR 299 Texts Cited: Nil Category: Procedural and other rulings Parties: Smiths Detection (Australia) Pty Ltd (Plaintiff/Applicant) Mr Scott Basham (First Defendant/Respondent) Rapiscan Australia Pty Ltd (Second Defendant/Respondent) Rapiscan Systems Pte Ltd (Third Defendant/Respondent) SX Technologies Pty Ltd (Fourth Defendant/Respondent) Representation: Counsel: Mr A. Moses SC with Ms R. Gall (Plaintiff/Applicant) Mr A. Hourigan (First Defendant/ Respondent) Mr J. Clarke SC with Mr Y. Shariff and Ms T. Epstein (Second to Fourth Defendants/Respondents)