20 It will be observed that there is no particularity given to the assertions in that paragraph. There are no details otherwise in the plaintiff's evidence substantiating the broad conclusions which are given as evidence in that paragraph of Mr Rabie's affidavit.
21 However, Mr Coleman, who appears for the plaintiff, points to evidence in the affidavit of the defendant herself which shows that she is in possession of what he says is specific and identifiable confidential information of the plaintiff. He refers to paragraphs 20, 29 and 30 of the defendant's affidavit of 19 July 2001.
22 In paragraph 20, the defendant acknowledges that, although she was not involved in formulating the pricing for particular jobs for clients of the plaintiff, nevertheless she did learn of the end prices determined in that process. She says these prices varied considerably and depended on a wide range of factors.
23 In paragraph 29 of her affidavit the defendant says she did not see any document containing information about discount practices adopted by the plaintiff, but saw prices quoted or charged to clients. She says that the market for telecommunications solutions is highly volatile and competitive; pricing arrangements change on a case by case basis. She says that her present recollection of the prices the plaintiff quoted to the clients would now be of no commercial value.
24 It seems to me that prices quoted by the plaintiff to the clients could not be classified properly as confidential information. The prices are obviously quoted to the clients in such circumstances that the clients are free to give those prices, and particulars of the components thereof, to the plaintiff's competitors in order to obtain a better quote, if possible.
25 It seems to me that pricing information quoted to customers by the plaintiff is not, in itself, of sufficient confidentiality to warrant protection by interlocutory injunction, particularly bearing in mind that such prices, in any event, would now be very probably stale and of no further use, either to the plaintiff or to a competitor. Certainly, there is no evidence of any particular prices quoted to any particular customer of the plaintiff which, if revealed by the defendant to Eyrtel, would severely prejudice the plaintiff's business.
26 It seems to me, therefore, that there is not sufficient evidence of confidential information in the possession of the defendant to warrant protection by the imposition of an injunction going to the disclosure of confidential information.
27 It seems that the defendant is principally a salesperson. It may well be that the plaintiff will suffer by losing the services of an experienced marketing consultant with some short term experience in the logging equipment niche market. It may be that the plaintiff's loss in that respect will be aggravated somewhat by the fact that the defendant's services are now to be made available to a direct competitor.
28 One must then consider whether or not the covenant against competition contained in the defendant's employment contract ought to be enforced pending determination of the proceedings as a whole.
29 It is certainly the case that the defendant has flagrantly breached the covenant against competition. She was certainly aware of its existence at the time that she entered into the contract. She was reminded of its existence shortly before she left the employment of the plaintiff. It was drawn to her attention before she commenced employment with Eyrtel that the plaintiff would seek to enforce that covenant against her if she proceeded with her proposed employment with Eyrtel.
30 That reminder to the defendant and a like reminder to Eyrtel apparently did not deter the defendant from taking the risk of provoking proceedings against her by the plaintiff, nor did it deter Eyrtel from proceeding to employ her. I take that matter very much into account in the exercise of discretion as to the balance of convenience.
31 It is conceded by the defendant that there is a serious question to be tried as to whether or not the covenant against competition is enforceable. It is true, as the defendant submits, that covenants in restraint of competition are prima facie void at common law as a matter of public policy.
32 There is an issue as to whether or not the covenant contained in the defendant's employment contract can be read down and saved in some way by the application of s.4(1) of the Restraints of Trade Act, 1976 . Whether that can be done is a matter which will require determination when the proceedings ultimately come on for final hearing and it is not appropriate now to engage in the debate of that issue.
33 I can say, and it is proper to say, however, that the covenant is in very wide terms and I myself have doubts as to whether it can be saved by the application of s.4(1); that must weigh to some degree in the exercise of discretion.
34 Another matter requiring consideration is that Order 2 of the Summons is, in effect, a mandatory injunction. It requires the defendant to terminate her contract of employment with Eyrtel immediately. That raises, in an acute way, the issue of where the balance of convenience lies.
35 The exercise of determining where the balance of convenience lies, of course, requires that one weigh the risk of loss and damage to the plaintiff's business if the injunctions are not granted, against the hardship which may be occasioned to the defendant if she is required to terminate her employment with her present employer and it is ultimately found that the plaintiff is not entitled to enforce a covenant against competition in the terms contained in her employment contract.
36 The defendant's evidence is that she would suffer considerable financial hardship if she were required to terminate her present employment. Apparently it is a lucrative job; that is no doubt one of the reasons she determined to leave the plaintiff's employment.
37 Ultimately, one has to consider the question in the light of the fact that the defendant is not in the possession of information of a high degree of confidentiality relating to the technical matters of the plaintiff's business. The defendant's value, really, lies in her expertise as a salesperson.
38 It is not demonstrated on the evidence that in the area of sales activity she is presently in the possession of any information, other than information relating to prices previously quoted by the plaintiff to its clients. General assertions to the contrary I can give no weight to without any particularity.
39 The defendant has proffered an undertaking in the terms recorded above in this judgment. That undertaking protects the plaintiff from the defendant seeking to approach the plaintiff's existing clients. No doubt, those existing clients can be identified with particularity from the plaintiff's books and records, so that if an approach is made by the defendant in breach of the undertaking, the appropriate remedy can be invoked.
40 There are additional clients or potential clients identified in the defendant's undertaking which she promises that she will not approach for a specified period. It is said that there may be others in that category who have not yet been particularised.
41 Balancing the weight of the potential damage to the plaintiff's business by breach of the defendant's covenant against competition with the hardship that will be caused to the defendant if she is compelled to resign her present employment, I am of the view that the injunctions should be refused.
42 I reach that conclusion on the basis that an undertaking will be proffered to the Court substantially in the terms contained in the defendant's letter of 5 July 2001. I will hear any argument as to whether the terms of that undertaking should be expanded to afford a more secure protection to the plaintiff. I will hear the parties as to costs.
LATER
43 In this matter I delivered judgment earlier today in which I indicated that I was not prepared to grant injunctions in the terms sought by the plaintiff. The essential consideration underlying that conclusion was that the defendant proffered an undertaking to the Court generally in terms of her letter to the plaintiff's solicitors dated 5 July 2001. The parties then retired in order to consider the drafting of such an undertaking.
44 I am now informed that the defendant is not willing to give an undertaking to the Court in terms of her letter of 5 July 2001, unless the plaintiff proffers an undertaking as to damages.
45 The plaintiff is not willing to proffer an undertaking as to damages. Accordingly, it seems that the defendant is not willing to proffer any undertaking to the Court. In the absence of such an undertaking, I am prepared to grant the injunctions sought.
46 Accordingly, I order that the defendant be restrained from commencing employment with Eyrtel Australia Pty Ltd until further order of the Court.
47 I order that the defendant take all steps forthwith to discontinue her employment with Eyrtel Australia Pty Ltd.
48 I order the defendant be restrained until further order of the Court from obtaining employment with any competitor of the plaintiff in the manufacture or distribution of telecommunications logging equipment.
LATER
49 After the delivery of my second reasons for judgment in this matter, the defendant proffered an undertaking to the Court in terms handed up to me. In those circumstances, I am prepared to revoke the orders I have just made.
50 I will accept an undertaking from the defendant to the Court in the following terms, which I note:
The defendant undertakes to the Court until further order, or until the final determination of these proceedings, that she will not, either on her own account, or as an employee of another person or entity, approach or solicit logging business with any existing clients of the plaintiff, or any of the following companies, namely, Vic Tab, ATO, Ansett Airlines, Honolulu Airport, San Francisco Airport, Phillip Morris, CUG, Fortis, MYOB, Plestell and Vic Roads.
51 The Court notes and accepts that undertaking.
52 This is a case in which I think costs should follow the event. I dismiss the plaintiff's application. The plaintiff will pay the defendant's costs of the application.
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