Kuksal v Nine Network [2021] VSCA 248

Mr A McGregor of New Edge Law for the second applicant

Mr J-P Cashen of Thomson Geer for the first and second respondents

1 On 2 September 2021, the applicants as plaintiffs, commenced a proceeding in the Trial Division by an originating motion alleging a breach of confidentiality, breach of fiduciary duty, and 'unlawful purpose conspiracy'. The first defendant is a media organisation, that, amongst other things, broadcasts a television news or current affairs programme called 'A Current Affair'. The second defendant ('Mr Cucchiara') is a reporter on that programme. It is convenient to refer to the first and second defendants as the 'media interests'. The third defendant is a barrister and solicitor who was employed in an incorporated legal practice, New Edge Law, which is said to be associated with the applicants.

2 The originating motion seeks injunctive and declaratory relief against the defendants. Relevantly, for present purposes the following orders are sought:

1. The Defendants be restrained from making publications or broadcasts that breach the Plaintiff's lawful rights arising from

1. People Shop Pty Ltd's Confidentiality Agreement with the Third Defendant;

2. The Plaintiffs right to confidentiality with respect to representations made to one's solicitor;

c. The Third Defendant's Fiduciary Duty to the Plaintiffs

2. The Defendants be required to have the Plaintiffs review any publication or broadcast about them before it is released to the public to ensure that their lawful rights as listed above are not breached.

3. The Plaintiffs have the right to raise their objections to the Court if, after reviewing the material, they find that any of their rights listed above may be breached by its release.

4. Compensation for the Plaintiffs loss and damages

3 The plaintiffs also seek further declaratory relief in relation to Mr Gordon's conduct as a legal professional and seek what is described as 'appropriate disciplinary actions against him'.

4 Also, on 2 September 2021, the applicants filed a summons for unspecified 'injunctive relief'. That summons was heard and dismissed by Forbes J in the Practice Court. The judge published her reasons for dismissing the application for an injunction on 6 September 2021.

5 The applicants have filed an application for leave to appeal the orders of Forbes J and an application for an injunction pending the hearing and determination of the application for leave to appeal. Those applications came before us on an urgent basis. The urgency arises because, unless restrained, the media interests propose to publish a story relating to Mr Kuksal and which he alleges will convey confidential information obtained from Mr Gordon.

6 We note that the originating motion records that it was prepared by New Edge Law although it is unsigned.[1] It appears that Allan McGregor is a solicitor employed in, or associated with, New Edge Law. On the hearing of the injunction application, Mr McGregor appeared for Ms Di Gregorio and Mr Kuksal. Mr Kuksal was permitted to make any additional submissions on his own behalf. Before this Court, Mr Kuksal appeared for himself on the basis that New Edge Law was no longer acting for him. Mr McGregor appeared for Ms Di Gregorio. Mr Gordon appeared for himself. The media interests were represented by their solicitor.

7 Mr Gordon holds a current practising certificate and is a legal practitioner. He was engaged as a principal lawyer by a company called People Shop Pty Ltd ('People Shop'), trading as New Edge Law. He commenced employment on 28 June 2021. It ended, in disputed circumstances, on 28 July 2021. Ms Di Gregorio describes herself as a director of People Shop, and as the Head of Human Resources for New Edge Law. Mr Kuksal describes himself as a businessman and company director. He describes People Shop as 'part of the corporate conglomerate structure managed by [him]'.

8 In her affidavit affirmed on 2 September 2021, Ms Di Gregorio deposes that she is a director of People Shop and that she was involved in the recruitment of Mr Gordon as an employed solicitor. Annexed to her affidavit were copies of what she describes as the 'Firms contract' with Mr Gordon comprising a letter of offer, terms sheet, additional terms of engagement and schedule.

9 We note that the letter of offer, signed by Mr Gordon, refers to an offer of employment with People Shop as a director of that company and as 'Principal Solicitor' for the company and its related entities.[2] The terms sheet sets out various terms. Schedule 1 to the documents sets out a description of the duties, which include assisting People Shop to set up an incorporated legal practice and providing legal advice to People Shop, its related entities and clients. The contract contains obligations on Mr Gordon to keep confidential information, broadly defined, confidential.

10 A Current Affair has previously broadcast two stories presented by Mr Cucchiara regarding Mr Kuksal. The first related to Mr Kuksal, a removalist business called Apex Logistics Solutions, and businesses called RM Legal Consultants and Law Innovation. A second story was published on 30 July 2021, which referred to pending proceedings in the Magistrates' Court of Victoria and pending Australian Securities and Investments Commission charges against Mr Kuksal.

11 On 30 August 2021, Mr Cucchiara emailed Mr McGregor at New Edge Law a series of questions that he wished to put to Mr Kuksal for the purpose of a further story concerning Mr Kuksal. Those questions were as follows:

1. We have spoken with a further three families who engaged Apex Logistics Solutions and who are yet to receive all their belongings. They are Terry and Robyn Bradford (pick up 8 March 2021), David Pettman (pick up 11 November 2020) and Michael Giardina and Julie Willis (pick up 21 April 2021). Can you please advise why they have not received all of their belongings, despite full payment being made?

2. We have confirmed that a number of items belonging to these customers are being stored in a rental home at 5 Nossal Drive, Point Cook, where you sometimes reside. Do you have any comment in relation to this?

3. Do you have any legal training? If so, what was that training?

4. Lawyers who have worked for you have alleged excessive interference by you, including recounting occasions where they allege you sent emails to other solicitors and Courts using their names, without their consent. This would appear to be a breach of the Uniform Law and may be a criminal offence. Have you ever sent an email, letter or other piece of correspondence using the name of a registered legal practitioner?

5. Avant-Garde Logistics Solutions Pty Ltd has been served two Notices of Re-Entry due to non-payment of rent at the St Kilda road office [Level 7, 434 St Kilda Road Melbourne]. As of today, your company does not have legal occupation of the space as the lease has been terminated. Why are you continuing to occupy the space, therefore effectively trespassing?

6. Do you resort to legal threats and court proceedings as a means of intimidating clients and others who speak ill of you and your company?

7. A number of cases have been filed against you in the Federal Court alleging underpayment of employees (court references MLG1879, MLG806, MLG807, MLG808, MLG809, MLG810, MLG811, MLG812, MLG813). What is your response to these claims?

8. In the Melbourne Magistrates' Court, you are currently facing charges of unlawful assault, breaching a Personal Safety Intervention Order, resisting a Protective Services Officer, refusing to comply with a direction given by an authorised officer pursuant to the Court Security Act, and a number of ASIC charges concerning the forced closure of three of your previous businesses. What is your response to these charges?

9. In its entirety, and in addition to the services provided by New Edge Law, what business does People Shop Pty Ltd conduct?

12 The applicants contend that Mr Gordon has provided confidential information which will be used in the programme.

13 Before the judge, the media interests filed an affidavit of their solicitor, Mr Corey Jankie, in opposition to the injunction application. In that affidavit, Mr Jankie deposed that he was informed by Mr Cucchiara and believed that Mr Kuksal operated New Edge Law through People Shop which was 'wholly owned and controlled by' Mr Kuksal. We note that neither party adduced into evidence a company search of People Shop.

14 Under the heading 'allegations Mr Kuksal is sending emails from Mr Gordon's account', Mr Jankie deposed that he was informed by Mr Gordon and believed as follows:

(a) That Mr Gordon was employed at New Edge Law for a short period from 30 June 2021.

(b) In that time, New Edge Law did not have any other clients other than Mr Kuksal and entities controlled by him.

(c) On 13 July 2021, an email was sent from Mr Gordon's email account at New Edge Law to the coordinator at Sunshine Magistrates' Court that had not been sent by Mr Gordon and that Mr Gordon believed was sent by Mr Kuksal.

15 Exhibited to Mr Jankie's affidavit is an email thread which includes an email dated 2 August 2021 from Mr Gordon to Mr Cucchiara in which Mr Gordon says:

Sam the email below purportedly from me was not sent by me but by Shivesh Kuksal pretending to be me.

That day I was not in the office at that time and was at Sunshine Court.

16 The email referred to in that email was contained in the thread sent to Mr Cucchiara. The email is dated 13 July 2021, and was sent from Mr Gordon's email address at New Edge Law to the Registrar at the Sunshine Magistrates' Court. It contained the subject 'L11589475 & L11589420 KUKSAL Shivesh v SMITH Chris & Paul (PSIO)' and continued:

Dear Registrar,

I am writing on behalf of Mr Shivesh Kuksal [my client]. I have been brought on to manage this matter recently.

I understand that hearings in the matters were scheduled today and accordingly a Webex invitation was sent to my client via email. This morning I tried to login using the link (in the presence of my client) around 10:30 am but was unable to connect with the Court. Could you please advise if the matters are still proceeding today?

I also have some engagements at other courts today and would appreciate it if I could get some notice of the hearings, if convenient.

I appreciate your cooperation in the matter.

17 The registrar of the Court replied later that morning saying that the matters had been struck out. On the same day, Mr Gordon sent the email chain from his New Edge Law address to his private email address. As noted, on 2 August he sent the emails to Mr Cucchiara.

18 The applicants also relied on two emails that Mr Gordon had sent to the media interests as evidence of a breach of confidence. As already noted, Mr Cucchiara sought comment from Mr Kuksal on 30 August 2021. Although not in evidence, it appears that late on 31 August 2021, Mr McGregor, the principal solicitor at New Edge Law, sent a letter of demand on behalf of the applicants to Mr Gordon and the media interests alleging, amongst other things, a breach of confidentiality. In response to that demand, Mr Gordon, on 1 September 2021 wrote to Mr McGregor denying the allegations, seeking particulars of the alleged breaches of confidentiality, and setting out what he says he had disclosed to the other parties. He also attached an email he had sent on 28 July 2021 to Ms Di Gregorio setting out a series of concerns he had about his employment and the role of Mr Kuksal. That correspondence was also copied to the media interests in circumstances where the letter of demand had been sent to both Mr Gordon and the media interests.

19 In the 28 July letter, Mr Gordon told Ms Di Gregorio that Mr Kuksal had extensively interfered with his work, and that Mr Gordon was subject to unreasonable demands, expectations and workload. He referred to a matter in the Federal Court in which New Edge Law was acting for a company associated with Mr Kuksal, Avant-Garde Logistics Solutions Pty Ltd, and said that Mr Kuksal had sent out correspondence and filed court documents under Mr Gordon's name without his consent.

20 The judge identified that the basis of the injunction was to prevent the broadcast of confidential information said to have been disclosed by Mr Gordon to Mr Cucchiara. The judge noted that there was no evidence that publication was imminent.

21 The judge identified the principles to be applied where a breach of confidence is alleged by reference to the reasons for judgment of Mason J in Commonwealth v John Fairfax & Sons Ltd[3] and Gummow J, as a judge of the Federal Court, in Smith Kline & French Laboratories (Aust) Ltd v Secretary, Dept of Community.[4]

The principle is that the court will "restrain the publication of confidential information improperly or surreptitiously obtained or information imparted in confidence which ought not be divulged". In conformity with this principle, employees who had access to confidential information in the possession of their employers have been restrained from divulging information to third parties in breach of duty and, if they have already divulged the information, the third parties themselves have been restrained from making disclosure or making use of the information.[5]

23 The judge noted that where an obligation of confidence protected in equity exists, either because of a fiduciary relationship or on some other basis, there are four elements to be demonstrated. As authority for that proposition, the judge set out the following passage from Smith Kline:

(i) the plaintiff must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); (iii) the information was received by the defendant in circumstances as to import an obligation of confidence; (iv) there is actual or threatened misuse of that information, without the consent of the plaintiff.[6]

24 Having regard to those principles, and the evidence before her, the judge concluded that the applicants had failed to identify any confidential information which was at risk of being disseminated in the broadcast.

25 The judge noted that insofar as the underlying proceeding related to contractual breaches by Mr Gordon of his employment contract, neither Ms Di Gregorio nor Mr Kuksal were parties to the contract. The judge observed that it was not entirely clear upon what basis they bring any proceeding in reliance on breach of contract. Further, in respect of their complaint as to the breaches of the Legal Professional Uniform Law Australian Solicitors' Conduct Rules 2015, it was not clear from their evidence that Ms Di Gregorio or Mr Kuksal engaged New Edge Law and therefore Mr Gordon to do any, and if so what, legal work.

26 The judge noted that the applicants had failed to identify the confidential information that had been sourced from Mr Gordon in breach of his duties and which was threatened to be disseminated in the proposed programme. She noted that the applicants relied on an inference from one of the topics raised by Mr Cucchiara in his email, namely:

[L]awyers who have worked for you have alleged excessive interference by you including recounting occasions where they allege you sent emails to other solicitors and courts using their names, without their consent.

27 It was submitted to the judge that the language used by Mr Cucchiara was very similar to the language used by Mr Gordon in correspondence between him and Ms Di Gregorio, and that the judge should infer that Mr Gordon was the source. The judge concluded that, whether true or not, the allegations in the 28 July email could not be confidential information belonging to New Edge Law, or any of the related entities sought to be captured by the broad definition of Confidential Information as defined in the terms of the employment contract.

28 The judge observed that the complaints made by the applicants related to disclosures that had already been made and there was no attempt to identify with any precision, or at all, what further information, not yet publicly disclosed but held by the media interests, was sought to be protected by an interim injunction. She referred to the bald assertion made by Mr Kuksal in his affidavit that 'confidential information ... procured during [Mr Gordon's] time as my solicitor' will be used.

29 The judge found it unnecessary to address the submissions made by the media interests that the two individual plaintiffs had no interest or standing to enforce obligations of confidence owed to People Shop.

30 The judge concluded that the applicants had failed to establish an arguable case for breach of confidence. That finding was sufficient to dispose of the application for injunctive relief, but the judge went on to say that the balance of convenience did not favour an injunction. In that respect, the judge noted that at its heart, the proceeding was a thinly disguised complaint of defamation, that Mr Kuksal had been invited to respond to the allegations, and that in the event that any broadcast occurs, damages are an appropriate remedy if any confidential information is actually published.

31 In so concluding, the judge took into account what was said in Australian Broadcasting Corporation v O'Neill[7] about the grant of an injunction in defamation proceedings. In the context of an action for defamation, three factors supported a cautious approach to injunctive relief:

(a) the public interest in the right of free speech;

(b) until a trial of the facts it cannot be known whether any publication would invade a legal right; and

(c) the general character of a plaintiff may be an important matter in the outcome of a trial.

32 The judge was alive to the fact that the proceeding was not one alleging defamation, but noted the fact that Mr Kuksal was complaining about damage to his reputation and that he said he would commence defamation proceedings.

33 As already noted, the judge dismissed the application for an injunction.

34 The proposed grounds are difficult to follow. It is convenient to set them out in full.

Error of Law

1. In hearing and determining the matters arising at the 2 September 2021 hearing, Justice Forbes committed an error of law by failing to apply multiple rules contained in regulation 9 Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 [Conduct Rules].

2. [the judge] followed the High Court of Australia authority Australian Broadcasting Corporation v O'Neill [2006] HCA 46 [O'Neill], where the facts of the case were completely irrelevant to those of the present one. O'Neill did not discuss an allegation of breach of confidence.

Relevant Matters

3. [the judge] failed to consider the Third Respondent's fiduciary duty to the First Applicant of between a solicitor and client.

4. [the judge] failed to comprehend the confidential information the Third Respondent provided to the First and Second Respondent about the First Applicant's legal matters without his consent.

5. [the judge] incorrectly concluded that the only foreseeable damage to the Applicants in the broadcast of confidential information by (or through) the Third Respondent, in breach of the Third Respondent's statutory obligations under the Conduct Rules, would be defamation.

6. [the judge] failed to consider the foreseeability of irreparable and unquantifiable harm to the First Applicant through breach of his statutory right to client privilege under ss 18-19 Evidence Act 2008 (Vic).

7. [the judge] failed to contemplate the unfair disadvantage of leaked confidential information affecting current litigation matters of the First Applicant.

8. [the judge] failed to understand the inclusion of the confidential information in the Broadcast would inflict on the First Applicant's right to privacy.

9. [the judge] failed to examine the disastrous effects to the administration of justice, if a solicitor, provided with access to confidential information to provide legal advice to a person, can then in turn weaponise such information to exact an ill-conceived vendetta against their client.

Prejudgment

10. [the judge] inappropriately considered defamation as a ground in the application before Her Honour. Her Honour critically informed the Applicants that the crux of the matter was singularly focused on Her Honour's estimation of the Applicant's appreciation of the defamatory imputations.

11. Defamation was not pressed by the Applicants as a ground in the application before Justice Forbes.

12. [the judge] advised the Applicants that they ought to have, more appropriately, pursued defamation as a ground for bringing the injunction proceeding, and then, after the Applicants had clarified their position, comment that Her Honour's confusion had stemmed from the Applicants incorrectly identifying the matter as one involving defamation.

13. [the judge] remained, almost singularly, focused on her estimation of the Applicants' appreciation of the defamatory imputations. This made Her Honour inaccessible to the grounds that the Applicants sought to rely on and had specified on the Originating Motion.

14. [the judge] failed to recognise the pre-eminent authority in relation to the matter, of Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 [Lenah Game], as Her Honour could not see beyond O'Neill. O'Neill purely involved considerations specific to the reasonableness of granting injunctions to prevent potential defamatory conduct. The authority of O'Neill particularly emphasised the possibility that any award of damages arising from the defamatory imputations was likely to be nominal, and a relevant consideration in the High Court's decision.

Over-emphasis on Irrelevant Matters

15. [the judge] improperly gave undue emphasis to the specificity of the confidential information that sought to be revealed to the public in the Broadcast, through the Third Respondent's breach of fiduciary duty. This distracted Her Honour from the statutory provisions prohibiting the unlawful Broadcast of the information in the Conduct Rules.

35 The applicants submit that the evidence before the judge established that Mr Kuksal was Mr Gordon's only client and that he had provided confidential information about Mr Kuksal, his legal matters, and business operations to third parties, including Channel Nine and their solicitors.

36 Although the applicants do not know all of the contents of the programme, the media interests had disclosed that one of the allegations that would be raised was that Mr Kuksal had sent an email on Mr Gordon's account without his consent and that this allegation had come from Mr Gordon. They assert that the media interests have sensitive confidential legal information about Mr Kuksal's legal matters, including details of allegations made against Mr Kuksal in civil proceedings that are not in the public domain. In that respect, the applicants refer to a paragraph in Mr Jankie's affidavit where he refers to eight cases filed in the Federal Circuit Court alleging underpayment of Mr Kuksal's employees.

37 The applicants submit that Mr Gordon is a disgruntled employee who is pursuing a vendetta against Mr Kuksal.

38 The applicants submit that Mr Gordon was bound by the confidentiality obligations in Regulation 9 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 and was under a fiduciary obligation, owed to Mr Kuksal as a client, not to disclose confidential information.

39 Further, they submit that the judge erred in concluding that the only harm that may be sustained by the applicants would be damage to their reputation that could be addressed by an action in defamation. They submit that legally privileged material would be disclosed, that the information may reveal Mr Kuksal's legal strategy in current litigation, his resources, and 'the significance of certain assets, relationships, contracts etc. to Mr Kuksal and his operations in cases where those objects are the subject of litigation'. They submit it would be blatantly unfair for opposing parties to have access to that confidential information.

40 They submit that equity should intervene to prevent the effects of a breach of duty by Mr Gordon in disclosing confidential information. They submit that the judge 'inappropriately and inaccurately prejudged that the crux of the matter was the Plaintiffs desire to prevent defamatory conduct.'

41 The media interests submitted that any confidential information concerning Mr Gordon's employment and workplace issues at New Edge Law belonged to the employer, People Shop, which is not a party to the proceeding. Further, the applicants had failed to identify any confidential information belonging to them that was at risk of being published.

42 They submitted that the applicants had failed to establish that Mr Gordon had disclosed any confidential information that had been obtained by Mr Gordon in his capacity as a solicitor acting for Mr Kuksal.

43 Mr Gordon submitted that he had not acted for Mr Kuksal in the Magistrates' Court and that his email to Mr Cucchiara on 2 August did not disclose any confidential material that Mr Gordon had obtained in acting for Mr Kuksal. He said that his letter of 1 September 2021 and a copy of the 28 July email was sent to the applicants and the media interests in response to the letter of demand which had also been served on the media interests.

44 An interlocutory order for an injunction is a matter of practice and procedure. This Court must exercise particular caution in reviewing the decision of the primary judge. Before the Court will intervene, there must be an error in principle, and the decision appealed from must work a substantial injustice to one of the parties.[8] The question of injustice flowing from the order appealed from will generally be a relevant and necessary consideration.[9]

45 The central contention advanced in support of the injunction was that the proposed story on A Current Affair will involve the publication of confidential information that had been obtained by the media interests from Mr Gordon in breach of an obligation of confidence. Before the judge, the main focus of the source of the obligation was the contract of employment between Mr Gordon and People Shop. In this Court, far greater emphasis was placed on what was said to be the lawyer client relationship between Mr Gordon and Mr Kuksal.

46 The judge was clearly correct in her observation that the applicants had failed to identify the material that they contended was confidential and which should be protected by an injunction. In that context, the applicants' complaints are far broader than the limited information conveyed by Mr Gordon to Mr Cucchiara, and extend far beyond the matters on which comment was sought. To the extent that the evidence disclosed what might be broadcast by the media interests, it would appear to be confined to the matters on which comment was sought. The failure of the applicants to clearly identify the confidential information that they said was likely to be broadcast, meant that there was no error in the judge declining to grant the very broad injunction that had been sought.

47 There is no doubt that Mr Gordon had communicated with Mr Cucchiara. He sent the email on 2 August 2021 concerning the exchange of emails with the Magistrates' Court which are set out above. Further, once the injunction was threatened, he copied to the media interests his letter to Ms Di Gregorio dated 1 September 2021 and his email to her of 28 July 2021. Those emails set out a series of grievances that Mr Gordon had in relation to his employment. The earlier email described what was referred to as excessive interference by Mr Kuksal in operating the legal practice.

48 Insofar as the source of the obligation was said to be Mr Gordon's contract of employment, it was open to the judge to reject the existence of an arguable case of breach of confidence. That is because, to the extent that any obligation arose, it was in favour of People Shop which is not a party to the action. The applicants said that they are 'related entities' to People Shop and, in that capacity, are owed duties of confidence by Mr Gordon. The evidence before the judge did not establish that the applicants were related entities of People Shop. Nor was there proper material that established that either of the applicants had the benefit of the contract of employment such that they could, in their own right, sue to enforce the contract. Although Mr Jankie's affidavit described People Shop as being 'wholly owned and controlled by Mr Kuksal', the applicants adduced no evidence to support that allegation and it was put in issue at the hearing. In any event, the particular obligations of confidence were those owed to the employer and not for the benefit of the applicants. In the absence of the employer as a party, it was open to the judge to decline to find an arguable case of breach of contract.

49 Insofar as the source of the obligation of confidence was said to arise from a solicitor and client relationship between Mr Gordon and Mr Kuksal, there was no evidence before the judge that Mr Gordon was acting for Mr Kuksal in relation to the proceeding in the Magistrates' Court. It follows that there was no basis to contend that Mr Gordon had, by his email of 2 August 2021 to Mr Cucchiara, disclosed confidential information that he had obtained in acting as a solicitor for Mr Kuksal. In that respect, as the judge said, it is not clear from their evidence that Ms Di Gregorio or Mr Kuksal engaged New Edge Law and therefore Mr Gordon to do any, and if so, what legal work. That finding was well open to the judge.

50 The relationship between Mr Kuksal and Mr Gordon was hardly that of a traditional solicitor client relationship. Mr Kuksal asserted some ownership or control of People Shop, which was the incorporated legal practice in which Mr Gordon was engaged. Indeed, in the proceeding both in the Trial Division and in this Court, Mr Kuksal has appeared to have played a central role in preparing and filing documents in the name of New Edge Law. In those circumstances, in the absence of clear evidence that Mr Gordon had been retained in the matter, we would not infer that Mr Gordon had been instructed. It follows that the evidence did not establish that Mr Gordon became aware of the information that he imparted to Mr Cucchiara in the context of acting for, or advising, Mr Kuksal.

51 This is not a case where the material was obviously and clearly confidential. The contents of the email to the Magistrates' Court was not itself confidential. It was an open letter to the Court about administrative arrangements in relation to a hearing. Second, the fact that Mr Gordon denied sending the email to the court is not confidential information. There is nothing to suggest that Mr Kuksal told Mr Gordon that he had sent it, and it is probable that Mr Gordon inferred that Mr Kuksal had sent it on the basis that Mr Kuksal was the only person, to Mr Gordon's knowledge, that had access to his email account. What Mr Gordon told the journalist about who he suspected had sent the email amounted to an allegation of potential wrongdoing that may or may not be explained, but it did not convey confidential information.

52 Further, the emails of 1 September and 28 July which Mr Gordon sent to Mr Cucchiara, concern the internal operation of New Edge Law, however, those emails were provided to the media interests in response to a letter of demand sent on behalf of the applicants that had been sent to both Mr Gordon and the media interests. In those circumstances, the material in the letter of 1 September 2021 and the email of 28 July were provided to the media interests after they had sent their request for comment. It cannot be inferred that the media interests intended to broadcast any allegations beyond those on which they sought comment. For that reason, the applicants' submission that without an injunction, the media interests will disseminate legally privileged material or information about the resources, legal strategies, or other matters, is presently unfounded.

53 It follows that the applicants have failed to establish that the judge erred in failing to find an arguable case of breach of confidence or other duty.

54 Further, the applicants failed to establish an arguable case of error in relation to the judge's conclusion that the balance of convenience did not favour the grant of an injunction. The applicants have failed to show that this conclusion was not open to the judge.

[1] The evidence indicated that New Edge law is a trading name of People Shop Pty Ltd.

[2] The reference to 'related entities' is said to mean the entities defined in cl 37.13 (which must be a reference to cl 38.13). Clause 38.13 defines related entities by reference to s 50 of the Corporations Act 2001 (Cth) and a natural person who is a shareholder or beneficial owner of People Shop.

[3] (1980) 147 CLR 39; [1980] HCA 44 ('John Fairfax').

[4] [1989] FCA 384; (1990) 22 FCR 73 ('Smith Kline').

[5] [1980] HCA 44; (1980) 147 CLR 39, 50 (citations omitted).

[6] [1989] FCA 384; (1990) 22 FCR 73, 87 (Gummow J).

[7] (2006) 227 CLR 57; [2006] HCA 46 (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ).

[8] Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170, 177; [1981] HCA 39 (Gibbs CJ, Aickin, Wilson and Brennan JJ) ('Adam P Brown'); Niemann v Electronic Industries Ltd [1978] VicRp 44; [1978] VR 431, 442 (Murphy J); BHP Petroleum Pty Ltd v Oil Basins [1985] VicRp 72; [1985] VR 756, 758 (Fullagar J); Australian Dairy Corporation v Murray Goulburn Cooperative Co Ltd [1990] VicRp 33; [1990] VR 355, 364-5 (McGarvie J), 380 (Marks J).

[9] Adam P Brown [1981] HCA 39; (1981) 148 CLR 170, 177; [1981] HCA 39 (Gibbs CJ, Aickin, Wilson and Brennan JJ).