Cannon-Brookes Services Pty Ltd v Chiu

Salient evidence

1. In support of the application, CBS read an affidavit of its Chief Financial Officer, Mr Faris Cosic, affirmed on 18 February 2025, and tendered the documents in Exhibit FC-1 to that affidavit. CBS also read affidavits of the proposed independent solicitor and the proposed independent computer expert referred to in the orders sought, deposing as to their qualifications and experience to undertake the steps that would be required of them under the proposed orders, deposing as to their independence of the parties, and providing undertakings to the Court in the terms set out in proposed paragraphs 2 and 3 of the interim regime in Annexure A to these reasons.
2. In opposing the application, Mr Chiu read an affidavit of his solicitor, Ms Sonja Daly, sworn on 24 February 2025.
3. What follows is a summary of the salient aspects of the evidence, and should not be read as final findings in relation to disputed matters of fact.
4. Mr Cosic deposes that he commenced employment as the Chief Financial Officer of what he describes as "the Cannon-Brookes Family Office", which is also said to be known as "the Cannon-Brookes Collective" or "CBC", on 6 January 2025. In that role, Mr Cosic is responsible for the finances of CBS and other entities within CBC and has oversight of the information technology functions of those entities.
5. Mr Cosic deposes that Mr Chiu commenced employment with CBS in the role of Group Financial Controller of CBC on or about 18 May 2020 pursuant to the Employment Contract dated 17 April 2020. That much is common ground, as I have mentioned earlier in these reasons.
6. Mr Cosic deposes that, in his role as Group Financial Controller of CBC, Mr Chiu was actively involved in all aspects of the financial management of CBC at a group level, and of the different entities within the CBC group, including CBS, and significant undertakings of those entities. Mr Cosic deposes that Mr Chiu therefore had ready access to highly sensitive and confidential information about the financial affairs of CBC at a group level, the entities within the CBC group, and Mr Michael Cannon-Brookes personally, including confidential information about the financial performance of CBC overall and the individual entities comprising CBC, details of financial investments made and being pursued by CBC and by Mr Cannon-Brookes personally, comprehensive financial modelling and analysis pertaining to CBC and Mr Cannon-Brookes personally, the tax affairs of CBC and Mr Cannon-Brookes personally, and highly sensitive human resources files for a significant number of former and current employees. Mr Cosic deposes that much of that information which Mr Chiu dealt with on a daily basis is inherently extremely sensitive and confidential to CBC and to Mr Cannon-Brookes.
7. Mr Cosic deposes that Mr Chiu reported to the Chief Financial Officer of CBC, the position which was held by Ms Catherine Manuel at all relevant times until 27 November 2024 and has been held by Mr Cosic since 6 January 2025.
8. Relevantly for present purposes, clause 15 of the Employment Contract provided: "15.1 Confidential Information Confidential Information includes, but is not limited to, any information that: (a) is contained in this agreement; (b) is marked confidential; (c) is or ought to be considered confidential by a reasonable person; (d) is received, obtained or developed by you (whether directly or indirectly) pursuant to this agreement, in the course of performing your duties and/or because you are at a particular location or interact with a particular individual by virtue of your appointment under this agreement; (e) relates to the Employer (or its associated entities) or its businesses, operations, management, processes, equipment and/or techniques; (f) relates to the Employer's officers, employees, agents and contractors (whether past, present or prospective) whether personally or to their businesses, operations, management, processes, equipment and/or techniques; (g) relates to any third party that you or the Employer deals with or their businesses, operations, management, processes, equipment and/or techniques; and/or (h) relates to or concerns (whether directly or indirectly) Mr Michael Cannon-Brookes, his spouse, children, family, friends and/or relatives (the Family), including but not limited to all knowledge, photographs, information, data, documentation, things not reduced to material form, agreements, contracts, arrangements, deeds, proposals, intentions, technical data, business information, correspondence, (any of which is electronic, physical or otherwise not reduced to any medium) whether privy to you (i) before; (ii) during; and/or (iii) after this agreement ends, but does not include information which: (a) is generally available in the public domain otherwise than as a result of a breach of this agreement by you (or a breach of any agreement or obligation with respect to the confidentiality of the Confidential Information); (b) was known by you prior to the disclosure of such information to you otherwise than as a result of a breach of any agreement or obligation with respect to the confidentiality of the Confidential Information; or (c) you are required by law to disclose. 15.2. Confidentiality obligations (a) Unless you have previous written consent from the Employer you must: (i) keep the Confidential Information confidential; (ii) only use the Confidential Information for the purpose of performing your duties under this agreement; (iii) not use or attempt to use any Confidential Information in any manner which may prejudice the confidentiality of the Confidential Information; (iv) not use or attempt to use any Confidential Information in any manner which may injure or cause loss to the Employer (or its associated entities, officers, employees, agents or contractors, whether past or present) or the Family; and (v) not use or attempt to use any Confidential Information in any manner which may benefit anyone other than the Employer. (b) You must at all times store all Confidential Information safely and securely. (c) You must immediately notify the Employer in writing of any actual, threatened or suspected unauthorised disclosure of any Confidential Information. (d) You must execute and complete all non-disclosure agreements and other agreements that relate to the protection of the Confidential Information within 5 days of being requested to do so by the Employer, whether prepared by the Employer or prepared by a third party. … 15.6. Survival The obligations under this clause survive termination of this agreement."
9. Clause 11.3 of the Employment Contract provided: "11.3 Obligations on termination - return of Employer property On termination of your employment you must: (a) Immediately return to the Employer all property of the Employer in your control or possession including but not limited to all documents, records, reports, computers and software, equipment, Confidential Information, credit cards, keys and security passes; and (b) provide to the Employer all relevant passwords, if any, to computers, systems or computer files which have been in your care or control during your employment."
10. Schedule 1 to the Employment Contract stipulated that it was for a term of 12 months. There is no dispute that Mr Chiu's employment continued after the expiry of that 12-month period. Mr Cosic's evidence to the effect that Mr Chiu's employment continued after the expiry of that 12-month period on the terms set out in the Employment Contract was admitted only as a submission. It was submitted on behalf of Mr Chiu that the evidence does not establish that the terms of the Employment Contract, and specifically clauses 11.3 and 15, applied to his employment after 18 May 2021. However, Mr Chiu has had ample opportunity to adduce any evidence on which he wished to rely in opposition to the present application and did not adduce any evidence of any facts, matters or circumstances that might support an inference that the terms of his continuing employment excluded the terms of clauses 11.3 and 15 of the Employment Contract. Given Mr Cosic's uncontested evidence on the present application of the nature of Mr Chiu's role of Group Financial Controller of CBC and the nature of the information to which Mr Chiu had access in the course of performing his duties in that role, it is inherently highly improbable that CBC and Mr Chiu excluded from the terms of his employment in the period from May 2021 the terms of clauses 11.3 and 15 of the Employment Contract to which Mr Chiu had agreed when he first accepted the position.
11. Mr Cosic deposes on information and belief that, on 27 November 2024, CBS terminated the employment of Ms Manuel as Chief Financial Officer of CBC for serious misconduct with immediate effect. As I have already mentioned, Mr Chiu reported to Ms Manuel prior to the termination of her employment.
12. Mr Cosic has given evidence to the effect that, in or about late January 2025, he discovered the following matters in the course of conducting an internal investigation unrelated to Mr Chiu: 1. at 6:12pm on 20 December 2024, Ms Manuel's icloud email address received a message from "Kevin (via Google Drive)" that "Kevin" at a gmail address which Mr Cosic describes as Mr Chiu's personal email address had added her as an editor for a folder titled "HR Backup", with the attached message "HR Folder for employment contracts and correspondence. Dump was from 14 November"; 2. at 2:05pm on 24 December 2024, Ms Manuel sent an email from her icloud email address to Mr Chiu's personal email address, stating: "Hi Kevin This folder was empty for me. Cath"; 1. Mr Chiu replied from his personal email address to Ms Manuel's icloud address, copied to a gmail address of Ms Annie Cannon-Brookes, at 8:45pm on 25 December 2024: "Are you looking at it through the web? Might need a minute for it to load?" 1. That email from Mr Chiu's gmail address was entitled "Re: Folder shared with you: 'HR Backup'". 2. On 10 January 2025, Ms Manuel sent an email from her email address @smartcollective.au to Ms Cannon-Brookes' gmail address, copied to Mr Chiu's corporate email address @cannonbrookescollective.com. Ms Manuel's email forwarded the email chain comprising the three messages I have referred to above, and stated: "Hi Annie, refer below. Hi Kevin, as an FYI, I was not able to access the folder, it was empty for me. Cath".
13. At the hearing on 24 February 2024, no submission was made on behalf of Mr Chiu disputing that the gmail address referred to in the 20 December 2024 message, and to and from which the communications on 24 and 25 December 2024 referred to above were sent, is the personal email address of Mr Chiu.
14. Mr Cosic deposes that, upon discovering this email chain, he caused CBS to engage FTI Consulting to undertake forensic analysis, including to try to retrieve the contents of the "HR Backup" folder that was the subject of the email chain. According to Mr Cosic's evidence, FTI Consulting was able to retrieve the names of the 966 files downloaded by Mr Chiu comprising the "HR Backup" folder, but was not able to retrieve the files themselves. Mr Cosic deposes that the names of the files indicate that the documents shared included employment contracts, remuneration and bonus correspondence, employee tax and superannuation details, medical certificates, visa and police check details, and committee minutes and meeting papers.
15. The substance of Mr Cosic's evidence concerning the chain of emails between 20 December 2024 and 10 January 2025, and Mr Cosic's evidence concerning the nature of the files thereby shared or attempted to be shared with Ms Manuel and Ms Cannon-Brookes, is uncontested on this application. Ms Daly's affidavit annexes an ASIC extract for Smart Collective Pty Limited which establishes that the company was registered on 14 November 2024 and that Ms Cannon-Brookes is the sole director, secretary and shareholder of the company.
16. Mr Cosic deposes that he met with Mr Chiu on 4 February 2025 to ask him to explain his actions in relation to various matters, including the downloading of the human resources files and his attempts to share those files with Ms Manuel and Ms Cannon-Brookes. According to Mr Cosic's evidence, Mr Chiu acknowledged that he had downloaded the files to a personal Google folder, and that he had attempted to share access to that folder with Ms Manuel (including after the termination of her employment with CBC) and with Ms Cannon-Brookes.
17. Mr Cosic also deposes that, at that meeting on 4 February 2025, Mr Chiu complied with a request to hand over his personal laptop, but declined to provide the usernames and passwords required to access that laptop.
18. At the conclusion of the meeting, Mr Cosic issued a show cause letter to Mr Chiu. The allegations set out in the show cause letter included the allegation that he engaged in unauthorised disclosure to external third parties of confidential information about the affairs of CBC by sharing the Google folder containing the CBC human resources files with Ms Manuel. The show cause letter stated that CBC had serious concerns about the extent to which the defendant may have engaged in other unauthorised disclosure of confidential information to external parties and, noting that he had been permitted to use personal devices for the performance of his work, directed Mr Chiu to deliver up to CBC's IT forensic service provider all CBC and personal electronic devices that he had used to access or store CBC confidential information and to provide all necessary information to access those personal devices and electronic accounts. The show cause letter required Mr Chiu to attend a further meeting that afternoon for the purpose of providing his response to the show cause letter, following which a decision would be made about his employment.
19. Mr Cosic deposes that, at his further meeting with Mr Chiu later that afternoon, Mr Chiu offered to permanently delete the human resources folder from his personal devices but declined to deliver up his personal devices. At the conclusion of the meeting, Mr Cosic informed Mr Chiu that his employment would be terminated summarily by reason of serious misconduct. Mr Cosic then handed Mr Chiu a letter of termination stating that CBS had considered his responses to the allegations in the show cause letter and determined that those allegations were substantiated, that they considered those allegations to constitute serious misconduct, and that his employment was therefore summarily terminated.
20. Mr Cosic deposes that, having regard to the nature of Mr Chiu's role and the level of access that he had to confidential information of CBC during his employment, Mr Chiu's conduct in relation to the human resources files shared or attempted to be shared with Ms Manuel, and Mr Chiu's use of personal devices to perform work, he was concerned that Mr Chiu may have divulged other confidential information to third parties about which CBS was not aware, and that he would be in a position to use and disclose such confidential information following the termination of his employment.
21. On 5 February 2025, the solicitors for CBS wrote to Mr Chiu referring to clause 11.3 of the Employment Contract and demanding that he deliver up to CBS' forensic IT consultant his personal devices and all relevant passwords for the purpose of forensic imaging of each such device and expunging of any confidential information of CBC stored on each device. Neither this proposal, nor the earlier demand for Mr Chiu to deliver up his personal devices, included any proposal for protection of any privileged information that may be stored on those devices.
22. On 6 February 2025, Ms Daly wrote a without prejudice letter to the solicitors for CBS, which Mr Chiu tendered at the hearing on 24 February 2025 without objection from CBS. The letter referred to the 5 February 2025 letter sent to Mr Chiu and complained that CBS had required a response within an unreasonable time frame. The letter then set out the following "preliminary comments" pending Ms Daly obtaining "full instructions" (emphasis added): "We are instructed that: 1. Our client was employed to perform work for the Cannon-Brookes Collective. In his role he has taken instructions from both Michael Cannon-Brookes and Annie Cannon-Brookes who are both office bearers of various entities within the CBC Group. 2. It was not uncommon for our client to be asked to perform a number of unusual tasks by the directors and office holders of various entities within the CBC Group (by way of example, 5 Reservoir St Mittagong). 3. Our client has explained that the allegations relate to actions that were in the usual course of his role such as paying invoices and following instructions from senior members of CBC, including Annie Cannon-Brookes. 4. Our client denies any serious misconduct and disputes his termination for serious misconduct. DEMAND FOR PERSONAL ITEMS 1. Your client is not entitled to demand our client's personal items in contract or law. 2. Our Client confirmed in the termination meeting, with representatives of CBC, that he would destroy any copies of confidential information he had. Your client's representatives did not instruct him otherwise, but rather, said words to the effect 'do whatever you think'. 3. Your client can not now suggest that destroying any confidential information will be used against Our Client. 4. Your client has the terms of the employment contract as protection of its confidential information. Those terms are sufficient protection. 5. The threat of court proceedings is without foundation and has no reasonable prospects of success and would be nothing more than a fishing expedition."
23. Ms Daly's letter concluded by referring in general terms to various outstanding matters that she contended need to be resolved following the termination of Mr Chiu's employment, inviting CBS' solicitors to contact her to discuss those matters, and stating that Mr Chiu would defend any proceedings that CBS may commence against him.
24. Ms Daly's letter does not expressly identify the employment contract to which she was referring in paragraph 4 of her letter under the heading DEMAND FOR PERSONAL ITEMS. However, in circumstances where she was responding directly to the letter from CBS' solicitors dated 5 February 2025 which had expressly referred to clause 11.3 of the Employment Contract, I infer in the absence of any contrary evidence on the present application that she was referring to the Employment Contract and contending that the Employment Contract contained terms sufficient to protect CBS' confidential information.
25. I note that Mr Chiu's instructions recorded in paragraph 3 of Ms Daly's "preliminary comments" do not purport to relate specifically to Mr Chiu's sharing or attempted sharing of the "HR Backup folder" with Ms Manuel on 20 and 25 December 2024 through the messages referred to at [21] above. I also note that the gmail address through which Mr Chiu and Ms Manuel communicated with Ms Cannon-Brookes in the messages referred to at [21] above was not a CBC corporate email address. Mr Chiu has had an opportunity to adduce any evidence on which he wished to rely in opposing CBS' application. Mr Chiu has not adduced any evidence of any instruction from Ms Cannon-Brookes, or from any other person acting or purporting to act on behalf of CBS or any other entity within the CBC, to share the files contained in that folder with Ms Manuel.
26. In her affidavit sworn on 24 February 2025, Ms Daly deposes that Mr Chiu delivered to her office a Microsoft Surface Pro 7, a customised PC desktop, a hard drive, and a Lenovo laptop on 12 February 2025.
27. Ms Daly wrote a further letter to CBS' solicitors on 12 February 2025 identifying those devices, together with a mobile phone and Network Attached Storage device, as the personal devices that Mr Chiu had used during the course of his employment with CBS, advising that Mr Chiu sought to delete CBC's information from those devices following the termination of his employment, and offering for Mr Chiu to "work with" an independent IT consultant to complete the process of deleting CBC's information and to ensure that it has been irretrievably deleted from his personal devices, but expressly stating that it was "not proposed that the independent IT consultant be authorised to interrogate our client's personal devices". Thus, the proposal offered no means of overseeing Mr Chiu's selection of the information to be deleted, or of verifying that the deleted information comprised all of CBS' confidential information on his personal devices.
28. Mr Cosic deposes that the plaintiff rejected that proposal because it would not enable it to determine whether any confidential information has been shared (and, if so, to what extent and with whom), and because it would not provide the plaintiff with certainty that all confidential information located on the defendant's personal devices, or in his personal electronic accounts, had been identified and irretrievably deleted.
29. As I have already mentioned, CBS commenced these proceedings by Summons filed in Court at an ex parte hearing in the Equity Duty List on 18 February 2025. At that ex parte hearing, upon CBS giving the usual undertaking as to damages, the Court made orders restraining Mr Chiu from divulging to any person any information defined as Confidential Information in clause 15.1 of the Employment Contract, and ordering Mr Chiu to preserve, and to take no action to damage, modify, destroy, erase or remove any document on any of his electronic storage devices or in his electronic accounts, or to change any password, code or other information required to access those electronic storage devices or electronic accounts. Each of those orders applied only until 5:00pm on 20 February 2025.
30. When the matter was next listed in the Equity Duty List on 20 February 2025, Mr Chiu proposed that those orders be continued until further order, on the basis of CBS' continuing undertaking as to damages and subject to some minor variations to the terms of the orders intended to make it clear that they did not preclude Mr Chiu from making any disclosure to his legal representatives for the purpose of these proceedings. Senior counsel for Mr Chiu informed the Court that his client accepted that a regime for delivery up of his electronic storage devices was appropriate, but there was disagreement between the parties about the appropriate terms of such a regime and the parties made competing submissions about those terms. During the course of those submissions, I made various observations about what I regarded as inadequate mechanisms in the terms of the regime proposed by CBS to protect any material contained on electronic storage devices to be delivered up, or in Mr Chiu's electronic accounts, that may be the subject of claims by Mr Chiu for legal professional privilege or privilege against self-incrimination. Counsel for CBS elected not to press its application for orders in the terms that it had proposed at that time, and requested instead that the matter be re-listed on 24 February 2025 to allow CBS the opportunity to reconsider the terms of the orders sought and provide any revised proposed orders to Mr Chiu's representatives for their consideration. That application was granted.
31. As I have already mentioned, the revised terms of the orders now sought by CBS are set out in Annexure A to these reasons. At the hearing on 24 February 2025, Mr Chiu opposed the making of any orders for the delivery up of his personal electronic storage devices or electronic accounts for forensic examination to identify confidential information of CBS, opposed any order requiring him to make an affidavit deposing as to any communications by which he has disclosed to third parties confidential information of CBS in his possession following the termination of his employment, and submitted that the interim injunctions granted on 18 February 2025, as varied on 20 February 2025, should be discharged with immediate effect.

Consideration and determination

1. I reject the submission made on behalf of Mr Chiu that the orders sought by CBS are a search order to which Division 3 of Part 25 of the UCPR applies. The orders are not a search order because they do not require Mr Chiu to permit persons to enter premises for the purpose of securing the preservation of evidence which is or may be relevant to these proceedings: UCPR r 25.19. In any event, CBS disavows any reliance on the statutory power of the Court to make search orders under Division 3 of Part 25 of the UCPR. As I have already mentioned, CBS seeks to invoke the auxiliary equitable jurisdiction of the Court to grant interim relief in aid of the enforcement of Mr Chiu's alleged contractual obligations or, alternatively, the equitable jurisdiction to grant such interim relief in aid of the enforcement of alleged equitable obligations of confidence. It is therefore not necessary to address the matters set out in r 25.20 of the UCPR in relation to which the Court must be satisfied before making a search order under Division 3 of Part 25 of the UCPR.
2. In my opinion, the evidence which I have summarised above discloses not only a serious question to be tried but a strong prima facie case that: (1) Mr Chiu's employment with CBS was governed by the terms of the Employment Contract, including clauses 11.3 and 15, at all relevant times until the termination of his employment on 4 February 2025; (2) Mr Chiu breached his obligations under clauses 15.2(a) and (b) of the Employment Contract by sharing or attempting to share the "HR Backup folder" with Ms Manuel through the messages referred to at [21] above; (3) Mr Chiu's obligations under clause 11.3 of the Employment Contract were enlivened immediately upon the termination of his employment; and (4) Mr Chiu's obligations under clause 15.2 of the Employment Contract survive the termination of his employment by reason of clause 15.6.
3. For the reasons to which I have already referred at [19] and [33] above, the evidence presently before the Court overwhelmingly supports the inference that the terms of Mr Chiu's employment with CBS at all material times until the termination of his employment on 4 February 2025 included terms to the effect of clauses 11.3 and 15.1, 15.2 and 15.6 of the Employment Contract. I proceed on that basis in determining the present application, and I reject the submissions to the contrary made on behalf of Mr Chiu.
4. I reject the submissions made on behalf of Mr Chiu that there is no serious question to be tried that Mr Chiu breached his obligations under clauses 15.2(a) and (b) of the Employment Contract by sharing or attempting to share the "HR Backup folder" with Ms Manuel through the messages referred to at [21] above because, according to Ms Daly's letter of 6 February 2025, Mr Chiu instructed her that actions within the "usual course of his role" included following instructions from senior members of CBC, including Ms Cannon-Brookes. As I have already observed at [34] above, Mr Chiu has not adduced any evidence on this application of any instruction that he claims to have received from Ms Cannon-Brookes, or from any other person acting or purporting to act on behalf of CBS or any other entity within CBC, to share the files contained in the "HR Backup" folder with Ms Manuel. The evidence of Mr Chiu's very general instructions set out in Ms Daly's "preliminary comments" in her 6 February 2025 letter does not dissuade me from the view that there is a serious question to be tried. As senior counsel for CBS submitted, the evidence referred to at [21] above shows that the communications by which Mr Chiu shared or attempted to share the "HR Backup" folder with Ms Manuel between 20 and 25 December 2024 emanated from Mr Chiu's personal gmail address rather than his CBC email address, and occurred at a time after which CBS had terminated Ms Manuel's employment for serious misconduct, according to the evidence of Mr Cosic which is uncontested on this application. Mr Chiu has not adduced any evidence on this application explaining the use of his personal gmail address for these communications. I accept that Ms Cannon-Brookes is a member of "the Family" as defined in clause 15.1(h) of the Employment Contract. However, the fact that Mr Chiu copied a gmail address for Ms Cannon-Brookes into his email to Ms Manuel sent on the evening of 25 December 2024 does not support an inference that Mr Chiu's actions in sharing or attempting to share the "HR Backup" folder with Ms Manuel was in the ordinary course of his employment with CBS or for the purpose of performing his duties under the Employment Contract as Group Financial Controller of CBC. As senior counsel for CBS submitted, it is inherently improbable that those duties extended to sharing confidential information of the kind that Mr Cosic's evidence indicates was contained in those 966 files with a person whose employment had recently been terminated by CBS for alleged serious misconduct. Moreover, as CBS submitted, Mr Chiu's use of his personal gmail address, and gmail address rather than a CBC email address for Ms Cannon-Brookes, for the purpose of the communications by which he shared or attempted to share those files, provides further support for the inference that these communications were not made in the ordinary course of his employment as Group Financial Controller of CBC, and also supports the inference that Mr Chiu knew this. Mr Chiu's corporate email address was introduced into the chain of communications only by Ms Manuel in her email of 10 January 2025.
5. In my opinion, the strength of CBS's prima facie case concerning the alleged breach of clause 15.2 raises inferentially a serious question to be tried about whether Mr Chiu has committed other breaches of that clause.
6. The balance of convenience overwhelmingly favours the grant of interim injunctive relief in the terms of order 2 proposed by CBS, as set out in Annexure A to these reasons. A remedy in damages would be manifestly inadequate to protect CBS' interest in protecting its confidential information. There is no evidence that the interim injunction would cause any inconvenience, let alone prejudice, to Mr Chiu who claims no interest in or entitlement to retain or use the information to which the interim injunction will apply. There is no question about adequacy of CBS' undertaking as to damages: see Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63.
7. I reject the submissions made on behalf of Mr Chiu to the effect that the interim injunctions ordered on 18 February 2025, as varied on 20 February 2025, should be discharged, and no further interim injunction should be granted, due to CBS' alleged material non-disclosure at the ex parte hearing on 18 February 2025. Mr Chiu complains that: (1) CBC did not disclose that Ms Cannon-Brookes was a party to the communications referred to at [21] above, and that the communications therefore did not evidence a risk of disclosure of confidential information of CBS to external third parties; and (2) CBC did not disclose Ms Daly's letter of 6 February 2025. The first complaint has no substance. CBS tendered Exhibit FC-1 to Mr Cosic's affidavit at the ex parte hearing on 18 February 2025. That exhibit included copies of the email communications which clearly disclosed that a gmail address of Ms Cannon-Brookes had been copied into Mr Chiu's email sent on 25 December 2024 and was the recipient of Ms Manuel's email sent on 10 January 2025. As to the second complaint, it was not open to CBC to tender Ms Daly's letter of 6 February 2025, which was expressly marked without prejudice save as to costs. It was submitted on behalf of Mr Chiu that CBS failed to disclose a material matter by failing to inform the Court that Mr Chiu disputed the allegation that he had breached clause 15.2 of the Employment Contract. However, Ms Daly's subsequent letter of 12 February 2025, which CBS did tender, expressly reserves all of Mr Chiu's rights. I consider that it was tolerably clear from that reservation that, whilst the parties were engaged in discussions exploring the possibility of an agreed regime directed to preservation of the confidentiality of CBS' information stored on Mr Chiu's personal electronic devices and in his electronic accounts, that they were not agreed about any other matter. The Court was informed that Mr Chiu had been permitted to use his personal devices for the purpose of his work, and there was therefore no suggestion that Mr Chiu's acceptance that his devices contained confidential information of CBS necessarily implied any wrongdoing on his part. Mr Chiu's failure to raise any complaint about alleged non-disclosure of material matters at the first inter partes hearing on 20 February 2025, and Mr Chiu's lack of opposition to the continuation on that occasion of interim injunctions in substantially the same terms as the orders made ex parte, provides further support for my conclusion that CBC did not fail to disclose at the ex parte hearing any matter that was material to the interim relief sought at that hearing.
8. For those reasons, it is appropriate in my opinion for the Court to exercise its auxiliary equitable jurisdiction to grant an interim injunction in the terms proposed by CBS as set out in paragraph 2 of Annexure A to these reasons.
9. I accept CBS' submission that the Court has a discretion to make an ancillary order for the delivery up of its confidential information which, in the circumstances of this case, can only practically be achieved by delivery up of Mr Chiu's electronic devices and accounts containing that confidential information on the terms of a regime which facilitates the extraction and preservation of that information by an independent expert in a manner which preserves the integrity of the information, including its metadata: see AG Australia Holdings Limited v Burton [2002] NSWSC 454 at [17]-[19]. In circumstances where Mr Chiu clams no right to retain or use the confidential information to which the proposed regime set out in Annexure A will apply, it is appropriate to exercise that discretion to remove that information from his possession, without interfering with the ability of Mr Chiu and his legal representatives to use the information for the purpose of these proceedings: see James v Faddoul [2006] NSWSC 1330 at [5] (Brereton J). The terms of the proposed regime set out in Annexure A achieve both of those objectives, whilst also providing for any information in which Mr Chiu claims legal professional privilege or privilege against self-incrimination to be quarantined from the material that is to be examined by the independent expert. In that respect, I note that senior counsel for CBS informed the Court that it has no objection to the steps provided for in paragraphs 14 and 15 of the proposed regime in Annexure A being brought forward so that the "Objected Documents" (as defined in paragraph 14) are excluded from the "Original Copy" (as defined in paragraph 11), provided that a copy of the "Objected Documents" is made and kept in the custody of the independent solicitor. Senior counsel for both parties informed the Court that they would be able to agree on the drafting of changes to achieve that effect. Subject to those changes, and subject also to a relatively small number of further changes to Annexure A which I have marked by underlining and strike through in Annexure B to these reasons to address a handful of specific issues raised by Mr Chiu in relation to the precise terms of CBS' proposed orders and proposed regime in Annexure A, I am satisfied for all of the reasons explained above that the Court should make an order in the terms of CBS' proposed order 3 giving effect to the proposed regime in Annexure A.
10. For completeness, I reject Mr Chiu's submission that the Court should decline to exercise its discretion to make those orders because Mr Chiu has, from the time of the termination of his employment, expressed his willingness to delete CBS' confidential information from his personal electronic devices and accounts, and has sought to cooperate with CBS in doing so. As CBS submitted, Mr Chiu has not identified any entitlement to delete rather than deliver up that information. Mr Chiu signed the Employment Contract on 17 April 2020 containing clause 11.3, the terms of which I have set out at [18] above. As I have already explained, CBS has established a serious question to be tried that clause 11.3 continued to apply to Mr Chiu's employment at the time that it was terminated on 4 February 2025, and that the obligations set out in that clause were enlivened by the termination of his employment. I reject Mr Chiu's submissions that it is reasonably arguable that clause 11.3, properly construed, applies only to information in physical or hard copy form. That construction is unarguable, in my opinion, because clause 11.3 expressly applies to "Confidential Information" which is defined in clause 15.1 as including "information", "data" and "things not reduced to material form".
11. For all of the reasons explained above, I consider that the Court should exercise its auxiliary equitable jurisdiction to make proposed order 1 proposed by CBS as set out in Annexure A to these reasons to preserve the efficacy of the regime that is the subject of order 3.
12. It is not necessary to address CBS' alternative submissions relying on equitable obligations of confidence.
13. Turning to order 4 proposed by CBS in the terms set out in Annexure A to these reasons, I accept CBS' submission that this is an order in the nature of discovery and that it is consistent with ss 56-58 of the Civil Procedure Act for the order to be made in all the circumstances of this case. I reject Mr Chiu's submission that the order is an impermissible fishing expedition. For the reasons I have already explained, the evidence presently before the Court indicates that "there are likely to be fish of the relevant kind in the pond", to borrow the language of Brereton J in James v Faddoul [2006] NSWSC 1330 at [6]-[7]; see also Computershare Ltd v Perpetual Registrars Ltd [2000] VSC 139 at [19]. The terms of the proposed order are expressly subject to any claim that Mr Chiu may make invoking privilege against self-incrimination, as is appropriate: see Sporte Leisure Pty Ltd v Paul's International Pty Ltd [2009] FCA 445 at [3]-[4] and the authorities there referred to. For completeness, I accept CBS' submission that the terms of proposed order 4 are also consistent with the terms of clause 15.2(c) of the Employment Contract, and that Mr Chiu's complaint that the proposed order is unfair or unnecessarily intrusive therefore lacks substance. I reject that complaint.
14. As referred to at [49] above, Mr Chiu raised a relatively small number of specific issues in relation to the precise terms of CBS' proposed orders and proposed regime in Annexure A. Having considered all of those submissions, I have determined that they support the minor changes that I have marked by underlining and strikethrough in Annexure B to these reasons. Time does not permit me to address each submission individually in these reasons. Where no change is marked in Annexure B, I have not accepted Mr Chiu's submission contending for that change.
15. The parties are to bring in short minutes of order incorporating the changes to CBS' proposed orders marked in Annexure B to these reasons, and the more substantive changes affecting paragraphs 14 and 15 of the proposed regime to which I have referred at [49] above. In addition, orders 1 and 2 are intended to replace the interim injunctions granted on 18 February 2025, as varied on 20 February 2025. The short minutes should therefore provide that those injunctions are discharged upon the entry of orders 1 and 2. Finally, the short minutes will need to defer by one business day the time and date stipulated in draft paragraphs 8 and 9 of the regime due to the timing of these reasons, which is a direct consequence of the parties occupying almost a full day for the hearing of the application on 24 February 2025.
16. For completeness, I note that Mr Chiu made no objection to the independent solicitor and independent expert proposed by CBS and did not put forward any competing candidates for appointment.

ANNEXURE A (653816, rtf) ANNEXURE B (655614, rtf)

Endnote

1. The amendments made by CBS during the course of the hearing are identified by strikethrough/underlining in Annexure A. 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: 25 February 2025