B.12 30 September to October 2016: Copying of files from DreamDesk system; preparation for DreamDesk being shut off
119 On 30 September 2016, Mr Semmens first committed a computer program named "SyncController" to the Toolbox Git repository. The SyncController facilitated the copying of records from certain tables in the DreamDesk database for Biggin & Scott to corresponding target tables in the Toolbox Git repository. Mr Semmens committed further versions of SyncController to the Toolbox Git repository on 5 October and 11 October 2016.
120 SyncController operated, in effect, like the migration scripts, except that it resided in the Toolbox system rather than in the DreamDesk system.
121 On 3 October 2016, Biggin & Scott, through its solicitors Mills Oakley, asked Campaigntrack for an extension of the DreamDesk licence until 17 October 2016. Mills Oakley stated that Biggin & Scott confirmed it was willing to provide to Campaigntrack certain undertakings.
122 On 3 October 2016, Mr Allen found evidence of RSYNC commands being run on the production server of the DreamDesk system. An RSYNC command is a command to copy files from one location to another. The production server is the server used to provide the DreamDesk system to customers.
123 On 4 October 2016, Mr Allen installed a software named "sudoreplay" on the production server of the DreamDesk system, to record and allow playback of a user's activity on the server. The videos logged by the sudoreplay software showed:
(1) on 5 October 2016, the running of an RSYNC command for files in a sub-folder "images", found in a sub-folder for Whitford Property. Whitford Property was a real estate agency operating in Victoria;
(2) on 5 October 2016, the running of an RSYNC command for files in a sub-folder for Biggin & Scott;
(3) on 6 October 2016, the running of an RSYNC command for files in a sub-folder "images", found in a Biggin & Scott subfolder; and
(4) on 10 October 2016, the running of an RSYNC command for files in a sub-folder "approved", found in a Biggin & Scott subfolder.
124 All of the above RSYNC commands copied files to an identified target folder, which included the word "toolbox", at an identical IP address. In cross-examination, Mr Semmens stated that he ran the RSYNC commands.
125 Mr Semmens was also asked whether he had any right to copy Whitford Property's files:
Do you accept that you didn't have any right to transfer the files of Whitford Property at the time at which you transferred it on 5 October 2016?---That was a client of Print Co's, which I just took a copy of so we had - if they ever asked for it, simply - - -
You accept, don't you, that you had no entitlement from anyone to take that data?---Well, I was - again, it would have been ..... the dates of this. But once being told to synchronise all the client data or make sure it's available for the client, I wouldn't have thought it was an issue.
126 As to this cross-examination and as noted below, in an email to someone at Biggin & Scott on 5 October 2016, Mr Semmens wrote: "Also I will be [sic] setup whitford tonight so we can give printco access".
127 The sudoreplay videos also captured the deletion, on 5 and 6 October 2016, of the RSYNC commands from the bash history on the production server of the DreamDesk system. The bash history stores the history of user commands entered at the command prompt. The command to access the bash history was also deleted. Mr Semmens confirmed in cross-examination that he was the one who deleted commands from the bash history.
128 Campaigntrack submitted that it should be inferred that Ms Bartels on behalf of Biggin & Scott instructed Mr Semmens to delete RSYNC commands from the DreamDesk system, so Campaigntrack would not suspect Biggin & Scott was not returning to Campaigntrack's system. I do not draw that inference. I accept that Mr Semmens did not want Campaigntrack to know what he had done, but I do not accept that he had received any instruction in that respect from Ms Bartels.
129 On 5 October 2016, Campaigntrack's solicitors emailed a document headed "Undertaking as to use of IP of Dream Desk" to Mr Meissner. The proposed undertaking was in the following terms:
Dream Desk, Meissner and Semmins [sic] undertake and agree that they individually or jointly with any other person or entity will not use, market, sell, copy, duplicate or in any way enable or facilitate the development of any system by making use of any of the intellectual property which comprises and/or relates to the system of Dream Desk, which is now owned by Campaigntrack Pty Ltd to the extent that they will not permit, now or at any time in the future, access by any third party to the system known as Dream Desk for any use other than its ordinary permissible use.
Dream Desk, Meissner and Semmins [sic] also undertake and agree that they will immediately cause to be returned to Campaigntract [sic] Pty Ltd, or if unable to be returned then destroyed so as to render useless, any of Dream Desks['] intellectual property or code which has already been copied, duplicated or otherwise provided to any third party or entity of any description whatsoever.
130 Mr Meissner replied to Campaigntrack's solicitors on the same day. Mr Meissner's email included:
I agree to all re Meissner,
but have no authority, nor was it part of any previous discussion, in relation to David Semmins [sic].
Semmins [sic] never owned the IP, and never has used it unless under Dream Desk authority.
The Dream Desk IP was sold to CT and as such no part can, or ever was used, by others.
As of the cutoff time no part of the IP has been used, copied etc in any other process.
As discussed I am overseas and cannot print or sign any Documents and as such this email should be used as my acceptance on Meissner and Dream Desk matters.
Also I presume the $5000 fee is monthly and only a % will be payable for October
131 Later in the evening on 5 October 2016, Campaigntrack's solicitor sent a draft undertaking to Mills Oakley. The draft undertaking was in the same form as that sent to Mr Meissner, except that it was required to be executed by Biggin & Scott, RETB, Mr Stoner and Ms Bartels. The covering email from Campaigntrack's solicitor stated:
We are instructed to provide you with the attached undertaking for your consideration. We understand that your client has made a request to extend our clients grant of a licence to access to Dream Desk.
Firstly, we are instructed that our client is willing to afford an extension on the basis of receiving undertakings from Dream Desk Pty Ltd and associated persons as well as seeking the attached undertaking from your client and associated persons and entities. Our client has made a similar request of Dream Desk Pty Ltd. While Dream Desk Pty Ltd and Mr Meissner have agreed to the undertaking, Mr Meissner has indicated that Dream Desk Pty Ltd will cease providing access to its web to print clients from midnight on 10 October 2016. Our client has made no such stipulation. Our client has requested payment of the licence fee and the undertakings to be provided.
In the circumstances, we ask that you confirm that your clients and associated persons and entities are willing to provide undertakings in the form of the attached?
132 As outlined in the email from Campaigntrack's solicitor, the offer of the extension of the licence was conditioned on the receipt of the undertakings from DDPL and "associated persons" and Biggin & Scott and "associated persons and entities". The offer did not name Mr Semmens, nor any of the other contractors or employees of DDPL.
133 Mr Stoner and Ms Bartels signed the undertaking on behalf of Biggin & Scott, RETB and themselves on 6 October 2016. Mr Stoner gave evidence that he was not aware that Mr Semmens had also been asked to give an undertaking. It was Mr Stoner's understanding that, by giving the undertaking, Biggin & Scott would be granted an extension of the licence to access DreamDesk until 17 October 2016.
134 Mr Semmens did not sign the undertaking requested of him. He gave the following evidence in cross-examination:
Were you told by anyone not to give the undertaking, Mr Semmens?---No.
You were not?---No.
That's your truthful evidence?---Yes.
You didn't have a discussion with Mr Stoner about giving an undertaking after he sent an email to you on 6 October 2016 at 9.43 am?---We - possibly we discussed it, but I wouldn't have - yes, I wouldn't have signed it because it was, you know, restricting my work. The undertaking that I read pretty much restricted me from working in the industry, so I was never going to sign it.
Which undertaking are you referring to, Mr Semmens?---The one that Therese [Keys] sent me.
When was the last time you read that undertaking, Mr Semmens?---A long time ago. Well, sorry, I should say that's the way I interpreted it, I did not want to sign it, I didn't want to have any restrictions.
Do you accept that if the undertaking didn't do that then you're mistaken in your recollection?---I'm not mistaken, my recollection is what I said.
All right. Sorry, your Honour, I just have to - we will just find the undertaking, Mr Semmens, just bear with me for a moment. And I should say for the benefit of ..... the undertaking which was sought from this witness, of course. We're just looking for it at the moment, I will continue?---Regardless of what it said; if it was from Campaigntrack, I would not have signed it, simple as that.
And why is that, Mr Semmens?---Because they are the most deceptive, evil company I've ever come across in my entire life.
135 On 5 to 6 October 2016, Ms Neal and Mr Semmens exchanged emails with the subject "Re: Today". At least one email in the chain was copied to Mr Meissner and persons at DDPL and JGM Advertising. Mr Stoner and Ms Bartels were also copied. In an email copied to Mr Meissner on 6 October 2016, Ms Neal asked Mr Semmens:
Also re endpoint, there will only be one for realestatetoolbox so does it matter that the one you've given is for the bs subdomain?
136 Campaigntrack submitted that this email chain, taken with the previous emails received by Mr Meissner and with the number of Mr Meissner's staff involved in the development of Toolbox suggest that Mr Meissner was aware of, and involved in, Biggin & Scott's transition away from DreamDesk. I accept that Mr Meissner was aware that Biggin & Scott was not intending to agree to use the system offered by Campaigntrack and that it was developing its own system.
137 The email chain "Re: Today" also included the following email sent by Mr Semmens:
On Wednesday, October 5, 2016, David Semmens wrote:
Great thanks
…
Working On OFIs at the moment
Wendy is just playing with it I gave her a quick run through
Also I will be setup [sic] whitford tonight so we can give printco access
new MVI endpoint api.realestatetoolbox.com.au
if B&D can change after 5pm Friday
138 Campaigntrack submitted, and I accept, that Mr Semmens' statement that he "will … setup whitford tonight" should be understood as referring to the running of the RSYNC command for Whitford Property.
139 Campaigntrack also submitted, and I also accept, that Mr Semmens' statement in the "Re: Today" email chain that he was "Working On OFIs [open for inspections] at the moment" should be taken as a reference to the SyncController committed to the Toolbox Git repository by Mr Semmens on the same day. Mr Semmens had added a "syncOFIs" function which, if executed, deleted all records of the "ofis" table of the Toolbox database, and copied all records of the "ofi" table in the DreamDesk database for Biggin & Scott to the "ofis" table of the Toolbox database.
140 On around 6 October 2016, Ms Bartels created artwork for different advertising materials, working from about 8pm to around 3am to 4am, because she was concerned to ensure that, if access to DreamDesk was shut off, then something could be up and running with Biggin & Scott's artwork within minutes:
141 On 7 October 2016, Ms Bartels sent an email to Mr Semmens, copied to Mr Stoner, with the subject line "tool box". The email stated:
Hi Dave
See you Monday (I will bring my drive and then you can show me how to allocate templates)
How did you go with brochures today?
I will put all templates onto Drop Box and share them [with] you
How did Ian go with Mail cards today?
Box & Dice will let me know Monday re: MVI
What about OFI's?
I will let offices know Tuesday afternoon what is happening
I will let offices know Tuesday afternoon to order stationery now
I will speak with your contact re: Stationery set up
Have a great weekend
142 The "Ian" referred to in this email was Mr Ian Adams, an employee at Mr Meissner's company JGM Advertising.
143 In cross-examination, Ms Bartels confirmed that the stationary set-up referred to in the above email referred to a printer "who was located across the road from where Real Estate Tool Box or where Dream Desk was operating in Mulgrave". Campaigntrack submitted that according to its company search, RETB has never had a principal place of business in Mulgrave, whereas DDPL's principal place of business has always been in Mulgrave. Campaigntrack submitted, and I accept, that I should infer from this statement together with the other facts referred to earlier that the Toolbox system was developed within DDPL's offices in Mulgrave.
144 On 7 October 2016, Campaigntrack's solicitor sent an email to Mills Oakley indicating there had been problems with procuring one party (namely, Mr Semmens) to sign the undertaking referred to at [129] above. The email included:
I confirm that I am presently seeking instructions from my client with regard to the extension. While an undertaking has been requested to be provided by Mr Meissner and other parties, Mr Meissner has not yet procured one party to sign the undertaking requested. Further, payment of the licence fee has been requested and at the present time, we are unaware of any payment having been received.
We will keep you informed of progress in relation to the above. In the meantime, we have been asked by our client to enquire what system your client is moving over to. The purpose of that request is in order for our client to gauge whether there would be any possible reasons for the resistance to the provision of the undertaking requested.
145 Approximately three hours later, Campaigntrack's solicitors wrote to Mills Oakley, confirming that the DreamDesk licence would not be extended beyond 10 October 2016. The email included:
I am writing to confirm that based on our present instructions the licence for Dream Desk will not be extended beyond 10 October 2016. The reasons for this are that:
1. Our client has not received an undertaking executed by David Semmins [sic];
2. Our client has not received payment for the licence fee either for the full month or for any lesser period, which in any event had not been agreed; and
3. We have not received any indication directly from Mr Meissner that he has an intention contrary to the position previously stated that is that Dream Desk would be shut down on 10 October 2016.
Our client made clear to Mr Meissner the basis upon which the extension of the licence would be granted and our clients requests have not been complied with. All of the above matters are matters which are beyond our clients control and accordingly have led to the decision set out above.
146 On 10 October 2016, Ms Neal sent an email to Mr Ben White of Bambra Press, a printing business, with the subject line "Test file":
Hi Ben,
Michelle [Bartels] tells me that you're up to speed with the demise of Dreamdesk and Biggin & Scott's new W2P venture, Real Estate Toolbox.
We're currently testing the Toolbox, with a view to cutting the offices over this week. (sssssshhh .... not everyone is aware yet)
We're keen to make sure that the artwork we're sending you is now print-ready, so would you mind taking a look at this - as a first example - and providing your feedback?
http://bs.realestatetoolbox.com.au//storage/8537/production/43637.pdf
Thanks very much for your help, and give me a call if you have any questions.
147 In the evening of 10 October 2016, Biggin & Scott's access to DreamDesk was cut off. That evening, Ms Bartels sent an email to all users of the DreamDesk system at Biggin & Scott offices with the subject line "Dream Desk has been shut down by Campaign Track". The email stated:
Hi All
All Directors have been advised by Paul Stoner and below is notification of Dream Desk Web to Print solution which has been shut down without notice tonight.
3 weeks ago we became aware that Campaign Track had aggressively tracked down the owner of a piece of IP in the Dream Desk web to print solution and bought it off them for a large sum of money. The purchase was made with one intention, to shut down Dream Desk as a competitor.
We entered into negotiations with Campaign track which have now stopped due to a major increase in productions fees, not only for us but also our suppliers. One example was we would have to pay $12 per page production fee for the magazine, at this stage we stopped our negotiations and asked for time to exit the system. Another example was 20% or $20 dollars on every print order.
Things very quickly got legal with all kinds of threats and requests that we simply cannot agree to.
As of this morning we had another 7 days on dream desk after numerous legal letters back and forth but at the very last minute this afternoon Campaign Track turned the system off without notice.
Obviously we have had something being done in the back ground which will be sent through to you tonight or first thing in the morning. The new company is called Real Estate Tool Box with the same team and their phone number is [redacted]. We have managed to get most of the information across into the new system but tomorrow will tell.
Please be aware:
Biggin & Scott will never deal with Campaign Track or New Litho and arrangements will be put in place to restrict active pipe moving forward.
This is not the perfect situation but this gives you an idea of the type of business's these people are running.
148 The Toolbox system went live on the same day.
149 On 11 October 2016, Mr Semmens added a modified "syncOFIs" function to the Toolbox Git repository which, when executed, deleted all records of the "ofis" table of the database at jgm.dreamdesk.com.au, and copied all records of the "ofis" table of the Toolbox database to the "ofis" table of the database at jgm.dreamdesk.com.au. Campaigntrack was not previously aware of, and did not receive control of, the subdomain jgm.dreamdesk.com.au. Campaigntrack submitted that given the name of subdomain "jgm.dreamdesk.com.au", it should be inferred that Mr Semmens was running a copy of the DreamDesk system at jgm.dreamdesk.com.au; and that given the date on which the modified "syncOFIs" function was committed to the Toolbox Git repository, the purpose of the copy of the DreamDesk system was to generate PDF artwork containing OFI details after Campaigntrack had shut down Biggin & Scott's access to the DreamDesk system.
150 I accept that this inference should be drawn. It is supported by the fact that in the email chain on 8 September 2016 referred to at [84] above, Ms Neal wrote that, using integration with Box+Dice, OFI details are entered into the Box+Dice customer relationship management system, those details are synchronised to the DreamDesk system, and the same synchronisation was planned for the Toolbox system. In the email chain of 5 and 6 October 2016 referred to at [135] to [137] above, Ms Bartels wrote that Mr Semmens had said that the Toolbox system's integration with Box+Dice could be done by Friday 7 October 2016. I accept that that Mr Semmens was running a copy of the DreamDesk system on 11 October 2016.
151 Campaigntrack shut the DreamDesk system down completely by the end of October 2016.