DP World Sydney Ltd v Guy

1. [1]

   HIS HONOUR: The plaintiff, DP World Sydney Ltd (“DPW”), seeks to restrain the first defendant, Mr Guy, from, amongst other things, taking up employment with the second defendant, Asciano Executive Services Pty Ltd (“Asciano”). Unless restrained, Mr Guy intended to commence employment with Asciano on 29 July 2016 in the position of Terminal Manager, Port Botany AutoStrad Terminal.

2. [2]

   Mr Guy was employed by DPW pursuant to a contract signed by him on 3 July 2014 as its General Manager Operations, Port Botany Terminal. It is not in dispute that in his new employment Mr Guy would be working for a competitor of DPW called Patrick. Other interlocutory relief is sought, including injunctions to restrain Mr Guy from soliciting customers of DPW or employees or disclosing confidential information. But the principal issue is whether he should be restrained until 27 October 2016 or earlier further order from working for Asciano.

3. [3]

   Mr Guy's employment contract included the following terms:

4. [4]

   Clause 13 provided:

5. [5]

   On 27 April 2016 Mr Guy accepted an offer of employment by Asciano to the position of Terminal Manager, Port Botany AutoStrad Terminal reporting to the General Manager Eastern of Patrick, or as Asciano might direct. On 28 April Mr Guy gave notice to the Chief Operating Officer of DPW, Mr Maxwell Kruse, that he wished to resign from his employment with DPW effective from that day. He said that in accordance with cl 17.1(a) of his contract of employment, he was giving three months’ notice of termination with the last day of his employment to be 28 July 2016.

6. [6]

   Later on 28 April 2016, DPW, through Mr Kruse, confirmed that Mr Guy's employment would cease on 28 July 2016. Mr Kruse stated that:

7. [7]

   Mr Guy replied on 4 May 2016, acknowledging that he was placed on gardening leave and was not required to attend for work or perform any work. He agreed to remain contactable and available for work via his company telephone. He said that as DPW was taking him out of the market, then he would not be able to deal with its customers, suppliers, contractors or employees. He submitted that his time out on gardening leave should count towards his three-month restraint period, otherwise DPW would have an effective six months’ restraint period, whereas the contract provides for only three months.

8. [8]

   On 12 May 2016 Mr Guy's solicitors, Maddocks, wrote to Mr Kruse on Mr Guy's behalf. Maddocks formally stated that in the circumstances where Mr Guy had been placed on gardening leave on 28 April, the restraining clause in cl 19.1 commenced on that date and expired on 28 July 2016. They advised that Mr Guy intended to commence employment with Patrick on 29 July 2019.

9. [9]

   Thereafter there was extensive correspondence between the parties in relation to Mr Guy's delivery up of electronic records or the deletion of electronic records that had been transferred to his home computer. The correspondence also related to DPW's demand for signed undertakings. The parties did not shift from their positions as to when the three-month restraint period would commence.

10. [10]

    These proceedings were not commenced until 21 July 2016. There was a contested hearing in the Duty List until late on 27 July in relation to DPW's claim for interlocutory relief. I reserved my decision and granted an interlocutory injunction in the terms sought by the plaintiff until I could give judgment.

11. [11]

    On the critical issue of the injunction sought against Mr Guy's taking up employment with Asciano, Mr Guy submitted first that where cl 19.1 refers to a period of three months after termination of employment, the commencement date of the restraint period is the date the employment relationship, as distinct from the contract of employment, terminated, and that was on 28 April. Secondly, he submitted that if that were not so, the three-month restraint against taking up employment, commencing after three months’ gardening leave, was not reasonable as between the parties, and was unreasonable in the public interest having regard to the undertakings he had proffered not to use or disclose confidential information or solicit the business of DPW or clients of DPW. Thirdly, he submitted that an interlocutory injunction should be refused by reason of the plaintiff's delay in bringing the application.

Commencement date of clause 19.1 restraint

1. [12]

   I turn to the first issue, from when does the restraint in cl 19.4 begin to run. Mr Guy's argument that the restraint in cl 19.4 commenced to run on 28 April and expired on 28 July 2016 depended on two propositions. First, that the employment relationship between the parties ended when he was placed on gardening leave. Secondly, that cl 19.1 operates from the time the employment relationship, as distinct from the contract of employment, ended.

2. [13]

   As to the first limb of the argument, I do not accept that the result of DPW's decision to invoke cl 17.4(a) and to put Mr Guy on gardening leave was to terminate the employment relationship. The principle that the employment relationship may be terminated, although the contract of employment has not been discharged, is essentially based on the fact that equity will not decree specific performance of a contract of service and that at common law, subject to the express terms of the contract, wages are due only for the performance of work, so that if the employee is wrongly dismissed, he or she cannot sue for wages even though he or she stands ready and willing to provide his or her service (Automatic Fire Sprinklers Pty Ltd v Watson [1946] HCA 25; (1946) 72 CLR 435 at 450-452, 465-466; Byrne v Australian Airlines Ltd (1995) 185 CLR 410, 427-428). In Tullet Prebon (Australia) Pty Ltd v Purcell [2008] NSWSC 852; (2008) 175 IR 414 Brereton J said (at [30]) that notice of termination not given in accordance with the contract of employment is ineffective to terminate the contract, unless it is accepted, but that the relationship of employer and employee is ordinarily at an end because it is inconsistent with the confidential nature of the relationship that it should continue against the will of one of the parties.

3. [14]

   In Automatic Fire Sprinklers Pty Ltd v Watson, Dixon J said (at 466):

4. [15]

   In Tullett Prebon (Australia) Pty Ltd v Purcell the employee gave immediate notice of resignation of a fixed term contract of employment. His unilateral resignation was a repudiation of the contract that was not accepted by the employer who immediately put the employee on gardening leave. It was the employee's unilateral repudiation of the contract that terminated the employment relationship, although the contract remained on foot. (See paras [23] and [28]-[29]).

5. [16]

   In the present case, neither party repudiated the contract of employment. Mr Guy gave three months' notice of termination in accordance with cl 17.1(a). DPW invoked cl 17.4 and advised Mr Guy that he was not required to attend the office for performance duties unless directed to do so by Mr Kruse, but was to remain contactable and available for work by the company telephone if required. Mr Guy acknowledged that he would so remain contactable and available for work. To use Dixon J's expression in Automatic Fast Sprinklers v Watson, Mr Guy was one who served although he only stood and waited. Had his wages not been paid, he could have sued for them. As neither party repudiated the contract and both parties accepted that the contract remained on foot and that the employer had rights under cl 17.4 and the employee remained subject to obligations under cl 17.4, in my view, the employment relationship did not come to an end.

6. [17]

   Accordingly, the restraint period under cl 19.1 did not commence until 29 July 2016 on the termination of both the employment relationship and the contract of employment.

7. [18]

   The validity of the restraint period must take account of the fact that it might apply after the employer had invoked a three-month period of gardening leave, with the result that if the restraint is valid, Mr Guy could be kept out of employment with a competitor for six months. However, that is a different question from the issue of construction with which I am presently concerned.

8. [19]

   Even had I accepted the first limb of Mr Guy's argument that his employment with DPW terminated on 28 April, I would not have accepted his argument that, in cl 19.1, the restraint period would commence from that day.

9. [20]

   Clause 17 sets out the circumstances in which the parties agreed, for the purposes of their contract, that Mr Guy's employment could be terminated. Those circumstances did not include any unaccepted unilateral repudiation of the contract by either party. While such an unaccepted unilateral repudiation would be effective to terminate the employment relationship, it does not follow that that is what the parties are to be taken to have had in mind when giving meaning to the words "termination of your employment" in the definition of Restraint Period.

10. [21]

    On the construction advanced for Mr Guy, he could have advanced the commencement of the Restraint Period by repudiating the contract instead of giving notice in compliance with it. That is an unreasonable outcome that does not give the contract a commercially sensible operation. It is not the preferable construction.

11. [22]

    It may be that a different meaning would be given to the references in cl 18 to the termination of employment. Clause 18 refers to the employee’s employment being terminated "for any reason"; words which are not found in the definition of the Restraint Period. Having regard to the different purpose served by cl 18 and the additional words in cl 18, it is arguable that cl 18 would operate from the time the employment relationship is terminated. But that does not mean that cl 19 should be so construed.

12. [23]

    For these reasons, I reject Mr Guy's submission that the restraints in cl 19 expired on 28 July 2016.

Validity of restraint

1. [24]

   I turn to the second issue as to the validity of the restraint.

2. [25]

   This is an application for an interlocutory injunction. The decision whether to grant or refuse the interlocutory injunction may, in a practical sense, determine the substance of the matter. The restraint only runs until 28 October 2016, and it may not be possible for the matter to be determined on a final basis before then. In any event, time will be running.

3. [26]

   In such a case, it is necessary to evaluate the strength of the plaintiff's case to determine where the balance of the risk of doing an injustice lies (Kolback Securities Limited v Epoch Mining NL (1987) 8 NSWLR 533 at 536).

4. [27]

   The validity of the restraint is to be assessed as at the time the contract of employment was entered into and is to be assessed by reference to what the restraint entitled, or required the parties to do, rather than what they have actually done, or intended to do (Woolworths Ltd v Olson [2004] NSWCA 372 at [40]).

5. [28]

   If the case for the exercise of the discretion to grant injunctive relief arises, the Court will take into account matters as they exist at the time of the hearing (Otis Elevator Company Pty Ltd v Nolan [2007] NSWSC 593 at [17]-[30]).

6. [29]

   In Tullett Prebon Australia Pty Ltd v Purcell, Brereton J summarised the law as follows (at [47]):

7. [30]

   Although an employer is not entitled to protection from competition, a restraint for a limited period against a former employee working for a competitor may be justified on the grounds that such a restraint is necessary to protect trade secrets, or confidential information. This is because of the difficulty of proving a breach of an obligation not to disclose or use such confidential information (The Littlewoods Organisations Ltd v Harris [1978] 1 All ER 1026 at 1033 and 1038; Kone Elevators Pty Ltd v McNay (1997) ATPR 41-564; Woolworths Ltd v Olson at [67]).

8. [31]

   The contract with DPW provided for Mr Guy to be appointed as General Manager (Operations) of the Port Botany Terminal, or such other comparable position as might be determined by DPW. It provided that he would report to the Chief Operations Officer. His initial base salary was $200,000 per annum, plus a minimum superannuation payment of $19,000 per annum and a vehicle allowance of $25,150 per annum. He was eligible to participate in the staff bonus scheme. He held a senior position.

9. [32]

   DPW is a related company of DP World Australia Pty Ltd. That is a port and supply chain operator with terminals in Port Botany, Sydney, Brisbane, Melbourne and Fremantle. The terminals are directly run by related companies of DP World Australia. DPW is responsible for the operation of the Port Botany Terminal. It provides stevedoring services described by Mr Guy as follows.

10. [33]

    Mr Guy described his role as follows.

11. [34]

    DPW's client are generally shipping lines and cargo owners. The fees for tariffs vary from client to client and depend upon a range of factors, which DPW keeps confidential. These include for each client the volume of cargo, the nature of the cargo, what rebates are in place, what incentives are negotiated for efficiency and DPW's costs.

12. [35]

    The charges are negotiated with each individual client. They are kept confidential.

13. [36]

    Mr Kruse deposed:

14. [37]

    Mr Guy described his role as an inwards looking role, focusing on the efficiency of the operation of the terminal, rather than as an outward looking role of facing the customers. Nonetheless, he had dealings with five shipping lines and two suppliers of equipment.

15. [38]

    From time to time, he received copies of customer contracts, so that he understood the penalty provisions and, I assume, also, the incentive provisions, so as to keep as efficient an operation as possible according, as he put it, to contractual expectations.

16. [39]

    Mr Kruse deposed that Mr Guy was provided with the following kinds of information.

17. [40]

    In response, Mr Guy said, in substance, that he had no independent recollection of the details of those matters, such as the actual quantum of costs, or the detail of the statistical measures used to track through port, or the details of actual performance of actual budgets, or the detail of the performance standards required under individual contracts.

18. [41]

    He deposed that while he had some knowledge of DPW's development and expansion plans for the terminal. He understood that DPW's new General Manager was reviewing those plans. He said he had some knowledge of future projections and targets, but said that the data used for setting targets changed daily and lost currency rapidly.

19. [42]

    Mr Guy was appointed as a director of DPW on 5 February 2015. The employment contract did not provide for his taking up such a role and his additional seniority as a director of DPW is not a matter which can be taken into account in assessing the validity of the restraint. He attended what were called Terminal Board Meetings. Between 5 February 2015 and 22 April 2016 he attended six such meetings in all. Board packs were provided to directors and to members of the senior leadership team, whose employment contracts contained substantially the same restraints as are found in Mr Guy's contract. The detail of the information in the board papers, so far as they concern the Port Botany Terminal, is detail that Mr Guy would have been privy to in his capacity as General Manager of the terminal.

20. [43]

    Thus, in relation to the Port Botany Terminal, information for which Mr Guy was responsible included details of revenue, volumes, labour costs, equipment running costs, other operating costs, overheads, EBITDA, including EBITDA margins. This information was both for the year to date and forecasts for the rest of the financial year. It also included such information with a comparison against budgets. It contained details of shift crane rates and capital expenditure, both actual and forecast. The papers also included details of projected timelines for renegotiation of contracts with clients, including the date of expiry of contracts and the annual volumes for each client.

21. [44]

    Mr Kruse deposed that existing contracts might be sought to be renegotiated before their expiry. Knowledge of such an intention could be of considerable assistance to a competitor. There are only a small number of companies operating container stevedoring operations at the terminal.

22. [45]

    Mr Kruse also deposed, paragraph 47:

23. [46]

    As to this evidence, Mr Guy only says that he has not retained and has no independent recollection of any of the material referred to in the previous paragraphs of Mr Kruse's affidavit, being information in the board papers, including information as to the dates of expiry of contracts, the revenue obtained from each contract and the status of negotiations.

24. [47]

    Mr Guy also has knowledge of the detail of DPW's expansion plans, including, specifically, where and what expansion was targeted, projections of customer volumes, revenue, EBITDA and margins.

25. [48]

    This information goes well beyond the development of an employee's skills, or general knowledge of an industry that is part of the personal aptitude of the employee which it is against public policy to attempt to sterilise. It even goes beyond a general knowledge of DPW's business. It comprises confidential information and trade secrets.

26. [49]

    The clause is not invalid, and it would not be proper to refuse injunctive relief, because Mr Guy does not now have the documents which contain the specific information and of which he says he does not recall the details. The words of Megaw LJ in The Littlewoods Organisation Ltd v Harris are apposite. His Lordship said (at 1038-1039):

27. [50]

    It is not an answer that Patrick's operations at Port Botany are wholly automated, whereas, DPW's operations are not and that, accordingly, Patrick's costs, or costs base, will be different from DPW's. It would still give Patrick a significant commercial advantage, against which DPW is entitled to be protected by a reasonable restraint, if it knew the costs and cost restraints to which DPW was subject, or if it knew the flexibilities and opportunities that DPW enjoyed, which it could use in negotiating terms of new contracts.

28. [51]

    Counsel for DPW also submitted, correctly in my view, that Mr Guy had, ultimately, built up a customer connection with clients at DPW. He attended meetings with clients, or potential clients, in order to pitch DPW's efficiencies in the operation of the terminal. Mr Kruse deposed that, at such meetings, Mr Guy's role was to explain how the terminal operated and, generally, to present the picture of a skilled and competent manager of logistical processes. Mr Guy deposed that during the twelve month period ending on 28 April 2016, he had worked or had dealings with five shipping line customers and two suppliers. He said that, as far as he could recall, meetings with clients at the terminal occurred about once every two months, at the most, and he was always accompanied by a member of the commercial department who was the client's point of contact. His role at such meetings was to provide technical information on the terminal's operation to the client, if requested to do so.

29. [52]

    Mr Guy would be expected to perform a similar role working for Patrick. He offers an undertaking not to participate in "quarterly review meetings with shipping lines and consortia to whom Patrick provides stevedoring services" prior to 28 October 2016.

30. [53]

    As I have said, the validity of the restraint in cl 19.1 is to be judged in the light of the grant to DPW of the right to require Mr Guy to go on gardening leave for three months before the three-month post-employment restraint commenced. In effect, the contract allowed for Mr Guy, if he gave notice of termination of his contract, to be taken out of the market for a period of six months and that is what has happened.

31. [54]

    Having regard to the seniority of Mr Guy's position, the nature of the plaintiff's business, the small number of competitors operating in the same port as DPW and, in particular, the confidentiality of the information that Mr Guy would be expected to obtain and use and which he did so acquire, I think such a six-month restraint is not larger than is reasonably necessary to protect DPW's legitimate interests in preserving its confidential information.

32. [55]

    I do not say a restraint for that length of time could be justified in the interests of protecting DPW's customer connection, having regard to the nature of Mr Guy's role. Nonetheless, its interest in protecting the customer connection provides some, although I think slight, further support for the validity of the restraint.

33. [56]

    It is also relevant that by cl 19.3, Mr Guy acknowledged that each restriction in cl 19.1 was reasonable and necessary to protect DPW's legitimate business interests.

34. [57]

    Mr Guy deposed that he did not obtain legal advice before signing the contract. He did not suggest that he did not read the clause, or did not understand it. Nor did he suggest that when he signed the contract, he did not consider whether the restraints were reasonable, or did not think that they were.

35. [58]

    I consider that, not only is there a serious question to be tried that the restraints are valid, but that the plaintiff has a strong case for saying that they are.

36. [59]

    On the balance of convenience, or to put it another way, the balance of the risk of doing an injustice, the case heavily favours DPW. It could suffer irreparable harm if its confidential information were disclosed to Patrick, either wittingly or unwittingly. For example, if information about its costs, budgets, contract expiry dates, contract negotiations, revenues or budgets were disclosed.

37. [60]

    On 18 July 2016 Mr Guy signed an undertaking that was delivered to the plaintiff. He undertook, amongst other things, to keep confidential information described in cl 13 of the contract as "Confidential Information". On 28 July 2016, after the conclusion of the substantive argument, he provided an undertaking that was premised upon his not being restrained to work for Asciano. In that undertaking he undertook not to solicit or accept an approach from any one of 16 customers and two suppliers, who were identified by name, for the Patrick business.

38. [61]

    He also undertook not to interfere with the relationship between any company in the DP World Group, and any of its customers, suppliers, group employees or contractors. As noted above, he also undertook not to participate in any quarterly review meetings referred to earlier in these reasons.

39. [62]

    The giving of those undertakings, at least so far as they were intended to preserve the confidentiality of DPW's confidential information and trade secrets, does not meet the need for restraint on employment by a competitor.

40. [63]

    As identified in the reasons in The Littlewoods Organisation Ltd v Harris, as has been frequently applied in this State, the justification for the restraint by an employee against taking up employment with a competitor is not to protect the employer from competition. Its justification is that such a restraint is necessary, or may be necessary, depending on the circumstances and the length of the restraint, in order to protect the employer from either a witting or an unwitting disclosure of such confidential information, having regard to the difficulties that an employer faces in attempting to identify or prove any such breach.

41. [64]

    I do not consider that the undertakings that are proffered displace the balance of convenience that otherwise favours the plaintiff.

42. [65]

    So far as hardship to the plaintiff is concerned, Mr Guy deposed that if he were unable to take up his employment with Asciano on and from 29 July 2016 he and his family would experience some financial hardship, and to a certain extent, would have to live off savings. That hardship, however, has been addressed by the plaintiff’s having offered to pay to Mr Guy amounts equivalent to three months’ salary that he would otherwise have earned if he were free to take up his employment with Asciano. I will hear counsel in due course as to the precise terms of the undertaking proffered in that regard.

43. [66]

    There was no evidence that Mr Guy would not be able to take up his employment with Asciano if he were not free to take up his position before 28 October 2016.

Delay

1. [67]

   I turn, then, to the question of delay. Counsel for the defendants pointed to the plaintiff's delay from 4 May to 21 July in the commencement of these proceedings. This delay arose notwithstanding that on 4 May Mr Guy committed what on the plaintiff's case was an anticipatory breach of contract by threatening to take up employment with Patrick on 29 July. It was only a week before the expiry of his employment with DPW that these proceedings were commenced.

2. [68]

   Mr Goot SC, who appeared for the defendants, referred in particular to what was said by Campbell J in Capgemini US v Case [2004] NSWSC 674 at [40]. That was also a case in which an interlocutory injunction was sought to restrain a former employee from taking up employment.

3. [69]

   Campbell J said (at [40]):

4. [70]

   Delay was one of the factors that his Honour took into account in refusing the injunction that was sought. The others were that his Honour assessed the plaintiff's case for final relief as not being strong, that the plaintiff would not gain a great advantage if an injunction were to be granted by comparison with its situation if it were left to its remedy in damages, and that an innocent third party would be inconvenienced by the grant of the injunction.

5. [71]

   In this case there has been no actual infringement of the plaintiff's rights. I do not think it can be implied by the delay in commencing the proceeding that DPW regarded the threat to take up employment in breach of the restraint in cl 19.1 as anything other than serious. Part of the delay might be attributable to the correspondence that passed between the parties' solicitors' relating to the identification of records held in electronic form by Mr Guy, or the documents that he had received, and in the plaintiff’s being satisfied that all such materials had been returned or deleted. Some time was also spent in the parties’ negotiating terms of inter-parties' undertakings, although for what ultimate purpose, given that any such undertaking would not rise higher than the contracts, is a little difficult to discern. No doubt the giving of such undertakings brings home to the employee's mind the importance of his contractual obligations. Nonetheless, delay there was in commencing these proceedings.

6. [72]

   In Network Ten Ltd v Fulwood (Supreme Court of NSW, Young J, 4 December 1995, unreported; BC9501805) Young J said:

7. [73]

   His Honour went on to say that it was a "very strong discretionary matter" to take into account that the court was not approached as early as possible, and his Honour said that on an interlocutory injunction the court “in its discretion will refuse the injunction if there has been delay which is not adequately explained".

8. [74]

   Read as a whole his Honour's observations are clearly directed to delay being an element in the exercise of a discretion, and delay may lead to an interlocutory injunction being declined.

9. [75]

   To the same effect, in J D Heydon, M J Leeming and PG Turner, Meagher, Gummow and Lehane’s Equity: Doctrines & Remedies, 5th ed, 2015 LexisNexis Butterworths at [21-375], where the learned authors observed:

10. [76]

    I think that passage fairly summarises the relevant principles.

11. [77]

    I accept the submission of counsel for DPW in relation to the absence of obvious prejudice from the delay. The only prejudice identified has been the inability of the parties to have a final hearing. The plaintiff submitted that this delay was prejudicial to it. It has to give an undertaking to damages, and it has proffered an undertaking to pay the equivalent of three months’ salary, to meet Mr Guy's claim of hardship.

12. [78]

    In some cases prejudice from delay, in circumstances such as the present case, could arise because the plaintiff need establish for the first limb of its claim only that there is a serious question to be tried. But in the present case, I have assessed the strength of the plaintiff's case, and I have done so based either on the defendant's own evidence or on evidence that was not disputed.

13. [79]

    Accordingly, I think this is a case of "mere delay," which is not to minimise its significance. However, for the reasons I have given, I do not consider that the delay casts doubt on the reality of the threatened injury, and it is but one discretionary factor in the decision whether to grant or withhold injunctive relief.

14. [80]

    Throughout the period of delay both parties were sticking to their guns as to the date from when the three-month restraint period against employment would operate. Whilst one would expect the plaintiff to be the moving party, as it ultimately was, it must be borne in mind that it was also open to the defendant to bring proceedings for final relief, to seek a declaration as to his entitlement to take up employment after 28 July.

15. [81]

    Having regard to the strength of the plaintiff's case, as I perceive it to be, the absence of hardship and the extent of possibly irrevocable harm that the plaintiffs might suffer, I do not consider that an injunction should be refused on account of delay.

16. [82]

    For these reasons, and subject to hearing from counsel as to the precise terms of the undertaking which is proffered in respect of the payment in the same amount as the three months’ salary that Mr Guy would otherwise have earned, I propose to make orders in accordance with paragraph 10 of the summons, and I will hear the parties on costs.

17. [83]

    Upon the plaintiff by its counsel giving the usual undertaking as to damages, and further undertaking to the Court and to the defendant to make three eligible termination payments to the plaintiff, on 15 August, 15 September and 15 October 2016; each such payment being in the amount of $24,166.67 less superannuation contributions and tax required to be deducted by the plaintiff, I order that up to and including 27 October 2016, or earlier further order, the first defendant be restrained from;

18. [84]

    I will hear the parties on costs.

19. [85]

    I stand the proceedings over into the expedition list on Friday, 5 August 2016.

20. [86]

    The plaintiff has succeeded on the application. Mr Goot submits that either costs should be reserved or costs should be costs in the cause. There are two reasons for that. The first is that the application is interlocutory. Secondly, he relies upon the fact that it was only during the course of argument that the plaintiff offered an undertaking to pay the same amount as the salary that Mr Guy would have earned had he been enabled to take up his employment with Asciano.

21. [87]

    I am not satisfied that matters would have panned out any differently had the way in which the offer was ultimately formulated been formulated at an earlier stage. The compensation of three months’ salary had earlier been offered as part of a quid pro quo in relation to negotiation of a deed poll. I think the sticking point between the parties was the matter of principle as to whether or not Mr Guy should be restrained from taking up employment with Asciano. The offer was not taken up as a means of resolving the application when it was made. In any event, that offer went only to one part of the case. It was a factor only. It was taken into account in the decision I have made. I do not think it is a sufficient reason to depart from the prima facie position that costs should follow the event.

22. [88]

    The matter will be stood into the expedition list, and it may be that it will proceed to final hearing, and if it does it may be that the plaintiff will fail at a final hearing. In those circumstances, it might be said that the defendants should not have been put to the costs of any part of the matter, including the costs of the interlocutory hearing, even though the plaintiff was successful. I do not think that is a sufficient reason to reserve costs, or to order that costs be costs in the cause. The question, however, is whether that is a sufficient reason for the costs of the interlocutory application being the plaintiff's costs in the proceedings, so that it will get the costs if it wins, and would not have to pay the defendants’ costs of the application if it ultimately loses. That is a matter upon which I have not yet heard submissions from the parties, and I will invite submissions on that question now.

23. [89]

    After some further submissions, the plaintiff accepts that the appropriate order is that the costs of the application for interlocutory relief be the plaintiff's costs in the proceedings, and I so order.

24. [90]

    I dispense with the requirement for the filing of a notice of motion for expedition.