Plaintiff v Defendant [2025] VSC 176 | Case summary

Plaintiff v Defendant [2025] VSC 176 | Case summary | Zoe

[5]

As the parties are in dispute about Mr Davitt's background in the cleaning industry prior to becoming an employee of ICS, it is necessary to briefly describe the evidence about it. Any factual contest will be a matter for trial.
At 16 years old, Mr Davitt entered into the cleaning industry. He was working for a small cleaning company owned by his parents. The small, family-owned company would subcontract to larger companies.[1]
Mr Davitt deposes that, whilst completing cleaning assignments at 'schools, government and other offices, commercial sites and kindergartens', he was acquiring the ability to estimate the duration of different cleaning jobs.
Between 2000 and 2007, Mr Davitt continued to work for his parents, but only sporadically.[2]
By 2007, Mr Davitt was working as a train driver. It was in that year that he decided to start his own cleaning company. By it, he sought to create an additional source of income to support his growing family.[3]
After joining the Australian Cleaning Contractors Alliance (a professional cleaners association), he was provided with documents that assisted in determining pricing for 'any work across the [cleaning] industry'.[4] Mr Davitt deposes that he developed a method to determine what price he would offer for cleaning contracts to ensure he remained profitable.[5]
In 2016, Mr Davitt incorporated a company to run his cleaning business, which had government departments and commercial clients as part of its clientele. It is contended that these experiences allowed Mr Davitt to develop a rapport with potential customers, and businesses within the cleaning industry.[6]
Between 2009 and January 2013, Mr Davitt worked as a train driver before transitioning into predominantly training and compliance within the Victorian rail industry. From 2020 - 2022, he assumed the position of project lead. In 2020, he also commenced as a part-time teacher.[7] Mr Davitt does not have any tertiary education, however, he has obtained two Certificate IV accreditations.[8]
On 18 February 2022, Mr Davitt signed his first employment agreement with ICS as a Business Development Manager ('First Employment Agreement').[9]
ICS operates as a cleaning and facilities management company providing medium and large-scale cleaning services to clients located across various industry sectors such as Local and State Governments tenancies, commercial properties, medical and aged care facilities, hotels and other hospitality accommodation, and mass transit operations networks in Australia and New Zealand.[10]
Mr Davitt deposes he does not remember reading through all of his First Employment Agreement or recall a clause titled 'restraint', as it was not something that he knew to look for; his focus was to confirm his remuneration of $130,000.00 per year (exclusive of superannuation).[11]
Under the First Employment Agreement, key responsibilities included planning and deployment of business development activity in key states, cultivating business relationships in target markets, and developing and submitting quotations and tenders to win contracts.[12]
Following commencing employment at ICS, Mr Davitt found that:

[7]

Mr Boyd, Chief Executive Officer for ICS contests this. He deposes that ICS has successfully operated its business since 1963 and was capable of appropriately pricing its contracts.[14]
In or around January 2023, following an internal restructure at ICS, their Chief Operating Officer indicated that Mr Davitt should apply for the position of 'State Manager - Victoria'. Subsequently, on 2 February 2023, Mr Davitt received a second employment agreement to that effect ('Second Employment Agreement').[15] A role which he only accepted on the condition of a salary increase, which was offered at $135,000.00 per year, in addition to a car allowance of $10,000.00. Mr Davitt deposes he was advised by a member of ICS that this offer may be withdrawn should it not be signed that day, and that his role as Business Development Manager may be made redundant.[16]
Mr Boyd disputes that ICS applied pressure on Mr Davitt to accept the offer for the Second Employment Agreement, or that the offer had to be signed that day, or that Mr Davitt's initial role might be made redundant.[17]
Upon receiving the Second Employment Agreement, Mr Davitt deposes that he failed to read the agreement before signing, save for verifying that he would be remunerated as agreed. He did not see that it contained a restraint clause, and contends that he did not have much time to consider it or obtain advice.[18]
Mr Davitt's responsibilities, pursuant to the Second Employment Agreement, included developing a profitable contract portfolio and ensuring that services were appropriately delivered within Victoria, providing management and maintenance of key contracts in Victoria, working closely with the General Manager of Sales, assisting with the financial performance of ICS across Victoria and its management, implementing company policy and strategy, and managing associated administrative and human resource related duties.[19]
It is uncontroversial that as a consequence of Mr Davitt's period of employment at ICS he would have been exposed to confidential and commercially sensitive information integral to ICS' operations.[20] Such information would include company performance reports, customer pricing models, contract tendering processes, and ICS client lists, in addition to other competitive strategies in the operation of ICS' business.[21] Mr Davitt deposes, however, that he has not shared such information with Vivid and that his ability to make pricing estimates is also derived from his own industry experience.[22]
Mr Boyd deposes that Mr Davitt's role necessitated being significantly involved in developing and maintaining client relationships with work across both the contractual tender process and post the award of a contract period.[23] Mr Boyd believes that it would take approximately 2 years for Mr Davitt's replacement to develop the same relationships with key ICS clients.[24]
In July or August 2024, Mr Peers, who was then the Head of Business of Development at Vivid and known to Mr Davitt over the course of his employment with ICS, indicated that the role of Regional General Manager for Victoria was opening up at Vivid and that Mr Davitt ought to apply.[25]
It is uncontroversial that Vivid and ICS are competitors; both companies provide similar services within Victoria and service similar clients.[26]
Mr Davitt deposes that he was attracted to the Vivid role due to the increase in seniority, opportunity for career progression, and because of personnel issues he was experiencing with a member of ICS. It is claimed that the personnel issue was raised with management, but went unactioned. And, that this impacted Mr Davitt's satisfaction in the role; it caused him to start applying for other work.[27]
On 27 November 2024, Mr Davitt served ICS with notice of his resignation, effective from 31 December 2024.[28] He deposes he did not review the terms of his Second Employment Agreement with ICS before resigning.[29]
On 13 January 2025, Mr Davitt commenced with Vivid. He deposes that his duties include the following operations requirements in Victoria, Tasmania, and South Australia:[30]

[13]

(a) On 28 February 2025, an ICS Account Manager (the **'**Account Manager') reportedly attended a meeting at Melbourne Airport (the **'**Airport') with Mr Davitt where features of ICS' current Europcar contract were discussed. During the meeting Mr Davitt reportedly indicated that he would seek to win Vivid various Europcar contracts. Mr Davitt offered the Account Manager a position at Vivid. Afterwards, Mr Davitt attended a meeting with Europcar.[38]

(i) Mr Davitt agrees he met with the Account Manager and also met with Europcar. He disputes the characterisation and substance of the meetings. He says that he had a coffee catch up with his old friends, being the Account Manager, a former ICS colleague. Mr Peers also attended. He did not offer the Account Manager a job. At the conclusion of the catch up, the Account Manager 'joking[ly]' asked 'if there were any jobs available at Vivid'. The Account Manager had earlier, on 28 January 2025, asked if there were any jobs available at Vivid. As to meeting with Europcar, he says that Mr Peers organised the meeting without his involvement and asked him to come along. Mr Peers told him Europcar were looking for a cleaning provider for their Tasmanian operations. When he and Mr Peers met with Europcar, he discussed the cleaning contract for its Tasmanian operations. He does not believe Europcar had ever been an ICS customer.[39]

(b) ICS client Miele, for whom Mr Davitt was National Account Manager, has offered ICS a shortened contract following his departure. Mr Boyd deposes that this is unusual as Miele have previously offered contracts in 'much longer' duration.[40]

(i) Mr Davitt deposes in response that he has not been in contact with Miele and does not know why a shorter contract was offered.[41]

(c) ICS client Novotel Melbourne Airport, with whom Mr Davitt developed a close working relationship ceased all ad hoc work with ICS following Mr Davitt's departure and declined to engage in further discussion as to an on-going cleaning contract.[42]

(i) It is deposed by Mr Davitt in response that there has been no contact between himself and Novotel Melbourne Airport.[43]

(d) As of July 2023, ICS has been in discussions with Transdev for a contract of approximately $10 million. As the lead on those discussions, Mr Davitt would be privy to confidential information of ICS regarding a potential contract.[44]

(i) Mr Davitt deposes that Vivid included him in email correspondence with a procurement manager for a Transdev subsidiary. During a meeting with the procurement manager, it was commented that Vivid was not appropriate for the work. Mr Davitt is not aware that the Transdev subsidiary is a ICS customer.[45]

(e) At ICS Mr Davitt had a close relationship with Australia Pacific Airports Melbourne ('APAM'). Mr Boyd believes that Vivid also contracts with APAM.[46]

(i) It is deposed in response that Mr Davitt has not been in contact with any APAM representative since joining Vivid.[47]

(f) Mr Davitt previously held a close working relationship with Only About Children ('OAC'). After leaving for Vivid, ICS has encountered issues with OAC that have since escalated to Mr Boyd.[48]

(i) Mr Davitt deposes in response that:

(A) On 5 January 2025, he had been in contact with a local OAC centre manager named 'Pheobe' regarding a service related complaint following his departure. The content of the complaint was forwarded to a member of ICS and Pheobe was advised that he was no longer an employee of ICS. He then sent a further message to Pheobe indicating that she should have been advised of his departure, his new position, and that ICS should be able to manage the issue.[49]

(B) On 5 February 2025, he received a message from 'Cat', a centre manager for a second OAC location, regarding a new and separate complaint. On receipt of the complaint, a member of ICS was informed by phone and he did not reply to Cat's message.[50]

(C) On 15 February 2025, 'Cassy', a centre manager for a third OAC location, messaged him regarding a new and separate complaint. In response he indicated that he was no longer an employee of ICS and with a new cleaning company. Subsequently, a member of ICS was informed of Cassy's contact.[51]

(D) On 24 February 2025, the Head of Integrations and Property at OAC, Mr Kovac, messaged him. The nature of the message was to complain about ICS' services and that they were 'considering removing them'. Mr Davitt responded that they should speak to Mr Peers. Following this exchange, Mr Kovac telephoned him inquiring whether there was a non-compete clause in his contract to which he replied he wasn't sure, but repeated that they could contact Mr Peers.

(ii) In response, Mr Boyd deposes that ICS had agreed to a shorter notice of resignation period for Mr Davitt on the condition that he ensured 'its customers [were] managed over the Christmas and New Year period' and that he provided an orderly handover on his departure.[52] It was later discovered that this had not been arranged, resulting in poor service outcomes at OAC and potentially explaining why he was contacted directly.[53]

[16]

The letter stated that it had come to ICS' attention that Mr Davitt was likely to be employed by Vivid sometime in 2025, and stated that were he to enter employment with Vivid, a competitor of ICS, he would be in breach of his employment contract. The letter asserted that ICS would be entitled to claim breach of contract and damages, as well as injunctive relief.[59] The letter stated that despite that, ICS would not institute proceedings if Mr Davitt refrained from 'making any contact with any customer, potential customer or employee' of ICS and comply at all times with his confidentiality obligations.[60]
Mr Davitt did not reply to the 6 Jan 25 WRP-Davitt letter.[61]
By letter dated 6 January 2025, WRP put Vivid on notice of Mr Davitt's restraint duties ('the 6 Jan 25 WRP-Vivid letter').[62] It stated that it considered he would be in breach if he commenced employment with Vivid. It put Vivid on notice that should it permit Mr Davitt to breach his employment agreement with ICS by seeking to poach ICS customers and staff members, Vivid would be engaging in conduct inducing Mr Davitt to breach his employment agreement.[63] It reserved its rights. It stated that ICS would agree not to institute proceedings if Mr Davitt did not communicate with ICS existing customers and staff until 1 January 2027 as well as complying with his confidentiality obligations. The letter sought an undertaking from Vivid and its related entities as to the same, and sought a response within 48 hours.[64]
Vivid did not reply. On 15 January 2025, WRP sent further correspondence to both Vivid ('the 15 Jan 25 WRP-Vivid letter') and Mr Davitt ('the 15 Jan 25 WRP-Davitt letter'). The letters were similar, with the subject matter titled 'final warning'. They referred to the concerns in WRP's 6 January 2025 letters, and demanded that Mr Davitt and Vivid sign and return the undertakings by 17 January 2025, failing which WRP anticipated receiving instructions to proceed against Mr Davitt. ICS reserved its right to join Vivid in any proceedings.[65]
On 17 January 2025, Mr Davitt replied by email to the 15 Jan 25 WRP letter ('17 Jan 25 Davitt email'). He categorically denied breaching his employment agreement and disputed the validity and demands in that letter. He referred to the restraints as unreasonable and unenforceable. He denied the allegations regarding intellectual property, confidential information, and customer contact details in his possession. He sought a copy of his employment contract. Amongst other things, he sought adequate time to obtain legal advice, and refused to sign the undertaking. He stated he would be prepared to have a discussion 'to resolve any legitimate concerns your client may have; however, I will not accede to unreasonable or unlawful demands'.[66]
On 17 January 2025, Vivid's solicitors, Brown Wright Stein Lawyers ('BWS'), provided a holding reply to WRP's correspondence ('the 17 Jan 25 BWS letter'). The letter stated that relevant Vivid executives were currently on leave and a substantive response would be provided 'in due course'.[67]
By letter dated 14 February 2025, BWS responded on behalf of Vivid to WRP's earlier correspondence ('the 14 Feb 25 BWS letter'). The letter stated that Mr Davitt had commenced employment with Vivid, and that Vivid had suggested he seek independent legal advice. Vivid denied the alleged contraventions and stated it would not be entering into any undertakings. It stated that if ICS could precisely identify any particular concerns it had regarding specific clients, it should provide particulars including corresponding provisions in Mr Davitt's employment contract.[68]
By letter dated 18 February 2025, WRP responded to the 14 Feb 25 BWS letter ('the 18 Feb 25 WRP letter'). It reiterated some of the obligations in the Second Employment Agreement. It asserted Mr Davitt had breached the employment agreement by entering into employment with Vivid and had breached his obligations of confidential information. It stated that on nine separate occasions he had sent an email containing confidential information from his professional email address provided by ICS to his personal email address, and specified the dates of the emails. The letter provided a final request for Mr Davitt to execute the undertaking. It stated that if it was not provided by 21 February 2025, then instructions were anticipated to commence proceedings next week.[69]
By email sent on 24 February 2025, WRP informed BWS that it had not received a response, and asked whether a response would be coming ('the 24 Feb 25 WRP email'). The email stated if not, there may be no alternative other than to seek injunctive relief.[70]
By email reply on 25 February 2025, BWS' solicitor noted that she had attempted to call WRP's solicitor and requested a call back.[71] Mr Boyd deposes that WRP's solicitor subsequently informed him that they spoke to Vivid's solicitor that day who said that Vivid would not facilitate the undertaking requested by ICS of Mr Davitt.[72]
On 20 March 2025, ICS caused these proceedings to be issued. ICS seeks interlocutory and final relief to enforce the contractual restraint provisions of the Second Employment Agreement and confidentiality obligations.

[42]

If the granting of an injunction amounts to final relief, then the plaintiff's prospects of success at trial are a factor in evaluating the balance of convenience.[81]
If at trial the maximum period for the restraints (24 months) is granted, the relief granted on this application would not be final. If, however, ICS succeed at trial in obtaining the minimum period for the restraints (6 months), the relief granted in this application would then be final. This is because more than three months have elapsed since Mr Davitt ceased employment, and the expedited trial will likely be listed in July. Thus, in a practical sense, the granting of an interlocutory injunction may determine the substantive issues in the proceeding.[82] Given this, it is necessary to consider ICS' prospect of success at trial.
I gratefully adopt the principles relating to the enforceability, construction and severance of restraint clauses given by the Court of Appeal in Just Group Ltd v Peck.[83]
Employment restraints should not be read to include improbable contingencies not within the contemplation of the parties at the time of executing the restraint.[84] At trial, the restraint will be construed by reference to the factual matrix, documentary matrix and surrounding circumstances.[85] A proper construction of the restraint clause may be to read it down, but it should not be read down for the purpose of saving it from invalidity.[86] If there is any ambiguity, then that should be resolved in favour of imposing lesser obligations on the employee.[87]
Here, it is not disputed that ICS was entitled to protect its customer connections and goodwill. I accept that Mr Davitt had access to confidential information in his roles at ICS, and also close customer connections.
The employment restraint applications rely upon the employment restraint clauses: 14.1.1 and 14.1.6. ICS has some prospect of success in establishing the clauses are reasonable at trial, but its case also has some weaknesses. In particular, there is a real prospect that the scope of the employment restraint clauses are wider than necessary to protect ICS' legitimate interests and will only be upheld if they are severed.
The scope of the employment restraints are wide. They would prohibit Mr Davitt from participating in any activity that might assist any competitor. They are not confined to employment or engagement by a competitor. To use an example, Mr Davitt might assist a competitor by purchasing services from them. The scope of the clause is not limited to the type of work or service he may undertake. As Mr Davitt says, the restraints would prohibit him from undertaking even an entry-level position with a competitor.
ICS has previously sought to enforce restraints against a former employee. In International Cleaning Services v Dmytrenko, Stanley J held that a restraint similar to cl 14.1.1 was broader than necessary to protect ICS' legitimate interests.[88] Stanley J severed the words 'or interested' and 'any activity, occupation or project which would or might have the effect of promoting or assisting directly or indirectly'. Consequently the clause read, 'be employed directly or indirectly in any competitor of the Employer in any way'. Stanley J held the clause, as severed, to be reasonable.
Importantly, as Mr Davitt says, the employment restraint application by paragraph 1(b) seeks to enforce a clause that Stanley J would not have enforced, namely cl 14.1.1. It includes words that Stanley J severed. ICS has a low prospect of cl 14.1.1 being enforced at trial without severance.
It will be an issue for trial as to whether the approach of Stanley J in International Cleaning Services v Dmytrenko should be taken. That is, whether the employment restraint clauses are reasonable if severed.
ICS also rely upon the employment restraint in cl 14.1.6. This was not in the restraint being considered by Stanley J. However, like cl 14.1.1, it is wide. It is not limited to the type of work or service that Mr Davitt may undertake. Cl 14.1.6 relies upon the definition in 'Restricted Way' which includes, amongst other things, that the employee 'must not act, participate, assist, work or in any way be directly or indirectly involved in a Competing Business' in a range of specified capacities that would entitle them 'or any of their respective associates or nominees to receive any benefit or reward because of their association with the Competing Business'. ICS has some prospect of establishing cl 14.1.6 is reasonable at trial, but its case has weaknesses given the width of the clause.
I must add that there is a factor here that may distinguish International Cleaning Services v Dmytrenko. Mr Davitt has his own cleaning company, which he operated before he commenced employment with ICS and continued to operate during his employment. There is a factual dispute between the parties as to whether ICS was aware of this and gave him permission to continue to operate his own business. This is relevant to the question of what the parties contemplated when entering into the Second Employment Agreement.
As the real battleground between the parties was the scope of the activity in the employment restraints, I will only briefly reference the duration and geographical area in the employment restraints. I accept that ICS has a real prospect at trial of establishing the duration and geographical area of the employment restraints is reasonable. The duration of the restraints is in cascading clauses of between 6 and 24 months. The geographical scope is in cascading clauses that range from Melbourne and the wider region to all of Australia. Per cl 14.3, there could be severance of any of the cascading parts.
Part of the employment restraint application was much more confined than the employment restraints. I refer to paragraph 1(a), by which ICS seeks to restrain Mr Davitt from continuing his employment with Vivid or a related entity, or being engaged by them. This mirrors the relief sought at trial.[89] Even so confined, however, at trial ICS will only succeed in obtaining this injunction if it establishes the reasonableness of the employment restraints. I reiterate my comments above regarding ICS' prospects at trial.
There is no evidence to suggest that Mr Davitt negotiated the restraints or obtained any legal advice about them. Indeed, he says he was unaware of them, not having read the contract. He did, however, sign the Second Employment Agreement. And, the acceptance clause above the signature block acknowledges that the contract has been read and understood. This factual dispute about Mr Davitt's awareness of the restraint should be resolved at trial, not on this application.
I accept that ICS has a real prospect of success at trial in enforcing the client non-solicitation restraint. Admittedly, there is some weakness in ICS' case in that the clause is not restricted to 'Prospective Clients' or 'Customers' known to Mr Davitt. However, Brereton J held in Cactus Imaging Pty Ltd v Peters:

[45]

ICS says the following. It will suffer irreparable harm if the application is not granted. It will be deprived of its contractual right to preclude Mr Davitt from working for Vivid for alternate periods. An interlocutory injunction is necessary to preserve that contractual right. If deprived of that contractual right, the practical effect may be to defeat its claim to final relief.
ICS says the employment restraint application offers greater protection of its legitimate interests than the non-solicitation and confidential information applications. They do not accept the influence of customer connection and there are difficulties associated with detection and proof of breach, causation and loss.
Mr Davitt says there is no evidence that ICS has lost any business. This is because no business has actually been lost although three months have elapsed since he ceased work at ICS.
Mr Boyd deposes that ICS' systems revealed emails various had been sent from Mr Davitt's ICS email account to his personal email up until the period before his departure. He itemises the emails.[92]
Mr Davitt contends he was not aware of ICS' information technology policy prohibiting the sending of work data to a personal computer and is prepared to undertake to ICS and the Court delete those emails if required.[93] Mr Davitt says that the confidential information application is unnecessary as he has explained that he sent the emails to his personal email account to assist with his work,[94] or he has forgotten why he sent them. He is prepared to search his records and delete the emails.[95] He says that only one email was sent after he accepted his role with Vivid, and it does not contain any confidential information.[96]
Mr Davitt says that if the client non-solicitation application is granted, it should be restricted to clients in Victoria, and be listed in a schedule to the orders. This will provide him with clarity as to who is a client. It will also provide clarity as to who is no longer a client. Otherwise, he will be left in a position where he must attempt to recall the identities of Customers and Prospective Clients.
I find that ICS may suffer irreparable harm if the client non-solicitation restraint and confidential information applications are not granted. I accept Mr Boyd's evidence that there are multiple contracts up for renewal in the next 24 months' worth millions of dollars in revenue. Vivid is a competitor of ICS. If Mr Boyd is not restrained from utilising his customer connections, he may leverage those to assist Vivid to win contracts. There is evidence from Mr Boyd that Mr Davitt has been in contact with ICS customers including Europcar, Miele, Novotel Melbourne Airport, Transdev, APAM and OAC. Notably, Mr Davitt does not deny contact with Europcar, Transdev and OAC. He disputes the nature of the contact. These factual disputes will be for resolution at trial. For present purposes, I am satisfied that Mr Davitt has been in contact with ICS clients since moving to ICS. Mr Davitt admits sending emails to his personal account, including the email after he resigned. Whether or not his explanation for sending those emails is plausible or contrary to his contractual obligations is a matter for trial.
ICS may suffer harm for which damages cannot compensate if Mr Davitt solicits employees. I am also satisfied that Mr Davitt discussed the Account Manager working for Vivid. The nature and substance of that discussion is in dispute and to be resolved at trial.
I am not satisfied that ICS will suffer irreparable harm if the employment restraint application is not granted. Mr Davitt has already been working for Vivid for some three months. ICS' delay in seeking to enforce this restraint, discussed further below, is inconsistent with its submission it will suffer irreparable harm in not obtaining the interlocutory injunction. This may be contrasted with its position with the non-solicitation restraints and confidential information obligations.

[46]

Mr Davitt is the family breadwinner, supporting his wife and two children. He has provided evidence of his financial situation.[97] I accept Mr Davitt's evidence that he and his family would experience hardship if he cannot earn an income. However, this has been ameliorated by ICS proffering an undertaking. The undertaking is to pay Mr Davitt on an ongoing basis for the duration of the proposed interlocutory injunction pending the outcome at trial, the equivalent weekly amount which ICS was paying at the commencement of his Second Employment Agreement, or upon sufficient evidence being provided, his weekly salary with Vivid as a condition of the order sought that he be restrained from continued employment or engagement with Vivid or similar entities until further court order.[98] I shall refer to this as 'ICS' payment undertaking'.
Mr Davitt refers to other hardship he would experience if the employment restraint application was granted. Vivid will not continue his employment if he cannot work.[99] It is uncertain whether he can re-commence employment with Vivid. He says the time out of the workforce may inhibit his career development, and he has limited other employment options without a university degree. He cannot increase the amount of teaching work he does and has not worked in other industries.[100] On the other hand, ICS says that the evidence regarding termination of employment at Vivid is hearsay, and that there is no evidence about whether or not he might be re-employed.
Vivid has been paying Mr Davitt's legal fees. If the employment restraint application is granted, Vivid will cease paying his legal fees because he can no longer work for Vivid.[101] He cannot afford to pay legal fees.[102] ICS says this would be an extraordinary reason not to grant an interlocutory injunction. Moreover, it says that some legal firms may act for him without requiring payment [up front], and he has made no inquiries about this.
Whilst Mr Davitt will suffer some hardship, this is regularly the case where employees defy a known restraint clause and accept employment with a competitor.[103] As discussed above, there is a factual dispute about whether Mr Davitt knew about the restraint clause when he entered into employment with Vivid.
I accept that Mr Davitt will suffer some hardship if the employment restraint application is granted. Whilst much of this hardship is ameliorated by ICS' payment undertaking, Mr Davitt will be unable to fund lawyers, leaving him in the position of acting for himself or trying to secure no-win, no-fee lawyers. Moreover, even if he is successful at trial, he does not have the security of ongoing employment. The evidence about the termination of his employment at Vivid is hearsay. However, this is an interlocutory application and the evidence is admissible. I accept it for the purpose of this ruling.
Mr Davitt did not identify any prejudice or hardship if the non-solicitation restraints or confidential information applications were granted.

[47]

Mr Davitt says that ICS has delayed bringing this application and this has prejudiced him. Since the 17 Jan 25 Davitt email, when he refused to give the undertakings sought by ICS, he has become more established at Vivid. Any financial disruption caused by the application will impact upon his family.[104]
Mr Davitt says the purpose of an injunction is to preserve the status quo pending trial. The application seeks to reverse the status quo and render him unemployed and unrepresented.
I gratefully adopt the principles on delay given by Seaward J in One Stop Warehouse Pty Ltd v Reed.[105] Delay is a factor that weighs against the granting of an interlocutory injunction.
In One Stop Warehouse, Seaward J refused an application by a former employer to grant an interlocutory injunction against the former employee. The plaintiff had delayed in making the application for about two months after the employee began working for a competitor. It was not the case that the plaintiff was 'sitting on its hands and doing nothing' during this period.[106] Correspondence was exchanged and the parties conferred. Nevertheless, in the circumstances of that case, delay was a factor that weighed against granting the injunction.[107]
ICS delayed bringing this application. By early January, ICS was aware that Mr Davitt was going to work for Vivid, as shown by the 6 Jan 25 WRP letter. Yet it was not until nearly three months later, that this application was filed.
ICS explains its delay by reference to the correspondence exchanged. However, it was evident by the 17 Jan 25 Davitt email and the 14 Feb 25 BWS letter that no undertakings would be provided. By 25 February 2025, when the solicitors from WRP and BWS had spoken, this was confirmed. Yet more than three weeks elapsed before this application was made.
ICS relies on the evidence of Mr Boyd. Mr Boyd deposes that following events on 28 February 2025 with the Account Manager at the Airport, he believed that Mr Davitt sought to solicit ICS clients causing him to instruct ICS' solicitors to prepare and file proceedings urgently seeking that Mr Davitt be restrained.[108] This does not explain the further delay of three weeks before the application was made. I should add that it shows that ICS' primary concern was the client non-solicitation restraint and confidential information applications.
There is a significant further aspect of delay. It concerns the employment restraints as contrasted with the other restraints, and the obligations concerning confidential information. ICS did not seek undertakings to enforce the employment restraints in the correspondence exchanged between the parties before the proceeding. As described above, the 6 Jan 25 WRP-Davitt letter undertaking did not include the employment restraint despite reference to it in the letter. The letter also provided for an exclusion and suggests that ICS would not pursue Mr Davitt for breaching the employment restraint by working for Vivid if he signed the undertakings regarding the other restraints and confidential information. The focus of the 6 Jan 25 WRP-Vivid letter was similar. Its stated concern was about Mr Davitt poaching clients and employees. The 15 Jan 25 WRP-Davitt letter and 18 Feb 25 WRP letter sought Mr Davitt execute the same undertaking attached to the 6 Jan 25 WRP letter. The delay in seeking to enforce the employment restraints weighs heavily against the employment restraint application.

[48]

Here the lower risk of injustice lies in limiting the relief to the client and employee non-solicitation applications, and the confidential information application. I reject ICS' submission that it will suffer irreparable harm if the employment restraint is not granted. Significantly, ICS delayed two and a half months in making this application. ICS sought undertakings, but they were focused on the non-solicitation restraints and confidential information. For almost three months, the status quo is that Mr Davitt is employed by Vivid. Despite the undertaking offered by ICS to pay him, he will still face some hardship if required to cease employment at Vivid. Further, ICS' case for establishing the reasonableness of the employment restraints has some weakness.
I am satisfied that ICS may suffer irreparable harm if the client non-solicitation and confidential information applications are not granted. I will require ICS provide the usual undertaking and a list of Customers and Prospective Clients who will be the subject of the client non-solicitation restraint.
The employee non-solicitation application was not fervently opposed, and there will be no prejudice to Mr Davitt in granting it. On the other hand, there may an element of irreparable harm to ICS if it is not granted given the evidence, albeit disputed, that Mr Davitt has already attempted to solicit the Account Manager to Vivid.
The injunctions will be made until determination of the proceeding or further order. As to the form of order, I will hear from both parties. My preliminary view is that the client non-solicitation application in paragraph 1(c) which is based on cl 14.1.2 ought be allowed, with modification to remove reference to the additional phrase in the application, namely 'endeavouring to entice away' and adding reference to the list of Customers and Prospective Clients. Paragraph 1(d) whose words do not reflect the employment restraint clauses ought not be allowed, noting also that it appears to be covered by paragraph 1(c). Further, that paragraph 1(e), which is based on cl 14.1.3 ought be allowed, and that the confidential information application ought be allowed. I prefer this form of order to Mr Davitt's proposed orders in paragraph 3 which are less aligned with the words of the restraint clauses.

Plaintiff v Defendant

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Judgment (101 paragraphs)

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Cases Cited (3)