Special Broadcasting Service Corporation v Andrew Corbett

1. [1]

   On 10 February 2016, Mr Andrew Corbett, gave a letter of resignation to his employer, the Special Broadcasting Service Corporation (SBS). From 2 December 2012 Mr Corbett had worked for SBS as a senior employee reporting to SBS’s Chief Technology Officer, who in turn reported to its Chief Executive Officer.

2. [2]

   SBS contests the validity of Mr Corbett’s resignation. SBS contends that: its employment contract with Mr Corbett was for a fixed term; the contract did not end until 30 June 2017; Mr Corbett was not entitled to terminate it before then; and, the five weeks’ notice he had just given to SBS was ineffective.

3. [3]

   On 5 February 2016 Mr Corbett caused a corporate entity he controlled, Tier One Directors Consulting Pty Ltd, to enter into a contract to provide his services to the Australian Broadcasting Corporation (ABC) commencing on Monday, 4 April 2016. Mr Corbett commenced providing services to the ABC under this contract on 4 April.

4. [4]

   SBS now seeks an interlocutory injunction against Mr Corbett: to restrain him from working for the ABC, or for any other media organisation or competitor of SBS, for the remaining duration of his employment agreement; and additionally, to restrain him from disclosing SBS’s confidential information.

5. [5]

   Mr Corbett contests SBS’s claims for interlocutory and final relief. He contends he should be able to provide services to the ABC until the final hearing of these proceedings. He says that at final hearing: his employment contract with SBS, properly construed, will be shown to be terminable on reasonable notice; and, will otherwise be struck down as an unreasonable restraint of trade.

6. [6]

   This judgment only deals with the interlocutory dispute between these two parties. In accordance with accepted principle this interlocutory judgement does not make any final findings as to the dispute between these parties.

7. [7]

   On 30 March 2016 SBS commenced these proceedings as plaintiff by Summons joining only one defendant Mr Corbett. That day Kunc J granted leave for short service of the Summons. His Honour also made orders for the issue of a notice to produce to Mr Corbett to be made returnable on 1 April 2016. This notice required the delivery up of: (1) all documents created since 1 October 2015 recording any steps Mr Corbett had taken to establish a business in the area of technology and media workflows; (2) all records of communication since 1 January 2016 between Mr Corbett and any TV, radio or multi-platform broadcasting business; and, (3) all documents containing the title “Andrew Stephen Consulting” that were accessed, stored or recorded on Mr Corbett’s SBS-issued laptop computer.

8. [8]

   The Summons was returnable before His Honour on 1 April 2016. On that day the plaintiff was invited to move for relief on an ex parte basis, but declined to do so. But His Honour ordered that the defendant produce the contract between himself and the ABC by 4 April 2016. The parties came back before Kunc J for further directions on 8 April 2016. His Honour fixed the proceedings for interlocutory hearing on 11 April 2016.

9. [9]

   At the opening of the interlocutory hearing on 11 April the Court offered the parties the option of having the matter determined in the near future on a final basis rather than engaging in any interlocutory conflict. After consulting with the Acting Judge Administrator of the Equity Division, White J, in the absence of the Chief Judge this month, the Court was able to offer the parties an early three-day final hearing on 11, 12 and 13 May.

10. [10]

    But the parties could not agree on what would happen before that final hearing on 11, 12 and 13 May. So an interlocutory contest was not avoided. But the parties were informed of this final hearing trial date and the contest took place in the context that a final hearing would only be a month away.

11. [11]

    Mr S.E.J Prince, instructed by PricewaterhouseCoopers, represented the plaintiff. Mr B Eurell and Ms V. Chia, instructed by Carroll & O’Dea Lawyers represented the defendant. The lawyers on both sides carefully presented the application for an interlocutory injunction and deployed much of the evidence which would be read at a final hearing.

12. [12]

    The plaintiff claims the following interlocutory relief in paragraph 6 of its Summons:

13. [13]

    It is now necessary to give the background of mainly uncontentious facts to enable the interlocutory issues to be decided.

Mr Corbett, SBS and the ABC

1. [14]

   On 2 December 2012 Mr Corbett entered into a contract of employment with SBS (“the Employment Agreement”). This form of contract had been developed by SBS for its senior executives. He commenced employment the next day on 3 December 2012

2. [15]

   Immediately prior to working for the SBS, Mr Corbett had worked for Deloitte, and before that in the United Kingdom. To enable him to work at SBS, Mr Corbett asked SBS to sponsor his “section 457 visa” which would entitle him to work in Australia.

3. [16]

   To facilitate the transfer of his sponsorship from Deloitte, SBS provided Mr Corbett with a letter of offer containing a term under the header “Term of the Contract” which stated that subject to approval by the Department of Immigration, SBS would sponsor his visa for a two year period.

4. [17]

   In September 2014, the originally specified term of Mr Corbett’s employment under the Employment Agreement was varied. The end date was extended from the originally fixed date of 31 December 2014 to the extended date of 30 December 2016.

5. [18]

   The term of Mr Corbett’s employment was further extended in January 2015. The end date was altered from 30 December 2016 to 30 June 2017. The evidence strongly suggests that these amendments were made at Mr Corbett’s request to facilitate his application for permanent residency in Australia, which he was ultimately granted on 23 February 2015.

6. [19]

   Aspects of the negotiation leading up to the second variation to the Employment Agreement show that Mr Corbett had firmly in mind the need to establish to the Australian Government that he would be employed by SBS for at least two years. Correspondence passed between the parties on 5 January 2015, immediately before the second variation which changed the end date of the contract in clause 3 to its present 30 June 2017 and declared that “The contract will now end 30 June 2017”. The variation was made on 19 January 2015. Mr Corbett’s letter immediately before that variation is reproduced below in full:

7. [20]

   There may well be debate at final hearing about whether this letter is admissible on the construction of the contract. It is arguably one of the surrounding circumstances. It is certainly a relevant communication between the parties just before the variation. But if it is admissible it tends to show that Mr Corbett wanted to demonstrate security of tenure at SBS for at least 2 years forward from January 2015. Presumably if either party were entitled to terminate this contract on the giving of reasonable notice, then Mr Corbett would become vulnerable in his permanent residency application. The absence of a right of termination on reasonable notice from the contract therefore may arguably not have been an accident, even from Mr Corbett’s point of view.

8. [21]

   The Employment Agreement. Many terms of the Employment Agreement were debated at this hearing. Clause 3 of The Employment Agreement provided that Mr Corbett would be employed for a “specified period” from 3 December 2012 to 31 December 2014, subject to the approval by the Department of Immigration for SBS to sponsor his section 457 visa and continued grant of the visa.

9. [22]

   The commencement and term of the Employment Agreement, as it was originally signed, was provided for in clauses 3.1 and 3.2 as follows:

10. [23]

    Mr Corbett’s remuneration [the exact amount is not published in these reasons] was provided for in clause 4 of the Employment Agreement as follows:

11. [24]

    Under the Employment Agreement SBS provided home equipment for executives such as Mr Corbett, which equipment was governed by clause 6.1 of the contract as follows:

12. [25]

    The Employment Agreement, clause 10 provided for the responsibilities and obligations of the employee in exchange for the remuneration paid to the employee. Clause 10 provides as follows:

13. [26]

    The Employment Agreement, clause 11 also required Mr Corbett to acknowledge a number of matters associated with his acceptance of the Agreement as follows:

14. [27]

    The Executive was required to work in accordance with the principles set out in clause 11 and demonstrate the personal qualities there identified on a continuing basis:

15. [28]

    There was a Schedule attached to the Employment Agreement. The Schedule was divided into several parts. Upon the signing of the Employment Agreement Mr Corbett acknowledged having read the Schedule and agreed to the following obligations in clause 14 of the Employment Agreement:

16. [29]

    Mr Corbett was also required under the Employment Agreement, clause 15 to observe other relevant SBS policies. Clause 15 of the Agreement provides as follows:

17. [30]

    Clauses 16, 17 and 18 of the Employment Agreement are headed “Termination of Employment” and provide a regime for termination of Mr Corbett’s employment but they are not the only provisions in the agreement that refer to the possibility of employment termination. Another reference is found in clause 19.2. Clauses 16, 17 and 18 provide as follows:

18. [31]

    Under the heading “Relief from Duty and Related Matters” in clauses 19.1 and 19.2 the Employment Agreement provided for a number of matters relating to relieving the executive and carrying out his duties, as follows:

19. [32]

    The Employment Agreement provided an employee acknowledgement in relation to injunctions in clause 20.1 as follows:

20. [33]

    In general provisions the Employment Agreement, clause 21.2, provided that SBS was not required to offer further employment to Mr Corbett after the expiry of the period of the contract. Clause 21.2 provides as follows:

21. [34]

    Finally the Employment Agreement allowed for severance of provisions if clauses were found illegal or unenforceable (clause 22.1) and that the Agreement could be varied in writing (clause 23.1). The Agreement did not contain a clause stating that it was the whole of the contract between the parties, such as might be taken to exclude implied terms.

22. [35]

    The Code of Conduct. By signing the Employment Agreement, Mr Corbett also agreed to be bound by the obligations contained within the annexed SBS Code of Conduct. SBS argues Mr Corbett acted in breach of the SBS Code of Conduct in two ways: (1) he failed to avoid and disclose a conflict of interest; and (2) he misused SBS information, property and facilities.

23. [36]

    Section 2.4 of the SBS Code of Conduct deals with conflicts of interest. It provides that “SBS employees must avoid any direct or potential conflict of interest that could compromise SBS”, and additionally imposes a positive obligation on SBS employees “to disclose any current or potential conflict of interest to their managers”. The section expressly defines a “conflict of interest” as “an employee having a direct or indirect involvement or interest in any matter or dealing with an external individual or organisation, and from which the employee could receive personal reward, remuneration or any other type of advantage as a result of the relationship of their position and that particular matter or dealing”, and continues that some examples of conflict of interest include: “working for or at any other media organisation or other competitor of SBS or using or misusing any SBS resources for personal, employment or other interests”.

24. [37]

    Section 2.7 of the SBS Code of Conduct deals with “Information, Facilities and Resources”. It states that employees must use information, facilities and resources provided by the SBS in a manner that is “efficient, careful and honest”. It also provides that the SBS owns all intellectual property in any material developed and/or made by employees in the performance of their duties or in the course of their employment, materials including, but not limited to, “copyright, specific knowledge, documentation, files, processes, technologies, databases, programs, recordings, films, musical compositions, software, trade secrets etc”. It also imposes a positive obligation on employees to report any misuse of information, facilities and resources of the SBS.

25. [38]

    The Intellectual Property Schedule. The Intellectual Property Schedule to the Employment Agreement provides that SBS owns all copyright in any material developed and or made by the Executive in the performance of his duties, but not limited to specific knowledge, concepts, documentation, processes, technologies, recordings, programs and software.

26. [39]

    Mr Corbett is accredited as a “Lean Six Sigma black belt”. He is a process efficiencies expert. With a background in management consulting and using Lean Six Sigma methodology, his skills involve reviewing company workflow processes and recommending ways that the time taken for the processes can be reduced. His expertise includes looking at the inefficiencies of existing business and management processes and redesigning them to make them more efficient, usually faster and cheaper.

27. [40]

    Mr Corbett’s skills centre on his ability to analyse workflows. His skills are applicable to improve processes in all types of industries. His CV indicates that since graduating from the University of Manchester in 2004 he has worked in a consulting capacity, mostly in Europe, with insurance companies, telecommunications operators, investment banks, construction companies and with government.

28. [41]

    The evidence to be adduced by SBS at final hearing shows that as an Enterprise Workflow Manager, or Operational Excellence Manager, at SBS he would, among other things, observe processes undertaken within SBS, interview staff and solicit ideas for their improvement, test hypotheses, and execute plans with the approval of high level employees, to achieve significant financial savings across the company. In doing this, SBS says that he developed a deep understanding about the internal operations of SBS and the media sector in general. The material SBS advances well supports this contention.

29. [42]

    During his time at SBS, Mr Corbett was involved in a number of large projects. I accept that there is cogent evidence that SBS will adduce at final hearing, that two of these projects were of particular importance to the future operations of SBS: the Broadcast Playout Project and the Media Asset Management Project (MAM Project). The evidence for final hearing supports the SBS contention that Mr Corbett was intimately involved with both of these projects. Although Mr Corbett contended that none of the material to which he was given access in relation to these projects was particularly confidential, the opposite conclusion is well open to be established at final hearing. The material in question represents current major business plans and project budgets of SBS, material which the Courts have often treated as confidential especially as against competitors.

30. [43]

    The specifics of both projects have been provided but subject to confidentiality undertakings. So I will not reveal their content in these reasons. But the Court has heard that the Broadcast Playout Project seeks to reform the manner in which broadcast content is received by SBS for transmission. SBS will adduce evidence at final hearing that it is one of the only broadcasters in the world to outsource this function to an external provider, and who would utilise an IP based content system using Cloud technology. SBS describes the Project in the evidence it will adduce at final hearing as “broadcast critical”, such that if it malfunctions SBS could be off the air. Mr Corbett’s case was sceptical of this claim. But the Court has looked at the underlying material (and that is all that needs be said in reasons on an interlocutory application such as this) and in my view, if accepted, that material could well justify SBS’s claims of being “broadcast critical”.

31. [44]

    The evidence to be adduced at final hearing about the MAM Project, which commenced in 2012, is designed to operate in addition to the Broadcast Playout Project, and if successful, would give rise to significant additional efficiencies at SBS.

32. [45]

    And finally the evidence SBS proposes to adduce at final hearing well supports the conclusion that both these projects have required significant financial investment and the commitment of substantial executive time on the part of SBS.

33. [46]

    At the interlocutory hearing Mr Corbett’s side was critical of the fact that SBS took some time to ask him to return its confidential information. They say, with justification, that the first notice that Mr Corbett had that there was a claim for the preservation and return of SBS’s confidential information was after proceedings were commenced on an ex parte basis on 30 March 2016. And Mr Corbett says that the only information that he has that could be potentially of any concern would now be redundant.

34. [47]

    Mr Corbett himself explains that he needed IT storage backup to enable him to work remotely from SBS, for example from home. For that purpose he says he used the Google Drive facility. He says that the documents which were saved to the Google Drive would not be of any assistance or value in his current brief with the ABC.

35. [48]

    Two things can be said about this aspect of Mr Corbett’s case. First, SBS was reacting to a developing situation after Mr Corbett left. I do not think that its delay in asking for its confidential information (and there was a little delay here) is a basis to infer that SBS had no belief in its confidential information case. The content of the material for which SBS claims confidentiality has a real chance of being shown to be confidential at a final hearing.

36. [49]

    Secondly, Mr Corbett may ultimately be proved correct. It may perhaps be shown at final hearing that there was no confidential information of SBS on these devices. But there is a prima facie case in my view that Mr Corbett was given access to confidential information and the parties have not yet had a proper opportunity to analyse what he has and how it has been used. The exact scope of what it is for which confidentiality is claimed can then be better defined. But for now the way that the interlocutory relief describes this information is sufficient.

37. [50]

    The evidence to be adduced at final hearing supports the following relevant narrative of events between 10 February and 18 March this year. On 10 February 2016 Mr Corbett spoke with his direct supervisor, Mr Noel Leslie, Chief Technology Officer, and told him that he wished to resign from SBS. The plaintiff submitted that Mr Leslie immediately responded by telling Mr Corbett that he was employed under a “fixed term contract” that did not allow him to resign.

38. [51]

    On this same day, Mr Corbett reaffirmed his intention to resign in an email, effective immediately, and noting his desire to give four weeks’ notice. This was later amended to five weeks notice.

39. [52]

    On 10 February 2016, Mr Leslie sought to address the reasons for Mr Corbett’s desire to leave SBS. Mr Leslie proposed to Mr Corbett that SBS could create a new and larger strategic role for him with significantly higher remuneration, and increasing by about $40,000 per annum.

40. [53]

    This same offer was put to Mr Corbett by Ms Andrea Muras of SBS the following day, 11 February 2016. She then reiterated the SBS’s desire to retain him as an employee.

41. [54]

    But on 12 February 2016 Mr Corbett met with Mr Leslie, declined the proposal, and reasserted his desire to leave SBS.

42. [55]

    On 18 February 2016 Ms Muras informed Mr Corbett that if he wanted to leave his employment with SBS he would have to sign a Deed of Release, and the Deed would include a requirement that he not work in the media industry before the end date of the Employment Agreement on 30 June 2017. Mr Corbett responded stating that he did not see any value in him signing the Deed that had been proffered.

43. [56]

    On 25 February 2016 Ms Muras sent a draft Deed of Release to Mr Corbett. It stipulated that Mr Corbett would need to provide a notice period of more than 9 months, which would be followed by a restraint of six months from working in the media industry. That same day, Mr Corbett responded by email stating that the approach set out in the Deed was not acceptable to him.

44. [57]

    On 18 March 2016, shortly after close of business at 5pm, Mr Corbett sent an email to Mr Leslie informing him that this was his last day at SBS.

45. [58]

    The evidence that SBS proposes to adduce at final hearing allows the following brief narrative relevant to Mr Corbett’s handling of the information that SBS claims in these proceedings to be confidential.

46. [59]

    Following Mr Corbett’s departure, Mr Corbett’s SBS issued laptop computer was inspected. As a result of reviewing a list of recently accessed files produced in the course of this inspection, Mr Leslie noted that during February 2016 and after Mr Corbett had told Mr Leslie of his intention to resign, Mr Corbett had accessed the cloud storage system, Google Drive. The titles of files on Mr Corbett’s Google Drive bore the names “Useful Outsource Examples”, “Business Documents”, “Workflow Efficiency” and “Operating Model”.

47. [60]

    Mr Leslie also noted that an entry had been created on Mr Corbett’s laptop on 15 March 2015, entitled “Gmail – FW – MAM Phase 3 Business Case”. Mr Leslie also noted a document that had been created on 11 January 2016 called “Andrew Stephen Consulting” listed as a Windows Shortcut file.

48. [61]

    SBS says that in the ordinary course of its business that it does not use the Google Drive Platform or Gmail. Mr Corbett’s team at SBS has an authorised practice of saving business related documentation onto SBS infrastructure and not onto any other external IT storage system or Cloud platform like Google Drive.

49. [62]

    By the time of the interlocutory hearing, the laptop and Google Drive material had not been referred to an IT expert for analysis. This will have to be made the subject of a pre-trial inspection and analysis regime, in which the parties will be required to co-operate.

50. [63]

    With this background the Court considers the applicable principles and the arguments of both parties under the two general headings: a serious question to be tried and the balance of convenience.

Consideration

1. [64]

   In deciding whether or not to grant an interlocutory injunction the Court must consider whether there is a serious question to be tried and then whether the balance of convenience and questions of hardship warrant the grant of an interlocutory injunction. First, the plaintiff must prove a serious, not a speculative, case which has a real possibility of ultimate success and that property or other interests might be jeopardised if no interlocutory relief is granted: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane’s Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths) at [21–350] (“Equity Doctrines and Remedies”), discussing the requirements of the Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 prima facie case test. Put another way, the plaintiff must show a sufficient likelihood of success to justify the preservation of the status quo pending the trial: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57; [2006] HCA 46 at [70] – [71].

2. [65]

   Then, it becomes a matter of analysing if in all the circumstances of the case, considering the balance of convenience and issues of hardship the Court should nonetheless exercise its discretion by declining to issue an interlocutory injunction: Equity Doctrines and Remedies at [21–350]; and see also Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 and Beese v Woodhouse [1970] 1 WLR 586. Other factors to which the Court will have regard include the adequacy of damages, the possibilities of alternative remedies, whether there has been any laches or delay, the strength of the grounds of defence suggested by the defendant, what, if any, undertakings the defendant is prepared to give, but hardship and balance of convenience are very important: Equity Doctrines and Remedies [21 – 375]. If any infringement of a plaintiff’s right between writ and hearing would be properly compensated in damages, that fact alone can, but not must, be a ground for declining an injunction: McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210.

3. [66]

   In Kolback Securities Ltd v Epoch Mining (1987) 8 NSWLR 533 McLelland J (as His Honour then was) when considering what must be established to obtain an interlocutory injunction, including when the restraint in question may have implications for the disposition of the proceedings at final hearing, said:

4. [67]

   SBS has established a serious question to be tried on whether the Employment Agreement remains on foot. It is quite arguable in my view that the Employment Agreement was for a set term and that there should not be an implied right by both parties to terminate on reasonable notice. Notwithstanding the lack of an entire agreement clause, the language of clauses 16, 17 and 18 arguably shows a clear intent to consider the whole subject of termination but without conferring a right of termination on reasonable notice.

5. [68]

   And it may well be difficult for a defendant such as Mr Corbett to maintain an implied right to terminate other than for cause on reasonable notice in circumstances where Mr Corbett himself apparently bargained for a contract duration of no less than 2 years and where SBS appeared to want workforce stability by renewing short term contracts for senior executives. Moreover this was a contract which was not open-ended but which could be described as short to medium term (two and a half years) when negotiated in its final variation in January 2015.

6. [69]

   This case is arguably like those cases in which the contract is for a defined period of time and the parties have not sought to conduct their relations on the basis of open-ended ongoing employment, which would necessitate the inclusion, or the implication, of a clause allowing termination without cause: see Waddell v mathematics.com.au [2013] NSWSC 142 at [88]. The contract here is arguably well outside the category of contract to which Byrne v Australian Airlines Limited (1995) 185 CLR 410, at 429 applies.

7. [70]

   SBS’s case is then that Mr Corbett repudiated the Employment Agreement by ceasing employment with SBS on 18 March. And that alleged repudiation has not been accepted. The factual aspects of this part of SBS’s case are really not in contest.

8. [71]

   The defendant points to the words in clause 19.2 of the contract that seem to assume that Mr Corbett and SBS may each have some right of termination. But in my view there is quite a strong argument available to SBS that these words are just a mistake. They are expressed in the conditional and do not obviously confer any rights on Mr Corbett.

9. [72]

   SBS also has raised a serious question to be tried on its contention that Mr Corbett’s notice of termination was inadequate, even if a right of reasonable notice existed under the Employment Agreement. One of the curiosities of this case is that Mr Corbett’s own email of 5 January 2015 would be a powerful argument that SBS would have no right to terminate his contract on a short period of reasonable notice of no more than five weeks. Such a result would arguably be the very antithesis of what he was seeking to achieve in January 2015. If there is an implied right of termination, in my view SBS has quite a strong argument that it may have been for a period of 6 to 9 months. After all the rights of termination would usually be reciprocal rights for the same period: Rogan-Gardiner v Woolworths Ltd [2012] WASCA 31 at [87]. Mr Corbett could hardly afford a short period of notice to be available against him and so he would arguably have to be treated the same way as SBS could treat him, if he were giving notice to SBS. Any of the other arguments about this subject fall away because of the special circumstances of this case identified here.

10. [73]

    I do not think that the notice period for cause under clauses 17, 16 and 18 of the Agreement are of much assistance on this issue as they relate to termination in different circumstances.

11. [74]

    There would then be the extra issue at final hearing, whether the giving of the short period of notice that Mr Corbett did was ineffective and the notice may have to be given again.

12. [75]

    Mr Corbett argues that the obligations to avoid conflicts in the Code of Conduct are not adequately incorporated into the Employment Agreement. But in my view there is quite an arguable case to the contrary.

13. [76]

    Finally, on the SBS’s confidential information case, SBS arguably has a legitimate protectable interest. There is in my view a clear prima facie case that a prohibition on Mr Corbett working for other broadcasters during the period of employment is based on a legitimate protectable interest: see Tullet Prebon (Australia) Pty Ltd v Purcell [2008] NSWSC 437 at [47]. In this case, for the reasons that have been identified above that legitimate protectable interest arises from Mr Corbett’s access to what the Court has assessed as what SBS can show at final hearing to be its confidential information: see Woolworths Ltd v Olson [2004] NSWCA 372 at [67]. But of course the scope of confidentiality will be determined at final hearing.

14. [77]

    Corbett says that SBS is guilty of delay in bringing this application. He contends that SBS was aware that he had a contractual engagement with the ABC to provide his services to the ABC and was so aware by about 18 March. Mr Corbett says that he was not due to start at the ABC until 4 April and that SBS could have sought an injunction long before he started and that he is prejudiced by the delay.

15. [78]

    But the factual premise of Mr Corbett’s case is not made out. I infer from the available materials on this application that SBS was unaware that Mr Corbett was contractually engaged with the ABC until 31 March when the information was revealed by Mr Corbett’s solicitors.

16. [79]

    The matter is of some importance to Mr Corbett’s argument. So consideration of relevant detail is necessary. The starting point for the argument is an internal SBS email of 18 March 2016 sent at 7:08 PM. Mr Michael Ebeid, the CEO and Managing Director of SBS sent that email to Mr Noel Leslie, the CTO and Ms Sarah Grant about Mr Corbett’s resignation. Expressing shock at Mr Corbett’s resignation Mr Ebeid says:

17. [80]

    Mr Corbett’s lawyers, Messrs Carroll & O’Dea issued a Notice to Produce seeking to discover what was the fruit of Ms Sarah Grant’s actions following upon Mr Ebeid’s instruction for her to “Call the ABC”. Understandably the suspicion was that Ms Grant had called the ABC and soon afterwards and had found out that the ABC had engaged Mr Corbett’s services by that time. But despite a searching Notice to Produce, SBS produced no file notes of any such conversations and no emails back to Mr Ebeid reporting on the content of SBS executives’ contact with the ABC. From the nil response to this Notice to Produce I accept there were no such documents.

18. [81]

    The inference is strong that SBS did not know on 18 March that Mr Corbett’s services were engaged to the ABC. Mr Ebeid’s email shows uncertainty about what Mr Corbett was doing. Mr Ebeid’s email had clearly been prompted by an email from Mr Leslie the same evening giving Mr Ebeid a “Heads Up” that “Andy has left the business, slightly disappointingly he waited until I and my EA had left the building before sending the email below”. But nothing in Mr Leslie’s email or Mr Corbett’s attached email to Mr Leslie indicates that SBS knew that Mr Corbett’s work destination was the ABC. Indeed the internal SBS emails of this day confirm the high probability that Mr Corbett had not disclosed to SBS that he was going to the ABC and that whenever SBS executives had asked him before 18 March, he had declined to communicate that information to them. Mr Corbett says that Mr Ebeid had declined to meet with him before Mr Corbett ultimately resigned on 18 March and that SBS was already taking steps to relieve Mr Corbett of some of his duties and had commenced an active recruitment program for his replacement. Some of this can be accepted because Mr Corbett had indeed said by mid-February that he was intending to leave.

19. [82]

    But I do not accept that SBS knew before 31 March 2016 that Mr Corbett was intending to work for a rival media organisation. SBS had had suspicions but no more. It is true that Mr Ebeid directs Ms Grant to call the ABC and not any other media organisation and indeed he follows up on Monday, 21 March with her saying “Did you call the ABC?” But in my view SBS was just pursuing a hunch at that stage.

20. [83]

    SBS’s lack of knowledge to that point is confirmed by some correspondence from ABC executives. Just before Mr Ebeid’s email, Mr Taylor appears to have rung Mr Richard Finlayson at the ABC. He says in an email to Mr Paul Crockford, the Head of Operations of ABC television “James Taylor rang to tell me they are going to seek to prevent him leaving”. Mr Crockford then replies to Mr Finlayson the same day, 17 March “He’s told them he is coming here? Or James is just taking a punt?” The ABC executives then forward these two emails onto Mr Corbett for information with the important covering comment, “RF hasn’t responded”.

21. [84]

    In my view the ABC were trying to reassure Mr Corbett that Mr Finlayson had not got back to Mr Taylor to confirm Mr Taylor’s suspicions that indeed Mr Corbett was going to the ABC. And it is probable in my view that if this is what Mr Corbett and the ABC were doing before 18 March that they would take the same attitude after 18 March until Mr Corbett actually started with the ABC. I am therefore not surprised that SBS did not find out from the ABC before 31 March that Mr Corbett’s services were engaged to it.

22. [85]

    In my view on the issue of delay the correct inference is not as Mr Corbett puts. Rather SBS commenced the proceedings on 30 March, a day before it found out that Mr Corbett’s services were engaged to the ABC.

23. [86]

    The injunction which SBS now seeks will not stop Mr Corbett working. SBS indicated it would modify the relief sought in the Summons so that the restraint only applied to the media industry. Given the range of Mr Corbett’s prior experience, this is not a great hardship for him. The fact that he has been working for the ABC since 4 April is merely the result of the legal process needing time properly to deal with and consider his case. Nor is the restraint for a particularly long period. Within a little over three weeks the matter will then come directly under the trial judge’s consideration.

24. [87]

    As a condition of the grant of the injunction, in addition to its undertaking as to damages, it will be necessary for SBS to undertake to continue to pay Mr Corbett during the period of restraint.

25. [88]

    Finally, this is a case where damages would not be an adequate remedy. It would be very difficult for SBS to prove how it was disadvantaged by the accelerated availability of Mr Corbett’s services to the ABC and by Mr Corbett’s use of any of its confidential information. An injunction is the appropriate remedy in such circumstances.

Conclusion and Orders

1. [89]

   For the reasons set out above the Court has concluded that a restraint on Mr Corbett providing services to the ABC or any other media organisation before the final hearing of these proceedings is appropriate, as is a restraint against Mr Corbett from misusing the plaintiff’s confidential information. But if the restraint against him working for the ABC is in place Mr Corbett’s offered undertaking in relation to confidentiality may be sufficient.

2. [90]

   But Mr Corbett will need a short time to react to these reasons. So the restraint will not go into effect until noon tomorrow. The proceedings, after they have been listed for directions before Pembroke J at 9.45am tomorrow, can be listed before me at 11.00am, so that any remaining issues about the form of Short Minutes of Order can be resolved. In the meantime Mr Corbett should prepare to end the provision of all his services to the ABC by noon tomorrow.

3. [91]

   The Court therefore orders:

   1. (1)

      Direct parties to bring in short minutes of order to give effect to these reasons;

   2. (2)

      List the proceedings for pre-trial directions before Pembroke J at 9.45 on Wednesday, 20 April 2016; and

   3. (3)

      List the proceedings before me tomorrow at 11.00am for the parties to bring in Short Minutes of Order.

4. [92]

   The Court resumed on 20 April 2016 to hear submissions about the form of orders and then the Court made the following additional orders:

   1. (1)

      Upon the provision by the plaintiff through its counsel of the usual undertakings as to damages and until further order, the defendant be restrained from being engaged in any capacity, on his own account or on behalf of or through any other person or entity, in any business activity involved in providing services in the areas of:

   2. (2)

      The Court notes the undertaking of the defendant that he will not access, disseminate, delete, tamper with or otherwise deal with any information belonging to the plaintiff that is contained on either the mobile phone handset that he currently possesses and that was issued to him by the plaintiff when he commenced employment with it, or the Google Drive referred to in paragraph 38 of his affidavit affirmed 7 April 2016, unless or until directed to do so by the Court or requested to do so by the plaintiff and with leave of the Court.

   3. (3)

      Orders that:

   4. (4)

      Liberty to apply on 1 days’ notice.