CONSIDERATION
45 The principles relevant to the granting of interlocutory injunctions are well-settled and were recently summarised in Karas v LK Law Pty Ltd (2023) 296 FCR 39 at [72] as follows:
An applicant for an interlocutory injunction must demonstrate that there is a serious question to be tried, the applicant is likely to suffer injury for which damages will not be an adequate remedy and the balance of convenience favours the grant of the relief sought: Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 at [19] (Gleeson CJ and Crennan J). As to whether there was a serious question to be tried, [the applicant] had to demonstrate a 'sufficient colour of right to the final relief' in order to support interlocutory relief: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 at [11] (Gleeson CJ). If there was a sufficient basis for a claim then an assessment of the strength of the claim was also relevant to the balance of convenience: Samsung Electronics Co Ltd v Apple Inc [2011] FCAFC 156; (2011) 217 FCR 238 at [67].
46 As the respondent accepted that a prima facie case exists and damages may not be an adequate remedy, the question turned on whether the balance of convenience favours the granting of the relevant interlocutory orders.
47 As to what matters are relevant when assessing the balance of convenience, in Directed Electronic OE v OE Solutions Pty Ltd [2018] FCA 142, Beach J stated at [19]:
…the balance of convenience looks at what the inconvenience, injury or injustice to [the Applicant] would be if the injunction were refused and seeks to weigh that against the inconvenience, injury or injustice to the [Respondent] if the injunction were granted … . It was submitted before me that I should assess the balance of convenience also in the context of considering the strength of the prima facie case: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 at [67]. I agree that the stronger the prima facie case, then the less strong the balance has to weigh in favour of [the Applicant] (and, of course, vice versa). Putting it slightly differently, if the balance is more equally poised, but [the Applicant] has a strong prima facie case, then the interaction between the two limbs may tip the balance in favour of granting an injunction. …
48 Ultimately, the terms of the orders have to be considered as a whole, taking into account the interdependencies between the various orders made.
49 Given the nature of the Vitura System, the definition proposed by the respondent was, in my view, too narrow. It did not capture the extent of the Vitura system, which, according to clause 6.3 the Services Agreement C4C, of which Mr Gilmore is a director, warrants it will only access "for the purposes of carrying out the Services". Were the definition to be constrained in the way contended for by counsel for the respondent, it would be both difficult to make certain and, to the extent that it could be made certain, contemplate far less than the Vitura System as described in the affidavit of Mr Headley. In light of the clear boundaries as to what the respondent may access to provide the services, and the removal of the reference to servers or devices in paragraph 2(i), the definition proposed by counsel for the applicants is, in my view, the appropriate one.
50 As to what Mr Gilmore may not access, I considered it appropriate that Mr Gilmore be able to access servers and devices as set out in 2(i) for two reasons. First, on the evidence of Mr Cowen, were he not to have that access, his broader business would be disadvantaged as the servers in question also operate a number of other businesses not related to that of Canview. Secondly, on the evidence of Mr Cowen, the Canview platform is a 'cloud platform owned and operated by C4C'. The software 'back end' is operated on servers controlled and operated by Pharamdata and C4C. Accordingly, Mr Gilmore would not be able to perform the services under the Service Agreement without that access. In the circumstances, to exclude those servers in the way proposed by the applicants heightens the risk of Mr Gilmore committing technical breaches of the orders and limits his ability to provide the services which according to the Service Agreement, as deposed to by Mr Cowen, might result in C4C not receiving payment for its work, which would be 'catastrophic' for its business, 'rendering it quickly insolvent'.
51 With respect to data, in my view the respondent is not similarly at risk. The provision that he be able to access the Vitura system for the express purpose of carrying out the Services means that he has all the access he is reasonably likely to need, and therefore a strict prohibition as to data is appropriate.
52 In terms of all of the strict prohibitions, I observe that in any case the orders in order 3 ensure that should the respondent need access to anything the orders prohibit him from accessing, there is a mechanism for that to occur. As counsel for the applicants quite properly conceded, consent pursuant to that order may not be unreasonably withheld.
53 There was a real controversy between the parties as to how the respondent may use the documents and information he has already accessed. As is set out above, the respondent's counsel contended for him to be allowed to use them, "for the sole purpose of this proceeding, proceeding numbered 5036 of 2024 in the Supreme Court of Queensland or to carry out the Services until further order".
54 The applicants' position was quite contrary to that, accepting only that the respondent be able to use the documents and information for the sole purpose of obtaining legal advice in respect of this proceeding. Counsel for the applicants submitted in effect that the prima facie case was so great that the balance of convenience entirely favoured his clients and that was at least a partial objection to the respondent being able to use the documents outside of this litigation. At one stage, the submission was advanced that Mr Gilmore's concession as to the existence of a prima facie case supported this position. Counsel for the applicants also noted that, by proposed order 9, the applicants will bring an application in the Supreme Court of Queensland within 14 days of the order relating to the use of the Copied Documents and Accessed Information in the Supreme Court Proceedings.
55 It should be noted that, as set out in Mr Cowen's affidavit, the respondent denies that he has hacked the Vitura System and maintains that the only documents which are in his possession are the ones that were on the Sharepoint file to which he had authorised access. Accordingly, it was submitted, the prima facie case is just that and no more. The respondent denies that the relevant evidence is improperly or illegally obtained.
56 In resolving this issue, I considered that it was both artificial, and, more importantly, antithetical to the interests of justice, for the respondent not to be able to obtain legal advice regarding the very documents about which the applicants propose to make an application to the Supreme Court. Furthermore, as contended by counsel for the respondent, in making the orders proposed by the applicants, I may be, in effect, making a determination as to the whether the documents were indeed unlawfully obtained, when such a determination ought be left to the Supreme Court in the application foreshadowed by order 9. Such a determination goes beyond the finding that a prima facie case exists, which is what is to be made by the Court in granting an interlocutory injunction.
57 By allowing the respondent to obtain legal advice in respect of the documents, the respondent is afforded the ability to make full and frank disclosure of the relevant matters to his solicitors as facilitated by legal professional privilege in relation to this proceeding. Such orders maintain that the respondent is restrained from accessing, using or disclosing the documents and information in either proceeding on an interlocutory basis. Further, the orders include that the respondent is not to permit or instruct any third party to access, use or disclose the documents and information for any purpose other than obtaining legal advice. This would capture the use of the documents by C4C in the Supreme Court Proceedings.
58 By s 23 of the Federal Court of Australia Act 1976 (Cth), the Court is empowered to make interlocutory orders as the Court considers appropriate. I was satisfied, having regard to the balance of convenience and on the evidence before me, that this is the appropriate order in these circumstances.
59 As to whether the respondent should be required to depose as to any claim of privilege in his affidavit, I was satisfied that the form of orders proposed by the applicants was more appropriate to facilitate disclosure at this early stage of the proceeding and make it clear as to which matters are subject to a claim of privilege.