Isaac v Dargan Financial Pty Ltd ATF The Dargan Financial Discretionary Trust

Background

1. The following outline of the background facts is taken from the facts as found by the primary judge, supplemented by some references to the evidence.
2. Dargan is the trustee of a trading trust that carries on business operating as a mortgage broking service under the name "Home Loan Experts". Dargan is a specialist mortgage broker that seeks to help customers in niche markets and difficult or complex situations obtain loans.
3. Dargan uses the services of Connective Broker Services Pty Ltd (Connective) to have access to and submit loan applications to lenders. That relationship is governed by an undated agreement between Dargan and Connective (the Connective Agreement). Connective provides Dargan with an on-line computer platform known as "Mercury", which allows brokers to organise loans to be supplied to a panel of lenders, compliance support and professional development courses and networking. Mr Otto Dargan, the director of Dargan, described Connective as an aggregator in the mortgage industry, it is responsible for a group of brokers (generally referred to as members) that builds the relationship with the lenders, collects and distributes commissions and manages compliance for required broker training/accreditations in order that lenders have fewer individuals with whom to deal.
4. Dargan conducts its business using mortgage brokers referred to as "sub-originators" who, pursuant to the Connective Agreement, are authorised to use Connective's services to submit and manage loan applications to lenders (who are referred to as Credit Providers), provided they have been approved by the Credit Providers on Connective's panel as an "Associate Member".
5. Mr Isaac was engaged by Dargan as a sub-originator from 8 August 2012. It is common ground, as the primary judge found, that Mr Isaac was an independent contractor to Dargan. On 7 September 2012, he was accredited as an "Associate Member" of Connective for the purposes of the Connective Agreement. The terms of his engagement by Dargan are recorded in an agreement dated 8 August 2012, styled "Sub-Origination Agreement" (the Agreement). It provided that Mr Isaac was to be remunerated by commission on loans which he originated (cl 9), and that he was conducting his own business and had the right to operate under his own trading name, and subject to the consent of Dargan, he could use the name "Dargan Financial" or "Home Loan Experts" (cl 18.2). His functions were set out in cl 5: 5.1 The Sub-originator will introduce to the Originator; Loans that comply with the terms and the Credit Criteria of the Credit Providers for whom the Originator acts. The Sub-originator will comply with the Originator's procedures in connection with Participating Loans. 5.2 The Sub-originator must provide the Credit Provider with all the information, which the Credit Provider reasonably requires to enable it to assess the stability of an application for a Participating Loan. The Sub-originator must take all reasonable and prudent steps to ensure that such information is accurate and complete. 5.3 The Originator is under no obligation to agree that an application for a Participating Loan is to be submitted to a Credit Provider and has the right to deny a loan or credit application to be submitted.
6. Clause 3 of the Agreement contained defined terms, including relevantly: "Applicant" means a person who makes a Credit Application through the Sub-originator for a participating loan; "Borrower" means the Borrower under a participating loan and includes where appropriate the Mortgagor; "Credit Provider" means a lender for whom the Originator has been or is from time to time appointed to originate Mortgages and includes the Trustee of a Securitised Fund. This also includes any Credit Providers in which the Sub-originator has a direct accreditation; "Intellectual Property" means the copyright in all software, stationery, websites, documents, manuals and brochures and all know-how used by the Originator in respect of its business. "Loan" means a transaction which involves the proposed or actual advance or transfer of funds from a Lender to a Borrower, on terms, and may include such arrangements which have a Mortgage as a primary security and includes all rights conferred upon the mortgagee in connection with the Mortgage including without limitation any loan agreements, insurances, guarantees, collateral securities and recourse against advisers and includes a Participating Loan. "Participating Loan" means a Loan introduced to the program by the Sub-originator and where the contexts so permits shall also include a Mortgage relating to a Participating Loan.
7. The duties of the sub-originator were set out in cl 6, including: 6.6 The Sub-originator agrees with the Originator that it will: i. Use its best endeavours to solicit suitable Applicants and submit accurate and complete Credit Applications to the Credit Providers for Approval; … iv. Advise the Originator of the preferred Credit Provider with whom each Application should be lodged; … vi. Interview each Applicant and, where relevant, each Borrower, mortgagor and guarantor either in person, by 'Skype' or by telephone and make such enquires of each such person as would be made by a prudent Credit Provider and as required by the Credit Provider. …. 6.7 To the extent permitted by law, promptly notify the Originator of any matters of which it becomes aware whether before or after Settlement of a Participating Loan which could reasonably be expected to cause a prudent Credit Provider to: i. Regard the Participating Loan as an unacceptable Investment or a significant risk to making a return on the investment having regard to the terms and conditions of the Participating Loan. ii. Expect that the mortgagee is likely to make default under the Mortgage; or iii. Expect that the mortgagee is likely to make a claim with COSL, legal claim or lodge a complaint against either the Credit Provider or the Originator; or iv. Believe that the value or marketability of the Security Property could be adversely affected. … 6.14 Follow up and manage the processing of each loan from initial application through to settlement. 6.15 Manage the post-settlement client relationship. …
8. Mr Dargan gave evidence that the sub-originator would handle post-settlement enquiries by the client, such as changing from variable to fixed interest rates or may refer this to Dargan's post-settlement team.
9. Clause 7 contained various prohibitions upon Mr Isaac dealing with confidential information of Dargan. Relevantly, for the purposes of the appeal:

• cl 7.2 provided: Upon the termination of this agreement, the Sub-originator must return or destroy, at the Originator's discretion, all of the Originator's Intellectual Property that is in the Sub-originator's possession.
• cl 7.4 provided: 7.4 The Sub-originator shall during the currency of this agreement and for a period of not less than 10 years after the termination of this agreement (howsoever that occurs) keep secret and confidential, all Confidential and Proprietary Information and not use, publish, discuss or disclose any Confidential Information regarding the Originator's business, including but not limited to: i) Marketing, financial, sales, business process, technical, operational and employee data; ii) Financial information regarding the Originator; iii) Details regarding Intellectual Property; iv) Details regarding Credit Providers and other contractors used by the Originator; v) Details in relation to this sub-origination agreement; vi) Details of clients (including without limitation, client lists and client details) and past or current negotiations with clients.
• cl 7.5(v) provided: It is agreed that the customer and lead database, Confidential Information used by Sub-originator in relation to Originator's business & client contact information is the property of the Originator.

1. "Confidential Information" and "Proprietary Information" are not defined terms in the Agreement.
2. Clause 8 contained non-compete, non-solicitation and non-interference covenants. For a period of 18 months after termination of the Agreement, Mr Isaac was prohibited from doing the following, without the consent of Dargan: 8.1 Engage or prepare to engage in any business or activity that is the same or similar to that part or parts of the business carried on by the Originator in the area of internet marketing for the finance industry or niche marketing to a niche already targeted by the Originator. Other finance related employment business or activities are acceptable to the Originator: 8.1.1 If the Sub-originator was to work for a business or start a business which is involved in internet marketing and either is a Credit Provider or carries on business similar to the Originator then this would be considered a breach of this agreement. 8.2 Without limiting the application of clause 7, Use or permit any person employed by, a related body corporate of, or that is in any way contracted with the Sub-originator, to use any Confidential Information of the Originator. 8.3 Solicit, canvass, approach or accept any approach from any person who was at any time in the 24 months prior to the termination of this agreement, a client, professional referrer or business partner of the Originator in that part or parts of the business carried on by the Originator with a view to obtaining the business or custom of that person in a business that is the same or similar to the business conducted by the Originator. 8.4 Interfere, or knowingly permit any person to interfere with the relationship between the Originator and its customers, Referrers, Credit Providers, Employees or suppliers.
3. Clauses 8.8 and 8.9 of the Agreement provided: 8.8 If sub-originator breaches Clause 8, sub-originator agrees and declares that it will not object to any proceedings to restrain, enjoin or injunct any conduct which would constitute a breach of this clause, notwithstanding that alternative remedies may be available. 8.9 For the avoidance of doubt, Clauses 7 and 8 survive termination of this agreement, however that occurs.
4. The primary judge summarised the operation of the Agreement in these terms (at [20]): [20] In summary, under the [Agreement] the Defendant was obliged to use its best endeavours to submit credit applications to the Credit Providers for approval (clause 6.6(i)). This involved interviewing the applicants and making relevant enquiries to ensure the Credit Provider had the necessary information to assess the suitability of an application (clause 6.6(vi) and 6.8). The Defendant could choose the Credit Provider, type of loan and method of presenting the loan applications (clause 18.1), however the Plaintiff had the right to deny an application being submitted (clause 5.3). Provided the Plaintiff did not veto the loan application, the Defendant was to lodge the loan application and related document with the Credit Provider "on behalf of the Originator" (clause 6.13), and thereafter manage the processing of each loan through to settlement, and the post-settlement client relationship (clause 6.14-6.15).

Events following termination of Agreement

1. In December 2016, Mr Isaac commenced work as a loan writer/credit representative at another mortgage broking business, RAMS Financial Group Pty Ltd, trading under the name "RAMS Ryde" (RAMS).
2. RAMS is a franchise-based mortgage broking service which operates a similar business to that of Dargan. RAMS engages in on-line marketing and targets the same or similar niche markets and products as Dargan. Niche markets include bad credit loans, guarantor loans and unusual or self-employed loans.
3. The primary judge found that Mr Isaac acted as a loan writer at RAMS for nine persons who had loans with Dargan: at [30]-[32]. These persons were referred to as the "Lost Borrowers". They entered into loans with RAMS between 23 December 2016 and 31 May 2017: at [82]. His Honour recorded the concession by Mr Isaac that he accepted an approach from each of the nine Lost Borrowers: at [84].
4. In March 2017, Dargan commenced proceedings against Mr Isaac with respect to alleged breaches of the confidentiality obligations and the restraints seeking injunctive relief and damages.

Interlocutory orders

1. On 16 March 2017, interlocutory orders were made by consent by Pembroke J in the following terms: 1. The defendant will provide the plaintiff with a copy of his current list of clients (the defendant's client list) by 4pm on Friday, 17 March 2017. 2. Order that by 4pm on Friday, 17 March 2017 the defendant return to the plaintiff or destroy: (a) any and all copies in the care, custody or control of the defendant of the list of the plaintiff's clients contained within the database maintained by the plaintiff (the plaintiff's client list); (b) any and all copies of any extract or subset of the plaintiff's client list; (c) any and all notes of the contents of the plaintiff's client list; and (d) any database containing the client list or any information from the plaintiff's client list; Save that the defendant is not obliged to return or destroy any part of a database document or file which records only the information contained in the defendant's client list or a subset thereof. 3. The defendant be restrained until further order from: (a) discussing any of the contents of the plaintiff's client list or information taken from the plaintiff's client list to any third party; and/or (b) making any use whatsoever of the contents of the plaintiff's client list or information taken from the client; Save that the defendant is not so restrained in relation to the contents of the defendant's client list or information taken from that list.
2. The effect of the interlocutory regime was that Mr Isaac was restrained from disclosing or making use of Dargan's client list, but not insofar as it included any information on what was referred to as the defendant's client list, being the list which Mr Isaac's solicitors provided to Dargan's solicitors on about 20 March 2017, pursuant to order 1 made on 16 March 2017. This list, which was also referred to as the Retained List, was annexure A to Mr Isaac's defence; it contained approximately 290 names, but no other information. A copy of this list was exhibited to Mr Dargan's affidavit of 11 April 2017 and tendered in evidence by Dargan without any confidentiality order being sought or made.
3. Mr Dargan deposed that of the names on the Retained List: 93 persons are recorded by Dargan in the Mercury database as having been originated by a previous sub-originator of Dargan, rather than Mr Isaac, or by a referral by Mr Dargan; 44 persons are recorded as having been sourced from a Dargan marketing source; and 64 persons are recorded as having been sourced by referral from a Dargan lead. Mr Isaac did not dispute this part of Mr Dargan's evidence.

Dargan's pleaded claim

1. In its statement of claim, after pleading the terms of the Agreement, Dargan pleaded the following breaches of the Agreement by Mr Isaac: 1. that he had used client information he had received from Dargan in the course of his work for Dargan under the Agreement to refer customers of Dargan to RAMS (the Referral Conduct) (par 18) and this constituted a breach of, among others, the confidentiality term in cl 7.4 (par 19); 2. that he had retained in his possession, after termination of the Agreement, a list or lists of customers of Dargan, referred to as the Retained List (par 20) which included persons who had been customers of Dargan during the period of 24 months prior to 30 November 2016 (par 21) and included persons who were not persons who became clients of Dargan due to being friends and family of Mr Isaac or through introductions from such persons (the Retention Conduct) (par 22), which was a breach, among others, of the ownership term in cl 7.5(v) (par 23); 3. that he provided the Retained List to RAMS (the Provision Conduct) (par 24) and this constituted a breach of, among others, the confidentiality term in cl 7.4, the non-use term in cl 8.2, and the non-interfere term in cl 8.4 (par 25); 4. that he used the information in the Retained List in the course of providing services to RAMS through using it to facilitate contacts with clients of Dargan, other than persons who became clients of Dargan due to being friends and family of Mr Isaac or through introductions from friends or family of Mr Isaac (the Use Conduct) (par 26) and that this conduct constituted a breach of the pleaded terms of the Agreement (par 27); 5. that he had, since 30 November 2016, solicited, canvassed, approached and accepted approaches from persons who were, in the 24 months prior to termination of the Agreement, clients of Dargan (not being persons who became clients of Dargan due to being friends and family of Mr Isaac or through introduction from friends or family of Mr Isaac) with a view to obtaining the business of those persons for RAMS (the Soliciting Conduct) (par 28) and that this conduct constituted a breach of the non-solicitation term in cl 8.3 and the non-interfere term in cl 8.4 (par 29);
2. In addition, Dargan pleaded that Mr Isaac received information concerning clients of Dargan in the course of providing services to Dargan in circumstances of confidentiality (par 31), that he owed an equitable duty of confidence to Dargan in relation to client information (par 32), and that the Referral, Retention, Provision and Use Conduct constituted a breach of Mr Isaac's equitable duty of confidence (par 33).

Confidential information

1. After observing that the expression "Confidential Information" is not a defined term in the Agreement, the primary judge found that cl 7.4 contains a non-exhaustive list of information that does fall within its definition as contemplated under the Agreement and is intended to include all of the information generated by the sub-originator pursuant to the activities referred to in cl 6: at [242].
2. The primary judge further found that even if the expression "Confidential Information" was, as Mr Isaac contended, to have the meaning as understood at law, the client details, including a client list, would be characterised as such, much of it being of great commercial value: at [243]. His Honour found that such information plainly has the necessary quality of confidence and is imparted in circumstances importing an obligation of confidence given its commercial value and degree of detail and intimacy concerning the financial profile of its clients: at [244].
3. The primary judge rejected Mr Isaac's contention that the necessary quality of confidence was lost by reason of certain clients being identified on Dargan's or Mr Isaac's Facebook page as clients of Dargan. His Honour reasoned (at [245]): I do not accept the information loses its necessary quality of confidence by reason of certain clients being identified on the Plaintiff or Defendant's Facebook page as clients of the Plaintiff. First, the clients that have posted publicly do not account for all the clients the Defendant acted for (including the Lost Borrowers). Further, details beyond the names of the clients cannot necessarily be derived from a mere Facebook post. As explained by Mr Dargan, the privacy settings of the clients may prevent viewers from accessing any further information beyond their Facebook name, and also from making direct contact with them through Facebook. On these grounds, I am satisfied details of the clients, including the client list, have not entered the public domain so as to be stripped of the necessary quality of confidence that would otherwise attach to such information.
4. His Honour found that, while cl 7.4 restricts the use of Confidential Information during the currency of an Agreement (and for ten years afterwards), to give the Agreement commercial efficacy, that restriction should be read, as Dargan submitted, with the implied exception of use by Mr Isaac for Dargan's business: at [246].

Breaches of the Agreement

1. The primary judge noted that given the admissions in Mr Isaac's defence and his evidence, the following matters were not in dispute concerning the alleged breaches of the Agreement (at [248] - [249]):

• Mr Isaac admitted that he retained in his possession after termination of the Agreement, a list or lists of customers of Dargan and that the list tendered in evidence included well over 100 names of clients, which Mr Isaac accepted he used while at RAMS. While some of these clients were Mr Isaac's family and friends, some were not;
• Mr Isaac accepted that he downloaded the client content list from the on-line computer platform Mercury directly to his computer and he also emailed some accreditations, lender updates, and email content for customers to himself;
• Mr Isaac accepted that he provided the RAMS's receptionist with a list of 80-100 of his clients' names and addresses from his time with Dargan for the sending out of Christmas cards.

1. Having earlier concluded that Dargan's client list clearly fell within the meaning of the term "Confidential Information" as used in the Agreement, his Honour found that Mr Isaac had retained and used information concerning clients, including the client list of Dargan, and had breached cls 7.4, 7.5 and 8.2 of the Agreement relating to the misuse of Confidential Information: at [250]. His Honour further found that the admissions by Mr Isaac "that the lists he did retain and use were lists of clients he had while working for [Dargan] make plain that such lists clearly formed part of [Dargan's] client list": at [251]. There is no challenge to these findings.
2. In addition, the primary judge found that the retention of the client list by Mr Isaac was also a breach of cl 7.2 by retaining Dargan's copyright material in the client list: at [252]. Ground 10 challenged this finding, but was not pressed on appeal.
3. The primary judge found that Mr Isaac had breached the restraints in cls 8.3 and 8.4 of the Agreement by, at the very least, accepting approaches from the Lost Borrowers: at [253]. His Honour also found that, with the exception of one of the Lost Borrowers (Andrew Malcolm and Jane Crofts), the only reason the Lost Borrowers approached or accepted an approach from Mr Isaac was because he was the same person they had dealt with in their relationship with Dargan, and his Honour inferred that they were not dissatisfied with the services of Dargan: at [260].

Grounds of appeal

1. Grounds 1 and 2 challenge the finding by the primary judge that the restraints imposed by cls 8.3 and 8.4 were not unreasonable.
2. Ground 6 contends that the primary judge erred in finding that Mr Isaac breached cl 8.4 by approaching or accepting approaches from customers of Dargan following termination of the Agreement.
3. Grounds 7, 8 and 9 challenge the primary judge's discretionary decision to grant injunctive relief restraining the use of Confidential Information.

Restraints of trade - applicable principles

1. There is no dispute as to the primary judge's statement of the legal principles concerning the reasonableness of a restraint of trade. However, given that Mr Isaac contended that his Honour misapplied those principles it is of assistance to recall some basic principles.
2. At common law a restraint of trade is contrary to public policy and void unless justified by the special circumstances of the particular case. A restraint may be enforced if the restraint is reasonably necessary for the protection of the parties concerned and reasonable in the interests of the public: Nordenfelt v The Maxim Nordenfelt Guns & Ammunition Co Ltd [1894] AC 535 at 565 (Lord Macnaghten); Lindner v Murdock's Garage (1950) 83 CLR 628; [1950] HCA 48 at 633 (Latham CJ); Buckley v Tutty (1971) 125 CLR 353; [1971] HCA 71 at 376, 379-380.
3. In New South Wales, it is necessary to have regard to the Restraints of Trade Act 1976 (NSW) which relevantly provides in s 4: 4 Extent to which restraint of trade valid (1) A restraint of trade is valid to the extent to which it is not against public policy, whether it is in severable terms or not. (2) Subsection (1) does not affect the invalidity of a restraint of trade by reason of any matter other than public policy. (3) Where, on application by a person subject to the restraint, it appears to the Supreme Court that a restraint of trade is, as regards its application to the applicant, against public policy to any extent by reason of, or partly by reason of, a manifest failure by a person who created or joined in creating the restraint to attempt to make the restraint a reasonable restraint, the Court, having regard to the circumstances in which the restraint was created, may, on such terms as the Court thinks fit, order that the restraint be, as regards its application to the applicant, altogether invalid or valid to such extent only (not exceeding the extent to which the restraint is not against public policy) as the Court thinks fit and any such order shall, notwithstanding sub-section (1), have effect on and from such date (not being a date earlier than the date on which the order was made) as is specified in the order. …
4. The correct approach to the application of s 4(1) of the Restraints of Trade Act is well settled. In Orton v Melman [1981] 1 NSWLR 583 at 587 McLelland J (as his Honour then was) explained that first, the Court determines whether the alleged breach (independently of public policy considerations) does or will infringe the terms of the restraint properly construed. Next, the Court determines whether the restraint, so far as it applies to that breach, is contrary to public policy. If it is not, the restraint is valid, subject to any order which may be made under s 4(3). These principles have been approved in later cases including in this Court: Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 at 328; Woolworths Limited v Olson [2004] NSWCA 372 at [42]-[44]; Jardin and Jardin Investments Pty Ltd v Metcash Ltd and Metcash Trading Ltd [2011] NSWCA 409 at [87].

Onus of proof

1. One further matter should be mentioned. A question arises as to whether s 4(1) of the Restraints of Trade Act changes the onus of proof of unreasonableness at common law. The parties did not refer to s 4(1) before the primary judge, nor in their written submissions on appeal. Mr Isaac provided supplementary submissions, by leave, after the conclusion of the hearing on this issue. Mr Isaac submitted that s 4(1) of the Restraints of Trade Act 1976 (NSW) did not alter the position at common law. Dargan did not advance any submissions to the contrary.
2. In Idameneo (No 123) Pty Ltd v Angel-Honnibal [2002] NSWSC 1214 Palmer J expressed the view that s 4(1) did not alter the common law position. His Honour remarked at [45]-[48]: 45 In Herbert Morris Ltd v Saxelby [1916] 1 AC 688, it was held by Lord Atkinson (at 700) and by Lord Parker (at 707-8) that the onus of establishing that the restraint is reasonable as between the parties lies on the person seeking to enforce the restraint, while the onus of establishing that the restraint is contrary to the public interest lies on the person seeking to invalidate the restraint. That proposition has been widely accepted although it has been observed that the reason for apportioning onus in this way is somewhat obscure: see per Lord Hodson in Esso Petroleum Co Ltd v Harper's Garage (Stourport) Ltd [1968] AC 269, at 319E. The proposition seems to have been accepted without the necessity for comment by the High Court in Buckley v Tutty at 337. 46 These cases, however, were concerned with common law principles, unaffected by statute. In New South Wales, whether or not a restraint of trade is valid in any particular case is now determined by reference to the common law principles as modified by the operation of s.4(1) of the Restraints of Trade Act, 1976 (NSW). That subsection is in the following terms: … 48 Other than to enable the Court to "read down" the restraint of trade covenant to the particular breach alleged, s.4(1) adds nothing to the common law rules as to the validity of a restraint of trade clause. In particular, the section says nothing about who is to bear the onus of establishing reasonableness as between the parties and as to whether the restraint is in the public interest. I can see no reason why the apportionment of the onus of proof on these two issues, as laid down in Herbert Morris Ltd v Saxelby, should be regarded as altered in any way by the Restraints of Trade Act. This seems to have been accepted by the majority of the Full Court in Hospitality Group Pty Ltd v Australian Rugby Union Ltd (2001) 110 FCR 157, at 181, where the majority acted on a concession from Counsel to this effect; it seems also to have been accepted by the Court of Appeal in Curro and Anor v Beyond Productions Pty Ltd (1993) 30 NSWLR 337, at 344C. The remarks by Palmer J were referred to by Young JA with apparent approval in Sidameneo (No 456) Pty Ltd v Alexander at [82].

Ground 6: Whether Mr Isaac breached cl 8.4

1. The primary judge dealt with the question of breach of cls 8.3 and 8.4 together. Having found that Mr Isaac had acted as loan writer at RAMS for the Lost Borrowers (being nine persons who had been clients of Dargan), the primary judge found that Mr Isaac breached cls 8.3 and 8.4 by, at the very least, accepting approaches from the nine Lost Borrowers, giving the following reasons at [254]-[255]: [254] The Defendant accepted in final oral submissions that were I to find the nine Lost Borrowers were clients of the Plaintiff as construed under the [Agreement], then he would be in breach of clause 8.3 and 8.4 (T176/25-32). Based on my findings on construction, it is therefore clear the only conclusion to be drawn is that the Defendant was in breach of the [Agreement] by either approaching or accepting approaches from the Lost Borrowers. [255] These Borrowers were, and are, existing clients of the Plaintiff. They were not the Defendant's family and friend clients, and the Defendant was no longer receiving any trail commission in respect of their loans. It makes no difference whether the Defendant solicited or approached them, or accepted an approach by them. Nor does it make any difference whether the Defendant dealt with them in relation to new facilities (that is, not refinancing of old facilities) or refinancing new facilities. The fact these Lost Borrowers were, properly construed under the [Agreement], clients of the Plaintiff, and the Defendant was writing loans for them well within 18 months following the termination of the [Agreement] without the written consent of the Plaintiff, is more than sufficient to establish breach of clause 8.3 and 8.4 of the [Agreement].
2. The finding of breach of cl 8.3 is not challenged on appeal, being a matter conceded at trial.

Submissions

1. Mr Isaac submitted, and Dargan properly conceded, that his Honour was mistaken in thinking (as recorded at [254] of his reasons) that breach of cl 8.4 had been admitted by Mr Isaac in his closing submissions at trial.
2. Mr Isaac next submitted that as a consequence of this error the primary judge had failed to consider the construction of cl 8.4 and that he had erroneously assimilated Mr Isaac's conduct of approaching or accepting approaches from the Lost Borrowers as also constituting interfering with Dargan's relationship with its clients.
3. In oral argument, Mr Isaac submitted that cl 8.4 was directed to interfering with an existing relationship, that is, an extant legal relationship between Dargan as the originator of a loan and a customer. According to the submission, there was an absence of evidence that Mr Isaac's contact with any of the Lost Borrowers interfered with or disrupted an existing current contract or a loan application on foot with Dargan.
4. Dargan's response was that the error by the primary judge was immaterial because his Honour was nonetheless correct in finding that cl 8.4 had been breached by Mr Isaac. In oral argument, Dargan accepted that cl 8.4 was directed to interfering with an existing relationship, but submitted that would include clients of Dargan such as the Lost Borrowers.

Decision

1. The starting point is to identify the context and purpose of the non-interference covenant in cl 8.4. The context is that it is part of the restraints imposed on Mr Isaac post termination of the Agreement in relation to use of confidential information (cl 8.2), soliciting Dargan's clients (cl 8.3) and interference with Dargan's business relationships with, among others, its clients, Referrers, Credit Providers, Employees and suppliers (cl 8.4).
2. Restraints on interference, such as cl 8.4 are not uncommon: see, for example, DP World Sydney Ltd v Guy [2016] NSWSC 1072. Such a covenant protects customer connections and may also protect confidential information by prohibiting conduct which interferes with the relationship between the covenantee and its customers or others such as its suppliers.
3. Here, there is a degree of overlap between the non-solicitation covenant in cl 8.3 and the non-interference covenant in cl 8.4. In construing these provisions which are part of a written contract, the court is to have regard to all the words used "so as to render them all harmonious with one another": Australian Broadcasting Commission v Australasian Performing Right Association Limited (1973) 129 CLR 99 at 109; [1973] HCA 36 (Gibbs J).
4. Clause 8.3 is directed to prohibiting solicitation of any person who, relevantly, was a client of Dargan within the 24 months period prior to the termination of the Agreement; in this case, within the 24 months prior to 30 November 2016. That restraint is directed to both present and past clients of Dargan. Clause 8.4 is directed to prohibiting conduct which interferes with certain designated relationships, including between Dargan and its clients. The use of the definite article in cl 8.4 when referring to "the relationship" serves to emphasise that this restraint is directed to an existing relationship. So much was common ground on appeal.
5. Mr Isaac submitted that once a loan advance has been settled and the funds have been advanced by the Credit Provider to the client, it can no longer be said that Dargan has an existing relationship with the client. According to the submission, the service provided by Dargan to the client as originator of the loan (through its sub-originators) has been performed. However, that submission ignores the terms of the Agreement which provides that the sub-originator has obligations post settlement of the loan. Those obligations include ongoing reporting to Dargan if the credit worthiness of the client changes adversely (cl 6.7), and managing the post-settlement client relationship (cl 6.15).

Grounds 1 and 2: whether the restraints of trade in cls 8.3 and 8.4 were unreasonable?

1. In finding that cls 8.3 and 8.4 of the Agreement were not unreasonable, the primary judge reasoned that these covenants go no further than necessary for the reasonable protection of the legitimate interests of Dargan. His Honour continued at [257]: As recognised by Latham CJ in Lindner at 633-634, it is well established provisions that preserve confidential information and/or seek that a person who has had personal contact not solicit those customers are reasonable restraints and not void. In light of the Defendant's substantial involvement with the client, both before, during and after a loan has been approved, I am satisfied clause 8.3 and 8.4 reasonably protect the goodwill of the business of the Plaintiff.
2. After considering the nature of the relationship and responsibilities between the parties under the Agreement (at [233]), the primary judge rejected Mr Isaac's construction of the term "clients" in the Agreement, in particular in cl 8.3, as somehow carving out clients for whom Mr Isaac, as sub-originator, had worked, giving the following reasons at [241]: Notwithstanding the Sub-originator's status as an independent contractor, its obligations in essentially managing the entire client relationship, and the work it may do in introducing new clients to the Plaintiff, the Originator always maintains a commercial interest in the clients (as reflected in the commission payable), and always maintains an overriding level of control over the client relationship (as seen in its power to veto loan applications and sale of portfolio). Thus, the Sub-originator's clients under the [Agreement] will always be, properly construed, shared clients of the Sub-originator, Originator and Lender. Further, and critical to clause 8.3, once the [Agreement] is terminated, the Sub-originator no longer has any clients, making it appropriate to refer to those former clients as clients of the Originator and, implicitly, the Lender, but critically, not the Sub-originator.
3. The conclusion that the clients were shared clients followed upon his Honour's earlier findings concerning the operation of the Agreement, relevantly, that:

• the process anticipated by the Agreement by which the sub-originator introduces business to the originator in the form of loans which comply with the terms of the credit criteria of a Credit Provider for whom the originator acts (cl 5.1), noting that business may be introduced either through the sub-originator's own efforts, direct referrals from Dargan or Dargan's marketing efforts (as evident in the forms of commission available) to the sub-originator: at [234];

Submissions

1. Mr Isaac submitted that the primary judge's analysis of the reasonableness of the non-solicitation restraint was affected by two errors as to the operation of the Agreement. First, contrary to his Honour's approach, the Agreement was not an exclusive services agreement and Mr Isaac could originate loans through other lenders. Second, contrary to his Honour's finding, the Agreement did not impose an obligation of ongoing surveillance and reporting on Mr Isaac to Dargan.
2. Mr Isaac further submitted that in concluding that the restraints were not unreasonable, the primary judge incorrectly reasoned from a principle confined to the goodwill generated by employees for their employers to a principle applying to all persons, such as independent contractors.
3. In oral argument, senior counsel for Mr Isaac advanced five reasons why the restraint in cl 8.3 was unreasonable. First, the restraint prohibits Mr Isaac from dealing with clients with whom he had dealings during the term of the Agreement. Second, the restraint prohibits Mr Isaac from dealing with clients who were introduced by him and to whom, according to the submission, Dargan cannot claim a proprietary interest. Third, the restraint prohibits Mr Isaac from dealing with clients with whom he had a relationship external to the business of Dargan. Fourth, the primary judge did not identify what goodwill Dargan was seeking to legitimately protect by the restraints. Fifth, the primary judge did not address the reasonableness of the duration of the 18-month non-solicitation.
4. Dargan sought to uphold the primary judge's decision. It submitted that the common law principles relating to covenants in restraint of trade apply equally to a contract with an independent contractor as they do to an employee. Reference was made to Perry. Dargan also submitted that it had goodwill in relation to each of its customers whether the person servicing those customers was properly classed as an employee or an independent contractor and that it had a legitimate interest to protect its goodwill, customer connections and confidential information.
5. As to the duration of the non-solicitation restraint in cl 8.3, Dargan pointed to the evidence given by Mr Dargan addressing that very issue.

Decision

1. The validity of the non-solicitation restraint raises two questions. First, did Dargan have a protectable interest based on goodwill, confidential information or customer connection? If so, is the restraint no more than reasonable for the legitimate protection of that interest? Mr Isaac did not contend that the restraints were contrary to the public interest (on which he bore the onus of proof: Herbert Morris Ltd v Saxelby [1916] 1 AC 688 at 700, 708).

Did Dargan have a protectable interest?

1. The complaint by Mr Isaac that the primary judge incorrectly reasoned from the employment cases dealing with the protectable interest in goodwill generated by the employee, misstates his Honour's reasons. Contrary to Mr Isaac's submissions, his Honour considered the question of whether Dargan had a protectable interest in its customer connections and confidential information by reference to the nature of the relationship and the responsibilities between the parties under the Agreement. As the cases referred to at [64]-[65] above make clear, the nature of the interest meriting protection by a covenant in restraint of trade is not limited to the goodwill of the covenantee's business.
2. In this Court Mr Isaac repeated his argument below that the restraint in cl 8.3 did not protect goodwill the property of Dargan, but instead restrained deployment of Mr Isaac's own goodwill and accordingly was unreasonable. The primary judge dealt with this issue when he rejected Mr Isaac's characterisation of the Agreement as a franchise-type arrangement: cf [52] and [56]. His Honour also rejected Mr Isaac's contention that the clients for whom he originated loans were his clients. As indicated, his Honour found that the clients were shared clients, at least up until termination of the Agreement, for the reasons given at [241] (set out at [101] above). Neither party challenged that finding.
3. Accepting the finding that the clients were "shared clients", the critical question is whether the primary judge failed to distinguish between the legitimate interests of Dargan and the business of Mr Isaac as the independent contractor.
4. That there is a need for care in referring to goodwill (or customer connections) in this context can be seen in FBHS (Aust) Pty Ltd v Stone Homes Pty Ltd [2014] NSWCA 312 where (Leeming JA, Barrett and Gleeson JJA agreeing) referred to the judgment of Jonathan Sumption QC, sitting as a deputy judge, in Marshall v NM Financial Management Ltd [1995] 4 All ER 785. There in relation to a covenant imposed on a self-employed sales agent for a company selling insurance and pension contracts, it was said at 792 that "Mr Marshall's business as an agent, including the goodwill arising from his reputation and connections, was his own property and not the defendant's. The only interest which the defendant itself could have to protect is its interest in the goodwill attaching to its own business as a seller of investment agreements".

Was the restraint reasonable?

1. The evidence of Mr Dargan was that Dargan had expended money and effort in promoting itself to niche markets that it targeted. In order to obtain and retain business it was necessary for Dargan to cultivate and accumulate knowledge, as his Honour found, of the client's (financial) profile and requirements, so as to be able to offer the client future loans with Credit Providers on suitable and attractive terms. Under the Agreement the task of servicing the client was placed by Dargan in the hands of the sub-originator, such as Mr Isaac. To develop this customer connection may take some time. There is always a risk that the client may decide to go elsewhere in relation to future loans.
2. That the non-solicitation restraint applied to clients with whom Mr Isaac had dealings during the term of the Agreement, does not make the restraint unreasonable. Given the substantial involvement of Mr Isaac with the client before, during and after the loan had been approved, including obtaining the information as to the client's profile and managing the post-settlement client relationship, a comparatively mild solicitation may deprive Dargan of valuable business with respect to new loans that might otherwise be expected from its clients for a period: cf Stenhouse Australia Ltd v Phillips [1974] AC 391 at 400-401, where Lord Wilberforce contrasted the comparative fragility of the relationship between an insurance broker and its client and that of a solicitor and his or her client.
3. That Mr Isaac gave evidence that he did not accept any further marketing leads after May 2015 is not to the point. As indicated, the reasonableness of the restraint must be interpreted in accordance with what was in the reasonable contemplation of the parties at the date when the contract was made and not as matters later turned out. Here, the commission arrangements in the Agreement contemplated referrals from website/marketing-generated business and referrals from Mr Dargan himself.
4. That Mr Isaac did not personally deal with all of the clients of Dargan does not make the restraint unreasonable. At the time the contract was made, it could be reasonably contemplated that Mr Isaac would have access to Dargan's client lists and client details on the Mercury database. As I have said, Dargan had a legitimate interest in preserving confidential client information from use or disclosure, other than in connection with its business.

Duration of restraint

1. The primary judge did not expressly address the reasonableness of the duration of the non-solicitation restraint, but that is explicable. Evidence on this topic was given by Mr Dargan and no argument seems to have been advanced by Mr Isaac that the duration of 18 months was unreasonable.
2. An opinion as to the reasonableness of the elements of a restraint, particularly of the time during which it is to run, can seldom be precise, and can only be formed on a broad and common sense view: Stenhouse Australia Ltd v Phillips at 402.
3. Here, the unchallenged evidence from Mr Dargan included that Dargan incurred the cost of processing a loan and any loan that has a clawback (of commission) from the lender means a significant loss for Dargan. In addition, Mr Dargan gave evidence that the "buying cycle" of customers in the mortgage broking industry was long and it can take months or years for a customer to go from researching to buying a property or from a homeowner to consider buying an investment property.
4. While not decisive, it is also relevant that Mr Isaac accepted when he entered into the Agreement in August 2012 that a period of 18 months was appropriate: Stenhouse Australia Ltd v Phillips at 401.
5. Given Dargan's legitimate protectable interest in its customer connections and preserving the confidential information relating to its clients, in my view, there was no error in the primary judge's finding that the non-solicitation restraint in cl 8.3 was not unreasonable.

WHETHER ERROR IN GRANTING INJUNCTIVE RELIEF?

1. Grounds 7, 8 and 9 are directed to challenging order 1 made on 24 August 2017 concerning the use and disclosure of the "Client List". It is convenient first to deal with ground 8 which contends that the reference to "Confidential Information" in cl 7.4 of the Agreement is restricted to information which, by its nature, is confidential, before addressing whether Dargan's client lists were not confidential information at law (ground 9), and the challenge to the grant of the injunction in terms of order 1 (ground 7).

Ground 8: Construction of cls 7.4 and 7.5(v)

1. Ground 8 contends that the primary judge erred in construing the expression "Confidential Information" in cl 7.4 of the Agreement as including all of the information generated by Mr Isaac as sub-originator in undertaking activities referred to in the Agreement.

Submissions

1. Mr Isaac submitted that the phrases "Confidential Information regarding the originator's business" in cl 7.4 and "Confidential Information used by sub-originator in relation to Originator's business" in cl 7.5(v) have a restricted meaning. First, the information must be confidential information as understood at law. Second, the information must have a relevant relationship to the originator's business, as identified in cl 1.1 of the Agreement, namely, the provision by Dargan of mortgage broking services to clients by originating loans with Credit Providers.
2. Dargan sought to uphold the primary judge's construction of cl 7.4 and implicitly, cl 7.5(v).

Decision

1. The terms of cls 7.4 and 7.5(v) of the Agreement are set out at [19] above. Absent a provision to the contrary, a contractual confidentiality provision will generally be construed as limited only to information which is confidential in character. In Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181; [2001] HCA 70 (Maggbury) at [45], Gleeson CJ, Gummow and Hayne JJ said in relation to a case where the expression "Information" was defined in the contract: Ordinarily, the obligations relating to the use and disclosure of the Information would be construed as limited to subject-matter which retained the quality of confidentiality at the time of breach or threatened breach of those obligations. An expression of a contrary intent should, as Judge Learned Hand put it in Picard v United Aircraft Corporation (1942) 128 F 2d 632, be explicit. This is because (Picard (1942) 128 F 2d 632 at 637): the applicant is proposing to broadcast the invention to the world at large, reserving as his protection only the claims which he may secure; and there is ordinarily no reason to suppose that he means to exact any greater protection against the promisor than he will have against others. At any rate, if he does, he should say so. The same judge later expressed the point slightly differently in Conmar Products Corporation v Universal Slide Fastener Co (1949) 172 F 2d 150. Speaking of the relationship between employer and employee, his Honour said (Conmar Products (1949) 172 F 2d 150 at 156): Conceivably an employer might exact from his employees a contract not to disclose the information even after the patent issued. Of what possible value such a contract could be, we find it hard to conceive; but, if an employer did exact it, others would perhaps be obliged to turn to the specifications, if they would use the information. Be that as it may, we should not so construe any secrecy contract unless the intent were put in the most inescapable terms; and the plaintiff's contract had none such. It should be observed that Maggbury was not drawn to the primary judge's attention by the parties, nor referred to by the parties on appeal.
2. Here, Mr Isaac agreed to "keep" confidential information described non-exhaustively as "Confidential Information" through the classes of information in sub-pars (i)-(vi) of cl 7.4. The contractual obligation in cl 7.4 and the acknowledgement in cl 7.5(v) are not in terms confined to information relating to Dargan or its clients which, by its nature, is confidential.

Ground 9: Whether the client lists constituted confidential information

1. Ground 9 contends that the primary judge erred in finding that certain lists were confidential information as understood at law. The lists to which ground 9 is directed are: 1. the list referred to at [248] of his Honour's reasons, being the Retained List. As indicated, this list contained approximately 290 names of clients recorded in Mercury which Mr Isaac downloaded directly to his personal computer; 2. the list referred to at [249] of his Honour's reasons, being a list of 80 to 100 names from the Retained List that Mr Isaac provided to a receptionist at RAMS.
2. The primary judge found that such lists clearly formed part of Dargan's client list (at [251]), and that Mr Isaac's use of these lists breached cls 7.4, 7.5 and 8.2 of the Agreement relating to the misuse of Confidential Information: at [250].

Decision

1. In deciding whether information is of its nature confidential, it is relevant to consider the extent to which the information is known outside the business: Del Casale v Artedomus (Aust) Pty Ltd [2007] NSWCA 172 at [40]. Here, Mr Isaac submitted that the primary judge erred by failing to take into account a number of matters which suggested that the client details were known outside the business of Dargan.
2. The first matter to which Mr Isaac referred was that Dargan's client information is stored on the Mercury database and that database was accessible to Dargan's employees and brokers. However, it does not follow that access to the information recorded on Mercury by employees and brokers of Dargan undermined the necessary quality of confidence in the client information contained on that database. The Mercury database was not available to the public at large or competitors of Dargan. As Mr Dargan explained in his affidavit of 6 June 2017, the only people who have unlimited access to Mercury are senior management, IT staff and some support staff and no one else can change usernames and passwords. Further, Mercury is password protected and only Dargan's sub-originators can access Dargan's records in Mercury. It was made accessible to Dargan's employees and brokers only for use in its business.
3. The second matter to which Mr Isaac referred was that information identifying the persons with whom he dealt and their contact details, was also contained in his mobile telephone. That Mr Isaac kept some client details in other mediums, such as his mobile phone, in addition to on his personal computer, is not inconsistent with such information being imparted and received by Mr Isaac in circumstances which gave rise to an obligation of confidence. Accepting that brokers engaged by Dargan who had access to Mercury are subject to an obligation of confidence in respect of use and disclosure of such information, such obligation would also attach to the client contact details if entered in Mr Isaac's mobile phone.
4. The third matter to which Mr Isaac referred was that the names and methods of contact for each of Mr Isaac's clients were published on his Facebook page. An aide memoire provided to this Court by counsel for Mr Isaac, identified 59 of Mr Isaac's Facebook friends as also appearing on the client list which Mr Isaac retained on his personal computer (the Retained List).

Ground 7: whether discretion to grant injunction miscarried?

1. Ground 7 challenges order 1 made on 24 August 2017 restraining the use or disclosure of the "Client List".

Submissions

1. Mr Isaac's written submissions proceeded on the basis that order 1 concerned the list of about 300 customers downloaded to his personal computer, referred to as the Retained List.
2. Mr Isaac did not seek to argue for a construction of the Agreement which gave the confidentiality obligations in cls 7.4 and 8.2 a limited temporal operation after public disclosure: cf Maggbury at [50]. Nor did Mr Isaac seek to argue that the confidentiality obligations were unreasonable restraints of trade: cf Maggbury at [55] ff.
3. Mr Isaac relies upon the asserted failure by the primary judge to take into account that the information contained in the February 2017 commission statement issued by Connective entered the public domain when it was tendered in open court by Dargan without any confidentiality order being sought or made. In addition, Mr Isaac relies upon the tender by Dargan in open court of the Retained List. According to the submission, there was no utility in enforcing the contractual obligation of confidence where the information has entered the public domain.
4. Mr Isaac further submitted that independently of the Retained List (that was shown to be in his possession and used by him), he had details of each of his clients recorded in his mobile phone and there could be no utility in restraining him from using one list of names when more extensive information about the persons named are available to him in a separate list the use of which is not to be restrained.
5. Dargan submitted that no error of the House v The King type had been identified by Mr Isaac (House v The King (1936) 55 CLR 499; [1936] HCA 40). Even if the plaintiff's confidential information had been widely disseminated by the manner in which Dargan had conducted the trial, Dargan submitted that the injunction against Mr Isaac nonetheless had utility as it would prevent him from exploiting his relationship with Dargan's customers in breach of contract to the loss of Dargan.
6. Dargan also submitted that there was no reason to think that the evidence or the conduct of the trial had caused any public dissemination of Dargan's client information, and the tendering by Dargan of evidence of its client list would not have had, or should not have had, any bearing on the discretion of the primary judge to grant an injunction.

Decision

1. It may be accepted that the primary judge did not expressly deal with Mr Isaac's submission that the details of Dargan's client list was now in the public domain.
2. In considering the significance of the disclosure of information and whether it has entered the public domain, it is necessary to distinguish between cases where there is an equitable obligation of confidence (the retention of the quality of confidence being necessary to sustain relief in equity) and cases where the obligation of confidence is imposed by way of contract (and may involve use or disclosure of information which is not, in its nature, confidential).
3. As to the position in equity, once information becomes public knowledge or is in "the public domain" equity will refuse to intervene to protect the information because the information has lost its confidentiality: Johns v Australian Securities Commission (1993) 178 CLR 408 at 475 (McHugh J), 432 (Brennan J), 438 (Dawson J) and 460-461 (Gaudron J); [1993] HCA 56. The question whether information is in the public domain is largely one of fact: Johns v ASC at 461 (Gaudron J). Whether information has entered the public domain, requires consideration of the accessibility to the information should members of the public wish to do so: GE Dal Pont, Law of Confidentiality (1st ed, 2015, LexisNexis Butterworths) at 195.
4. Johns v ASC involved the confidentiality (either in equity or under the Australian Securities Commission Act 1989 (Cth)) of transcripts of private examinations conducted by the ASC in the exercise of its statutory powers which had been disclosed to a State Royal Commission with authorisation to use them in public hearings. Copies of the transcripts were tendered in evidence in public hearings, and the Royal Commission made copies available to journalists and information in the transcripts was published to the media. Brennan J, with whom Dawson J generally agreed, said at 432-433: A defendant who, having received information in circumstances which impose a duty of confidence, makes a limited publication in breach of that duty, can be restrained from further breaching the duty by making a wider publication. But that is not the present case. … When the proceedings of a court, tribunal or commission created by statute or in exercise of the prerogative are open to the public and a fair report of the proceedings can lawfully be published generally, it is not possible to regard information published in those proceedings as outside the public domain (Home Office v Harman, [1983] AC 280, at pp 303, 312). Information published in those circumstances enters the public domain by a lawful gate. Once in the public domain, it can be freely used or disseminated. Information obtained by the media in this way is not "imparted so as to import an obligation of confidence": The Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR, at p 51, per Mason J. In such a case, the public domain is not measured by the extent of media reporting. If media reporting were the measure of the public domain in relation to information published in such proceedings, the defamation laws would have to be reformulated. It is unnecessary to consider the question whether a defendant to whom information was imparted in circumstances which imposed an obligation of confidence can, by a wide publication of the information in breach of that obligation, avail himself of a defence that the information is thereafter in the public domain (Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987), 8 NSWLR, at p 374; Attorney-General v Guardian Newspapers Ltd [No 2], [1990] 1 AC, at pp 271, 286-288, 293). This case concerns information which was already in the public domain at the time when HWT and the ABC acquired it. In Marcel v Commissioner of Police of the Metropolis, Browne-Wilkinson V-C said ([1992] Ch, at p 237; see also Attorney-General v Guardian Newspapers Ltd [No 2], [1990] 1 AC, at pp 215, 268, 282): "there can be no breach of the duty of confidence once the information or documents are in the public domain and the confidentiality has therefore disappeared. In the case of the ... documents which have been read in open court, they have now lost their confidentiality by disclosure in open court."

Conclusion and Orders

1. The appeal has succeeded in part only. As to costs, the parties should be afforded an opportunity to make submissions. For the assistance of the parties, I would indicate my preliminary view is that Mr Isaac should pay part of Dargan's costs of the appeal and there should be no variation to the costs orders made at trial.
2. Accordingly, I propose the following orders: 1. Appeal allowed in part. 2. Set aside order 1 made by the primary judge on 24 August 2017. 3. Direct the appellant to file short written submissions on costs within 14 days, and the respondent to file short written submissions in response within a further 14 days, such submissions not to exceed 3 pages. Direct that the question of costs be determined on the papers. 4. Discharge the stay granted on 21 September 2017 of orders 1 and 2 made on 28 August 2017.

Amendments 04 June 2019 - Typographical amendments to [40], [48], [102], [115]. 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: 04 June 2019