Transport Secretary (on behalf of the Government of New South Wales) v Srinivasa

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.

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.

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.

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:

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.

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.

In both affidavits, Mr Srinivasa apologised for not submitting his affidavit earlier. In the 8 July affidavit, he stated:

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.

As to the reason for not producing the computers, Mr Srinivasa said in both affidavits that:

Although the facts are uncontroverted, it does not necessarily follow that I should make a declaration of contempt. There is a distinction between a technical procedural contempt, such as the failure to comply with a time limit, and the flouting of orders dealing with matters of substance.

An example of the latter is Seven Network (Operations) Limited v Amber Harrison [2018] NSWSC 633, where the defendant deliberately ignored orders that she not give interviews to the media and not make public statements or give press conferences about her former employer. In this category of case, even where the plaintiff does not seek an order for punishment against the contemnor, it will usually be appropriate to make a declaration of contempt because the declaration will uphold and reinforce the principle that orders of this Court must be obeyed. The declaration represents a formal disapprobation of the defendant’s conduct in flouting the orders of the Court: Australian Securities and Investments Commission v Monarch FX Group Pty Ltd, in the matter of Monarch FX Group Pty Ltd [2014] FCA 1387 at [62]-[65].

In a case involving a merely procedural contempt however –depending on the particular circumstances – the justification for making a declaration may be less compelling. I have concluded that this is such a case.

The rationale for exercising the discretion to refrain from making a declaration has been explained in numerous decisions. In Construction, Forestry, Mining & Energy Union v Grocon Constructors (Victoria) Pty Ltd [2014] VSCA 261, the Victorian Court of Appeal said at [142]:

And in an earlier decision of the Victorian Court of Appeal, Perkins; Mesto v Galpin [1998] 4VR 505, it was said at 512 and 514:

See also Davis v Baillie [1946] VR 486 at 493-4 and National Australia Bank Limited v Juric [2001] VSC 375 at [154]. In the latter case, Gillard J said:

Finally, the following passage in Fairclough & Sons v The Manchester Ship Canan Co (No 2) (1897) 41 Sol. Jo. 225, quoted in Arlidge, Eady & Smith on Contempt, 4th edition (2011) at 1035, has often been found to be instructive:

In this case, on the basis of the facts that I have explained, and for the reasons I have adumbrated, I have concluded that in the exercise of my discretion, this is not a case justifying a declaration of contempt, nor any costs order. The defendant’s breach was only one of timing; the delay made no difference; he was not legally represented; he was apologetic; and he purged his contempt. In a practical sense, I do not think the plaintiff’s application was justified and the legal costs incurred by it have been expended for no good purpose.