Cadgroup Australia Pty Ltd v Snowball

Supreme Court of NSW|2016-01-15|Before: Black J, Young J

Solicitors: Neca Legal Pty Ltd (Plaintiff) Eakin McCaffery Cox (Defendant) File Number(s): 2015/374198

Judgment

By Summons filed on 21 December 2015, the Plaintiff, Cadgroup Australia Pty Ltd ("Cadgroup") seeks interlocutory and final relief against the Defendant, Ms Lisa Snowball. Ms Snowball gave several undertakings to the Court, without admission, when the matter was initially listed before the Duty Judge in late December 2015 which continued to the date of this judgment. Ms Snowball also offered, without admission, further undertakings at the hearing of this application (MFI 5) on which she relied to resist interlocutory relief, to which I will refer below.

The background facts and the affidavit evidence

I will first deal with the background facts and the parties' affidavit evidence before turning to the applicable legal principles and the relief sought by Cadgroup.
Cadgroup relies on an affidavit of its director, Mr Thanawalla, affirmed 21 December 2015 ("Mr Thanawalla's affidavit") and an exhibit to that affidavit (Ex A1). Mr Thanawalla explains the nature of Cadgroup's business, which is as a software reseller and "platinum value add reseller" for Autodesk products, which are used in computer aided design, primarily by architects, engineers and entities involved in building construction. Mr Thanawalla's evidence is that A2K, with which Ms Snowball has now commenced employment, is Cadgroup's direct and main competitor. It is common ground that Cadgroup and A2K together have a significant part of the reseller market for Autodesk products, with A2K having a substantially larger share of the market than Cadgroup, although that does not take account of Autodesk's direct distribution of Autodesk products to users of those products. There is evidence that Autodesk is also currently undertaking a significant transformation of its business model from providing perpetual licences for software to making it available on a subscription basis and toward direct sales of its products to users. There was a dispute in the evidence as to whether that subscription model was likely to be more or less favourable to resellers' business and it is plain that that question is the subject of different views and may be inherently uncertain. It is not necessary for me to reach any findings as to that question for the purposes of this application, where it can be determined on other grounds.
Mr Thanawalla refers to Ms Snowball's employment history with Cadgroup, which is also addressed in Ms Snowball's evidence to which I will refer below. It is common ground that Ms Snowball was employed by Cadgroup from around 9 March 2011 until she ceased employment on 25 September 2015. She was employed, at the time of her resignation, under a contract of employment dated 1 February 2014 (Ex P1, Tab 6) ("Employment Agreement") to which I will refer further below. Mr Thanawalla's affidavit evidence, by way of conclusory statement, is that: "Ms Snowball was given access to Cadgroup's customer database, key contacts, customer agreements, business proposals, pricing and costing details and policies, trade secrets, customer and supplier lists, transactions, phone based electronic contact lists including email addresses, customer accounts, technical data and information relating to systems, processes, methods and techniques used by Cadgroup, including formulas and designs for products, equipment and manufacture, and other confidential information as defined at clause 1.4 of the Employment Agreement." Mr Thanawalla's evidence in that regard partly corresponds to the definition of "Confidential Information" in cl 1.4 of the Employment Agreement, to which I will refer further below. It is difficult to avoid the conclusion that that evidence was somewhat formulaic in nature, given its reference to "formulas and designs for products" and "manufacture", where Cadgroup is a reseller of software, which, so far as the evidence goes, does not involve the development of product formulas or its design or manufacture of equipment or products. Mr Thanawalla also refers to Ms Snowball's contact with Cadgroup's customers and provides a list of existing and "potential" customers in tab 8 of the exhibit to his affidavit (Ex A1), as to which interlocutory relief was sought.
Mr Thanawalla refers to the circumstances of Ms Snowball's resignation, which is also addressed in her evidence. Some aspects of what occurred, including conversations, are disputed, but it is not necessary or appropriate to determine those disputes in this application where it can be determined on other grounds. It is common ground that Ms Snowball resigned, giving two weeks' notice, by email dated 14 September 2015; that she worked through her notice period with Mr Thanawalla's agreement; and that she finished work with Cadgroup on 25 September 2015. There does not appear to be any dispute that Ms Snowball's father was seriously ill at the time of her resignation and her evidence is that was the reason for her resignation. Mr Thanawalla makes various criticisms of Ms Snowball's work during the two week handover period in his affidavit, which it is also not necessary to determine where this application can be determined on other grounds.
About six weeks after Ms Snowball resigned, she commenced work with A2K. Mr Thanawalla's evidence is that he was advised of that matter in mid-November 2015 and he then instructed a human resources consulting firm to write to Ms Snowball, and a letter dated 24 November 2015 from that firm is in evidence. That letter was signed by a solicitor apparently associated with that firm, and required Ms Snowball to "immediately cease [her] representation of A2K Technologies, in whatever capacity that may be", keep confidential information defined as such under her employment contract and not canvass, induce, encourage or solicit any employee or contractor to leave employment with Cadgroup. That letter also threatened the commencement of injunctive proceedings and asserted that that firm (which was not, so far as the evidence goes, entitled to practice law in New South Wales or commence proceedings in this Court on behalf of third parties) had been instructed to seek liquidated damages as a result of "your breach of contract and damage caused to Cadgroup's revenue and reputation in the market". Ms Snowball did not formally reply to that letter, although it appears she complained to a former colleague at Cadgroup about the fact that it had been sent.
Mr Thanawalla also refers to a conversation with Mr Sah, an employee of PTW Architects ("PTW"), a former client of Cadgroup, in early December 2015, and there is disputed evidence as to whether Ms Snowball had approached Mr Sah to advise she was working on PTW's account at A2K, as Mr Thanawalla's evidence and Mr Sah's evidence suggests, or in a personal and social capacity as Ms Snowball claims. The determination of that issue would require assessment of questions of credit and also of the risk that either Ms Snowball or Mr Sah is genuinely mistaken in their evidence as to this matter. Mr Thanawalla's evidence cannot take the matter further than Mr Sah's evidence, where it depends on what Mr Sah told him. It is also not necessary to determine that matter since, as I will note below, depending on the construction which is ultimately to be given to the Employment Contract at a final hearing, that conduct either did not contravene it, or there is a real likelihood that the relevant clause was so broad as to be void for public policy and could not properly be read down under the Restraints of Trade Act 1976 (NSW) in the relevant circumstances, such that interlocutory relief should not be granted in respect of that clause.
Mr Thanawalla also leads evidence that Ms Snowball had quoted a price to PTW providing too high a profit margin for Cadgroup, about a month prior to her resignation, and contends that that contributed to or brought about Cadgroup's loss of that client to A2K. Ms Snowball's evidence is that she had understood that PTW would renew its licence arrangements with Cadgroup at that higher price, for reasons that she indicates. There is evidence that, although Cadgroup had allowed PTW an exceptionally low margin in the previous year, when there was significant competition for its business between Cadgroup and A2K, the margin quoted by Ms Snowball for the recent renewal was consistent with the average margin on accounts with which she was involved at Cadgroup. In closing submissions, Mr Read, who appears for Ms Snowball, submits that the allegation that Ms Snowball was seeking to undermine Cadgroup's relationship with PTW is inconsistent with other, more significant, aspects of Ms Snowball's conduct, including her winning a substantial client, Scentre Design, for Cadgroup shortly before she ceased employment (T201). I am not satisfied that this allegation provides any substantial support for Cadgroup's claims to interlocutory relief.
Under the heading "Ms Snowball's emails from Cadgroup to her personal Hotmail email account", Mr Thanawalla's affidavit also details a complaint that Ms Snowball had sent various emails to her personal email address and had also deleted emails relating to her work. The complaint as to emails from Ms Snowden to her personal email address is directed to ten emails in the three months prior to Ms Snowball's resignation which variously attach quotations, marketing documents, a purchase order for one client and some limited customer information. Mr Thanawalla's evidence is that: "I say that all of these emails relate to and/or attach confidential and/or commercially sensitive information to the Cadgroup [sic]. I also say that Ms Snowball had absolutely no reason to be sending such information to her personal hot mail [sic] email address. I am concerned that the above emails I have found in this short timeframe are not the end of it. I am therefore looking to further analyse Ms Snowball's emails when I have more time." No evidence of the outcome of those further inquiries was led in this application.
In closing submissions, Mr Read responds to Cadgroup's criticism of Ms Snowball's conduct in respect of emails by pointing out that six of the nine emails were sent before Ms Snowball's resignation; and, of the three emails sent after Ms Snowball had resigned but before she ceased employment, the last one was sent ten days before she ceased employment; and submits that the emails are consistent with the performance of Ms Snowball's work functions in that period (T207). This aspect of Mr Thanawalla's affidavit evidence was substantially undermined by the evidence which emerged in this application. The first difficulty with this allegation and Mr Thanawalla's affidavit evidence in support of it is that, as emerged in his cross-examination, the majority of the emails were sent by Ms Snowball to her Cadgroup work address, not a personal Hotmail address, in circumstances that she had been permitted by Cadgroup to work from home by remote access throughout her employment. Ms Snowball gives evidence that gives, at the least, a plausible explanation of why her sending those emails was required to perform her work for Cadgroup, because of interruptions to the availability of remote access. The second difficulty with this allegation and Mr Thanawalla's evidence in support of it is that he does not explain why the particular information attached to the emails that are the subject of this evidence is confidential or material to Cadgroup, so that it would be of any real advantage to an errant employee or a competitor of Cadgroup. The third difficulty with that allegation and Mr Thanawalla's evidence in support of it is that some of the information that is the subject of that allegation is published on Cadgroup's website, undermining both the cogency of Mr Thanawalla's evidence and any credible suggestion that Ms Snowball had any incentive to email it to herself in order to misuse it, when it was already in the public domain. It does not seem to me that this allegation provides any substantial support for Cadgroup's claim for interlocutory relief, and the manner in which it has advanced significantly undermines the cogency of Mr Thanawalla's evidence, even without reaching any finding as to credit. There is, I am obliged to say, a real question whether this allegation was properly advanced, where it amounted to a serious allegation that Ms Snowball had stolen significant confidential information and sought to conceal having done so.
This issue was associated with a further dispute as to the fact that Ms Snowball had deleted emails in the period prior to leaving her employment. Ms Snowball's evidence is that she deleted emails on an ongoing basis, because of issues as to storage capacity within Cadgroup's email system, and that practice was in turn challenged by Mr Thanawalla. It does not seem to me that any serious question to be tried is established that Ms Snowball deleted emails in order to conceal the alleged misappropriation of confidential information, both because of the lack of cogent evidence of misappropriation of confidential information, and because it is apparent that the emails deleted by Ms Snowball on an ongoing basis included a variety of emails that were plainly not of that character.
By a further affidavit dated 12 January 2016, Mr Thanawalla responded to aspects of Ms Snowball's evidence, to which I will refer below. A number of issues are in dispute between Ms Snowball and Mr Thanawalla which it is not necessary to address. I should, however, record that it seemed to me that Mr Thanawalla's evidence, in this affidavit, that one senior salesperson of Cadgroup had never been an employee of A2K verged on being misleading, where that employee had been a senior employee of one of the two companies that merged to form A2K and, it appears, had remained in A2K's employment for at least a period after that merger. Mr Thanawalla was cross-examined at some length.
Ms Snowball in turn relied on two affidavits dated 11 January 2016. She described her employment history, which had involved sales experience in the fashion industry before joining Cadgroup as a salesperson, set out her role at Cadgroup and gave evidence as to dealings with customers. Ms Snowball's evidence was that prices offered by competing resellers were often disclosed to other resellers by customers seeking competing quotes and that at least the names of target clients were circulated by Autodesk to resellers, although the balance of evidence indicates that that did not involve disclosure of the client lists of particular resellers. Ms Snowball's evidence was that she had little technical expertise, which was not necessary for her sales role, and relied on assistance from technically qualified persons at Cadgroup in performing that role, although she has had some training in the course of her work; she accepted that she was responsible for managing a number of client accounts in her sales role; her evidence was that she was not involved in setting Cadgroup's business strategy and did not have access to wider information as to Cadgroup; and, from August 2015, her role had changed to dealing with a specified list of clients and seeking work from targeted clients (together known as "named" clients).
Ms Snowball also gave evidence as to the circumstances of her resignation; the work that she had done between her resignation and her ceasing employment, in answer to Mr Thanawalla's criticisms of that work; and the commencement of her employment with A2K on 11 November 2015. Ms Snowball's evidence is, as I noted above, that she resigned to take care of her seriously ill father; that she accepted a position with A2K after his condition stabilised, at least for the short term; and that she is employed by A2K in a consulting solutions role, which deals with existing customers of A2K and Autodesk direct customers, and not a sales role as to Autodesk licences. That evidence is supported by that of Mr Gudgeon of A2K to which I will refer below. It is not necessary to form any view as to that evidence for the purposes of this application. Ms Snowball also led evidence, which was ultimately not substantially contested, of the financial hardship to herself and her family if she is unable to work with A2K for a significant period. Ms Snowball was also cross-examined at some length.
Ms Snowball also relied on Mr Gudgeon's evidence as to the nature of her role at A2K, the nature of A2K's business and developments in the industry. Mr Gudgeon was cross-examined as to those issues as to which he and Mr Thanawalla are clearly in profound disagreement, but it is not necessary to reach any conclusion as to them for the purposes of this application.
Ms Snowball relied on the fact, agreed between the parties (Ex D2), that she had closed a significant number of client transactions of a substantial value for Cadgroup for the period between June 2015 and the end of her employment with Cadgroup on 25 September 2015, and, in particular, she closed a deal which Scentre Design, which had been previously a client of another reseller and which was a valuable new client for Cadgroup. The evidence of Ms Snowball's efforts to promote Cadgroup's business over that period does not sit particularly well with any claim that she was working to undermine that business or divert it to A2K over that period; however, it is not necessary to express any concluded view as to that matter for the purposes of this application.

The applicable legal principles

In opening submissions, Mr Boyce fairly summarised the principles applicable to an application for interlocutory relief. In determining whether to grant such relief, I should apply the principles set out by the High Court of Australia in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [65], which in turn reflected earlier authorities requiring that there be established a prima facie case or a serious question to be tried in respect of the application. In order to obtain interlocutory relief, Cadgroup must not only demonstrate a prima facie case or serious question to be tried as to its entitlement to the relief sought at the final hearing, but also that damages would not be an adequate remedy, and that the balance of convenience favours the grant of an injunction on an interlocutory basis. The considerations of whether Cadgroup has established a serious question to be tried and of balance of convenience are, as Mr Boyce points out, inter-related; the stronger Cadgroup's case for final relief, the less that might be required to tip the balance of convenience in its favour; and a stronger case for final relief might be required to justify an injunction, if the balance of convenience is against that course. In a restraint of trade case, whether there is a serious question to be tried for final relief depends on whether it is seriously arguable that there is a valid contractual restraint, a breach or apprehended breach of it, and whether, as a matter of discretion, the Court would grant injunctive relief in respect of that breach: John Fairfax Publications Pty Ltd v Birt above at [5]. I recognise that an injunction will generally be granted to enforce a negative contractual stipulation, and that damages are rarely a sufficient remedy in the context of restraints of trade, given the difficulty of quantifying such damages: John Fairfax Publications Pty Ltd v Birt above at [45].
Mr Boyce also refers to the principles applicable to a restraint of trade. I recognise, of course, that there is a public interest in contractual performance, although a restraint on an employee's trade will not be enforced if it is not necessary for the reasonable protection of the employer's legitimate interests and the Court retains a discretion to withhold or limit injunctive relief if a proper basis is established at a hearing: Curro v Beyond Productions Pty Ltd (1993) 30 NSWLR 337 at 344; Tullett Prebon (Aust) Pty Ltd v Purcell (2008) 175 IR 414 at [88], [91]; Seven Network (Operations) Ltd v Warburton (No 2) [2011] NSWSC 386; (2011) 206 IR 450 at [4]. Mr Boyce also rightly draws attention to the application of the Restraints of Trade Act 1976 (NSW). The effect of s 4(1) of the Restraints of Trade Act is in turn that a restraint is valid to the extent to which it is not against public policy, even if not in severable terms: Koops Martin Financial Services Pty Ltd v Reeves [2006] NSWSC 449 at [26]-[27]; John Fairfax Publications Pty Ltd v Birt above at [6]. The Court determines, first, whether the alleged breach (independently of public policy considerations) will infringe the terms of the restraint properly construed; second, whether the restraint in its application to that breach (and not with respect to a hypothetical situation) is against public policy; and, if it is not, then the restraint is valid in its application to the alleged infringing conduct, unless the Court makes an order under s 4(3) of the Restraints of Trade Act: Woolworths Ltd v Olson [2004] NSWCA 372 at [42]; John Fairfax Publications Pty Ltd v Birt above at [6]. In determining whether a restraint is against public policy, a stricter and less favourable view is taken in respect of covenants in restraint of trade between employer and employee than in commercial agreements for sale of goodwill: J D Heydon, The Restraint of Trade Doctrine, (3rd ed, 2008, LexisNexis Butterworths), pp 86-90; Woolworths Ltd v Olson above at [38]; Cactus Imaging Pty Ltd v Peters [2006] NSWSC 717; (2006) 71 NSWLR 9 at [11]; John Fairfax Publications Pty Ltd v Birt above at [25].
The Court will have regard to whether the employer has a legitimate protectable interest and whether the restraint is no more than reasonable for the protection of that interest, judged at the time at which the contract was made, by reference to what the restraint entitled or required the parties to do. In Tullett Prebon (Aust) Pty Ltd v Purcell above at [47], Brereton J, after referring to the application of the Restraints of Trade Act 1976 s 4, observed that: "In New South Wales, a restraint of trade is valid to the extent that it is not against public policy [(NSW) Restraints of Trade Act, 1976, s 4(1); …. A restraint of trade is not contrary to public policy if it is reasonable as between the parties, and not unreasonable in the public interest, so that while affording adequate protection to the party in whose favour it is imposed, it is not injurious to the public … Whether a restraint is reasonable having regard to the interests of the parties depends on two, albeit related, considerations: first, whether the covenantee has a legitimate protectable interest, and secondly, whether the restraint is no more than reasonable for the legitimate protection of that interest. A covenantee is not entitled to be protected against mere competition; the legitimate interests which may be the subject of protection by covenant are in the nature of proprietary subject matter …, including trade secrets and confidential information, and goodwill including customer connection. The validity of a restraint is to be judged at the time at which the contract is made, by reference to what the restraint entitles or requires the party to do, rather than what they intend to do or have actually done … [citations omitted] His Honour also observed (at [55]) that: "… [A] prohibition on being employed by third parties is a restraint …; it is therefore valid to the extent that it is not contrary to public policy, but no further. The mere circumstance that the parties have agreed to it cannot of itself provide the requisite justification, else every contractual restraint would be justified; the question must be whether the restraints are more extensive in scope, area or duration than necessary for the reasonable protection of the employer's legitimate interests."
Mr Boyce also fairly recognised that an employer is not entitled to be protected from competition as such, but rightly pointed out that it may have business interests capable of being protected by an appropriate restraint of trade, including its personal connection with suppliers or customers and an interest in the protection of confidential information, even if that information is not in the nature of a trade secret such as to attract equitable protection in the absence of any contractual agreement: Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 at 326, 333-334, 341; Cactus Imaging Pty Ltd v Peters above at [12], [25]. Mr Boyce fairly noted that the time for which confidential information is likely to be current and of commercial advantage is relevant to determining whether a restraint is reasonable: Cactus Imaging Pty Ltd v Peters above at [36]. To the extent that a restraint is too wide and is against public policy, the Court may read it down under the Restraints of Trade Act so that it is reasonable as to its area, time or extent, although the Court may not rewrite it.
Mr Read, who appears for Ms Snowball, generally agreed with Mr Boyce's statement of the applicable legal principles, although also emphasising several matters. Mr Read summarised Ms Snowball's response to Cadgroup's claim as being that Cadgroup does not have a seriously arguable case, or alternatively has a weak case, for final relief; the undertakings offered by Ms Snowball, to which I will return below, provide adequate protection to Cadgroup; that Ms Snowball has been engaged at A2K in a role which does not compete with Cadgroup and does not undertake work in promoting or selling Autodesk software in that role; and the balance of convenience does not favour the interlocutory orders sought by Cadgroup, where they would potentially require Ms Snowball to terminate her employment with A2K.

Cadgroup's claim for an Interlocutory order restraining Ms Snowball's employment by A2K

As I noted above, the first order sought by Cadgroup, on an interlocutory basis, is: "An order that [Ms Snowball] be restrained up to and including 25 September 2016 from being employed or otherwise directly or indirectly engaged or involved in any capacity in the performance of work for any business or entity which is a competitor with the business activities of [Cadgroup], including [A2K]." That relief is not expressed in a form that is appropriate for interlocutory relief, but should be understood as seeking such relief pending a final hearing.
This order seeks to enforce a restraint which appears under the heading "Post Employment Restraint" in cl 33 of the Employment Contract which provides, inter alia: "[33.2] To reasonably protect the goodwill of the Business, you agree that, without the prior written consent of [Cadgroup], you will not, during the periods and in the areas specified in this clause: (a) be engaged in, involved in, or associated with, a business competing with [Cadgroup], the Business, or the business of any Related Body Corporate, as a principal, director, employee, partner, shareholder or unitholder, contractor, advisor, consultant or agent. …" The period of time specified in that clause is, relevantly, 12 months, 9 months or 6 months, and the restraint areas are relevantly, the metropolitan area of Sydney, New South Wales and Australia.
Clause 33.6 of the Employment Contract provides that Ms Snowball acknowledges and agrees that the restraints in the clause are fair, reasonable and go no further than is reasonably necessary to protect Cadgroup's legitimate business interests, and that Cadgroup is relying on that acknowledgement in entering into the contract. I have had regard to the proposition that, where the parties have equal bargaining power, it will often be reasonable to regard them as the best judges of the length of period that is reasonable for a restraint; however, as Brereton J noted in Cactus Imaging Pty Ltd v Peters above at [41], that consideration is not conclusive. That proposition also seems to me to have less weight where an employee is offered a contract of employment in standard form, specifying a lengthy restraint, and has little real prospect of negotiating that contract, and his or her only alternative to giving a required restraint may be to decline employment.
As Mr Boyce points out, the first question to be addressed in respect of this order is whether Cadgroup has established a serious question to be tried that Ms Snowball has breached that restraint. It seems to me that a serious question to be tried has been established that A2K is a business competing with Cadgroup for the purposes of cl 33 of the Employment Agreement, although there are plainly also other competitors of Cadgroup, including the supplier of the software, Autodesk, which directly supplies at least some of the products that Cadgroup resells to consumers and other resellers. It seems to me that a serious question to be tried is also established that cl 33 of the Employment Agreement has been or will be breached, to the extent that Ms Snowball is employed by A2K. Mr Read accepts, at least for the purposes of this application, that A2K is a business competing with Cadgroup and that Ms Snowball's working with A2K therefore prima facie infringes cl 33.2(a) of the Employment Agreement.
The questions as to whether the restraint in cl 33.2(a) of the Employment Agreement would be against public policy, at general law or if read down by the Restraints of Trade Act, are ultimately matters for a final hearing. However, I must reach a tentative assessment of those matters in order to determine whether Cadgroup has established a serious question to be tried and to assess the balance of convenience. In Hannamax High-Tech Pty Ltd v O'Donnell [2001] NSWSC 634 at [31]-[33], Palmer J observed that whether the covenant in that case, which prevented employment with a competitor and was in wide terms, would be saved by the application of s 4(1) of the Restraints of Trade Act was a matter for the final hearing and not for the interlocutory hearing, although his Honour noted that his doubt that it could be saved by the section must weigh to some degree in the exercise of discretion. His Honour also noted that the effect of an interlocutory injunction that would require a party to terminate a contract of employment with a competitor acutely raised the question of the balance of convenience. His Honour there declined to grant injunctive relief, where the individual in that case was in a sales position; was not in possession of information of a high degree of confidentiality relating to technical matters of the plaintiff's business; and it had not been demonstrated that in the area of sales activity she was in the possession of information, other than prices quoted by the plaintiff in that case to its clients. That decision has, as Mr Read points out, much in common with the facts of this case. I have also had regard to the decision of Rein J in Red Bull Australia Pty Ltd v Stacey [2011] NSWSC 1212, to which Mr Boyce drew attention. That decision seems to me to apply well-established principles in a different set of facts.
Mr Boyce submits, and I accept, that a restraint preventing employment with a competitor is a permissible means to protect an employer's interest in confidential information, given the difficulty of enforcing specific restraints on misuse of confidential information. However, as Mr Boyce also points out, the reasonableness of the restraint will depend on the nature of the confidential information which is to be protected, and, as I will note below, Cadgroup has not established that matter with evidence of any cogency. Mr Boyce also submits that Cadgroup's confidential information will remain current over the licence renewal period, and that a 12 month restraint is reasonable in that context. He accepts that that will prevent Ms Snowball from being employed by or otherwise involved with any of Cadgroup's competitors over that period, but submits that is the only realistic way of preventing her from utilising Cadgroup's customer connections and confidential information.
Mr Boyce also submits that the restraint is justifiable in order to protect Cadgroup's customer connections. Mr Boyce submits that Ms Snowball was a "senior" salesperson with Cadgroup and had direct contact with important clients. I accept that it is at least seriously arguable that Ms Snowball had contact with numerous clients, including both major clients and some less significant clients of Cadgroup. It does not seem to me that it is seriously arguable that she was a senior employee, so far as that description suggests any supervisory or executive responsibility. It also does not seem to me that the loss of PTW as a client, on which Cadgroup relies, establishes more than a weak case that Ms Snowball has an ability to attract particular clients to A2K, since PTW had shifted its business to A2K prior to Ms Snowball's resignation and well before she commenced work with A2K. In the present case, Cadgroup has also already had four months to introduce other sales persons or other staff, particularly Mr Lehman, to the relevant relationships.
Mr Read responds that there is no evidence that Cadgroup's customers, still less the "potential" customers of Cadgroup referred to in the exhibit to Mr Thanawalla's affidavit (Ex P1, tab 8) would follow Ms Snowball to A2K. Mr Read submits that Ms Snowball was one of a number of persons involved in sales roles at Cadgroup; that she was not the representative with which customers dealt, at least to the exclusion of others, given the involvement of a colleague, Mr Lehman, and technical staff in dealing with existing clients on the named client list; that any such likelihood is reduced by the fact that, as the evidence indicates, customers change from one reseller to another in the ordinary course, including for price reasons; that Ms Snowball did not apply particular skills to dealing with her customers, other than sales skills which others in Cadgroup's business also have; and A2K already has, as the evidence indicates, an existing or previous relationship with almost all of the customers in Ex P1, tab 8. The extent of that customer connection is also likely to have been diluted by the fact that, as Mr Read points out, Ms Snowball returned to work from maternity leave in February 2015, after having been off work for a year, and the reshuffle in which she obtained responsibility, with Mr Lehman, for the "named client" list was finalised about May 2015, although Ms Snowball retained responsibility in that list for some other smaller customers with whom she had previously worked.
It seems to me that Ms Snowball will have a strong case, at a final hearing, that the restraint in cl 33.2(a) of the Employment Agreement is too wide in its geographical scope and too long in its duration and is therefore contrary to public policy, unless read down by the Restraints of Trade Act, at least absent more persuasive evidence of confidential information and customer connection to be protected. That restraint appears to extend to an employee's involvement as an employee in any role in a business competing with Cadgroup, including a role that has no connection with the role that the employee occupied with Cadgroup. The restraint extends, on its widest geographical scope, throughout Australia, although it appears that sales employees, and specifically Ms Snowball, were allocated responsibilities within specified geographic areas.
Obviously, the time period that is reasonable for a restraint of trade will depend upon the circumstances and views may differ. In Dalysmith Corp (Aust) Pty Ltd v Cray Personnel Pty Ltd (Supreme Court (NSW), Young J, 14 April 1997, unrep), 14 April 1997, Young J observed that: "[A] restraint that enures after the time taken for a reasonably competent new employee to master the job and be able to demonstrate to customers that he or she is effective and efficient, will be too long." In Miles v Genesys Wealth Advisers Ltd [2009] NSWCA 25; (2009) 201 IR 1 at [36], Hodgson JA qualified that observation by noting that there is no precise rule on the basis of which the period for which an employer is legitimately entitled to protection can be determined, and observed that some cases may justify a restraint longer than that contemplated by Young J in Dalysmith. Nonetheless, it seems to me that the factors noted by Young J are relevant to determining the applicable length of a restraint. In Tullett Prebon (Aust) Pty Ltd v Purcell above at [53], in a case involving the employee of a brokerage firm in the wholesale market, Brereton J expressed the view that a three month period was reasonable in circumstances that it had been negotiated between the parties, but observed more generally that: "In my opinion, the contractual post-employment restraints for a period of three months are reasonable. In a relatively small industry such as this, in which the various players are well known to each other (so that clients might well seek out the former employee in his new employment even in the absence of active solicitation), a restraint on accepting employment with a competitor within the territory, as well as on solicitation of clients and recruitment of staff, is reasonable, at least for the stipulated period of three months following termination of employment, to permit the employer to replace the employee, establish a relationship between the replacement and the clients, and prove the replacement's competence." On the other hand, restraints of longer periods have been upheld in other sales relationships, although each case must turn on its own facts: for example, ATF Services Pty Ltd v Chapman [2011] NSWSC 1024; Koops Martin Financial Services Pty Ltd v Reeves above; Portal Software International Pty Ltd v Bodsworth above; Provida Pty Ltd v Sharpe [2012] NSWSC 1041.
I am not satisfied that the evidence establishes a sufficiently strong case that cl 33.2(a) of the Employment Agreement can be read down under the Restraints of Trade Act in the relevant circumstances so as to preserve its validity in its application to Ms Snowball, for the minimum specified period of six months, to outweigh the real hardship to Ms Snowball that would be involved in the grant of interlocutory relief. Mr Read points out, and I accept, that the difficulty in Ms Snowball finding alternate employment is exacerbated by the fact that she has three young children, her husband is in employment, her father is seriously ill, and Cadgroup and now A2K had permitted her to work from home. Plainly, the range of employment positions which would permit that flexibility is limited. Even if a restraint for a lesser period and geographical scope, for example within New South Wales for a lesser period of three months, would have been reasonable, there would be a real question whether the Court could narrow the clause in that way, since that is not an alternative contemplated by the clause. In any event, no injunctive relief would have been granted on that basis, because that period has already expired.
Accordingly, I would not make an interlocutory order in the terms of the first order sought by Cadgroup.

Interlocutory non-solicitation order

As I noted above, the second interlocutory order sought by Cadgroup is an order that Ms Snowball be restrained up to and including 25 June 2016 from canvassing, approaching or accepting an approach from any client or customer of Cadgroup with a view to soliciting for her benefit or the benefit of a third party, the business of that client or customer. That order is not formulated in a manner that is appropriate for interlocutory relief, but I will again assume that Cadgroup is seeking that restraint pending a final hearing. Ms Snowball offered undertakings, without admission, at the hearing that she would not, for the same period of nine months from 25 September 2015, take certain steps in relation to employees or contractors or clients of Cadgroup and would also not, for a period of 12 months from 25 September 2015, accept certain business from a person who was a client of Cadgroup or a related body corporate during the period of her employment or at the time her employment ceased.
This interlocutory order is founded primarily on cl 32.2(b) of the Employment Agreement, which prohibits Ms Snowball from: "Canvas[sing], approach[ing] or accept[ing] an approach from any client of [Cadgroup] or any Related Body Corporate with the view of soliciting for your benefit or the benefit of a third party, the Business [sic] of that client in competition to [Cadgroup] or any Related Body Corporate." The restraint period for that clause is relevantly nine months, the period referred to in the interlocutory relief sought by Cadgroup and in the undertaking offered by Ms Snowball. The term "client" is not defined in that clause and the reference to the "Business" in that clause does not appear to refer to that term as defined in the Employment Agreement but to the client's business as a matter of general usage. There is an overlap between that clause and a post-employment restraint in cl 33.2(b) of the Employment Agreement, which prohibits Ms Snowball from accepting business "of the same or of a similar nature to the Business, or the business of a Related Body Corporate" from any person who was a "Client or Supplier" of Cadgroup or a Related Body Corporate, during her employment or at the time her employment ceased, for the period and in the area specified in that clause. The term "Client" is capitalised in cl 33.2(b) of the Employment Agreement but is also not there defined. The form of relief sought by Cadgroup reflects the terms of cl 32.2(b) rather than cl 33.2(b) of the Employment Agreement. However, I will also address the latter clause since the parties did so.
The first question in respect of cll 32.2(b) and 33.2(b) and of the Employment Agreement is whether a serious question to be tried is established as to breach. That turns upon the proper construction of the clauses, which is by no means clear. Clause 32.2(b) of the Employment Agreement seems to me to be unclear in its scope, and very wide on reasonably available readings of it. That clause does not define the concept of "client" as a client of Cadgroup at any particular time, although Mr Boyce sought to read it down, in closing submissions, without any textual support in the clause, to apply to clients who had dealt with Cadgroup (as distinct from with Ms Snowball) in the 12 months prior to the termination of her employment. On one view, cl 32.2(b) extends to a "client" of Cadgroup at any time, including before and after Ms Snowball's employment by Cadgroup. Alternatively, it may extend, as does cl 33.2(b), to a client of Cadgroup at any time during Ms Snowball's employment by Cadgroup or alternatively at the date her employment ceased.
Mr Read submits that no serious question to be tried is shown of a breach of the non-solicitation clause in cll 32.2(b) and 33.2(b) of the Employment Agreement. It seems to me that Cadgroup could establish a serious question to be tried that cll 32.2(b) or 33.2(b) of the Employment Agreement have been or will be breached, if those clauses are applied in accordance with their terms, if Ms Snowball is employed by A2K or indeed by any other entity with any connection with the computer design business, because of the width of those clauses. Clauses 32.2(b) and 33.2(b) are not, in terms, limited to clients of Cadgroup who dealt with Ms Snowball and would extend to clients of Cadgroup even if they dealt only with its interstate offices and had had no dealings with Ms Snowball. The likelihood of breach is increased by the evidence that, in the relevant industry, persons who are presently clients of Cadgroup are likely also to have been present or former customers of A2K or future customers of A2K or other resellers, where the evidence indicates that customers often seek competitive pricing from resellers. I will return to the significance of that matter for the reasonableness of the clauses below.
Mr Read also addresses the position in respect of the PTW account, to which I have referred above, and submits that Ms Snowball has not engaged in infringing conduct. If cl 32.2(b) of the Employment Agreement is read as referring to clients of Cadgroup at any time, or as Mr Boyce seeks to do by introducing additional words limiting it to clients of Cadgroup in the 12 months before Ms Snowball ceased employment, then a serious question to be tried as to breach of that clause in respect of PTW would be established, so far as there is a factual dispute as to the nature of Ms Snowball's contact with PTW. If the clause were read as referring only to clients of Cadgroup at the time Ms Snowball ceased employment, then no serious question to be tried of breach would be established, because PTW had ceased to be a customer of Cadgroup before Ms Snowball's employment had ceased, although a risk of future breach might exist given the width of the clause.
The second question is whether cll 32.2(b) and 33.2(b) of the Employment Agreement are against public policy, at general law or under the Restraints of Trade Act in its application to the relevant breach. This will depend on the scope of the restraint and whether it is reasonable in order to protect Cadgroup's customer connection. Mr Thanawalla's affidavit referred to a concern that Ms Snowball could use or disclose information "to lure away all of Cadgroup's customers" and prospective customers, to which he attributed an estimated loss of $18 million per annum, a calculation which was not further explained in his affidavit. It does not seem to me that a case of any cogency has been established that Ms Snowball, as one of several salespersons at Cadgroup, had that capacity or that a financial loss of that magnitude would follow, particularly where Mr Thanawalla has not sought to justify, by evidence, the basis of that calculation.
On the other hand, Mr Read submits that there is no evidence that the customers referred to in Ex P1, tab 8, which are existing customers of Cadgroup, would follow Ms Snowball to A2K, and that position appears to be a fortiori in respect of the "potential" customers referred to in that Exhibit. Mr Read submits, and I accept that, as I noted above, Ms Snowball was not a particularly senior employee of Cadgroup; it has not been established that customers generally had dealings with her to the exclusion of others such as Mr Lehman and technical staff; and any likelihood of customers following her to A2K is reduced by the fact that customers change from one reseller to another in the ordinary course, including for price reasons; Ms Snowball did not apply particular skills to dealing with customers, other than ordinary sales skills which others in the Cadgroup business also have; and A2K already has existing or previous relationships with the substantial majority of those customers. I would add that Cadgroup has already had four months in which to introduce other sales persons and other staff, particularly Mr Lehman, to the relevant relationships.
Mr Read also submits that the restraint in cl 33.2(b) is unreasonably wide so far as it is not limited to clients with whom Ms Snowball was dealing at the time she ceased employment with Cadgroup, and extends to other clients of Cadgroup throughout Australia, who had no relationship with Ms Snowball, and also to employment in any role in a competitive business. There is substantial force in that submission. In Cactus Imaging Pty Ltd v Peters above at [32]-[33], Brereton J noted that a restraint which prohibited solicitation of customers other than those with whom the employee dealt, and those who had become customers only since he or she left the employer, would be prima facie excessive, although his Honour also pointed to some circumstances where such a restraint may be reasonable, notwithstanding that it extends beyond customers with whom the employee had personal contact. His Honour also noted (at [36]) that: "Generally, the test of reasonableness for the duration of a non-solicitation covenant, when it is supported by customer connection, is what is a reasonable time during which the employer is entitled to be protected against solicitation, which in turn depends on how long it would take a reasonably competent replacement employee to show his or her effectiveness and establish a rapport with customers." His Honour noted that, where protection of confidential information is involved, considerations as to the currency of the information will also be relevant.
It seems to me that, at this interlocutory stage and on the evidence as it stands, Ms Snowball has a substantial prospect of establishing that cl 32.2(b) of the Employment Agreement is so wide as to be against public policy. It seems to me that that clause is likely to be held to be wider than could be supported by any interest in protecting confidential information or unfair competition, and would in substance protect Cadgroup against any competition by a former employee within the industry within the period of the restraint. That clause arguably extends beyond clients which dealt with Ms Snowball or in the sales region for which she was responsible to any clients of Cadgroup anywhere in Australia over an indeterminate time period, including before and after her employment. It also seems to me that Cadgroup is likely to have difficulty in establishing that cl 32.2(b) could be read down under the Restraints of Trade Act to insert any reasonable time or geographical limit on the term "client" without substantially rewriting the clause.
It also seems to me, at this interlocutory stage and on the evidence as it stands, Ms Snowball also has a substantial prospect of establishing that cl 33.2(b) of the Employment Agreement is so wide that it is also against public policy, where it also extends the concept of client beyond an employee's area of sales responsibility and to persons with whom he or she had not dealt. It seems to me that Cadgroup is also likely to have difficulty in establishing that cl 33.2(b) could be read down under the Restraints of Trade Act where that may require rewriting the clause to include a limitation to the area in which the clients were located or whether they had dealt with the relevant sales employee of Cadgroup which the clause does not contain.
The form of interlocutory injunction sought by Cadgroup also extends to the persons referred to in Ex P1, tab 8, including "potential" clients of Cadgroup, who are in substantial part existing clients of A2K, and to that extent extends well beyond the scope of cl 32.2(b) of the Employment Agreement, which does not seek to extend the undefined term "client" to persons who are not in fact clients of Cadgroup, but persons who might be so in the future. It does not seem to me that Cadgroup has established a sufficiently strong answer to Ms Snowball's claim that cll 32.2(b) or 33.2(b) of the Employment Agreement would be void for public policy, or a sufficiently strong case that they could be saved by the Restraints of Trade Act, to support injunctive relief, particularly in the wide form sought, and given the evidence of hardship to Ms Snowball.
I note that Ms Snowball offered undertakings, without admission, for a period of nine months from 25 September 2015, broadly corresponding to cll 32.2(a)-(b) of the Employment Contract in respect of solicitation of employees or contractors of Cadgroup and dealing with clients of Cadgroup respectively. It seems to me that the former undertaking can be accepted by the Court. It does not seem to me that the Court could accept the latter undertaking if the reference to "client" in that undertaking had the uncertainties to which I have referred above, where the Court could not grant an injunction in the corresponding form. However, the term "Clients or customers" is defined in that undertaking as the businesses recorded as "existing" customers at Tab 8 of Mr Thanawalla's affidavit, excluding "potential customers" that were or are mutual or pre-existing customers or clients of Cadgroup and/or A2K prior to 25 September 2015. On the assumption that undertaking is directed to the capitalised term "Clients" as defined in MFI 5, which is an identified group of persons, then the Court could accept that undertaking and it would place Cadgroup in a more favourable position that it would have otherwise have achieved on the findings I have reached.
Ms Snowball also offers an undertaking, without admission, in a form that is narrower than cl 33.2(b) of the Employment Contract, that, for a period of 12 months from 25 September 2015, she will not accept business of the same or a similar nature to the Business (as defined in the Employment Agreement) or the business of a Related Body Corporate (as defined in the Employment Agreement) from any person who was a client of Cadgroup or a related body corporate during the period of her employment or at the time her employment ceased. On the assumption that undertaking is directed to the capitalised term "Client" as defined in MFI 5, which is an identified group of persons, then the Court could accept that undertaking, which also identifies the time at which whether the relevant person was a client of Cadgroup is to be determined. That undertaking is also more favourable to Cadgroup than the outcome it would otherwise have achieved on the findings I have reached.
The Court should therefore accept the second paragraph of the undertakings offered by Ms Snowball, adopting the defined term "Client" in MFI 5, and reflecting cl 32.2(a)-(b) of the Employment Agreement and a narrowed version of cl 33.2(b) of the Employment Agreement and no further order should be made in respect of this aspect of the application.

Interlocutory orders as to confidential information

Cadgroup also seeks several orders relating to the "Plaintiff's Confidential Information" as defined. The term "Plaintiff's Confidential Information" is defined in paragraph 7 of the Summons as being "Confidential Information" as defined in cl 1.4 of the Employment Contract between Cadgroup and Ms Snowball dated 1 February 2014 and the information set out in paragraph 36 of Mr Thanawalla's affidavit. Ms Snowball offered an undertaking, without admission, at the hearing in relation to Cadgroup's confidential information. In that undertaking, the term "Confidential Information" is defined as having the meaning given to it in the Employment Agreement between Ms Snowball and Cadgroup.
Mr Read submits that Cadgroup has failed adequately to particularise the information said to be confidential. As Mr Read points out, there is authority that a plaintiff must identify the information that is confidential, both in order to establish liability and to support the form of injunction to be granted, and must identify the relevant confidential information with precision and not merely in global terms: Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434 at 443; Rosewood Advertising Pty Ltd v Hannah Marketing Pty Ltd [2000] NSWSC 1034 at [8]; Hannamax Hi-Tech Pty Ltd v O'Donnell [2001] NSWSC 634 at [20]-[26]; Cactus Imaging Pty Ltd v Peters above at [14]; Ecolab Pty Ltd v Garland [2011] NSWSC 1095 at [23]; Red Bull Australia Pty Ltd v Stacey above at [20]-[21]; Pet Tech Pty Ltd v Batson [2013] NSWSC 1954 at [31]. In Hannamax Hi-Tech Pty Ltd v O'Donnell above, Palmer J noted (at [24]) that prices quoted by a supplier to its clients could not generally be classified properly as confidential information because, consistent with the evidence in this case, clients are free to give them to competitors in order to obtain a better quote. In that case, in the absence of adequate evidence of confidential information in the possession of the defendant, the Court declined to impose an injunction going to the disclosure of confidential information.
Mr Boyce submits that Ms Snowball had access to "significant confidential information" of Cadgroup. I accept that it is likely that she had access to some confidential information as well as information that was generally available or widely known to customers and industry participants, but Cadgroup has not conducted its case in a manner that would allow any satisfactory information of particular information that is confidential so as to warrant continuing protection. I have also referred above to Cadgroup's allegation that Ms Snowball had emailed its confidential information to her personal email address, to Mr Thanawalla's evidence in support of that allegation and to several difficulties with that allegation and that evidence. Mr Thanawalla's evidence was in turn reflected in Cadgroup's opening submission that: "On 18 December 2015, [Mr] Thanawalla became aware that prior to the cessation of her employment with Cadgroup, [Ms] Snowball had deleted various emails from her Cadgroup email account, and had also sent various Cadgroup documents (of a confidential nature) to her personal "hot mail" email address. [Ms] Snowball had attempted to cover up this conduct by deleting the emails from her Cadgroup email account. The confidential documents included customer quotations, training brochures, training costings, marketing collateral, customer names, and opportunity listings." Mr Boyce did not abandon that submission in closing submissions but pressed it only to a limited extent. It does not seem to me that a serious question has been established either as to the allegation in its initial form or in the limited version that Mr Boyce considered he could properly maintain in closing submissions.
Mr Read points to several matters to resist the injunctive relief relating to confidential information, including that customers tend to deal with resellers concurrently; that customers are free to, and do, reveal licence details and the price paid to their present reseller in seeking competing offers from other resellers; and that the majority of the existing customers of Cadgroup identified in Ex P1, tab 8 are current or former customers of A2K. Mr Read also submits that Cadgroup's and A2K's pricing and margins are "set" by Autodesk which publishes details of "named accounts" on its website, although the evidence indicates that the pricing and margins are suggested rather than mandatory and are subject to additional discounts which Autodesk may provide in its discretion and that only the names of the "named accounts" and not other information is provided by Autodesk to resellers generally.
Specifically, Cadgroup seeks three interlocutory orders directed to confidential information namely: "An order that [Ms Snowball] must not, whether by herself or through her servant/s or agent/s, at any time retain, copy, transmit, remove, exploit, distribute or otherwise use or deal with any of the Plaintiff's Confidential Information. An order that [Ms Snowball] must not, whether by herself or through her servant/s or agent/s, at any time disclose any of the Plaintiff's Confidential Information to any other person or entity. An order that [Ms Snowball] must immediately deliver up to [Cadgroup] any of the Plaintiff's Confidential Information in her custody, control or possession, in hard copy or electronic form."
Each of these orders depends on the defined term "Plaintiff's Confidential Information." The form of these orders reflects cl 20 of the Employment Agreement which imposes restrictions on disclosure, copying and other acts in respect of the "Confidential Information" (as defined), which expressly apply after termination of the Employment Agreement, other than information which comes into (as distinct from is already in) the public domain other than by act or omission by Ms Snowball. Clause 20.6 in turn provides that, on termination of Ms Snowball's employment, she must immediately deliver to Cadgroup all originals and copies of any "Confidential Information" (as defined) in her possession as well as specified items.
The structure of cl 20 of the Employment Agreement assumes that the definition of "Confidential Information" is limited to information that is in fact confidential, since there is no exclusion from that clause for information that is already publicly available, as distinct from information that becomes publicly available other than by Ms Snowball's breach. However, the concept of "Confidential Information" in cl 1.4 of the Employment Agreement is not limited in that manner. That definition extends well beyond information that would ordinarily be understood as confidential, including matters such as customer details, even where (as the evidence indicates) the majority of customers are likely also to be present or former customers of Autodesk, A2K or other resellers; phone numbers and email addresses, many of which would be readily publicly available; technical data relating to systems used by Cadgroup, which would include data that is published by Autodesk and data that is published by Cadgroup on its website or has been tendered without any confidentiality limitation in evidence in the proceedings; documents or information which contain "information of a commercial value to [Cadgroup]" without limitation as to whether those documents are already publicly available; and "Documents" as defined. The term "Documents" is in turn defined to include price lists, information generally, data generally and correspondence generally, and will also include a range of publicly available information, including information that is publicly available on Cadgroup's website and other information which has been tendered without confidentiality limitation in these proceedings. Indeed, the definition of the term "Documents" is so wide that it includes, in effect, all correspondence and all "papers of every description".
Mr Read submits that, so far as Cadgroup relies on the Employment Agreement to identify the relevant confidential information, some of the information which falls within it would not ordinarily fall within the category of confidential information, and Ms Snowball denies that she was given access to the majority of the specified information. It seems to me that the orders sought by Cadgroup in respect of confidential information should not be made where they extend to information which is likely to be in the public domain, because Cadgroup has made it publicly available on its website or has tendered it without confidentiality restriction in these proceedings. It also seems to me that the form of orders sought, defined by reference to the concept of the "Plaintiff's Confidential Information" are uncertain, and should not be made where non-compliance with them would potentially amount to contempt.
Mr Boyce, in the course of closing oral submissions, sought to restrict the range of confidential information as to which orders should be made to several categories of information and rely on the equitable duty of confidentiality rather than the terms of the Employment Agreement. Mr Boyce there identified matters that were confidential as when a customer's subscription was due for renewal; the number of licences or products the customer currently had with Cadgroup; the main contact person or influencer and their contact details within the customer; and the margin made from that customer in respect of purchase orders. Mr Boyce reserved the possibility that he might add additional matters to that list, but ultimately did not do so (T192). That was a significantly narrower range of confidential information than identified in the definition of "Confidential Information" in the Employment Agreement, and to that extent more likely to be justifiable, but it emphasised the contrast between the width of that clause and the range of information that Cadgroup could fairly identify as confidential. It does not seem to me that an order can be made in that more limited form, where that is not the basis on which the case was conducted prior to Cadgroup's closing submissions.
Ms Snowball offers an undertaking, without admission, that she would not, by herself or through her servants or agents, at any time retain, transmit, remove, exploit, distribute or otherwise use or deal with any of Cadgroup's Confidential Information (as defined); disclose any of Cadgroup's Confidential Information (as defined) to any other person or entity; and that she has returned or otherwise irrevocably destroyed all physical copies of Cadgroup's Confidential Information and copyright materials in her possession, and had deleted and destroyed all electronic copies of such information and copyright materials on the date her employment ceased, and did not possess any such information and had not disclosed any such information following the cessation of her employment. The term "Confidential Information" in that undertaking has the meaning given to it in the Employment Contract. It seems to me that that undertaking could be accepted by the Court, if amended to exclude information that is already in the public domain other than by reason of Ms Snowball's breach, and such an undertaking would sufficiently protect Cadgroup's interests, and is more favourable to Cadgroup that any injunctive relief as to which it has established any seriously arguable claim.

Other matters

Cadgroup also seeks an order that Ms Snowball be restrained from encouraging, condoning or enticing any other person or entity, including but not limited to one in which she is interested in or engaged, to engage in conduct that would cause any of those orders to be breached. No substantive submissions were put in support of that order and it does not seem to me that it should be made, given that I have held that no orders should be made other than noting the undertakings offered by Ms Snowball, subject to the amendments to which I have referred above. Mr Read also raised issues as to delay in commencement of the proceedings, and to the potential impact of the orders upon A2K, which has not been joined as a defendant in the proceedings. It is not necessary to address those matters, given the findings that I have reached on other grounds.

Orders and costs

Accordingly, the undertakings offered by Ms Snowball should be accepted by the Court, as amended and subject to Cadgroup's undertaking as to damages; the application should otherwise be dismissed; and Cadgroup should pay Ms Snowball's costs of the application as agreed or as assessed. The parties should bring in orders to give effect to this judgment within 7 days.

Amendments 09 February 2016 - Paragraph 28 - last line - change "32.2(a)" to "33.2(a)". Paragraph 44 - in quotation - change "report" to "rapport" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 February 2016

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