Consideration
30 Has Howden established a sufficient or "some" likelihood of success to justify, in the circumstances, the preservation of the status quo pending the trial having regard to the nature of the rights Howden asserts and the practical consequences likely to flow from the order it seeks?
31 In my view, the answer is no. It may be accepted that while working at Howden Australia Mr Bourcier had access to Howden's manuals in hard copy and also to all engineering drawings and the like stored on the R://drive. It may also be accepted on the evidence that Mr Bourcier was involved in the major project which ultimately led to substantial revisions to the Mixed Flow Fan Design Manual. There is no evidence of (and Mr Bourcier denies) taking any of this information with him when he left Howden. More relevantly still, there is no evidence that any information defined in sub paragraphs (c) or (d) of the definition of the Howden Confidential Information has been used in any way in the design of the Minetek fan. The evidence, such as it is, is confined to the alleged use of information from the Mixed Flow Fan Design Manual which, in turn, refers to the defined parts of the General Design Manual. This is important, as will become apparent below.
32 The first problem with Howden's evidence is that it does not disclose what parts of the design work, with which Mr Bourcier was involved between 2012 and 2016 as part of a significant development project, found their way into the Mixed Flow Fan Design Manual or the form in which this work was incorporated into that manual. The evidence is at a very general level. Mr Mitchell said that he recalled that there were reports, emails and presentations that were circulated in relation to the new design development "that were ultimately adopted into the design rules and the electronic version of the Mixed Flow Fan Manual created in 2017". Mr Salvestro said that the substantial engineering development of the mixed flow fan technology that was created in the course of that supply project "was incorporated in the Howden Mixed Flow Design Manual which was released in June 1997". There is no information about what was adopted and the form in which it was incorporated.
33 Second, review of the Mixed Flow Fan Manual created in 2017 itself gives no clue as to how the various reports, emails and presentations, to which I infer from the evidence Mr Bourcier was privy, were adopted and incorporated into the manual. No such documents appear in the manual. Rather the manual consists of text, tables, and drawings, with each page dated. Every one of the pages within the definition of the Howden Confidential Information and the subject of Mr Mitchell's comparison bears a creation date well after Mr Bourcier left the employ of Howden Australia. That is, whatever else he might have seen while working at Howden Australia he could not have seen the actual pages which are alleged to be the confidential information taken and used in the design of the Minetek fan. There is no evidence which would found a rational inference that Mr Bourcier somehow obtained access to that information in that particular form.
34 Third, and for the reasons given, there is no way by which it can be known that the information Mr Bourcier did see while he was at Howden's is the same as or different from the form in which that information was, as it was put, ultimately adopted in or incorporated into the Mixed Flow Fan Manual.
35 Fourth, the evidence on which Howden relies is evidence of things being the "same" or "similar" to the Howden fan. None of the evidence, and specifically not that of Mr Mitchell, identifies how or in what respect any particular part of the Mixed Flow Fan Manual was used in or appears in the Howden fan. For example, 06.08.06 deals with impeller dimensions. Referring to that section, Mr Mitchell identified that the hub appears to have a "similar angle", the blades appear to have the "same radius", and the blades appear to have "similar proportions". The section provides standard dimensions for the impeller, and processes for working out the impeller proportions and blade section proportions, as well as a process for working out the angle of the blades on the impeller cone. There is no evidence that the Howden fan was designed using any of the processes in 06.08.06 or that the design of the Howden fan is an outcome of what must have been the use of those processes. The section is dated 27 June 2017, well after Mr Bourcier had left Howden's employ. This fact must be assessed along with the lack of evidence of how the information from the project in which Mr Bourcier was involved was ultimately adopted or incorporated into the manual and how what was in the manual has found its way into the design of the Minetek fan. The same can be said of the other sections of the manual which Mr Mitchell considered and which are defined as Howden Confidential Information.
36 Fifth, while Howden considers all defined sections of its manual to be confidential information, its evidence does not identify that the Howden fan does not reflect information generally available to fan design engineers through texts, papers and software. There is evidence from Mr Bourcier that texts deal with mixed flow fan design processes and that the design software is readily accessible, and that he used both in his design of the Minetek fan.
37 Sixth, while an interlocutory application is not a trial within a trial, there is evidence from Mr Bourcier that he did not use any Howden information in the design of the Minetek fan and he gives a detailed description of how he did design that fan using standard texts, software and his own knowledge in the time it took which he said was plainly not impossible. The fact that he exhibited a confidential report of the design process rather than providing his original workings does not support the drawing of any adverse inference against the weight of his categorical denial of taking anything from or using anything of Howden's in his design of the Minetek fan.
38 The practical consequences of the orders Howden seeks will potentially expose Minetek to claims for damages including, perhaps, damages for consequential losses and may adversely impact on the other contracting parties in ways which cannot be known. While the usual undertaking as to damages has been offered, it is not known whether damages pursuant to the undertaking would be an adequate remedy for those third parties. Minetek will be adversely affected in terms of other losses, such as the expenses it has incurred and may not be able to recoup, and the redundancies it may have to implement. Unquantifiable damage to its reputation is also likely given that it is part way through four contracts in total. Weighed against those practical consequences, Howden's evidence does not provide it with a strong prima facie case. To the contrary, the evidence is extremely weak. In my view, the evidence does not establish a sufficient or even "some" prospect of success at the final hearing to justify preserving the status quo in circumstances where that status quo will leave Minetek part way through work on projects for four of the third parties. In respect of the formulation of "some" prospect of success, this has been said to suffice where only pecuniary interests are at stake. That is not so in the present case. The interests of the parties extend beyond pecuniary interests to matters of reputation in a small market and ownership of the technology embodied in the Minetek high output axial fan. The nature of the rights in play and the practical consequences if the interlocutory order is made reinforce my conclusion that Howden has not adduced sufficient evidence to justify preserving the status quo.
39 If, contrary to my view, Howden has established a prima facie case, it would be at the weak end of the scale. The balance of convenience does not necessarily favour Howden as it appears to have assumed. In particular, it seems to have assumed that its confidential information will be released by Minetek to third parties in the form of design drawings and instruction manuals. As best as I can understand Howden is assuming that Minetek's design drawings and instruction manuals will contain information from the Howden Confidential Information. However, there is no evidence to support this inference. Mr Bourcier says he has no such information. Mr Bird says he has never seen such information. The observations of some things in the Minetek fan being the "same as" or "similar to" the Howden fan does not mean that any part of the Howden Confidential Information appears in the Minetek design drawings or its instruction manuals. Howden's fear of the confidentiality of its confidential information being dissipated is based more on assumption than logical inference from the scant evidence on which it relies that the Minetek fan was designed using any part of the Howden Confidential Information.
40 Nor do I accept that Howden's loss is unquantifiable and Minetek's loss quantifiable. The fact is some aspects of the loss of each will be quantifiable and other aspects will be unquantifiable.
41 I also do not accept that third parties will benefit from an interlocutory injunction in the sense that if the Minetek fans are installed and Howden ultimately succeeds the third party will be left with equipment which represents a breach of confidence and contract so that it is better to enjoin Minetek now to restrain the supply of the Minetek fan. The impact on third parties is simply unknown but impact there must be. All that can be said is that there is scope for potential impact either way.
42 My assessment is that the balance of convenience is fairly evenly weighted between these parties. However, if Howden had sufficient prospects of success to justify an order preserving the status quo I would find that the balance of convenience favours refusal of the interlocutory injunction. This is because there is no proper foundation for an inference that the Howden Confidential Information will be disclosed through either the Minetek fan or the design drawings and instruction manuals. Most of Howden's loss (if compensable loss it be) would be quantifiable. Further, unlike Minetek, Howden will not be placed in breach of contract or be exposed to damages, including for consequential losses, as well as the reputational and other kinds of damage which will arise on the grant of an interlocutory injunction which will prevent it from completing contracted works. The third parties to those contracts, provided they have knowledge of the proceedings, are best placed to assess what is in their interests which they would have the capacity to do if no interlocutory injunction is granted, a capacity they would not have if an interlocutory injunction is granted.
43 For these reasons the application for interlocutory relief, insofar as it remains undetermined, should be refused, with costs. The matter should be listed for a case management hearing to deal with the issue of expedition and directions to enable an expedited hearing.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jagot.