30 Many of the cases to which I have referred have been considered in Mr Spry's work, previously cited. Consistently with the analysis in that text, I am of the view that the mere fact that the injury to the plaintiff is slight or non-existent is insufficient to justify declining an injunction on discretionary grounds; so also is the mere fact that enforcement of the injunction would occasion considerable hardship to the defendant. However, where the jeopardy to the plaintiff from declining an injunction is slight, and the hardship that the grant of an injunction would occasion the defendant is disproportionately great, the Court may, as a matter of discretion, decline to grant an injunction, even in the context of a breach of a negative stipulation.
31 I come then to the context of the present case. In favour of granting an injunction is, first, that the form of the covenant itself was intended to place the plaintiff in a position where the difficulties of proving an actual misuse of its confidential information were avoided, since the prohibition on the employee accepting a competitive employment had the prophylactic effect of removing him from the environment in which he might be exposed to circumstances in which, intentionally or otherwise, there would be a temptation or an inevitability of misuse of Otis' confidential information. Secondly, Mr Nolan voluntarily assumed the obligation of the restraint with full knowledge of its terms and the potential consequences. Indeed, he raised the restraint in the course of the negotiations, indicated some form of objection to it, but then accepted it; and it might well be said that he took his chances. Thirdly, like Mr Birt, in Fairfax v Birt, it might well be said that he is the author of his own misfortune. Having taken his chances, he then resigned from his employment with Otis and assumed employment of the type forbidden by the restraint, in circumstances where Otis was making offers and entreaties to retain him and accommodate what he expressed to be his present needs for a lower intensity of work, or some type of break or rest. Fourthly, he must have known that he was acting in breach of the covenant in accepting employment with Kone, and that is not mitigated by the circumstance that he says that, after telling Kone that he would accept that employment, he says he was informed by an officer of Otis that in the circumstances the restraint would not be enforced.
32 Pointing in the other direction, against enforcement of the restraint, is the striking fact that the employment lasted for one day only, and that during that day Mr Nolan did not retain or copy the confidential information, but left the confidential material in his office at Otis overnight, from where it was recovered by Ms O'Bryan the following morning. The case is rather different in this respect from Cactus Imaging v Peters, on which Otis heavily relied. Mr Peters had over many years acquired an intimate knowledge of Cactus' pricing structure and tendering techniques, which he could not avoid using in seeking competitive business for his new employer. Mr Nolan, on the other hand, had only had momentary exposure to such of the financial information as was briefed to him, and very limited opportunity to digest it even if he had the ability to do so. The material itself, which is in evidence, is not in a form that would readily be committed to memory in a short time frame by anyone.
33 Next, Mr Nolan is not employed in that division of Kone's business which corresponds with the division of Otis' business in which he was, however briefly, employed. At Otis he was engaged in the New Equipment Division, which involves sales of new equipment, whereas at Kone he is engaged in Modernisation, which involves upgrades of existing equipment. Most of the confidential information with which he was provided at Otis, though not all of it, was relevant to the new equipment business. It is understandable that, as Mr Nolan suggests in his affidavit material, he would not have been as attentive to the briefings he received at Otis about modernisation, as to those that related to new equipment. He was provided with information relevant to the modernisation business by Mr Oong. That information, or at least what is said to be the confidential aspects of it, boils down to the quantity of the region's booking plan 2007, the planned margin, and the margin actually being achieved. I am unable to see, even if he remembered those matters, how mere knowledge of the plan margin or achieved margin, or the bookings plan would provide significant assistance in competing with Otis, particularly in the absence of knowledge of Otis' cost structure in the modernisation area.
34 Next, in distinction from RBM v Diaz in which there was strong evidence that Mr Diaz had obtained employment with RBM with the deliberate purpose of gaining information about its business in preparation for setting up his own in competition, there is no suggestion advanced in the present case of Mr Nolan having taken employment with Otis other than in good faith at the outset.
35 Next, undertakings have been offered by Mr Nolan and by Kone that Mr Nolan will not use, and that Kone will not seek to obtain from Mr Nolan, any confidential information of Otis in his possession or control. While those undertakings do not have the benefit of avoiding the need to prove an actual misuse of confidential information, they do still protect what ultimately is the interest that Otis is entitled to protect, namely, its confidential information, for which purpose alone in the present context the covenant is supportable. In that way, they secure to Otis the benefit and protection which the covenant was intended to achieve, although depriving Otis of the facility of having in place a prophylactic measure making proof of actual misuse of information unnecessary.
36 Finally, the hardship to Mr Nolan is great. An injunction would effectively prevent his employment in New South Wales in the only industry in which he has experience - other than the hospitality industry, in which he was engaged for a time quite some years ago, and which is now not suited to his family arrangements. The consequences of an injunction are potentially financially as well as personally disastrous for him. The hardship is not reduced by the accurate submission that it is much the same hardship as put forward by defendants in all these cases.
37 It is the combination of that hardship with the extraordinary circumstance that it attends an employment that in the event lasted only one day and the minimal risk of injury to Otis in the light of the area of Kone's business in which Mr Nolan is employed and the undertakings offered, that persuades me that - while minds might well differ on the topic - a court is more likely than not to decline, on discretionary grounds, to grant a final injunction. Accordingly, despite the very strong case that there is a breach of a valid and enforceable restraint, I am not persuaded that the Court would likely give effect to that restraint by granting a final injunction, but rather more likely would decline to do so, on discretionary grounds. That does not mean that there is not a seriously arguable case for an injunction: there is, but as I have said in a case of this type, where the decision on an interlocutory application will largely be the final decision in the case, the ultimate prospects of success have considerable significance.
38 In that context, I turn to the balance of convenience. It must be remembered that what is involved in the exercise of weighing the balance of convenience - or perhaps more accurately, the balance of the risk of injustice - is on the one hand the injustice to the defendant if an interlocutory injunction is wrongly granted, and on the other hand the injustice to the plaintiff if an interlocutory injunction is wrongly declined.
39 If I wrongly grant an injunction, then Mr Nolan will be put out of his present employment, and out of employment in New South Wales in the industry in which he is likely to be able to obtain employment, until 2 November 2007. That obviously involves significant financial jeopardy and hardship. To some extent that injustice is ameliorated by the undertaking as to damages that Otis would have to give, but it is little comfort to an employee - who has to pay the usual outgoings of life, such as mortgage payments, or rent, or food and household supplies, and so on - to think that if he ultimately succeeds, he will receive the benefit of an undertaking as to damages months down the track. In the meantime, mortgages or leases may go into default, hire purchase agreements broken, chattels repossessed, and the like. On the other hand, if I wrongly decline to grant an injunction, Mr Nolan will retain his employment in breach of its covenant. Otis will be deprived in the interim of the benefit of the prophylactic effect of the restraint, but it will still have the protection of the obligation of confidence contained in the contract and reinforced by undertakings to the Court.
40 In those circumstances, and given the view that I take of the relative strengths of the cases on the claim for a final injunction - in particular, on the discretion to decline injunctive relief - the balance of convenience favours declining interlocutory injunctive relief. But I wish to stress that I regard this as an exceptional case, as indeed it must be to justify declining injunctive relief in the case of a breach of a negative stipulation. What is extraordinary about this case, is the exceptionally short period of employment from which the restraint arises, coupled with the additional factors that Mr Nolan's new employment is in a different part of the business of the competitor from that in which he was engaged at Otis, and proffering of undertakings by him and his new employer, such as will have the effect of preserving, under penalty of contempt of Court, Otis' rights in its confidential information.
41 My orders are:
1. Upon the plaintiff by its counsel giving to the Court the usual undertaking as to damages, Order that until the hearing or further order the defendant be restrained from by himself, its servants or agents, publishing, disclosing, using, or reproducing, any confidential information of the plaintiff including, in particular, and without limiting the generality of the foregoing, the material contained in Exhibit VOB1 referred to in the affidavit of Veronica O'Bryan sworn 21 May 2007, Exhibit MO1 referred to in the affidavit of Matthew Oong sworn 22 May 2007, and Exhibits KM5, KM6, KM7, KM8 and KM9 referred to in the affidavit of Ken Muller sworn 22 May 2007, and the matters contained in paragraphs 5(c), 5(d), 11 and 12 of the affidavit of Veronica O'Bryan sworn 21 May 2007, paragraphs 8 and 10 of the affidavit of Matthew Oong sworn 22 May 2007, paragraph 7 of the affidavit of Peter Tomlinson sworn 22 May 2007 and paragraphs 15, 16, 17, 19 and 29 of the affidavit of Ken Muller sworn 22 May 2007.