[2023] NSWSC 422

Data Processor Pty Ltd v Launtel Pty Ltd

Preliminary discovery granted

Catchwords

CIVIL PROCEDURE — Preliminary discovery — To identify address of potential defendant — Where plaintiff proposes to seek search orders as first step

Legislation cited

Court Suppression and Non-Publication Orders Act 2010 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Judgment

[1]
Before the Court is an application for preliminary discovery under Uniform Civil Procedure Rules 2005 (NSW) (UCPR) r 5.2 seeking to establish the whereabouts of Mr Sean O'Toole. Mr O'Toole is a full-time employee of the plaintiff. The plaintiff claims that Mr O'Toole has breached duties he owes as an employee of the plaintiff by misusing confidential information concerning betting odds in relation to sporting events which the plaintiff generates and sells to customers as part of its business. As a first step, the plaintiff proposes to seek search orders against Mr O'Toole. In order to be able to do so, the plaintiff needs to know where Mr O'Toole can be found. Mr O'Toole works from home. However, it appears that he does not currently reside at the address he gave as his home to the plaintiff. That address was surveilled by a private investigator on 12, 14, 15 and 17 April 2023 for substantial parts of the day, but there was no evidence that Mr O'Toole lives there. Since he works from home, it is to be expected that if he did live at that address he would have been seen at least on one occasion during the period when the premises were observed. The plaintiff does not have any other current address for Mr O'Toole. In particular, the New South Wales electoral roll shows Mr O'Toole's address as being the address that the plaintiff has.
[2]
In its written submissions, the plaintiff has indicated a number of further steps it could take to try to ascertain the current address of Mr O'Toole. I accept, however, that each of those steps runs the risk of placing Mr O'Toole on notice that the plaintiff is investigating his conduct, and if that were to happen, Mr O'Toole may take the very steps that the proposed search order is designed to prevent. I am satisfied in those circumstances that the plaintiff has made reasonable inquiries concerning Mr O'Toole's whereabouts.
[3]
The plaintiff has provided the Court with substantial material in support of its application for a search order. It is not necessary to say anything about that material in the present context except to say that I am satisfied that the plaintiff has a good arguable case that it is entitled to such an order on the basis of that material.
[4]
The plaintiff seeks documents disclosing Mr O'Toole's whereabouts from two internet service providers, his mobile telephone provider and his bank. For the reasons given in the plaintiff's written submissions, and in the affidavit of Mr Keith Jeffs, General Manager of the plaintiff, sworn on 18 April 2023, I am satisfied that each of those persons may have material that enables the plaintiff to identify Mr O'Toole's whereabouts.
[5]
In those circumstances the Court makes the following orders:
1. (1)
  Upon the undertaking of the plaintiff’s solicitor to pay the applicable filing fee, leave to the plaintiff to file in Court:
2. (2)
  The summons be made returnable instanter.
3. (3)
  Order pursuant to r. 5.2(7) that the plaintiff need not serve the summons on the defendants.
4. (4)
  Order pursuant to r. 5.2(2) that, by 4pm on 21 April 2023:
5. (5)
  Order that:
6. (6)
  Upon the plaintiff by its counsel giving the usual undertaking as to damages, order that each of the first, second, third and fourth defendants be restrained until 4pm on 2 May 2023 from disclosing any of:
7. (7)
  Order pursuant to s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW), on the ground that it is necessary to prevent prejudice to the proper administration of justice, that each of the defendants be prohibited, until 4pm on 2 May 2023, from disclosing any of:
8. (8)
  Liberty to apply to the Court to each of the first, second, third and fourth defendants on 6 hours’ notice.
9. (9)
  These orders be entered forthwith.
10. (10)
  These orders not be recorded in the Court’s computerised record system until 3 May 2023.
11. (11)
  The Court’s reasons for judgment on the plaintiff’s application for preliminary discovery not be published (other than to the defendants) before 3 May 2023.
12. (12)
  The Court notes the plaintiff’s undertaking to meet the reasonable costs of each defendant to the present summons in locating and producing documents the subject of orders made on the plaintiff’s application.