Plaintiff v Defendants

1 The plaintiff seeks interlocutory relief against two of its former long-standing employees, Mr Gupta and Mr Trampevski, the first and second defendants, and a company they established in competition with the plaintiff named Hearing Consultants Australia Pty Ltd (Hearing Consultants), the third defendant. The plaintiff seeks a broad range of interlocutory relief against the defendants based on a number of causes of action, including breaches of the equitable obligation of confidence, fiduciary duty, duty of fidelity and employment and post-employment contractual restraints. There is currently a consent order that restrains certain conduct of the defendants until 4:00pm on the day the Court delivers its ruling on the application.

2 The principles applicable to an application for an interlocutory injunction are well established. In summary:

(a) a plaintiff seeking interlocutory injunctive relief must demonstrate that there is a serious question to be tried;

(b) the injury the plaintiff is likely to suffer must be one for which damages will not provide an appropriate remedy;

(c) the balance of convenience must favour the granting of an injunction, which also requires consideration of the strength of the plaintiff's claim;

(d) ultimately, the Court should take the course that appears to carry the lower risk of injustice if it should turn out to have been wrong, in the sense of granting an injunction to a party who fails to establish the asserted right at trial, or failing to grant an injunction to a party who succeeds at trial.

3 These principles are not entirely separate and must be examined together.

4 The parties, at times, conducted the application as if it was the final hearing. This included making submissions that the Court should make findings as to particular factual matters even though these matters were plainly the subject of disputed evidence.

5 The plaintiff ultimately identified with more precision the causes of action and the evidence it relied upon concerning whether there was a serious question and, as a result, confined its case to these matters (as identified in the document titled 'plaintiff's further note on minute of order - with tables' provided to the Court on 15 August 2025). These matters are different and more confined, in some respects, than the matters set out in the plaintiff's submissions filed 30 July 2025. The plaintiff also ultimately identified with precision the interlocutory injunctive relief it sought (as also identified in the document titled 'plaintiff's further note on minute of order - with tables' provided to the Court on 15 August 2025 and to be read in the context of the plaintiff's proposed minute of order). Again, this is different to the relief sought in the statement of claim, the summons, the subject of the present injunctions and the plaintiff's proposed minute of order. The plaintiff ultimately sought the following injunctive relief (bolding used for emphasis):

Until the trial of the proceeding, except as required to defend this proceeding, the first and second defendants be restrained from being engaged in, involved in or associated with the third defendant.

Until the trial of the proceeding except as required to defend this proceeding, the first defendant be restrained from being engaged in, involved in or associated with the third defendant's business operating out of 664 Burke Road, Camberwell.

Until the trial of the proceeding except as required to defend this proceeding, the first defendant be restrained from being engaged in, involved in or associated with the third defendant's business operating out of 664 Burke Road, Camberwell save for as a shareholder or unitholder.

Order 1(b) (Confidential Information Injunction)

Until the trial of the proceeding the defendants be restrained from making any use of or disclosing the plaintiff's confidential information [as to Mr Gupta and Hearing Consultants as defined in Annexure A to the plaintiff's proposed minute of order, but as to Mr Trampevski as defined in the 'plaintiff's further note on minute of order - with tables'].

Order 1(c) (Alternative Confidential Information Injunction)

Until the trial of the proceeding the defendants be restrained from making any use of or disclosing the following, save to the extent it is in the public domain through no actions on their part or information required to be disclosed by law:

(i) information regarding manufacturers' and suppliers' pricing;

(ii) the plaintiff's business strategy, including the plaintiff's geomapping data;

(iii) the plaintiff's financial information, including the plaintiff's revenue and profitability generally and across different locations;

(iv) client information, including contact information and client opportunities;

(v) the skills, competence, performance and renumeration of employees of the plaintiff.

Order 1(d)(i) (Customer/Supplier Injunction)

Until the trial of the proceeding the first defendant be restrained from soliciting, canvassing, approaching or accepting any approach from any customer or supplier of the plaintiff with whom he had dealings during his employment with the plaintiff, with a view to obtaining the custom or supply for a business that is the same or similar to any business carried on by the plaintiff; and

Order 1(d)(ii) (Employee Injunction)

Until the trial of the proceeding the first defendant be restrained from inducing, encouraging or assisting any employee to leave their engagements with the plaintiff.

6 The defendants ultimately proffered an undertaking to the Court in the form of Annexure A to this ruling.

7 On 25 July 2025, the plaintiff commenced this proceeding by writ and statement of claim and filed a summons seeking urgent interlocutory relief. On 30 July 2025, upon the plaintiff giving the usual undertaking as to damages, the Court made orders by consent, inter alia, as follows:

1. That the hearing of the plaintiff's summons filed 25 July 2025 be adjourned to 6 August 2025 at 10am or so soon thereafter as the business of the Court allows, and that until 4:00pm on that day:

(a) the first and second defendants, by themselves, their officers, employees or agents, be restrained from consulting with, providing services to, or selling product to, any clients or customers (former, current or prospective);

(b) the defendants, by themselves, their officers, employees or agents, be restrained from soliciting, canvassing, or approaching any customer of the plaintiff with a view to obtaining their custom for the third defendant's business or any other business in competition with the business operated by the plaintiff;

(c) the defendants, by themselves, their officers, employees or agents, be restrained from inducing, encouraging or assisting any employee to leave their employment with the plaintiff;

(d) the defendants be restrained from making any use of or disclosing the plaintiff's confidential information; and

(e) the first defendant, in addition to the obligation in 1(b) above, be restrained from accepting any approach from any customer of the plaintiff with whom the first defendant had dealings during his employment with the plaintiff with a view to obtaining their custom for the third defendant's business or any other business in competition with the business operated by the plaintiff.

8 These injunctions were extended, again on the plaintiff's usual undertaking as to damages and by consent, on 6, 14 and 15 August 2025. The injunctions presently restrain conduct until 4:00pm on the day the Court gives its ruling on the plaintiff's summons. The present order is, in fundamental respects, different to the plaintiff's present application for injunctive relief. For example, the Springboard Injunction is much broader than the present interlocutory relief.

9 The Court informed the parties during the hearing on 15 August 2025 that this matter may be set down for trial commencing on 27 October 2025 and that the Court will make interlocutory timetabling orders (e.g. disclosure of documents under the Civil Procedure Act 2010 (Vic) and witness outlines) at the time it delivers its ruling on the interlocutory application. The plaintiff confirmed to the Court its consent to the trial commencing on 27 October 2025.[1] The defendants did not inform the Court that they would not be ready for trial by that date but otherwise made no meaningful response. The trial will be set down commencing on 27 October 2025.

10 The plaintiff carries on business as part of a global hearing aid retailer business, operating audiology clinics and engaging in the retail sale of hearing aids. It has over 350 clinics in regional and metropolitan areas across Australia. It carries out audiological screening, testing and the sale of hearing aids and accessories and also wax removal on an ad hoc basis. It has operated in Australia since 1997. In 2010 it was acquired by its parent company, Amplifon S.p.A, which is a corporation incorporated under Italian law. In about 2020, the plaintiff rebranded from 'National Hearing Care' to 'Amplifon'. A statement on Amplifon's Australian website states that it has more than 9,200 directly owned stores in over 25 countries around the world. In Melbourne, the plaintiff has 33 stores and 6 'shop in shop' stores which are retail spaces within a medical clinic. Mr Hardie gave evidence that prior to May 2021 no business operated by any member of the Amplifon Group operated within 5km of the Burke Road Clinic.

11 The current Australian subsidiaries of Amplifon S.p.A comprise:

(a) the plaintiff;

(b) Bay Audio Pty Ltd. This operates an audiology business in Australia and conducts audiological screening, testing, the sale of hearing aids and accessories, and wax removal on an ad hoc basis. The plaintiff acquired this business in 2021;

(c) Attune Hearing Pty Ltd. The plaintiff acquired this business in 2020. This operates an audiology business in Australia and conducts audiological screening, testing, the sale of hearing aids and accessories, and wax removal on an ad hoc basis. It also provides a range of clinical testing services for medical purposes. The plaintiff acquired this business in 2020;

(d) Attune Workplace Hearing Pty Ltd. The plaintiff acquired this business in 2020. There is no other evidence concerning this company except that it may be inferred that it does not currently conduct any business;

(e) Ear Deals Pty Ltd. There is no other evidence concerning this company except that it may be inferred that it does not currently conduct any business; and

(f) Amplifon Australia Holding Pty Ltd. There is no other evidence concerning this company except that it may be inferred that it does not currently conduct any business.

12 The plaintiff refers to these companies collectively as 'Amplifon Group Australia'. Mr Hardie, the sales director of the plaintiff, gave evidence in his affidavit made 25 July 2025 (First Hardie affidavit):

1. Amplifon Group Australia is the largest hearing aid retailer in metropolitan Melbourne with some of its main competitors being Audika, Hearing Australia and Specsavers. Nationally its market share is about 33% and its footprint in Melbourne is similar. In Metropolitan Melbourne, the Plaintiff has 33 stores and six "shop in" stores, which are a retailer space situation within a general practitioner medical clinic.
2. Amplifon Group Australia has invested significant resources to establish its competitive and profitable operation in Australia and has grown quickly through re­investment in operations and strategic acquisitions. There are high barriers to entry to new entrants due to capital costs of retail stores, less favourable pricing with manufacturers for lower volumes and lower market share. An additional and substantial challenge for new entrants is that a client base is normally tied to audiologists at other clinics.
3. The Plaintiff divides its area of operations into geographical regions and then divides the regions into areas. Each area has retail stores from which the Plaintiff conducts business. Retail stores treat individuals over the age of 26 years and accept both private and Hearing Services Program (HSP) clients. HSP clients are individuals eligible for government subsidised hearing healthcare.
4. The Plaintiff's retail stores employ audiologists and front of house employees. The front of house employees are called Client Advisors.
5. Audiologists are qualified to diagnose hearing loss and provide and fit hearing solutions for individuals. Day to day, an audiologist employed by the Plaintiff would:

a. conduct hearing tests;

b. diagnose hearing loss;

c. refer clients to a general practitioner as required;

d. generate reports for general practitioners;

e. conduct pre-employment checks;

f. fit and provide hearing solutions, such as hearing aids;

g. conduct home visits;

h. servicing and troubleshooting devices.

1. The most significant function of an audiologist is to improve quality of life by providing hearing solutions, involving the sale of hearing healthcare products such as assistive listening devices, hearing aids, headphones, alarm clocks and microphones (hearing devices).

13 The plaintiff derives income from the sale of hearing aid devices, their repair and maintenance, and fees from appointments with clients, including hearing aid tests and assessments. The appointments also include WorkCover appointments and appointments with workplaces such as the Australian Defence Force. The sale of hearing aids and associated fittings constitutes by far the greatest part of the plaintiff's revenue.

14 Mr Hardie gave evidence concerning the plaintiff's audiologists in the First Hardie affidavit:

1. ...The sale of hearing aids is facilitated directly through audiologists, who, as part of their duties, will during their consults recommend hearing solutions to clients where appropriate.
2. A high performing audiologist in a high performing location may generate as much as $2M in gross revenue each year, sometimes more, the vast majority of which will be attributable to hearing aid sales (and associated fittings) by that audiologist.
3. In that respect, the sale of hearing aids/upgrades of hearing aids is the most lucrative aspect of the audiology client life cycle. For example, in some cases, the sale of hearing aids and associated fittings can bring in revenue of up to $13,800 per pair. A client will generally upgrade to new hearing aids every three to five years in more affluent areas, the periods of time are shorter given those clients may have more of an ability to upgrade their hearing devices when new technology becomes available.
4. Audiologists have direct contact with the Plaintiff's clients and are the face of the business for the clients. Their relationships with clients may last for many years. Audiologists are highly qualified specialists dealing with a health issue being that of hearing loss which, for many people who consult with audiologists, is a significant quality of life matter. Given this, clients place a significant amount of trust in their treating audiologist.
5. A typical audiologist of the Plaintiff has approximately 1000 client appointments in a year. Of these appointments, over 70% of the appointments would be for the purpose of prescribing hearing aids.
6. The Plaintiff's audiologists participate in a monetary incentive scheme based on the number of hearing solutions provided to clients. In this way, audiologists are strongly incentivised to sell hearing aids or upgrades to clients.
7. Ordinarily, a client rejecting recommended hearing aids would result in our call centre telephoning the client within three to six months to attempt to re-book them for an appointment for hearing aids. The exception is where the audiologist ticks a box on the client form stating "do not contact". In my experience, audiologists would rarely tick that box on a client form and it would usually only be for good reason, such as where the client is now deceased, or relocated.
8. It can take a number of years for an audiologist to foster a strong client relationship. This is because a client will usually see their audiologist no more than every 6 to 12 months on average. In some circumstances they may come more frequently to address issues like fast hearing deterioration, batteries or challenges with fittings or usage. A quicker bond can also be created when an audiologist sees a client for the first time and fits hearing aids for them, providing relief from their hearing concerns.
9. To my observation and in my experience, clients do not commonly move around from one audiologist to another, though some (albeit a small minority of) clients are less fussy about which audiologist they see. I have mentioned above the trust that customers place in the skills of audiologists to treat a significant quality of life issue for them.
10. The Plaintiff has developed particular sales protocols and suggested scripts for audiologists with the objective of building a relationship between the audiologist and a new client to the Plaintiff and to ensure that the relationship continues to grow in order to retain the client. In doing so, the Plaintiff recognises that it is the connection between the audiologist and the client which is imperative in order to retain the client as a customer of the Plaintiff.

15 Mr Gupta disputed some of the matters in paragraph 24 of the First Hardie affidavit and gave evidence that he saw patients less frequently and only at their key consultations and that patients move between audiologists regularly. Mr Hardie disputed this and gave evidence that Mr Gupta saw his patients 4.7 times more often than Mr Gupta's Client Advisers saw his clients directly. I refer to paragraph 7 of the the affidavit of Mr Hardie made 14 August 2025 (Third Hardie affidavit). These disputes are matters to be determined at trial.

16 Mr Gupta commenced employment with the plaintiff on 15 January 2001 as an audiologist. Relevantly, Mr Gupta entered into a written employment agreement with the plaintiff on 12 July 2013. Mr Gupta was employed on a full-time basis and eligible to participate in the plaintiff's audiology bonus scheme, which was amended from time to time. It is important to set out some of the key terms of the employment agreement:

Confidential Information

You acknowledge that Confidential Information is of considerable commercial value to NHC. Any disclosure of Confidential Information in breach of your obligations will cause NHC damage that cannot adequately be compensated by any award of damages. NHC shall be entitled to an injunction to restrain you from disclosure of this Confidential Information and this remedy shall be in addition to any award of damages that may be made in favour of NHC.

You may use Confidential Information for the sole purpose of providing services to NHC in the course of your employment. You must not use Confidential Information for any other purpose without the express written approval of the CEO or a Director of NHC.

You must not remove Confidential Information from the premises of NHC without the express written approval of the CEO or a Director of NHC.

This clause shall also not apply to Confidential Information that is or subsequently comes into the public domain (unless this is due to a breach of confidentiality by you) or information required to be disclosed by law.

"Confidential Information" includes all information regarding the business, trade secrets and commercially valuable information of NHC, its related entities and associates, including without limitation:

• all information relating to NHC clients (eg. client lists, databases or records, particular Client transactions and the state of client accounts) to which you are privy as a result of your employment with NHC;
• all information relating to suppliers of goods and services and NHC arrangements with any other third parties;
• all information relating to NHC including products, pricing, manuals, books, Policies and personnel;
• all matters relating to the business and marketing plans and strategies, technical data and financial information of NHC;
• all systems, processes, designs, methods, drawings, know-how, specifications, intellectual property, computer hardware, software or programs of NHC; and
• any information or document which you have been given or which has come to your attention during your employment with NHC which, from its nature and content, is or would reasonably be expected to be confidential; and
• personnel records.

During the Restraint Period you must not:

• be engaged in, be involved in or be associated with, a Like Business (including as a principal, agent, director, employee, partner, shareholder or unit-holder, contractor, advisor, consultant or agent) in the Restraint Area.

• solicit, canvass, approach or accept any approach from any customer or supplier of a Group Member with whom you had dealings with during your employment with the Company with a view to obtaining the custom or supply for a Like Business in competition with the Business.

• interfere with the relationship between any Group Member and any of their customers, suppliers, employees or contractors.

• induce, encourage or assist any employee to leave their employment with a Group Member.

• assist any third party to engage in any activity referred to above.

You acknowledge that each restriction specified above is in the circumstances reasonable and necessary to protect the Company's legitimate business interests, including interests, but not limited to the protection of Confidential Information, the Company's relationships with customers, suppliers, employees and contractors the goodwill of the Company's business.

...

General

Your obligations in respect of post-employment restraints, privacy, confidentiality, intellectual property and company property contained in this Letter will survive termination of your employment.

To the extent permitted by law, this document constitutes the entire agreement between you and NHC in relation to your employment and supersedes any prior agreement between the parties.

The terms of this Letter will continue to apply to your employment, irrespective of any alteration to your title, duties, level of responsibility, remuneration or place of employment unless amended by written agreement signed by you and NHC.

17 Mr Hardie gave evidence in the First Hardie affidavit that:

1. Gupta was the direct point of call with the Plaintiff's clients who were treated by him and held a trusted position with the clients in understanding their hearing needs.
2. Since the commencement of his employment, Gupta predominantly worked at the Plaintiff's Camberwell clinic, but would also, albeit less often, work at the South Yarra clinic. Gupta would also occasionally work in the Plaintiff's regional Victoria and Tasmanian clinics. Since I joined the Plaintiff in 2012, I estimate that he would have spent around 80% of his time at the Camberwell clinic. I was informed by Michelle Atme, Associate Sales Director of the Plaintiff, on 23 July 2025 and believe that she used to work at the Plaintiff's South Yarra clinic in 2015 and that in that year, Gupta worked predominantly from Camberwell and from the South Yarra clinic one day per week.
3. Throughout Gupta's employment, he was consistently one of the Plaintiff's top performing audiologists across Australia in terms of his sales of hearing aids. Gupta won awards for his high performance, including "High Performer of the Year" many of the years he was employed. The financial prizes for such awards included shares in the Plaintiff or significant cash payments of up to $20,000. It is evident from his success that Gupta had strong relationships with clients and built a good rapport with them.
4. Having been Gupta's manager for some years and having regard to the fact that Gupta has been consulted by many long-standing clients while employed at the Plaintiff, I can say that he built a good rapport with his clients and appeared to be trusted by them. I found Gupta to be charismatic and personable. During the period which I was directly managing Gupta, I remember asking Gupta what he did to make him so successful at sales and Gupta said to me it was largely due to the trust he had built up with clients.

18 Mr Gupta disputed the matters in paragraph 34 of the First Hardie affidavit that he was the 'direct' point of call with his clients and gave evidence in his affidavit made 5 August 2025 (Gupta affidavit) that it was the administration team working within the clinic that would usually be the direct point of call with his patients. Mr Gupta gave evidence that he primarily worked at the plaintiff's Camberwell premises but also worked from time to time on an ad hoc basis at the plaintiff's South Yarra premises. These disputes are matters to be determined at trial.

19 On 3 March 2025, Mr Gupta sent an email, copied to Mr Hardie, in which he gave written notice of his resignation, with his final day of employment being 31 March 2025, and stated, inter alia:

My recent unexpected leave due to surgery and illness has prompted a reevaluation of my personal and professional priorities. After careful consideration, I have decided to conclude my 24-year journey with Amplifon. Amplifon/NHC has been instrumental in my career development, providing unwavering support from my days as an intern to the present. I've had the privilege of collaborating with exceptional professionals in our field, and forming enduring friendships along the way. I am profoundly grateful for the numerous opportunities that have enriched my long and fulfilling career with the company.

I am fully committed to ensuring a seamless transition over the next four weeks. During this time, I will dedicate myself to supporting the company in every way possible.

I extend my heartfelt wishes for continued success to you, the leadership team, and the entire Amplifon family. While this decision comes with a heavy heart, I am deeply thankful for the experiences and growth I've gained during my tenure.

20 Mr Gupta gave evidence of the reasons for his resignation, including his dissatisfaction with various aspects of the plaintiff's business. Mr Hardie disputed many of the matters raised by Mr Gupta.

21 On 7 March 2025, Mr Hardie spoke with Mr Gupta to discuss his resignation. Mr Gupta gave evidence that he told Mr Hardie the reasons for his resignation, including his dissatisfaction with various aspects of the plaintiff's business. Mr Hardie disputed that Mr Gupta raised some of these matters. Mr Hardie gave evidence that he asked Mr Gupta where he was going and Mr Gupta said that there was interest from other providers but that he had not made up his mind. Mr Gupta did not dispute this. Mr Hardie also gave evidence that he asked Mr Gupta if there was an option to start his own business and Mr Gupta said that there was but nothing firm. Mr Gupta did not dispute this.

22 This followed a period in which Mr Gupta had been on sick leave for an extended period following back surgery. Mr Gupta gave evidence that he took personal leave from 3 February 2025 to 30 March 2025 to recover from back surgery. Mr Hardie gave evidence that Mr Gupta took the leave until 28 February 2025. Mr Gupta gave evidence that his 'effective date seeing patients was from 3 February 2025' (Mr Gupta in his affidavit clearly makes a typographical error in not including the word 'not' before 'seeing patients'). Mr Hardie gave evidence in the First Hardie affidavit that:

1. Although Gupta had a good track record of performance overall, over the 12 months preceding Gupta's resignation, and in addition to the unusual taking of sick leave which I mentioned above, I had noticed a downward trend in his performance. This concerned me. In my experience, a downward trend in the performance of an otherwise high-performing audiologist (particularly considering the financial motivation to perform well) often meant an employee was no longer looking to continue with their employment.
2. I have reviewed Gupta's key performance indicators for the first calendar quarter (January-March) of 2024 in comparison to quarter 1 of 2025. In quarter 1 of 2024, Gupta generated approximately $413,000 in revenue for the Plaintiff. In quarter 1 of 2025, Gupta generated only approximately $45,000 in revenue. I note also that Gupta's client prescriptions for hearing aids in quarter 1 of 2024 was 49 with a client conversion rate of 88%, in comparison to quarter 1 of 2025 whereby he only prescribed 5 clients with hearing aids. This significant decline was very unusual for Gupta.

23 Mr Gupta gave evidence that his performance would clearly have reduced in the January to March 2025 quarter given he was on personal leave and did not service any patients from 3 February 2025. Mr Gupta also disputed that his performance significantly declined and gave evidence that his performance bonus payment per week of work during the 2025 financial year was higher than it had been in the previous financial year. These disputes are matters to be determined at trial.

24 Mr Trampevski commenced employment with the plaintiff as an audiologist in or around 10 January 2005. Mr Hardie said it was September 2004. From in or around August 2010, he was employed as an Area Manager. Mr Trampevski, in his affidavit made 5 August 2025 (Trampevski affidavit), gave evidence of his employment in various other roles, including as follows:

(a) 2013 to 2015: Regional Manager for a number of States;

(b) 2015 to 2018: Business Improvement Director;

(c) 2018 to 2020: Supply Chain Director;

(d) 2020 to May 2025: Regional Associate Sales Director.

25 From 1 March 2020, he was employed as a Regional Associate Sales Director, Southern Region. Mr Hardie gave evidence in the First Hardie affidavit that:

1. In Trampevski's latest role of Regional Associate Sales Director he reported directly to me. The role required him to:

1. work closely with Area Managers of the Plaintiff to drive sales performance across the region;
2. help deliver a range of different metrics and key performance indicators for his region in order for them to meet their sales targets;
3. coach other employees in the Plaintiff's business, in particular Area Managers and audiologists;

d. visit retail stores;

e. manage client complaints;

1. have a deep understanding of the Plaintiff's business, including its store operations, client details and data, sales trends and forecasts (including which regions and stores were most profitable), and pricing;

2. communicate marketing and campaign strategies to his region; and

h. analyse business trends and weekly forecasts.

26 Mr Trampevski also gave evidence of his various core responsibilities:[2]

1. At the time my employment ceased and for almost 12 of years, I did not have any patients, rather my role whilst varied throughout the year was in relation to dealing with stakeholders of the business, managing of staff (which I have set out in greater details below). I was accountable to Justin following his promotion. My core responsibilities included:

1. managing my region to ensure sales targets and Key Performance Indicator (KPIs**)** were achieved;
2. to drive and achieve growth across the regions of Victoria, Tasmania, South Australia, and (Western Australia till 2023 July), and meeting or exceeding all sales targets and KPIs;
3. training, coaching & people development into senior roles including Justin;
4. sales training and leadership development including the mentoring of Area Managers, achieving a high level of engagement and retention of staff in my regions;
5. client management including the handling of the escalated complaints;
6. collaborating with key partners including with BUPA, Workcover lawyers and Humm Group sales representatives;
7. reporting & business analysis including the preparation of weekly, monthly and quarterly performance reports, providing actionable insights to senior management on sales trends and market dynamics; and

27 Relevantly, Mr Trampevski entered into a written employment agreement on 3 August 2010. It is important to set out some of key terms:

Confidential Information:

You must keep confidential and not disclose to any person without our written consent any of our or our Customers' confidential information including but not limited to:

• personal particulars of any type of any Customer;

• the practices, business dealings, trade secrets, documents and affairs of the Company or any of its associated or related entities;

• the techniques and methods of merchandising, budgeting and market analysis used by the Company;

• any intellectual property including patents, designs and trademarks;

• all systems, processes, methods, computer programs, databases and software of the Company;

• any information or document which you have been given or which has come to your attention during your employment with the Company which, from its nature and content, is or would reasonably be expected to be confidential and any information or document which contains information which is of commercial value to the Company or any of its associated or related entities;

• any information and document which you know, or reasonably ought to know, is actually or potentially of commercial value to the Company; and

• any information and document adapted or derived in any way from Confidential Information, even where the adaptation or derivation involves significant or substantial original work;

except for such information that is publicly available other than in breach of this Agreement or which you are obliged to disclose by law.

28 The plaintiff seeks to enforce this term, but does not otherwise seek to enforce the other post-employment restraints in the employment contract. During the hearing the plaintiff appeared to accept that these may be void given various drafting errors, but the matter was not the subject of any detailed submissions.

29 On 5 March 2025, Mr Trampevski sent an email to Mr Hardie, in which he gave written notice of his resignation with his final day of employment being 2 April 2025 and stated, inter alia:

I hope this email finds you well. After careful consideration, I have decided to resign from Amplifon Australia, with my last day being 2nd of April.

Leaving after 20 years is not an easy decision. My time at Amplifon has been incredibly rewarding, and I'm grateful for all the opportunities I've had here.

The fact that I've stayed this long is a testament to how much I've enjoyed my work and working with the people in the company.

I still hold Amplifon in the highest regard. However, due to personal circumstances, I need to explore options that are less demanding with flexibility for my current situation.

I'm committed to ensuring a smooth transition. Please let me know how I can best assist during this period. Thank you for your understanding and to the wider team for their ongoing support over the years.

30 On 6 and 7 March 2025, Mr Hardie spoke to Mr Trampevski about his resignation. Mr Hardie gave evidence:[3]

1. On 7 March 2025 at 4:05pm, I again telephoned Trampevski and asked that he stay for another few months or at least until June or late May 2025. I said the Plaintiff could pay him his bonus and he could also come on an upcoming management trip to Thailand if he agreed to stay employed with the Plaintiff for another couple months. I also said to him I hoped he would not screw us and go to work [for a] competitor business including Gupta (noting I had spoken with Gupta a few hours before (see paragraph 41 above) and Gupta had left the door open to starting his own business). Trampevski said he was not going to do that. Ultimately, Trampevski agreed that he would stay with the Plaintiff for an additional couple of months in exchange for his bonus. He did not want or take up the trip to Thailand.

1. Over the course of 12 months preceding Trampevski's resignation, I had noticed a downward trend to his performance and, as with Gupta, I had wondered about whether this was evidence he was intending on moving to another business. Given the nature of his role my conclusions in this regard did not relate to sales or quotas but to more traditional human recourses related measures.
2. In particular, I observed and in fact had discussed with Trampevski the following concerns with his management of day-today operations in the course of the 12 months before his resignation:

1. During a recent two-week leave period, he failed to provide clear direction to his team regarding meetings, key points of contact, and day-to-day operations. As a result, regular reporting sessions for the VIC/TAS region were missed until I intervened to nominate a leader;
2. The region fell short of intern audiology recruitment targets to start 2024, despite multiple conversations with him. Consequently, the region operated below FTE budget for January and February, with VIC1 significantly impacted until May, when I had to step in to address recruitment challenges and reallocate team members across the state;
3. Weekly reporting meetings often lack preparation, with reports being completed during the meeting itself;
4. There was insufficient attention to operational details, exemplified by an audiologist being overpaid for the entirety of 2024 due to incorrect FTE and overtime allocation;
5. A new area manager started without a comprehensive induction plan. In the absence of direction from Trampevski, I worked with HRBP and Michelle Atme to create one;
6. One of the region's area managers approached me directly, citing a lack of support for their Individual Development Plan and requesting my assistance to advance their career;
7. There is a general sense of disorganisation and a lack of accountability across the region.

32 Mr Trampevski gave evidence that Mr Hardie did raise concerns with his performance but gave evidence disputing the precise matters that were raised with him and also gave evidence concerning his performance. Nonetheless, there is no issue that he withdrew his resignation and continued to work for the plaintiff.

33 On 28 April 2025, Mr Trampevski sent an email to Mr Hardie, in which he gave further written notice of his resignation, now with his final day of employment being 23 May 2025 and stated, inter alia, that is was due to his personal circumstances. Mr Trampevski gave evidence concerning the reasons for his resignation, including concerning his personal circumstances and also concerns about the plaintiff's business. He was paid his bonus.

34 On 28 April 2025, Mr Hardie was told by Mr Trampevski that he was going to work with Mr Gupta:[5]

1. I am informed by Flavia Paoli, Managing Director of the Plaintiff, and believe that on 28 April 2025, prior to Trampevski sending me an email with his resignation, Trampevski approached Mr Paoli in a hallway of the Plaintiff's offices and said he wanted to be honest and was going to go work for Gupta. I saw Trampevski later that day and he told me the same thing.
2. Had I known Trampevski was going to work with Gupta or any other competitor, I would not have asked him to remain employed or offered him his bonus and trip to Thailand. I would not have wanted him to remain employed because during the period of employment after 6 March 2025, Trampevski continued to have access to the Plaintiff's confidential information, as described below - including regularly updated sales and marketing results and forecasts.

35 Mr Hardie gave evidence concerning the plaintiff's confidential information and Mr Gupta's and Mr Trampevski's access to it in the course of employment. In particular, I refer to the key evidence concerning this at paragraphs 57 to 67 and 71 of Mr Hardie's First Hardie affidavit, paragraphs 12 and 13 of his affidavit of 30 July 2025 (the Second Hardie affidavit) (which wholly amended paragraphs 63 and 64 respectively of his First Affidavit) and paragraphs 13, 21, and 23 to 36 of the Third Hardie affidavit. Much of the information is described in very general terms. See for example, the Second Hardie affidavit at sub-paragraphs 12(b), 12(c), 12(d) and 12(f) and at sub-paragraphs 13(b), 13(c), 13(d), 13(e) and 13(g).

36 Mr Hardie gave the following key evidence, inter alia, concerning client information:[6]

1. The confidential client information data which is stored on the HSP portal, Microsoft BI and Fox platforms includes:

a. full names;

b. addresses;

c. dates of birth;

d. email addresses;

e. phone numbers;

f. hearing healthcare history;

g. payment history; and

h. history of services provided.

1. Given the nature of the Plaintiff's business is providing hearing healthcare services to clients and selling hearing aids to its clients, access to confidential client information is provided in confidence, both in regard to the clients and the Plaintiff.

62 The private client information in the Australian market and related market knowledge and data has taken the Plaintiff almost three decades to gather. While some clients might only visit a retail store once for a hearing check, others have been with the Plaintiff's business for a long period of time. Their contact details and services history allow for targeted direct marketing by the Plaintiff, including through the prompting of audiologist appointments where, for example, it can be seen that they may be ready for a hearing aid upgrade.

37 Mr Gupta gave evidence concerning his access to the plaintiff's information. In particular, I refer to paragraphs 34 to 43 of the Gupta affidavit. In summary, he accepts, denies, and qualifies various statements Mr Hardie made about his access to information. These are disputes to be determined at trial. Mr Gupta also gave evidence:[7]

1. I was not aware, nor did I have intimate knowledge beyond my accumulated know how that had been common knowledge within the business of the top performing locations as described in paragraph 67 of Hardie's Affidavit. Further, I reject any assertion that the information we had access to would assist us in enticing or soliciting high performing audiologists to Hearing Consultants. As a start-up business, we have limitations on cash flow and cannot afford the capital outlay to attract high performing audiologists to come and work for Hearing Consultants.

38 Mr Trampevski gave evidence concerning his access to the plaintiff's confidential information. In particular, I refer to paragraphs 29 to 43 of the Trampevski affidavit. In summary, he disputes that he had access to some information but states that he had access to some information. Again, these disputes are to be determined at trial.

39 Mr Gupta and Trampevski did not respond to the matters set out in paragraphs 12 and 13 of Mr Hardie's Second affidavit, where he amended paragraphs 63 and 64 of the Hardie First affidavit, which provided a detailed list of the confidential information that he says Mr Gupta and Mr Trampevski had access to. As a result, it is difficult to determine the precise nature and extent of the dispute concerning access to the confidential information. But the fact remains there are extensive factual disputes between the parties concerning access. It appears that that there are disputes concerning, inter alia, the following matters:

(a) the extent of Mr Trampevski's access to the Fox, Microsoft BI and HSP platforms;

(b) the extent of Mr Gupta's knowledge of the information;

(c) the nature and extent of Mr Gupta's past and present knowledge of the plaintiff's clients;

(d) the precise client information data that was available on each of the Fox, Microsoft BI and HSP platforms;

(e) the precise information available to Mr Trampevski on the Microsoft BI platform;

(f) further as to Mr Gupta, the information he disputed having access to, inter alia, figures relating to EBITDA, geomapping data developed by the plaintiff about locations with population indicators which demonstrate areas with a high level of persons over the age of 55.

(g) further as to Mr Trampevski:

(i) the extent to which Trampevski had access to HTO information, specifically deidentified customer data, such as hearing test dates, quantities, and values;

(ii) whether he had access to HTO client codes and all KPIs around HTOs, including volumes by clinic and areas;

(iii) the extent to which he had access to Customer Relationship Access (CRM). Specifically, whether Mr Trampevski had access to 'MUU' marketing data that his peers and Area Managers did not.

40 As a result, there is serious questions to be tried as to the nature and extent of the access of Mr Gupta and Mr Trampevski to the plaintiff's alleged confidential information, including at the times when the plaintiff entered into the employment agreements with Mr Gupta and also Mr Trampevski.

41 There are also extensive factual disputes whether certain information is confidential information. Much of the information by its description appears to be confidential. The defendants relied upon the plaintiff's evidence now being publicly disclosed in these proceedings and that this makes some of the information not confidential. This is a serious question, but I observe that the plaintiff's evidence does not disclose much of the information that underlies Mr Hardie's evidence.

42 In these circumstances, this issue of access and the nature of the information, and whether it has been disclosed, is properly a matter for trial.

43 There is no dispute between the parties that Mr Gupta and Mr Trampevski established Hearing Consultants and took very substantive steps to establish it during the period of time they were employed by the plaintiff. There is also no dispute that Mr Gupta and Mr Trampevski never informed the plaintiff that they were engaging in these activities at any time during their employment with the plaintiff. There is no dispute that Hearing Consultants, once it commenced trading, was and is a direct competitor of the plaintiff.

44 Mr Gupta gave evidence that he began discussing establishing an audiology clinic with Mr Trampevski in about June 2024. Mr Trampevski gave evidence to the same effect.

45 On 27 June 2024, Hearing Consultants was incorporated. Upon its incorporation,

(a) its principal place of business was identified as being 664 Burke Road in Camberwell (the Burke Road Premises). This is recorded in the company search. This is prior to the transfer and variation of a lease of the Burke Road Premises which was entered into some time prior to 22 November 2024. I address this further below. Mr Gupta also gave evidence that they had looked at other alternate premises and I infer that this must have been sometime prior to 27 June 2024;

(b) its directors were Mr Gupta and Mr Trampevski. Mr Gupta remains a director, but Mr Trampevski ceased to be a director on 22 April 2025; and

(c) its shareholders were companies associated with Mr Gupta and Mr Trampevski, which were also incorporated on 27 June 2024. This remains the present position.

46 Hearing Consultants entered into a transfer and variation of a lease of Burke Road Premises (it is undated). Mr Gupta gave evidence that the transfer and variation of lease was 'secured' on 22 November 2024 and commenced on 1 December 2024. But the transfer and variation of lease provides for the 'Security Deposit' or 'Bond' to be provided on the 'Transfer Date' (i.e. 22 November 2024). The transfer and variation of lease provides for a 'rent free period' commencing on 22 November 2024. As a result, I infer it was entered into sometime prior to 22 November 2024.

47 Mr Gupta gave evidence as to why he and Mr Trampevski selected the Burke Road Premises.

48 Mr Gupta also gave evidence that in early April 2025 he and Mr Trampevski commissioned the website associated with Hearing Consultants.

49 Mr Gupta gave evidence that he contacted suppliers upon the cessation of his employment. Hearing Consultants has also subsequently entered into various contracts with hearing aid suppliers.

50 By no later than 11 April 2025, Mr Gupta described himself on LinkedIn as an audiologist at Hearing Consultants.

51 On and from 12 April 2025, Mr Gupta's image was significantly displayed in a large photograph at the Burke Road Premises together with extensive branding advertising 'Hearing Consultants'. The photographs in evidence show a significant retail shop front. This is in very close proximity to the plaintiff's Camberwell premises at a distance of about 30 metres.

52 On 14 April 2025, Hearing Consultants entered into a contract with My Kube Pty Ltd to provide fit-out out works for the Burke Road Premises in the sum of $182,134 plus GST. Mr Gupta gave evidence that on 14 April 2025 he and Mr Trampevski paid a deposit for the fit out works. There is no evidence when the fit out work commenced.

53 On 22 April 2025, Mr Trampevski resigned as a director of Hearing Consultants, leaving Mr Gupta as the sole director and secretary. The reason for this was not explained. But this was shortly prior to his resignation from the plaintiff, notice of which was given on 28 April 2025.

54 The defendants registered various business names. I refer to Hardie's First affidavit at paragraph 69. Mr Hardie gave evidence that the names were registered on 19 May 2025 and 5 June 2025. Mr Gupta gave evidence that the business names were registered between 19 May 2025 and 5 June 2025. Mr Hardie gave evidence, to the effect, that these locations correspond with the plaintiff's best performing sites and that, as a result, there must have been a misuse of the plaintiff's confidential information. For example, Mr Hardie gave evidence:[8]

1. Each of the above locations corresponds with a high-performing clinic location of the Plaintiff, which is a fact which would only be known through access to the confidential sales and performance data I have described above.
2. In the course of his work, Trampevski had regular access to a report used by the Plaintiff to monitor its best performing clinics. The business names obtained by Hearing Consultants correlate with suburbs in which some of the Plaintiff's best performing clinics are located. Hearing Consultants premises are close to seven of the Plaintiff's top performing clinics.

72 The relevant top performing clinics of the Plaintiff are:

1. Epping (which is in the same suburb as the proposed Hearing Consultants Epping);

2. Dandenong (which is 3.7km from Hearing Consultants operating out of the North Dandenong Clinic);

3. Cheltenham (which is 9.5km from the suburb of Glen Huntly, corresponding to the registered business name Hearing Consultants Glen Huntly);

4. Frankston (which is 10km from Hearing Consultants Carrum Downs operating out of Carrum Downs Medical Centre);

5. Camberwell (which is 190 metres from Hearing Consultants Camberwell);

6. Reservoir (which is in the same suburb as the proposed Hearing Consultants Reservoir); and

7. Brandon Park (which is 2.2km from Hearing Consultants Mulgrave operating out of the Valewood Clinic, Mulgrave).

A copy of the table showing the above information is produced at page 89 of JH-1.

1. With reference to the Plaintiff's GP marketing database referred to at paragraph 63.i above, the Defendants have registered business names for, and commenced trading at:

2. Hearing Consultants Dandenong North within North Dandenong Clinic which is considered a 'silver' classification in terms of high value GPs;

3. Hearing Consultant Mulgrave within Valewood Clinic which is considered a 'silver' classification in terms of high value GPs; and

4. Hearing Consultants Carrum Down within Carrum Downs Medical Centre which is considered a 'bronze' classification in terms of high value GPs.

5. With regard to the other three business names registered by the Defendants, the suburb of:

a. Epping has a 'gold' classification;

b. Glen Huntly has a 'white' classification;

c. Reservoir has a 'gold' classification.

1. I therefore consider that the selection of the locations must have occurred as a result of Hearing Consultants' access to and acquiring of the Plaintiff's confidential information, including up to date sales, the GP marketing database and audiologist performance information. This confidential information would reveal to the Defendants which of the Plaintiffs locations are the most lucrative and profitable.
2. Given the nature of the audiology business and its client base, many clients tend to be local to where the business operates. I therefore believe Gupta and Trampevski have chosen locations close to the Plaintiffs most lucrative and profitable locations with the intention of soliciting the Plaintiffs clients from those respective locations.
3. Given the number of clinics for which business names have been registered, I can only suppose that Hearing Consultants intends to solicit audiologists to work in those clinics once open, hoping for them to take many of their clients with them (I have mentioned earlier in my affidavit the strong client connection which is formed between audiologists and clients). Given the typically high salary of audiologists, a new audiology business would want to make especially certain that it only employs likely high-performing audiologists in its clinics - a matter that, for the Plaintiffs audiologists, was easily identifiable to Trampevski through his former role at the Plaintiff.

1. I am informed by Luke Marin, an employee of the Plaintiff, and believe that the:

1. Hearing Consultants Mulgrave site will initially be located at the Valewood Clinic, 1 Wanda Street, Mulgrave; and.
2. I am informed by Luke Marin, an employee of the Plaintiff and believe that the hearing Consultants Carrum Downs site will initially be located at the Carrum Downs Medical Centre, 113a Hall Road, Carrum Downs.

A copy of email correspondence received from Hearing Consultants on 10 July 2025 providing the above the Mulgrave and Carrum Downs addresses is produced at page 95 of JH-1.

1. I understand the Hearing Consultants Dandenong North site will initially be located at the North Dandenong Clinic, 62 Gladstone Road, North Dandenong.

A true copy of a screenshot of Gupta appearing on the North Dandenong Clinic website (with URL: https://northdandenongclinic.com.au/services/audiologist-ash­ gupta) which states he will be operating out of this clinic is produced at page 96 of JH-1.

1. These locations are in medical centres which rank high on the Plaintiff's geographic location of high performing clinics and high performing audiologists. As I describe above at paragraph 62.i, information of this kind is confidential and highly valuable information of the Plaintiff. This strongly suggests to me that Hearing Consultants have used the Plaintiff's confidential information to determine where they should open their medical room clinic locations.

55 On 15 May 2025, a building surveyor issued a building permit in relation to the fit out works at the Burke Road Premises.

56 Mr Gupta gave evidence that in the period 26 May 2025 to 25 June 2025, he carried out a few home visits to clients that had found him through the website. These visits occurred post the employment of Mr Gupta and Mr Trampevski.

57 Mr Gupta gave evidence that from 6 June 2025 they made use of a room at the Carrum Downs Medical Centre and from 21 June 2025 they made use of a room at Valewood Clinic. Mr Hardie gave evidence of Hearing Consultants' operation from medical centres at Mulgrave, Carrum Downs and North Dandenong.[9]

58 On 18 June 2025, Hearing Consultants entered into a contract with the Commonwealth of Australia to provide certain services. This was signed by Mr Gupta but also signed by Mr Trampevski as a 'director/secretary' even though he had resigned as the director and was not the secretary. The contract provides that Hearing Consultants must provide certain services on the terms set out in the contract. I refer to clause 7. Mr Gupta gave evidence:[10]

1. By refusing to see patients or customers as per the Plaintiff's instruction, Hearing Consultants, John and I would be in breach of our contractual obligations to the Australian Government (HSP) and patients who are subject to the hearing Services Program by refusing service.

A copy of my email exchange with the Australian Government Department of Health, Disability and Ageing dated 30 July 2025 is attached at page 112-113 of AG-1.

59 The plaintiff disputed that there would be any breach.

60 Mr Gupta gave evidence that on or about 2 July 2025 the builder handed over the completed Burke Road Premises.

61 On 3 July 2025, Hearing Consultants opened its retail business at the Burke Road Premises.

62 Mr Hardie gave evidence that the following businesses have commenced trading: Hearing Consultants Dandenong North, Hearing Consultants Mulgrave and Hearing Consultants Carrum Down, all within medical centres (i.e. a 'shop in shop').

63 Mr Hardie expressed the following opinions:[11]

1. Given the opening of Hearing Consultants Camberwell retail store, I consider the Defendants must have confidence in an already established reliable client base attending that store which would support what must be their significant overheads for that store. I describe below the requests from Gupta's clients to transfer from the Plaintiff's clinics to the Hearing Consultants Camberwell clinic.
2. When combined with the information I describe below, the timing of their opening new business locations leads me to infer that Gupta and Trampevski have diverted business opportunities away from the Plaintiff during their employment and utilised confidential client information and confidential sales information to target clients after ceasing employment.

64 On 30 July 2025, Mr Gupta and a person only identified as 'Peter' from the Department of Health, Disability and Ageing exchanged correspondence. In summary, Peter informed Mr Gupta that it was a breach of the contract for Hearing Consultants to refuse to service a client.

65 The plaintiff relies upon the following key conduct in relation to the alleged misuse:

(a) misappropriating and misusing the client information described in paragraph (iv) of the Alternative Confidential Information Injunction (plaintiff's Client Information). With respect to Mr Gupta it relies upon inferences, the failure to lead certain information by the defendants and the leading of other irrelevant information by them concerning transfer requests made by clients in July 2025 to the plaintiff for transfer of their care to Hearing Consultants. With respect to Mr Trampevski it relies upon the downloading by him of information concerning sales forecast data of clients who attended appointments but who decided not to proceed with a purchase;

(b) misappropriating and misusing other information described in paragraphs (i), (ii), (iii) and (v) of the Alternative Confidential Information Injunction (plaintiff's Other Information). It relies upon the inference from the substantial and speedy development of the Hearing Consultants' business in direct competition with the plaintiff, including at its key sites, in particular Mr Trampevski's intimate knowledge of such information and Mr Trampevski's suspicious laptop activity prior to departure and Hearing Consultants' business plans of unprecedented scale compared to the normal market entrant. In addition that Mr Trampevski has disclosed the plaintiff's information 'at least inadvertently or sub-consciously' and will do so in the future unless restrained.

66 There are some differences in the precise conduct of misuse relied upon in the claims against Mr Gupta and Mr Trampevski. But the substantive conduct is the same as the plaintiff relies upon them acting in concert and, in effect, in a joint enterprise, for the benefit of Hearing Consultants. The rationale for many of the differences is also not apparent. They are not significant on this application. As a result, I have had regard to all of the conduct of misuse alleged against both of them in determining whether there are serious questions to the claims against the defendants unless I otherwise identify this in these reasons.

67 The plaintiff also relies upon, inter alia, these matters and the continued association between Mr Gupta and Mr Trampevski in Hearing Consultants to submit that an inference may be made that the misuse will continue. It also sought to rely upon the defendants seeking to limit the undertaking proffered to disclosing or using 'documents'. As a result, the defendants made amendments to the undertaking, broadening it to include information in the documents.

Alleged misappropriation and misuse of the plaintiff's Client Information

68 In my view, there is a serious question whether Mr Gupta misused the plaintiff's Client Information (e.g. email addresses) and Mr Trampevski misused sales forecast data of clients to, inter alia, solicit and approach clients for Hearing Consultants. I accept that an allegation that a former employee has misused confidential information belonging to his or her former employer 'is of the utmost seriousness':[12] see Liberty Financial Pty Ltd v Scott (No 4).[13]

69 The defendants submitted that the plaintiff's Client Information is not confidential, including contact details of clients. It submitted that this information belongs to the client. But this may not affect the confidential nature of such information in the possession of the plaintiff. It also submitted that this forms part of know-how. In my view, there is a serious question whether the plaintiff's Client Information is confidential.

70 Mr Hardie gave evidence of the plaintiff's receipt of transfer requests from its clients, with whom Mr Gupta dealt with during his employment with the plaintiff, to transfer their records to Hearing Consultants. I refer to the First Hardie affidavit at paragraphs 105 to 126 and also paragraph 4 of the Second Hardie affidavit. Mr Hardie also gave evidence in the First Hardie affidavit:[14]

1. In addition to the confidential information risk, I have not seen such an immediate and quick scale of client transfers to one provider in all my time at the Plaintiff's business. The client transfer requests total 15 as at the date of this affidavit, but the Hearing Consultants Camberwell retail store has only officially been open since 3 July 2025.

71 Mr Hardie also gave evidence in the Third Hardie affidavit:[15]

1. With reference to paragraph 35 of the Gupta Affidavit, Gupta saw 16 clients between 3 February 2025 to his final day with Amplifon - 31 March 2025 inclusive. Notably, he saw clients Agapitoula Pliambas on 3 February 2025 and Leonie O'Hanlan on 31 March 2025, both of whom have since transferred to Hearing Consultants Australia. I can think of no reason why those clients would have voluntarily searched for an audiologist so soon after seeing Gupta and stumbled upon his new clinic without his having solicited them.

72 Mr Gupta gave evidence that Mrs Ben-Meir, one of the patients who provided a transfer request to the plaintiff, made contact with him in May 2025. In addition, Mr Gupta gave evidence:[16]

1. I did not solicit, induce or approach any of those seventeen patients to become patients of Hearing Consultants. A simple google search would have revealed that I had started Hearing Consultants. Additionally, through Hearing Consultants Australia website, patients can directly enquire.

A copy of direct patient enquires are attached at page 102-109 of AG-1.

1. In my experience and knowing other audiologists, having seen numerous audiologists leave the Plaintiff during my time as an employee, I disagree with the assertions stated in the Hardie Affidavit at paragraphs 127-129. It is common when a practitioner/audiologist leaves a clinic or provider that a "flurry" of patient transfer requests occur. In my opinion, this occurs for a variety of reasons including:

a. patient/clinician relationship; and

1. clinician and referrer network relationships; and
2. Supplier and clinician relationships.

73 Hearing Consultants commenced business on 3 July 2025. In the period between 4 July and 25 July 2025, the plaintiff received fourteen requests from former clients serviced by Mr Gupta to transfer to Hearing Consultants and a further two requests from Mr Gupta's parents. The requests were in a form of a template that was prepared by Mr Gupta.

74 Mr Gupta denies that he, inter alia, approached any of these clients to become clients of Hearing Consultants. The defendants submitted that there is no evidence that he downloaded the plaintiff's client information. Mr Gupta gave evidence that a simple Google search would have revealed that he had started Hearing Consultants. But Mr Gupta did not give any evidence of any actual approaches made by these clients to transfer their care to Hearing Consultants, including correspondence from them. Mr Gupta gave evidence that clients can directly enquire through the website of Hearing Consultants and referred to a number of patient enquiries. But none of them concern the clients who requested a transfer between 4 and 25 July 2025 who I have identified above. In addition, with respect to a patient named Mrs Ben-Meir, the defendants produced text messages between her and Mr Gupta that were incomplete as they do not contain a full record of the communications. Mr Gupta responded in his text of 25 July 2025 to a text from Mrs Ben-Meir that was not included. Mr Gupta's evidence is not cogent for the reasons I have just identified.

75 The defendants also submitted that even if Mr Gupta did approach patients known to him the evidence does not point to a finding that this involved any misappropriation or misuse of confidential information. The defendants also submitted that the transfer requests represented a very small percentage of his clients. The defendant's submission that the patients actively sought out Mr Gupta is, in part, consistent with the plaintiff's own case as to the strength of customer connections and the trust patients had in Mr Gupta. But it does not explain why the transfer requests occurred in such numbers after the opening on 3 July 2025. By no later than 12 Apil 2025, Hearing Consultants had a prominent presence on Burke Rd at the Burke Road Premises and was advertising on the website. Nonetheless, the transfer requests started to occur in July 2025 shortly after opening. In my view, the claim of misuse and further misuse is strong.

76 The evidence concerning the conduct of Mr Trampevski was the subject of an objection that also addressed other evidence. For convenience, I address the objection below. For reasons I identify below, I have not upheld the objection. I note that, in any event, Mr Trampevski does not dispute that he downloaded sales forecast data of clients who attended appointments but decided not to proceed with a purchase. But there is no evidence that he used it and he has provided an explanation why he did it. It is disputed by Mr Hardie. As a result, there is serious question of misuse but I am not satisfied it is a strong or weak claim of misuse.

Mr Gupta's and Mr Trampevski's misuse of the Plaintiff's Other Information

77 It is necessary to first address an objections to the First and Second Hardie affidavits. The defendants objected to the First Hardie affidavit at paragraphs 140-141 and the Second Hardie affidavit at paragraph 9. These paragraphs concern conversations between Mr Hardie and a Mr Andrew Le, Senior Analysis -Forensics of Forensic IT, concerning Mr Trampevski's use of his computer and his mobile telephone. The defendants objected to these paragraphs on the following basis:

(a) Mr Le is not being called to give evidence;

(b) Mr Le's report is not in evidence;

(c) there is no evidence that Mr Le is an appropriately qualified expert;

(d) the data upon which Mr Le's opinions are expressed is not in evidence;

(e) the evidence is unreliable as it is 'double hearsay'.

(a) the opinion rule does not apply because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed. It submitted that is relevant to the issue of delay and why the plaintiff then issued this proceeding on 25 July 2025;

(b) the seniority and specialisation or relevant qualification of Mr Le may be inferred from his title and the content of his discussion with Mr Hardie at paragraph 141 of the First Hardie affidavit;

(c) the failure to call Mr Le is a matter that may 'theoretically' go to weight.

(a) I accept that the opinion rule does not apply as it may be admitted pursuant to s 77 of the Evidence Act 2008 (Vic) because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion is expressed. It is relevant to the issue of delay;

(b) in any event, I am otherwise satisfied that Mr Le is an appropriately qualified expert to express opinions on forensic IT matters. He is a senior analysis at a forensics IT organisation, expressing an opinion about a forensic IT issue;

(c) I accept that the matters set out in paragraphs 141 of the First Hardie affidavit and paragraph 9 of the Second Hardie affidavit are in large part conclusionary and the underlying data is not adequately identified. No report has been provided. This goes to weight. But I also note that Mr Trampevski has responded to paragraph 141 of the First Hardie affidavit, and, inter alia, does not dispute downloading other data.

80 In my opinion, there is a serious question whether Mr Gupta and Mr Trampevski misused the plaintiff's Other Information. Again, I accept that this allegation is of the utmost seriousness: see Scott.[17] I am not satisfied that overall it a strong or a weak claim of misuse. But the actual information that is alleged to have been misused is sometimes described only in very general terms. In particular, I refer to Mr Hardie's evidence in the Hardie First affidavit at paragraphs 75, 88, 94, 96, 127, 128. Some is specific. For example, see Mr Hardie's evidence in the Hardie First affidavit at paragraph 141 and Hardie Third affidavit at paragraph 22.

81 First, there is no dispute that Mr Gupta and Mr Trampevski developed the Hearing Consultants' business.

82 Second, there is a serious question to be tried whether Mr Trampevski had an intimate knowledge of the plaintiff's Other Information.

83 Third, there is a serious question to be tried whether Mr Trampevski engaged in 'suspicious laptop activity' prior to departure from which it may be inferred that he misappropriated some of the plaintiff's Other Information. That is, that he misappropriated some of the plaintiff's Other Information shortly prior to the termination of his employment by downloading it. The plaintiff relies upon the matters told to Mr Hardie by Mr Le. I refer to the First Hardie affidavit at paragraph 141. Paragraph 141(a) refers to a 'lack of file activity' without any other explanation. But Mr Trampevski denies that he used another device before departure from the plaintiff. There is no other evidence that he did so, apart from the opinion of Mr Le which is not otherwise explained. Mr Trampevski does not deny that he downloaded data described in Mr Hardie's affidavit at paragraphs 141(`b) and (c). He said he did it for work purposes which is disputed by Mr Hardie and Mr Hardie has provided reasons why this would not have been for work purposes, including in the Third Hardie affidavit at paragraph 22. Mr Trampevski also admits deleting his browsing history on his laptop on or before 9 May 2025 and gave evidence that he used the laptop for work and personal matters and did not consider it unusual to delete the history. I also refer to paragraph 130 of the First Hardie affidavit. The plaintiff relies upon Mr Trampevski wanting to retain his issued laptop and telephone. Mr Trampevski denies that he requested to retain is laptop. Mr Hardie gave evidence he 'can only assume' that his intention was that he wanted to continue to have access to the plaintiff's confidential information. This later matter is speculation by Mr Hardie. I also refer to the Third Hardie affidavit at paragraph 22, where Mr Hardie gives evidence that Mr Trampevski downloaded performance data concerning all of the plaintiff's audiologists nationally on 7 May 2025, and opines that, if this data was legitimately downloaded for the plaintiff's purposes, a smaller regional subset of performance data would have instead been downloaded. I accept that there are serious questions of misuse but I am not satisfied that the claim is strong or weak.

84 Fourth, the plaintiff relies upon the plaintiff's 'refusal' to make his personal mobile available for analysis by the defendant. Mr Hardie gave evidence that Mr Trampevski has refused to make his telephone available to the plaintiff's solicitors available for analysis. First, Mr Hardie accepts that the telephone is Mr Trampevski's telephone. Second, the plaintiff has not sought any order from the Court in relation to the telephone. I am not satisfied that the refusal, in these circumstances, gives rise to a strong claim of misuse.

85 Fifth, as I have already said, the plaintiff submitted that there is a serious question that Mr Trampevski has used the plaintiff's Other Information 'at the very least inadvertently or subconsciously' and will do so in the future. It relied upon Liberty Financial Pty Ltd v Jugovic (Jugovic),[18] a decision in which Beach J said:

180. I am not able to resolve the assertions and counter-assertions. Suffice it to say that I have considered that there is a real risk that Mr Jugovic may inadvertently or subconsciously use Liberty's confidential information if he takes up employment with ORDE in the next 12 months. But it is unnecessary for me to be more specific at this stage concerning the information. I am dealing with a threatened breach of confidence rather than a cause of action where there has been an actual breach. Further, I am not at all convinced that undertakings given by the defendants could address this problem. They would be difficult to police, particularly concerning subconscious or inadvertent misuse of confidential information.

181. In any event, I do not need to be more specific at this stage as in my view Liberty has made out a strong prima facie case in any event under the relevant restraint clause such as to now justify an injunction.

271. Finally on the prima facie limb question, Liberty also relies on the springboard doctrine.

272. Liberty says that if Mr Jugovic works for ORDE and uses Liberty's confidential information, ORDE will receive an advantage by way of a head start or springboard to the detriment of Liberty. Liberty seeks to restrain Mr Jugovic from commencing work at ORDE on the basis of the springboard doctrine, for a period of at least the 12 month maximum "Relevant Time" if not longer.

277. In my view it is arguable that a springboard injunction will also lie on the facts of the present case. But I do not propose to say anything further about the matter at this stage. The injunction that I propose to grant can be justified on the other bases that I have already identified, subject to the balance of convenience question to which I will now turn.

86 The plaintiff submitted that this was a strong prima facie case. It submitted 'the whole springboard injunction ... relies upon the inadvertent and subconscious use of sensitive financial, commercial information of the plaintiff. That's all I need to prove for the serious question.'[19] This submission also concerned Mr Gupta. Despite this submission, the plaintiff continued to address all of the other evidence concerning alleged misuse including by addressing this in the extensive tables provided to the Court on 15 August 2025. But the plaintiff also subsequently submitted that there is no difficulty with Mr Gupta going to another audiology clinic (i.e. not Hearing Consultants) as an employee audiologist.[20] The plaintiff also accepted that absent some inference of wrongdoing the plaintiff would have no legal basis to restrain Mr Gupta from a 'feared breach of confidence'.[21] But this submission is arguably inconsistent with the plaintiff's submission that there is a risk that Mr Gupta and Mr Trampevski will engage in inadvertent and subconscious use of sensitive financial, commercial information of the plaintiff in working for Hearing Consultants. None of this was adequately explained or addressed by the plaintiff. I accept that there is a serious question that Mr Gupta and Mr Trampevski may make inadvertent and subconscious use of the plaintiff's Other Information in working at Hearing Consultants. This is a matter for trial.

87 Sixth, the defendants sought to rely upon the information being know-how. As Harper J said in Scott,[22] in many instances the line dividing specialised, protectable knowledge and information on the one hand from accumulated know-how on the other is difficult to draw. I accept there is a serious question concerning these matters. There is, for example, a serious question whether the information is of a kind unlikely to be capable of independent discovery and, as a result, equity may restrain it. In Manildra Laboratories v Campbell,[23] McDougall J stated:

86. Strictly speaking, I do not think that it is correct to say that the distinction to be drawn is (as Mr Dempsey's submissions appeared to suggest) between know-how on the one hand and confidential information on the other. The real question, I think, is whether:

(1) the confidential information is of a kind that can be ascertained by trial and error, in which case (as Hodgson JA said) there is little point in requiring the ex-employee to go through the artificial exercise of conducting that process of trial and error; or

(2) the confidential information is of a kind that is unlikely to be capable of independent discovery.

87. If the confidential information falls into the second category then, notwithstanding that it may form part of the ex-employee's know-how, equity may restrain its use, after employment, in a manner adverse to the interests of the ex-employer.

88 Seventh, there is a serious question whether the business plans of Hearing Consultants were of unprecedented scale compared to the market. Mr Hardie has expressed an opinion and Mr Gupta and Mr Trampevski have provided an alternate account of how they have established Hearing Consultants over a period of one year. This dispute must be determined at trial.

89 Eighth, there are serious questions whether Mr Gupta and Mr Trampevski used the plaintiff's Other Information to, in effect, target the plaintiff's high-performing business locations. I refer to the evidence, in particular, of Mr Hardie in the First Hardie affidavit at paragraphs 69 to 77.

90 The plaintiff submitted that there is a serious question as to whether Hearing Consultants has employed Mr Trampevski, who is not a fee earner audiologist to take immediate and profitable use of the wealth of confidential information and other market information to the plaintiff. I accept that this is a serious question. Mr Hardie also gave evidence concerning the timing for the opening of a new audiology business at paragraphs 78 to 96, including the following:

(a) establishing a new audiology retail business at a physical location takes a lot of work and capital investment. It has generally taken Mr Hardie and his team almost 12 months from the beginning of the process to actually opening the retail store;

(b) establishing a 'shop in shop' in medical rooms is quicker and would take about 2 months. A new business in the industry would normally start as a 'shop in shop';

(c) it would normally take 1 to 2 years for a new business which is a 'shop in shop' to reach the size where it may profitably transition its business to a stand alone retail clinic;

(d) it is unheard of for a new provider in the audiology sector to register 7 business names, open a retail clinic in a highly competitive location such as Camberwell and commence business from multiple 'shop in shop' locations in medical clinic within a shorter period of time; and

(e) the timing of their opening of new business locations leads him to infer that Mr Gupta and Mr Trampevski have diverted business opportunities away from the plaintiff during their employment and utilised confidential client information and confidential sale information to target client after ceasing employment.

91 Mr Hardie also gave the following evidence:[24]

1. With reference to paragraph 45, I do not believe that Hearing Consultants Australia could have established its practice in such a short period of time. In particular, the summary of the establishment of the Hearing Consultants Camberwell clinic at paragraph 45.c is simplistic, and glosses over the steps required to negotiate, design, fit out and otherwise prepare an audiology clinic for opening. In reality this would take much longer than the period from 14 April 2025 to 3 July 2025, as I stated in my 25 July 2025 Affidavit.
2. The Plaintiff uses standardised footprint templates for the layout and design of its clinics and can move the templates around to suit the shape of the new premises. Even with its well-oiled processes, the Plaintiff needs to engage designers and contractors and this all takes time.
3. There are lead times involved in the steps from identifying a premises for a new clinic, designing the fit out, engaging the builder, and preparing quotes and drawings for the construction works.
4. Based on my knowledge from, and experience in, opening some of the Plaintiff's clinics in the past, there would have had to have been earlier preliminary steps to prepare the Defendant's Camberwell clinic before the commencement of the fit out, and well before Gupta's last day of employment with the Plaintiff on 31 March 2025.

92 The defendants relied upon the evidence of Mr Gupta that 'further calls into question Mr Hardie's evidence'. There is also evidence of the steps taken in preparation for the commencement of the business of Hearing Consultants. But the Court cannot determine these factual disputes on the present evidence. Mr Gupta gave evidence:[25]

1. I refer to paragraph 45d. above, Hearing Consultants requires multiple locations in order to promote the new business and "fill up" both mine and John's appointment diaries. Carrum Downs is approximately 10 kilometres from Frankston. Both of the Mulgrave and Carrum Downs locations were offered to me by colleagues and friends of mine who had become aware that I had started Hearing Consultants and offered me the use of their consulting rooms. These additional locations are practical, close to our GP referrers and have low overhead costs.
2. I refer to paragraph 78 - 83 of the Hardie Affidavit. I disagree with the opinion of Mr Hardie. Having opened Hearing Consultants Australia, I can say from personal experience that save for securing the Camberwell Clinic in November 2024 but only really commencing works on the clinic in April 2025, contacting suppliers from cessation of my employment, all other steps taken took a collective two (2) months to commence trading from the two GP visiting sites in June 2025 and Camberwell from 3 July 2025 (when the clinic opened for walk-ins and consulting from 7 July 2025).

93 The plaintiff submitted that the evidence of Mr Gupta concerning the Mulgrave and Carrum Downs locations were offered to him does not exclude the misuse of confidential information and does not address the registration names for Epping and Reservoir.[26] The defendants submitted that there appears to be no need for Mr Trampevski to deliberately look up and remove records of himself to determine the proposed clinic locations for Hearing Consultants. The defendants also submitted:

Information about high performing areas, features of high performing areas and the like were necessarily part of, and in any event could not be separated out from, Mr Trampevski's know how. Any use of this information could not amount to a breach of confidence and there is no serious question to be tried to the contrary.

94 The defendants also submitted that the geographical areas chosen by the defendants for their operations did not align with the highest performing clinics of the plaintiff or top GP referrers. I do not accept that just because they do not precisely align does not mean that there is not a serious question of misuse.

95 Ninth, as to the further matters relied upon by the defendants in their submissions at paragraph 49(a)-(d), none of these matters mean that there is no serious question of misuse. They may be relevant to whether the inferences of misuse may ultimately be made.

96 Tenth, as to paragraph 49(e) of the defendants' submissions, the fact the plaintiff has led no evidence about the period in which the data might retain its value is beside the point, especially insofar as it concerns the Springboard Injunction. The plaintiff's case is that the information has been used to establish and commence operating Hearing Consultants and that, as a consequence, it has obtained a competitive advantage (i.e. a springboard) as a result of that misuse.

97 Eleventh, the defendants submitted that, even if Mr Trampevski used the plaintiff's alleged other confidential information that this was in his head, and there is no evidence that Mr Gupta knew that Mr Trampevski was using the information. This was a submission that was confined to support the case of Mr Gupta. It was not otherwise developed.

98 Finally, in my view, this is not a strong case (but as I have said above nor is it a weak case) of misuse:

(a) there are substantial and complex factual matters in dispute, including whether it was possible for Hearing Consultants to establish a retail premises and to identify the other areas in which to operate (i.e. the 'shop in shop' sites in the medical clinics) in the time that it did without recourse to the plaintiff's Other Information;

(b) the alleged suspicious laptop activity has been explained by Mr Trampevski. His explanations are not unplausible. This is a matter for trial;

(c) the alleged suspicious laptop activity concerning downloads occurred well after Hearing Consultants was established; and

(d) there is no evidence of any other suspicious laptop activity, including at any time from June 2024 when the plaintiff's case is that there must have been substantial misuse of the plaintiff's Other Information to establish Hearing Consultants' business.

99 On 2 June 2025, Mrs Arshad, a Senior Client Advisor of the plaintiff, working at the plaintiff's Camberwell premises resigned. Mrs Arshad commenced working for Hearing Consultants at the Camberwell site in about mid-June 2025. Mr Hardie gave evidence that this suggests that Mr Gupta solicited Mrs Arshad away from the plaintiff's business as she worked closely with Mr Gupta. Mr Gupta gave evidence:[27]

1. On 30 May 2025, I was telephoned by Mrs Tahreem Arshad (Maha) who enquired about coming to work for Hearing Consultants.
2. Maha had worked at Camberwell in my team for approximately two and half years.
3. I was informed by Maha that she had a four (4) week notice period. Despite the notice period, I offered Maha a full-time position as a clinic manager.
4. I did not solicit Maha away from the Plaintiff. I am not aware of Maha being subject to any restraint of trade.

A copy of supporting statutory declaration from Tahreem Arshad is attached at page 100 of AG-1.

100 There is a serious question whether Mr Gupta solicited Mrs Arshad to work for Hearing Consultants. But there is no direct evidence of solicitation. At this time, Mr Gupta was the sole director of Hearing Consultants.

101 Prior to 19 May 2025, the plaintiff made no demands upon the defendants.

102 On 19 May 2025, the plaintiff handed a letter to Mr Trampevski at a meeting. The plaintiff, inter alia, referred to Hearing Consultants and stated that it considered this to be a breach of the conflict provisions in his employment agreement and that he was now on 'gardening leave'. In addition, it stated that it reminded him of his post-employment obligations. Mr Hardie gave evidence that the meeting and letter were initiated as a result of Mr Trampevski's discussion with Mr Paoli that he was commencing a new business with Mr Gupta. Despite this, the plaintiff did not seek to meet Mr Gupta or send him any communication concerning this matter until 23 July 2025. I address this further shortly.

103 On 2 July 2025, the plaintiff sent a letter to Mr Gupta. It is titled 'Re: Banning Notice' and stated that he was not allowed to enter the premises of entities comprising Amplifon Group Australia. It also sent a similar letter to Mr Trampevski. In both letters, the plaintiff also stated:[28]

Amplifon Group Australia has not taken this decision lightly however, this decision was made following the opening of your own Audiology Clinic opposite the Amplifon clinic in direct competition of the business. As you hold a relationship with the Amplifon team, we believe it is best to ensure distance is maintained.

Furthermore, please cease any further unsolicited contact with Amplifon Group Australia employees in the future (i.e. anyone working for Amplifon, Bay Audio and Attune Hearing). That includes attending any Amplifon, Bay Audio or Attune Hearing store or clinic in person, or via phone, email or any other means, nor procure anyone else to do so on your behalf.

104 Mr Hardie gave evidence in the First Hardie affidavit that:

1. The letters issued by the Plaintiff to the Defendants on 2 July 2025 were as a result of Gupta entering the Plaintiff's Camberwell retail store and, I am informed and believe to be true, approaching employees of the Plaintiff.

105 On 23 July 2025, the plaintiff's solicitors sent detailed letters to Mr Gupta (in his personal capacity and as a director of Hearing Consultants) and to Mr Trampevski in which they set out detailed claims against them. I refer to the First Hardie affidavit at paragraph 139.

106 The plaintiff submitted that the conduct of the defendants is a real threat to the plaintiff's business and must be addressed by the interlocutory relief. Mr Hardie also gave evidence in the First Hardie affidavit of the alleged threat to the plaintiff's business, inter alia, in the following terms:

1. In the circumstances, the Defendants' combined knowledge of confidential client information and confidential sales information presents a significant threat to the Plaintiffs business.
2. For reasons I have discussed above, I believe that the Defendants have retained and used confidential client information and confidential sales information in order to commence operation of their business.
3. In addition to the confidential information risk, I have not seen such an immediate and quick scale of client transfers to one provider in all my time at the Plaintiff's business. The client transfer requests total 15 as at the date of this affidavit, but the Hearing Consultants Camberwell retail store has only officially been open since 3 July 2025.

107 For convenience, I address other relevant background when considering the relevant issues.

108 The applicable law relating to the enforceability of employment restraints, their proper construction and severance was succinctly set out by the Court of Appeal in Just Group Ltd v Peck[29] and is best not summarised but set out:

Principles relating to the enforceability of restraint clauses

1. A term in a contract, which is a restraint of trade ('a restraint clause'), is presumed to be void as contrary to public policy.
2. The presumption may be rebutted if there are special circumstances that demonstrate the covenant to be:

1. The test of reasonableness varies depending on 'the situation the parties occupy and so recognising different considerations which affect employer and employee and independent traders or business men, particularly vendor and purchaser of the goodwill of a business'. A court takes a 'stricter view' of restraint clauses in employment contracts; and will more readily uphold a restraint clause in favour of a purchaser of the goodwill of a business than a restraint clause in favour of an employer. In particular, a purchaser of a business is entitled to protect itself from competition by the vendor; but an employer is not entitled to protect itself from competition per se by an employee.
2. A restraint clause in favour of an employer will be reasonable as between the parties, if at the date of a contract:

(a) the restraint clause is imposed to protect a legitimate interest of the employer; and

(b) the restraint clause does no more than is reasonably necessary to protect that legitimate interest in its:

(i) duration; or

(ii) extent.

1. It is well established that employers do have a legitimate interest in protecting:

(a) confidential information and trade secrets; and

1. For the legitimate purpose of protecting the employer's confidential information, a restraint clause does not need to be limited to a covenant against disclosing confidential information. It may restrain the employee from being involved with a competitive business that could use the confidential information.
2. The onus of proving the special circumstances from which the Court may infer 'reasonableness between the parties' is on the person seeking to enforce the covenant. However, if an employee or other covenantor alleges that the restraint clause is against the public interest, the burden of proving that proposition is on the employee/covenantor.
3. Once the facts that are contended to constitute the special circumstances have been established, it is a matter of law whether the restraint clause is reasonable as between the parties. Accordingly, on appeal, the trial judge's decision that the covenants were reasonable is not a decision of fact and an appellate court in reviewing such a decision inquires not whether it has been shown to be wrong, but simply whether it is right'.

Construction of restraint clauses

1. In order to determine whether a restraint clause exceeds what is necessary for the protection of the legitimate interests of the employer, a court construes the restraint clause in accordance with the following principles:

(a) The meaning of the restraint clause may be construed by reference to the factual matrix, documentary context and surrounding circumstances to ascertain its real meaning - independently of the rules prescribing tests of reasonableness for the purpose of ascertaining its validity.

(b) Where there is ambiguity, a restraint clause in an employment contract will be construed in favour of the employee so that, as between two reasonably available constructions, the one which imposes the lesser obligations on the employee will be preferred. Although a restraint clause may, on its literal terms, appear to be wider than is necessary to protect the legitimate interests of the employer, a proper construction of the clause in context may narrow its meaning. This construction may save it from invalidity but, as noted above, the approach is not adopted for the purpose of saving it from invalidity. The application of this approach has restricted the effect of restraint clauses in the following situations:

(i) Limitation on the businesses in respect of which the employee is restrained from being involved.

In Butt v Long, the High Court considered the surrounding circumstances and, in particular, the nature of the employer's business; and construed the business of a transhipping agent, referred to in the restraint clause, as being limited to carriage by land; and not including carriage by sea.

(ii) Limitation of the subject matter in respect of which the employee is restrained from dealing with customers.

In Mills v Dunham, the restraint clause provided that the former employee, a travelling salesman, should not, inter alia:

[C]all upon, or directly or indirectly solicit orders from, or in any way deal or transact business with, any person or firm who, during the continuance of this agreement, should be customers of [the plaintiffs or their successors in business] ...

The effect of this provision, read literally, was to prevent the former employee from purchasing anything including necessaries from old customers. Chitty J held that, despite the fact that 'business' was not stated to be limited to 'a similar business', understood in its context, 'dealing or transacting business with the old customers, means, business of the same or a similar kind to that which had been carried on by the Plaintiffs'.

(iii) Limitation on the capacities in respect of which the employee is restrained from being involved.

A court may not consider that it was within the contemplation of the parties that an improbable or extravagant contingency, which could fall within the literal scope of the restraint clause, was intended to be the construction that was intended by the parties. For example, in Marion White Ltd v Francis, the Court adopted a restricted meaning of a restraint clause preventing an employee hairdresser from being involved 'as principal or as manager, agent or servant or assistant or in any other capacity whatsoever be in any way engaged or concerned or interested in the business of a ladies' hairdresser', stating as follows:

I do not think it was within the contemplation of the parties to this agreement that the employee would either be likely to be employed as a bookkeeper in another hairdressing establishment or as a cleaner or in any other capacity that one can think of that has nothing to do with dressing hair, although it may have to do with the administrative or domestic arrangements of the business.

(c) However, generality does not constitute ambiguity. Accordingly, it is not permissible for the Court to approach the construction of a restraint clause by first determining what degree of restriction would be justified; and then reading down an unduly wide clause in order to preserve its validity. The Court may not adopt a restrictive interpretation for the purpose of saving the restraint clause form invalidity. Butt v Long demonstrates the boundaries of the reading down of restraints by reference to the context. After holding that, in context, the business of a transhipping agent did not include sea transport, the High Court found that the restraint from involvement in such a business was too wide because the clause was not limited in area. Dixon CJ rejected the submission that the restraint clause should be interpreted as being impliedly limited to the area where the business operated, and stated:

An implication of such a kind ought not to be made unless from the subject matter and the contents of the document an inference that the parties so intended arises with such force as to carry conviction to the mind. The words 'business of a transhipping agent' are descriptive of a character of business and in them nothing can be found limiting them to a place.

(d) In Galbally, Dodds-Streeton J considered a restraint clause which provided that the defendant should 'not offer to perform services and otherwise solicit the custom of any person or corporation which at any time during your company's contract with I.F. was a client of I.F. or its related companies'. The plaintiff accepted that the words were too wide but submitted that the restraint clause should be 'read down' to limit it to solicitation of services or custom for a business the same as, or similar to, that of the plaintiff. Her Honour concluded, in the circumstances of that case, that to interpret the restraint as limited to services in a business the same as, or similar to, that of the plaintiff would be to remake the restraint clause. She stated:

To incorporate such a restriction would be to remake the restraint clause, rather than to give expression to its real meaning. There is no evident ambiguity in the text which requires resolution; rather, there are general words. The subject matter, contents of the document and such evidence as there is of surrounding circumstances do not, in my opinion, cause an inference to arise with 'such force as to carry conviction to the mind' that the parties intended the restriction, thus justifying its implication into 'perfectly general words'.

Severance

1. If a restraint clause is 'not really a single covenant but is in effect a combination of several distinct covenants', some of which are too wide, the invalid covenants may be severed subject to the following conditions:

(a) The impugned covenants must be capable of simply being removed - as if crossed out with a blue pen. A court can only remove words from a restraint clause; it cannot rewrite the restraint clause.

(b) The restraint clause contains several distinct covenants, one of which is valid. The covenant to be severed must be an independent covenant capable of being removed without affecting the remaining part. 'The only change should be to the sphere of operations of the clause'.

(c) Whether it is based on the principle of uncertainty, or the public policy to protect employees, or that 'it is for the parties to make contracts, not the courts', courts have demonstrated reluctance to engage in 'curial disentanglement' and sever the unenforceable parts of unreasonably wide restraint clauses if the clause is not a genuine attempt to establish reasonable protection for the legitimate interests of the employer. The following factors indicate that the restraint clauses of the latter kind are unreasonable:

(i) If the restraint clauses include patently unjustifiable restraints such as might intimidate the employee.

(ii) If the restraint clauses are in a standard form.

(ii) If the variables are numerous and the combination of variables appear mechanical and indiscriminate.

However, the application of these considerations is subject to the court giving 'appropriate attention to the intentions of the parties' objectively assessed at the time of the contract.

109 The applicable principles concerning the springboard doctrine were set out by Beach J in Jugovic:[30]

1. Finally on the prima facie limb question, Liberty also relies on the springboard doctrine.
2. Liberty says that if Mr Jugovic works for ORDE and uses Liberty's confidential information, ORDE will receive an advantage by way of a head start or springboard to the detriment of Liberty. Liberty seeks to restrain Mr Jugovic from commencing work at ORDE on the basis of the springboard doctrine, for a period of at least the 12 month maximum "Relevant Time" if not longer.
3. In Terrapin Limited v Builders' Supply Co (Hayes) Limited (1967) RPC 375, Roxburgh J said (at 391 to 392):

... As I understand it, the essence of this branch of the law, whatever the origin of it may be, is that a person who has obtained information in confidence is not allowed to use it as a spring-board for activities detrimental to the person who made the confidential communication, and spring-board it remains even when all the features have been published or can be ascertained by actual inspection by any member of the public.

...

... It is, in my view, inherent in the principle...that the possessor of such information must be placed under a special disability in the field of competition in order to ensure that he does not get an unfair start...

1. The doctrine has also been applied in Australia for breach of confidence and also in other more complex contexts such as patent litigation (see my discussion in Streetworx Pty Ltd v Artcraft Urban Group Pty Ltd (No 2) [2015] FCA 140; (2015) 110 IPR 544 at [68] to [79]).

2. In United States Surgical Corporation v Hospital Products International Pty Limited (1983) 2 NSWLR 157 (reversed on appeal but not on this point), the New South Wales Court of Appeal emphasised that "springboard relief" refers to the ability of the Court to mould relief to fit all the circumstances of the case. The Court referred to the "headstart approach" and observed (at 233) that:

... It is a principle applied in conformity with the more general principle that a person misusing confidential information must answer for his default according to his gain. A headstart may often be the gain in these cases. If it is the gain, damages will be assessed accordingly and any other relief, such as injunction, will be moulded. If it is not the gain the method of assessing damages or the appropriateness of some other remedy has to be considered in the light of what that gain is. If, as we have found to be the position in the present case, the gain was not a headstart, damages assessed on a headstart basis, or an equivalent accounting of profits, is not the appropriate form of relief.

1. The doctrine has also been applied to restrain a former employee from dealing with the former employer's clients; see Jessup J's treatment in Wilson Parking Australia 1992 Pty Ltd v Rush [2008] FCA 1601. Further, in APT Technology Pty Ltd v Aladesaye, In the matter of APT Technology Pty Ltd [2014] FCA 966, Foster J also accepted the availability of a springboard injunction (at [85]). The springboard doctrine was also accepted in DXC Connect Pty Ltd v Deibe [2017] NSWSC 1159 by Black J (at [47] to [54]).

110 The defendants submitted that the doctrine has no application in circumstances where there has been a breach of fiduciary duty absent a breach of confidence. I do not agree. I refer to paragraph [28.400] of Heydon on Contract in which the learned author observed that a springboard injunction may be granted in relation to breaches of fiduciary duty and contractual breaches.

111 Derrington J in Smart EV Solutions Pty Ltd v Guy[31] said:

63 There was not any great dispute between the parties as to whether the information in question was confidential in a legal sense. Some of the considerations relevant to the determination as to what is "confidential" were identified in the applicants' written submissions as including:

(a) the extent to which the information is known outside the business;

(b) the extent of the measures taken by the employer to guard the secrecy of the information;

(c) whether the circulation of the information in question is limited only to certain individuals within the employer's business;

(d) the value of the information to competitors; and

(e) the ease with which the information could properly be acquired or duplicated by others.

1. Whilst it is, of course, necessary to determine whether or not information is confidential on the facts and circumstances of each specific case, it is true that certain information has regularly been treated by the Courts as confidential. That includes things like customer lists, business proposals, marketing strategies, manufacturer and supplier details, details of ongoing negotiations, product performance information, pricing information, and costing information ... In this case, the information that Mr Guy forwarded to himself included customer details, quotations and specifications. He obtained that information in the context of his resigning from the applicant companies and establishing a new business within the same industry.

112 In John Fairfax Publications Pty Ltd v Birt,[32] Brereton J said:

1. Claim 3 in the summons is founded on clause 6 of the agreement. A plaintiff who seeks to restrain a former employee from using confidential information must identify with specificity, and not merely in global terms, the relevant information [Saltman Engineering Co Limited v Campbell Engineering Co (1948) 65 RPC 203, 215; Corrs Pavey Whiting and Byrne v Collector of Customs (Vic) [1987] FCA 266; (1987) 14 FCR 434, 443 (Gummow J); Rosewood Advertising Pty Limited v Hannah Marketing Pty Limited [2000] NSWSC 1034, [8]]. Although those cases were concerned with the circumstances in which, even in the absence of a contract, equity imposes an obligation of confidence, the requirement for specificity is no less where a contractual obligation is sought to be enforced. One reason for this is that an injunction in general terms restraining a former employee from using the employer's "confidential information", would inappropriately leave, to an application for contempt, determination of whether particular information was or was not confidential [Twenty-First Australia Inc v Shade (NSWSC, Young J, 31 July 1998, unreported, BC9803667); Cactus Imaging Pty Limited v Peters [2006] NSWSC 717, [14].

113 It is convenient to address the other applicable law, in addressing the serious questions relied upon by the plaintiff.

114 Ultimately, the plaintiff relied upon three key allegations to support the Springboard Injunction and submitted that there is a strong prima facie case in relation to each of them:[33]

(a) Mr Gupta and Mr Trampevski breached their fiduciary duties in incorporating Hearing Consultants and preparing it for launch;

(b) Mr Trampevski will misuse, inadvertently and sub-consciously, the confidential information he acquired as a senior manager with the plaintiff;

(c) Mr Gupta has misappropriated the plaintiff's confidential information in the form of 'client lists'.

115 Further, the plaintiff submitted that there is strong prima facie case that Mr Gupta's post-employment restraints are enforceable and that he has breached them and will continue to breach them and that this supports the relief sought to enforce Mr Gupta's post-employment restraints, being the Non-compete Injunction, the Customer/Supplier Injunction, and the Employee Injunction.[34]

116 Finally, the plaintiff submitted that there is strong prima facie case that the defendants have misused and will continue to misuse the plaintiff's confidential information and that that this supports the Confidential Information Injunction, or the Alternative Confidential Information Injunction.[35]

IS THERE A SERIOUS QUESTION TO BE TRIED AGAINST MR GUPTA?

Breach and apprehended breach by Mr Gupta of his equitable duty of confidence to the plaintiff

117 This concerns the Springboard Injunction, the Confidential Information Injunction and the Alternative Confidential Information Injunction.

(a) Mr Gupta has at all material times owed an equitable duty of confidence to the plaintiff. This was not in dispute;

(b) there is a serious question Mr Gupta breached and will continue to breach his equitable duty of confidence to the plaintiff, and insofar as this claim is based upon the:

(i) the plaintiff's Client Information it is a strong claim for breach and further breach. I have addressed this earlier;

(ii) insofar as it is based upon the plaintiff's Other Information it is not a strong or weak claim for breach and further breach. I have addressed this earlier;

(c) there is a serious question whether the plaintiff will be entitled to relief at trial in the terms of the Springboard Injunction, but there is a strong claim that the relief is too broad and does not appropriately and justly address the alleged springboard and that the plaintiff delayed in making the claim. As a result, it is a weak claim for relief;

(d) there is a serious question the plaintiff will be entitled to relief at trial in the terms of Confidential Information Injunction, but there are strong claims that the relief is too broad, uncertain and does not appropriately and justly address the confidential information that it alleges have been misused. As a result, it is a weak claim;

(e) there is a serious question the plaintiff will be entitled to relief at trial in the terms of the Alternative Confidential Information Injunction.

119 As a result, the claims based upon the Springboard Injunction and the Confidential Information Injunction are weak claims and the claim based upon the Alternative Confidential Information is strong in parts (ie insofar as it concerns the plaintiff's Client Information) in other parts not strong or weak (ie insofar as it concerns the plaintiff's Other Information).

120 The Springboard Injunction is also alleged to be supported by breaches of fiduciary duty and breach of the duty of fidelity. For convenience, I will address the Springboard Injunction now also in the context of those claims that I address below.

121 There is a serious question whether the Springboard Injunction is the appropriate way for equity to mould relief to prevent the alleged springboard. There is a strong claim that it is too broad and, as a result, would be unjust and not appropriate.

122 A person may be entitled to a springboard injunction in circumstances in which another person has wrongfully obtained a springboard (e.g. misuse of confidential information) to engage in activities to the detriment of the person seeking the injunction.

123 It is important to identify the alleged springboard in the present case. The plaintiff submitted:

Hearing Consultants, having apparently commenced retail trading in July 2025, and in barely a matter of weeks, now already:

1. operates from retail premises approximately 30 metres from Gupta's former Amplifon clinic at Camberwell (see the affidavit of Justin Hardie made 25 July 2025 (the Hardie affidavit) at par 89);
2. additionally operates from three medical clinic rooms at Mulgrave, Carrum Downs, and North Dandenong (Hardie affidavit at pars 91-94); and
3. apparently intends to operate from an additional three locations (Epping, Glen Huntly, and Reservoir), based on business names which it has registered (Hardie affidavit at par 69).

124 In the present case, the plaintiff submitted that it is Hearing Consultants that enjoys a springboard. To address this it seeks the relief in the Springboard Injunction. It submitted that this is the appropriate way for equity to mould relief to prevent the springboard.

125 The Springboard Injunction is very broad and seeks to restrain Mr Gupta and Mr Trampevski from being 'engaged in, involved in or associated with Hearing Consultants.' It conforms with the text of the non-compete restraint in Mr Gupta's employment agreement except it is limited to such conduct with respect to Hearing Consultants but is not limited to any particular area.

126 The plaintiff submitted that the Springboard Injunction is based upon the order made by Beach J in Jugovic.[36] In that case, Beach J made an order in similar terms to the Springboard Injunction. But in that case, the first defendant was seeking to take up employment with the second defendant. In the present case, Mr Gupta is the sole director of Hearing Consultants and companies associated with Mr Gupta and Mr Trampevski are the shareholders.

127 First, the relief in the Springboard Injunction does not seek any relief against the entity that allegedly enjoys the springboard, namely Hearing Consultants. Except insofar as Mr Gupta and Mr Trampevski are restrained, it is not sought to be restrained from otherwise continuing to enjoy the springboard.

128 Second, there is a serious question that the relief in the Springboard Injunction is not appropriately limited to addressing the springboard in the form of the operation of the business from the Burke Road Premises and the clinics that have been identified, and potentially others, to the detriment of the plaintiff:

(a) Mr Gupta and Mr Trampevski would have to immediately transfer or dispose of their shares;

(b) Mr Gupta would have to immediately resign as a director and would be prevented from giving any instructions to any new director, including even instructions given in relation to administrative matters. He is the sole director and one of the founders of Hearing Consultants;

(c) the relationship between Hearing Consultants and the two persons who founded and established Hearing Consultants (i.e. Mr Gupta and Mr Trampevski) would be severed for a considerable period.

129 Finally, the plaintiff does not seek any other alternate form of order to address the springboard allegedly enjoyed by Hearing Consultants. For example, no relief is sought to restrain it from conducting business from the Burke Road Premises or from the other clinics.

130 There are serious questions whether the plaintiff has significantly delayed in bringing the claim for the Springboard Injunction, whether based upon breach of confidence, breach of fiduciary or breach of the duty of fidelity. There is a serious question that it has not adequately explained it and that, as a result, making the Springboard Injunction would be inappropriate and unjust in the circumstances. There is a strong claim concerning these matters.

131 First, the plaintiff seeks a broad springboard injunction to address an alleged 'advantage by way of head start or springboard to the detriment' to the plaintiff.[37] I have already identified the alleged springboard in this ruling. It a springboard allegedly enjoyed by Hearing Consultants. There are serious questions that the plaintiff delayed in bringing the claim for the Springboard Injunction and has not adequately explained this delay, given the following matters:

(a) on 12 April 2025, the plaintiff knew that Hearing Consultants was a new entrant to the market and that it intended to open a retail store and compete with the plaintiff. The Burke Road Premises are located 30m across from the plaintiff's premises;

(b) on 12 April 2025, the plaintiff knew that Mr Gupta was working for Hearing Consultants and was being prominently promoted at the Burke Road Premises. Mr Hardie gave evidence that he was 'shocked';

(c) on 12 April 2025, the plaintiff knew that Mr Gupta was acting in breach of the non-compete restraint (assuming it is enforceable);

(d) on 28 April 2025, the plaintiff knew that Mr Trampevski was joining Mr Gupta at Hearing Consultants upon the termination of his employment on 23 May 2025;

(e) on 19 May 2025, the plaintiff made claims against Mr Trampevski, but not Mr Gupta;

(f) the plaintiff did not undertake a company or business name searches of Hearing Consultants search until June 2025;

(g) the plaintiff knew sometime in June 2025 (the evidence of Mr Hardie does not identify when in June) that Hearing Consultants had registered business names for locations in Dandenong North, Epping, Glen Huntly, Reservoir, Camberwell, Carrum Downs and Mulgrave. Mr Hardie gave evidence in the First Hardie affidavit at paragraph 70 that each of these locations corresponds to a high-performing clinic location of the plaintiff and is a fact which could only have been known through access to the plaintiff's confidential sales and performance data. He also gave evidence in the First Hardie affidavit at paragraph 94 that this 'strongly suggests' to him that Hearing Consultants had used the plaintiff's confidential information to determine where they should open their medical room clinic locations;

(h) on 2 June 2025, Mrs Arshad, Senior Client Advisor of the plaintiff who worked at the plaintiff's Camberwell retail store, resigned and once she completed her notice period in about mid-June 2025 she informed the plaintiff she would be commencing work for Hearing Consultants. Mr Hardie gave evidence that Hearing Consultants' employment of Mrs Arshad gave it highly specialised front of house expertise necessary to, inter alia, manage its clinic location and target general practitioners for referrals;

(i) on 2 July 2025, with the knowledge of the matters I have referred to above, the plaintiff informed Mr Gupta that he was not permitted to enter premises of the plaintiff and certain other entities as he had 'opened' his 'own' clinic in direct competition with the plaintiff. It made no claim against him, including, concerning confidential information. It sent a similar letter to Mr Trampevski;

(j) the plaintiff knew Hearing Consultants commenced business on 3 July 2025;

(k) the plaintiff made a demand upon Mr Gupta on 23 July 2025;

(l) there is no explanation when or why Forensic IT was retained and why it conducted a review of Mr Trampevski's laptop and communicated the result on 17 July 2025;

(m) the plaintiff submitted that '[t]ypically, a new entrant would rent a room in medical clinic one day a week, and it would normally take one or two years before a new entrant could transition to retail premises of the kind that Hearing Consultants has opened at Camberwell'.[38] The plaintiff also submitted that 'leaving aside required business growth and profitability considerations, necessary preparation for operation out of a retail store such as that at Camberwell (including lease negotiations, commercial arrangements with suppliers, calibration compliance work, and fit out and construction) would itself take almost 12 months'.[39] But it knew on 12 April 2025 that Hearing Consultants was a new entrant and was shortly going to open premises and that Mr Gupta was involved with it. It took no action to investigate these matters until June 2025. There is a serious question that insofar as the Springboard Injunction is premised on the establishment of Hearing Consultants (eg see the claims for breach of fiduciary duty and the duty of fidelity I address below) it delayed in taking action shortly after 12 April 2025;

(n) the plaintiff's submitted 'the defendants have also misused [the plaintiff's] confidential information in identifying Hearing Consultants' initial area of operation and its foreshadowed areas of expansion. The blueprint for operating in seven locations which are among [the plaintiff's] most profitable could only have been arrived at through knowledge and misuse of [the plaintiff's] confidential sales and performance data...'.[40] Mr Hardie also gave evidence that given the number of clinics for which business names have been registered he supposes that Hearing Consultants intends to solicit audiologists to work in those clinics once they open.[41] But in addition to the matters I have referred to above concerning the Burke Road Premises it knew sometime in June 2025 that Hearing Consultants had registered business names associated with these locations and as a result, had a plan to further expand. There is a serious question that insofar as the Springboard Injunction is premised on the misuse of information in identifying Hearing Consultants' initial area of operation and its foreshadowed areas of expansion (eg see the claims for breach of confidence) it delayed in taking action shortly from sometime in June 2025. The plaintiff made no claims against Mr Gupta concerning his involvement with Hearing Consultants in a letter to him dated 2 July 2025 even after it had obtained the searches in June 2025. This letter simply informed him that he was not permitted to enter premises of the plaintiff and certain other entities. It did not even alleged that he was in breach of the non-compete covenant. Hearing Consultants then commenced trading and did so for almost 3 weeks before any action was taken. I address this further below.

132 The plaintiff submitted that the scale of the misuse of the plaintiff's confidential information, and the scale of Mr Gupta's intention to breach his post-employment restraint, has only become apparent since July 2025. The plaintiff submitted that it was not until about 8 or 9 July 2025 that the plaintiff thought 'something must be going on' and that would be the 'first inkling that the confidential client list had been misappropriated'. I accept that there is a serious question that it obtained further information in July 2025, including the transfer requests and the information from IT Forensics, but there is a serious question that it had sufficient information to act previously as I have set out above. I accept that these are matters to be determined at the trial but there are strong claims given the matters I have referred to that the plaintiff did delay prior to this time.

133 The plaintiff submitted that it could not have sought a springboard injunction as at 12 April 2025 as there was no other evidence that the plaintiff could have relied upon. I accept that these are matters to be determined at the trial but there is a strong claim on the basis of the matters I have referred to that the plaintiff could have sought an injunction soon after 12 April 2025 if it took steps to obtain a search of Hearing Consultants. It would then have known that Mr Gupta and Mr Trampevski were the sole directors and companies associated with them were the sole shareholders. As I have already said it knew that Hearing Consultants was a new entrant. In any event, there is also a strong claim that sometime in June 2025 the plaintiff could have sought an injunction as the plaintiff knew that Hearing Consultants had registered business names for locations in Dandenong North, Epping, Glen Huntly, Reservoir, Camberwell, Carrum Downs and Mulgrave.

134 The plaintiff submitted that it would be unfair if delay was a disqualifying factor. This is a matter for trial.

135 The plaintiff sought to attribute delay to it not being represented as at 2 July 2025 and the Court should infer that it was not represented at that time. But no-one on the plaintiff's behalf gave evidence that they did not take action as they were not represented or were acting under some misunderstanding as to the legal rights of the plaintiff. Again, this is a matter for trial.

136 Third, there is a serious question whether, if the plaintiff did delay, that it would be unjust to grant the relief given the following matters:

(a) in the period 12 April 2025 to 23 July 2025, Mr Gupta continued to be involved with Hearing Consultants as an employee, director and as a shareholder by his associated company;

(b) in the period 12 April 2025 to 23 July 2025, Hearing Consultants continued to take steps to establish, open and conduct its business;

(c) in the period from 23 May 2025 to 23 July 2025, Mr Trampevski commenced employment with Hearing Consultants and then continued to be involved with Hearing Consultants as an employee and as a shareholder by his associated company. I accept that this is in circumstances in which he received a warning letter.

137 The Confidential Information Injunction is very broad. There is a strong claim that it goes beyond protecting the confidential information that the plaintiff alleges was misused that is conveniently identified in the Alternative Confidential Information Injunction as I have set out earlier. In my view, it is a weak claim. This is because:

(a) the information is not limited to the matters in paragraphs (a) to (g) of the description of the confidential information. These are but examples. This is clear from the use of the word 'including';

(b) the information includes 'all information regarding the business...of the plaintiff' (chapeau of Annexure A), information 'relating to the business' (paragraph (d) of Annexure A) and 'information relating to the plaintiff';

(c) the term 'commercially valuable information' in Annexure A not defined; and

(d) the information is broader than the information that is alleged to have been misused.

138 There is a serious question that the plaintiff delayed in seeking to enjoin the defendants from using or disclosing its alleged confidential information, but the plaintiff also seeks relief now in relation to further allegations of misuse in July 2025, which I have addressed earlier.

Alternative Confidential Information Injunction

139 The Alternative Confidential Information Injunction is limited to the information that is alleged to have been misused. The defendants submitted that any order restraining the use of confidential information should be limited to the matters the subject of the alleged misuse, being:

(a) a list of the Mr Gupta's former clients and their contact details;

(b) data relating to the plaintiff's clients who had attended appointments but had not decided to proceed with a purchase of hearing aids;

(c) confidential sale and performance data identifying the plaintiff's high performing clinics locations;

(d) data identifying the plaintiff's audiologists' sales performance.

140 But in my view, the plaintiff claims are based upon the categories of information in the Alternative Confidential Information Injunction. I also observe that the defendants have offered an undertaking that is more extensive, albeit with other difficulties (that I address below), than the categories I have just referred to. I refer to the matters I have addressed in relation to delay immediately above concerning the Confidential Information Injunction.

Breach by Mr Gupta of a fiduciary duty to the plaintiff

(a) there is a serious question Mr Gupta owed the alleged fiduciary duty, but it is not a strong claim;

(b) in the event Mr Gupta owed the alleged fiduciary, there is a serious question that Mr Gupta breached it and insofar as the claim is based upon the:

(i) plaintiff's Other Information it is not a strong or weak claim of breach. No claim is made concerning the plaintiff's alleged Client Information;

(ii) conduct of Mr Gupta in establishing and preparing Hearing Consultants it is a weak claim for breach;

(iii) conduct of Mr Gupta in not informing the plaintiff of certain matters, such as him and Mr Trampevski intending to compete with the plaintiff there is no serious question, alternatively, it is a weak claim for breach;

(c) there is serious question the plaintiff will be entitled to relief in the terms of Springboard Injunction but it is weak case.

143 First, there is a serious question whether Mr Gupta owed a fiduciary duty to the plaintiff during his employment. It is a weak case on this aspect. There is no dispute that Mr Gupta was a senior audiologist. The duty was identified during the hearing as being a fiduciary duty not to put himself in a position of conflict or profit. The plaintiff submitted that it relied upon the matters in the statement of claim at paragraph 35. That plea only refers to Mr Gupta being employed in a senior audiologist role and that the duty being implied by law. No other particulars are identified. Mr Hardie gave evidence concerning his seniority as an audiologist and his access to alleged confidential information. Further, Mr Hardie (in the Third Hardie affidavit) gave evidence concerning Mr Gupta's access to information and contact with the plaintiff's General Manager. The plaintiff submitted that he was a senior employee. No attempt was made to identify with any precision why a fiduciary duty arose. I refer to Chaffey Services Pty Ltd v Doble [No 4][42] and Victoria University of Technology v Wilson.[43]

144 Second, there is a serious question whether, if Mr Gupta did owe a fiduciary duty, he breached it by misusing the plaintiff's Other Information. I have addressed this earlier.

145 Third, I accept that there is a serious question whether, if Mr Gupta did owe a fiduciary duty, he breached it by taking significant steps during his employment to establish Hearing Consultants as a competitor to the plaintiff. But it is a very weak case. The plaintiff submitted that Mr Gupta breached his fiduciary duty by 'surreptitiously' incorporating Hearing Consultants and then preparing the business for launch.[44] It also referred to this as 'significant preparation was secretly in train for the purposes of [Hearing Consultants] entering into competition'.[45] It did not rely upon any trading or any other competitive activity at the time Mr Gupta was employed.

146 In Independent Management Resources Pty Ltd v Brown,[46] Marks J said:

In Robb v Green [1895] UKLawRpKQB 58; [1895] 2 QB 1, at p 15 Hawkins J (who was the Judge at first instance) said: 'In what I have said I do not intend to convey that while the contract of service exists a person intending to enter into business for himself may not do anything by way of preparation, provided only that he does not, when serving his master, fraudulently undermine him by breaking the confidence reposed in him. For instance, he may legitimately canvass, issue his circulars, have his place of business in readiness, hire his servants, etc. Each case must depend on its own circumstances.'

This passage was quoted with approval by Maugham LJ as a member of the Court of Appeal in Wessex Dairies v Smith [1935] 2 KB 80, at p. 87 although he qualified his acceptance of the reference to canvassing.

I think the essence of the matter is that the plaintiff must satisfy me there was some conduct on the part of the defendant which, to use the phrase of Hawkins J, "fraudulently undermined" the plaintiff whilst the defendant was in its employ.

147 In QBE Management Services v Dymoke & Ors (QBE),[47] Mr Justice Haddon-Cave said:

The conduct here of Mr Dymoke, Mr Hearn and Mr Kirk went way beyond what could properly or rationally be described as 'preparatory'. It was not simply taking time off individually to attend the odd interviews with new prospective employers, or individually exploring how to set up a new business and discussing with financial backers. As stated above, it was concerted, covert action by them over many months to further a detailed plan, conceived jointly, to 'rip the heart' out of their own employer's business by setting up a new entity outside, comprising a virtual 'mirror business' in direct competition with their employer, using their own employer's key people and materials, which it was intended would be pretty much on a 'ready-to-go turn-key' basis, with all the requisite financial backing, security and even offices fully negotiated, signed and sealed.

148 In GlaxoSmithKline Australia Pty ltd v Ritchie,[48] Harper J said:

An intention by an employee to set up, after the employment has ceased, in competition with his or her employer is not to be taken as a conflict of interest "having regard to the rules of public policy as to restraint of trade". "[N]or is the taking of any steps to investigate or forward that intention so long as there is no actual competitive activity, such as, for instance, competitive tendering or actual trading, while he [or she] remains [an employee]"...

149 The plaintiff, in its submissions, repeatedly referred to the acts of Mr Gupta and Mr Trampevski as being 'preparatory.' It did not identify with any precision any competitive tendering or actual trading. I refer to the conduct prior to the period to 1 April 2025 (excluding any alleged misuse of information). None of these acts obviously involved any competitive activity, but I accept that that this is a matter for trial but it is very weak case.

150 Fifth, the plaintiff also relied, in effect, upon the non-disclosure of the preparation and the intention to compete with the plaintiff. The plaintiff relied upon QBE,[49] a decision in which Mr Justice Haddon-Cave said:

Goulding advises, rightly in my view, that the working assumption should be that there has been a tightening of the law in this area [2.138]:

"In summary, given the conflicting first instance decisions and the running of the current judicial tide against directors, the working assumption must be that directors and senior employees ought to disclose: (a) any action at all, if taken by others, that will lead to competitive activity; and (b) any action of their own, as soon as the irrevocable intention to compete is formed (unless they resign immediately)."

151 The Court was not taken to any other authority. With the greatest respect to Mr Justice Haddon-Cave, I do not agree. There is no serious question that Mr Gupta's conduct in deciding to create a business to compete with the plaintiff but continuing his employment with the plaintiff and not advising that he and then Mr Trampevski had made a decision constituted a breach of fiduciary duty, alternatively if I am incorrect, it is a very weak case. This is because, in my view, until they embark on, for example, competitive tendering or actual trading, they are not in a position of conflict.

152 Sixth, I refer to the matters I have addressed earlier concerning the breadth of the Springboard Injunction.

153 Seventh, as I have already said there are serious questions that the plaintiff delayed in bringing the claim for relief for breach of confidence concerning the Springboard Injunction and has not adequately explained this delay. In addition, with respect to the claim for breach of fiduciary duty the plaintiff relies upon he the alleged breaches of confidence but also relies upon additional matters concerning acts of Mr Gupta and Mr Trampevski in both establishing the business of Hearing Consultants and also concerning their failure to communicate that they were, in effect, engaging in this conduct and competing with the plaintiff. But as I have addressed, there is a serious question that the plaintiff also delayed in bringing these claims and has not explained its delay. There are strong claims that it did so. It knew on 12 April 2025 that Mr Gupta was employed by Hearing Consultants who was intending on competing with it. The plaintiff knew on 28 April 2025 that Mr Trampevski was leaving the plaintiff's employment to be employed by Hearing Consultants, which was intending on competing with it.

Breach by Mr Gupta of a duty of fidelity to the plaintiff

155 It is well established that an employee has a duty of fidelity and loyalty to his or her employer. Mr Gupta owed such a duty to the plaintiff during the term of his employment.

156 The plaintiff relied upon the matters that it also relied upon for breach of fiduciary duty (it also relied upon further matters concerning breach of fiduciary duty). As a result, I refer to my reasons on that claim which are applicable to this claim.

Breach and apprehended breach by Mr Gupta of the confidential information covenant

157 This concerns the Confidential Information Injunction.

158 There was no dispute that Mr Gupta's obligations of confidentiality provided for in his employment agreement survived the termination of his employment. The employment agreement expressly provides that it does.

(a) there is a serious question whether the confidential information covenant is enforceable. There is an issue as to whether it is certain in its terms and enforceable. The plaintiff submitted that the proper construction of the covenant is that it is limited to the information in the bullet points. But the chapeau to the bullet points refers to 'including, without limitation'. The defendants submitted as a post-employment restraint it is too broad and too uncertain. But there are serious questions of construction. For example, I accept that there is a serious question whether the description 'all information regarding the business, trade secrets and commercially valuable information of [the plaintiff] its related entities and associates' is certain in its terms and enforceable;

(b) as a post-employment restraint it is prima facie void. The plaintiff has a legitimate interest in protecting its confidential information but there is a serious question whether it is reasonably necessary to protect those interests;

(c) there is a serious question whether Mr Gupta breached the confidential information covenant by misusing the plaintiff's Client Information and the plaintiff's Other Information. I have addressed this earlier;

(d) there is a serious question whether Mr Gupta will continue to misuse the plaintiff's Client Information and the plaintiff's Other Information. I have addressed this earlier;

(e) there is a serious question whether the plaintiff will be entitled to final relief in the terms of Confidential Information Injunction but I refer to the matters I have already addressed in relation to this relief.

160 As a result, the claim is a weak claim. I refer to the matters I have addressed in relation to delay above concerning the Confidential Information Injunction.

Breach and apprehended breach by Mr Gupta of the non-compete restraint

161 This concerns the Non-Compete Injunction. This is not a springboard injunction. It is seeks to enforce the non-compete restraint.

(a) there is a serious question whether the non-compete restraint is enforceable and not void, but it is a very weak claim;

(b) it was not in dispute that if it is enforceable, Mr Gupta is in breach of it;

(c) there is a serious question whether the plaintiff will be entitled to relief at trial in the terms of the Non-Compete Injunction, as there is a strong claim that plaintiff has significantly delayed in making the claim. As a result, this is a very weak claim.

163 As a result, the claim based upon the Non-Compete Injunction is a very weak case.

164 By reference to the definition of 'Like Business' used in the non-compete restraint in Mr Gupta's employment agreement the clause provides (the bold text indicates where this defined term appears):

During the Restraint Period you must not be engaged in, be involved in or be associated with, a business, or part of a business, which is the same, or similar to, the business carried on by the Company and any related or associated entity of the Company, or any part of business carried on by the Company and any related or associated entity of the Company (including as a principal, agent, director, employee, partner, shareholder or unit-holder, contractor, advisor, consultant or agent) in the Restraint Area.

166 Whether the plaintiff has a legitimate interest to protect by the restraint is to be assessed at the date of the employment agreement. In this case, that is 12 July 2013. It may be readily accepted that the plaintiff had a legitimate interest in protecting, for example, its customer connections and confidential information at that time. The issue is whether there is a serious question that the restraint reasonably protects such legitimate interests.

167 First, the words 'engaged in, be involved in or associated with' are words of generality but they are not ambiguous. The generality of the words is supported by the matters, by way of example, that are included, but without limitation, in the brackets. This includes Mr Gupta's capacity as a shareholder or unit-holder in a Like Business.

168 The plaintiff submitted that the restraint reasonably protects a legitimate interest of the plaintiff given that that the market with which the plaintiff's business is concerned is a tightly held market in which having a shareholding in a competitor who operates within five kilometres of you 'is something as to be incompatible with the interests of customer connection and protection of confidential information'.[50] The plaintiff did not otherwise explain or address this. In Rentokil Pty Ltd v Lee,[51] the Full Court of South Australia expressed differing views as to whether a restraint that defined 'capacity' in very broad terms, including a shareholder and unitholder, was void. But each case obviously depends upon its own facts. The plaintiff did not identify with any precision how such a restraint in fact protects its legitimate interest. There are strong claims that restraining Mr Gupta from these capacities does not protect any legitimate interests of the plaintiff, including that it does not reasonably protect, for example, its customer connections, employee connections or confidential information.

169 The plaintiff submitted that the words 'shareholder or unit-holder' words may be severed. There are strong claims that this is not possible. In Wallis Nominees (Computing) Pty Ltd v Pickett,[52] Warren CJ and Davies AJA (with whom Redlich JA agreed) said:

Thus there are two clear parts to the test. The first is that the impugned part must be capable of simply being removed - as if simply crossed out with a blue pen; a court can remove words from a restraint clause but not rewrite it. Secondly, the part to be severed must be an independent covenant and capable of being removed without affecting the meaning of the remaining part. The only change should be to the sphere of operations of the clause. For example in Attwood v Lamont a restraint of trade clause prevented a tailor from competing with his employer's business in anyway, listing off the various fields of the employer's business. Although the parts of the clause referring to fields other than tailoring were capable of simply being removed, it was held that to do so would change the meaning - when reading the contract as a whole there was only one covenant for the protection of the employer's 'entire business, and not several covenants for the protection of his several businesses' and that the employer is 'but one business' not carrying on several businesses.

170 There is a strong claim that the words are not a separate covenant. This is because the operable words of the restraint are 'be engaged in, be involved in or be associated with a Like Business'. The words in the brackets are but examples. As a result, if the words 'shareholder or unitholder' are removed from it then there is a strong claim that this would not affect the operable words of the restraint. There is a serious question that the plaintiff seeks to, in effect, rewrite the non-compete restraint by providing for an exception. There is a strong claim that this cannot be achieved by severance. It is arguable that this is confirmed by the plaintiff referring to it as a 'reconstruction of the covenant'[53] and the terms of Order 1(a) concerning this (emphasis added):

Until the trial of the proceeding except as required to defend this proceeding, the first defendant be restrained from being engaged in, involved in or associated with the third defendant's business operating out of 664 Burke Road, Camberwell save for as a shareholder or unitholder.

171 Second, the words 'related or associated entity' of the plaintiff are not defined. They are words of generality but are not ambiguous. They must have been intended to have some operation. The evidence establishes that as at 12 July 2013 the plaintiff was a wholly owned subsidiary of Amlifon S.pA. This is a related and/or associated entity of the plaintiff. But the evidence does not establish whether there were any other related or associated entities of the plaintiff as at 12 July 2013 and what businesses were carried on by them. This is unknown. This is because Mr Hardie:

(a) does not identify whether the plaintiff had any other related or associated entities as at 12 July 2013;

(b) does not identify the subsidiaries of Amplifon S.pA as at 12 July 2013, including any Australian subsidiaries, and the businesses conducted by them;

(c) only identifies current subsidiaries of Amlifon S.pA and the businesses currently conducted by them;

(d) identifies other subsidiaries of Amlifon S.pA, who do not currently conduct business, but does not otherwise identify whether they conducted any business as at 12 July 2013.

172 Mr Hardie does give evidence that the plaintiff operates as part of a global hearing aid retailer business and that it has operated since 1997, but he does not adequately address the issue of 'any related or associated entities' as at 12 July 2013. In addition, the plaintiff's submissions were primarily focused on the current position and not the circumstances as at 12 July 2013. The plaintiff submitted, incorrectly, that Whelan J in Courtney Polymers Pty Ltd v Deang[54] appears to suggest that it the time of trial that is the relevant consideration. This is incorrect. Whelan J said:

In determining the reasonableness of a restraint clause, the court must look to the protectable interests of the employer at the time of the making of the agreement. Facts arising after the agreement may be relevant in that they may throw light on the circumstances existing when the agreement was made.[55]

173 The plaintiff then also submitted that the evidence establishes that there were not any related and/or associated entities of the plaintiff 'within 5kms of the Camberwell clinic'. But non-compete restraint seeks to restrain Mr Gupta from being engaged in, involved in or associated with a business which is the same or similar to, inter alia, a business carried on by any related or associated entity of the plaintiff within the Restraint Area. The reference to Restraint Area restrains the activity of Mr Gupta. It does not refer to the place of the Like Business.

174 The current position throws some light on the circumstances but is arguably not cogent evidence of who the related and/or associated entities were and what business they conducted. But there is very general evidence that the plaintiff is part of a global hearing aid retailer business. There is a serious question that this means that the proper construction of the non-compete restraint is that it restrains Mr Gupta from being engaged in, involved in or be associated with, a hearing aid retailer business. But this is a weak claim as the evidence is not strong.

175 Fourth, the defendants also submitted that the non-compete restraint is unreasonable in the public interest as persons should be able to chose their providers of health care but the submissions and evidence on this issue lacked any satisfactory evidentiary basis.

176 Finally, there is a serious question whether the plaintiff will be entitled to relief but there are very strong claims that it engaged in inordinate and unexplained delay in the period between 12 April 2025 to 23 July 2025. I have already addressed this in the context of the delay concerning the relief in Springboard Injunction, but it is a much stronger claim of delay concerning this claim. This is because the plaintiff knew Mr Gupta was breaching it on 12 April 2025 and could have taken action against him but did not do so and has not explained this.

Breach and apprehended breach by Mr Gupta of the customers restraint

177 This concerns the Customer/Supplier Injunction.

178 By reference to the definitions of 'Group Member', 'Like Business' and 'Business' used in the customers restraint clause in Mr Gupta's employment agreement, the clause provides (the bold text indicate where these defined terms appear):

During the Restraint Period you must not solicit, canvass, approach or accept any approach from any customer or supplier of the Company and any related or associated entity of the Company with whom you had dealings with during your employment with the Company with a view to obtaining the custom or supply for a business, or part of a business, which is the same, or similar to, the business carried on by the Company and any related or associated entity of the Company, or any part of business carried on by the Company and any related or associated entity of the Company in competition with any business carried on by the Company and any related or associated entity of the Company.

179 The customers restraint clause is prima facie void.

180 The customer restraint clause protects, inter alia, the interests of other related or associated entities of the plaintiff. It is unclear how this aspect of the restraint protects any legitimate interest of the plaintiff. But I refer to the matters I have already addressed in relation to 'related or associated entity'. As I have already said, the evidence concerning these matters is not cogent and in many respects unsatisfactory. It is unclear how any such restraint protects any legitimate interest of the plaintiff, but given the matters I have already addressed in relation to 'related or associated entity, I am satisfied that there is a serious question but it is very weak. There is a strong claim that it is void.

Breach and apprehended breach by Mr Gupta of the employee restraint

183 By reference to the definition of 'Group Member' used in the employee restraint in Mr Gupta's employment agreement, the clause provides (the bold text indicates where this defined term appears):

During the Restraint Period you must not induce, encourage or assist any employee to leave their employment with the Company and any related or associated entity of the Company.

185 The employee restraint clause protects, inter alia, the interests of other related or associated entities of the plaintiff. It is unclear how this aspect of the restraint protects any legitimate interest of the plaintiff. But I refer to the matters I have already addressed in relation to 'related or associated entity'. As I have already said, the evidence concerning these matters is in many respects unsatisfactory. It is unclear how any such restraint protects any legitimate interest of the plaintiff, but given the matters I have already addressed in relation to 'related or associated entity', I am satisfied that there is a serious question, but in my view it is very weak case. There is a strong claim that it is void.

IS THERE A SERIOUS QUESTION TO BE TRIED AGAINST MR TRAMPEVSKI?

Breach and apprehended breach by Mr Trampevski of his equitable duty of confidence to the plaintiff

187 This concerns the Springboard Injunction and the Confidential Information Injunction (the description of the categories of documents accords with the terms of his employment agreement) and the Alternative Confidential Information Injunction.

(a) Mr Trampevski has at all material times owed an equitable duty of confidence to the plaintiff. This was not in dispute;

(b) there is a serious question Mr Trampevski breached and will continue to breach his equitable duty of confidence to the plaintiff and insofar as the claim is based upon the:

(i) the plaintiff's Client Information, it is a strong claim. I have addressed this earlier;

(ii) insofar as it is based upon the plaintiff's Other Information, it is not a strong or weak claim. I have addressed this earlier;

(c) there is a serious question the plaintiff will be entitled to relief at trial in the terms of the Springboard Injunction, but there is strong claims that the relief is too broad and does not appropriately and justly address the alleged springboard and that the plaintiff has significantly delayed in making the claim. As a result, this is a weak claim. I have addressed this earlier with respect to Mr Gupta;

(d) there is a serious question the plaintiff will be entitled to relief at trial in the terms of the Confidential Information Injunction, but there are strong claims that the relief is too broad and uncertain (see for example, paragraphs (ii) and (viii)) and do not appropriately and justly address the confidential information that is alleged to have been misused (it is broader than the categories of documents that are the subject of the claims that are identified in paragraphs (i) to (v) of the Alternative Confidential Information Injunction). As a result, it is a weak claim;

(e) there is a serious question the plaintiff will be entitled to relief at trial in the terms of the Alternative Confidential Information Injunction. I have addressed this earlier with respect to Mr Gupta.

Breach and apprehended breach by Mr Trampevski of his fiduciary duty to the plaintiff

(a) there is serious question Mr Trampevski owed the alleged fiduciary duty, but it is not a strong claim. He was a senior manager. I otherwise refer to the matters I have addressed in relation to the existence of the duty concerning Mr Gupta. The plaintiff again referred to him as a senior manager. Mr Hardie gave evidence concerning his role (see First Hardie affidavit at paragraph 46) and his access to confidential information but the plaintiff did not identify with any precision why there is a serious question that such a duty arose;

(b) in the event that Mr Trampevski owed the alleged fiduciary duty, there is a serious question that he breached it and insofar as the claim is based upon the:

(i) the misuse of the plaintiff's Other Information it is not a strong or weak claim of breach. I otherwise refer to the matters I have addressed in relation to this issue;

(ii) the misuse of the plaintiff's Client Information it is a strong claim of breach. I otherwise refer to the matters I have addressed in relation to this issue;

(iii) conduct of Mr Trampevski in establishing and preparing Hearing Consultants, it is a weak case. I otherwise refer to the matters I have addressed in relation to this issue concerning Mr Gupta but note that Mr Trampevski's employment terminated on 23 May 2025;

(iv) conduct of Mr Trampevski in not informing the plaintiff of certain matters, such as him and Mr Gupta intending to compete with the plaintiff, there is no serious question. Alternatively, it is a very weak case. I otherwise refer to the matters I have addressed in relation to this issue concerning Mr Gupta;

(c) there is serious question the plaintiff will be entitled to relief at trial in the terms of the Springboard Injunction but it is a weak case and refer to the matters I have addressed in relation to this issue concerning Mr Gupta.

Breach and apprehended breach by Mr Trampevski of his duty of fidelity to the plaintiff

192 It is well established that an employee has a duty of fidelity and loyalty to their employer. Mr Trampevski owed such a duty to the plaintiff during the term of his employment.

193 The plaintiff relied upon the same matters it did for the breach of fiduciary duty. As a result, I refer to my reasons on that claim which are applicable to this claim.

Breach and apprehended breach by Mr Trampevski of the confidential information covenant

194 This concerns the Confidential Information Injunction.

(a) Mr Trampevski breached the confidential information covenant whilst employed by the plaintiff;

(b) the confidential information covenant in Mr Trampevski's employment agreement survived the termination of Mr Trampevski's employment. I refer to Mr Trampevski's employment agreement. But there is a strong claim that this did not survive the termination of his employment. As a result, this claim of further apprehended breaches is weak. The confidential information covenant does not expressly provide that it survives termination of the agreement. The covenants concerning 'Restraints' and 'Intellectual Property' are both expressed as surviving, and continuing after, respectively, termination of employment; and

(c) the plaintiff claims it would be entitled to final relief against Mr Trampevski in the terms of the Confidential Information Injunction.

196 In my view, the claims that Mr Trampevski breached the confidential information covenant whilst employed by the plaintiff are not strong or weak . But the claims that Mr Trampevski breached and will breach it post his employment are weak.

IS THERE A SERIOUS QUESTION TO BE TRIED AGAINST HEARING CONSULTANTS?

197 This concerns the Confidential Information Injunction and the Alternative Confidential Information Injunction.

198 I am satisfied that there are serious questions whether:

(a) Hearing Consultants is liable to the plaintiff on the basis that it is bound in equity as the alter ego of Mr Gupta and Mr Trampevski or as a third party receiver of confidential information given:

(i) Hearing Consultants was established on 27 June 2024;

(ii) Mr Gupta has at all relevant times been a director;

(iii) Mr Trampevski is at all relevant times until 22 April 2025 a director;

(iv) the impugned conduct relied upon is the conduct of Mr Gupta and Mr Trampevski. The plaintiff relies upon the matters that I have already addressed concerning the alleged misuse by Mr Gupta and Mr Trampevski of the plaintiff's confidential information. As result, I refer to the matters I have already addressed concerning those issues insofar as it concerns the period on and from the incorporation of Hearing Consultants on 27 June 2024;

(b) the plaintiff is entitled to the relief set out in the Confidential Information Injunction and the Alternative Confidential Information Injunction. I have already addressed that relief.

ARE DAMAGES AN ADEQUATE REMEDY FOR THE PLAINTIFF'S CLAIMS?

199 First, it well-established that damages will rarely be an adequate remedy for a claim to enforce a contractual negative stipulation, such as the claims against Mr Gupta and Mr Trampevski, concerning their post-employment restraints in their employment agreements. As observed by Beach J in Jugovic[56]:

Second, it is well-established that where what is involved is the enforcement by injunction of a contractual negative stipulation, it is a rare case in which relief will be declined on the basis that damages are a sufficient remedy. The adequacy of damages is part of the broader balance of convenience question.

200 Edelman J in Emeco International Pty Ltd v O'Shea[57] said:

The reasons why damages are often inadequate in these cases includes (i) the difficulty of detection of breaches of the obligations; (ii) the difficulty of establishing causation between any loss of business with customers and any actions of the ex-employee; and (iii) the difficulty of the calculation of the quantum of any damage arising from loss of business ...

201 Second, as to the other claims in which I have found there is a serious question, the plaintiff submitted, inter alia, that damages are an inadequate remedy given the difficulty associated with detecting future breaches and the difficulty in assessing damages. The plaintiff submitted:[58]

(a) the damages inquiry would be extremely difficult;

(b) losing a client is hard to quantify as the loss includes the future income from that client which is difficult to determine;

(c) it would be very difficult to value the advantage obtained by the defendants;

(d) it would be impossible to show what income may have been derived by Hearing Consultants if it did not obtain a head start (i.e. the springboard) from the breaches; and

(e) it would be impossible for the plaintiff to prove the breaches caused the plaintiff's profit to drop.

202 The defendants accepted that a complexity which arises is separating out the loss due to the defendants' breaches.[59] But the defendants later submitted that patients may be traced.

203 In DXC Connect Pty Ltd v Stephen Deibe[60], Black J said:

I am not persuaded that the balance of convenience favours the extended relief sought by DXC under the springboard principle, as distinct from leaving it to its rights for compensation against Mr McCabe for the loss which it is actually shown to suffer. It seems to me that, to adopt an observation made by Jacobson J in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd above at [82], there is no obvious reason in this case why damages or equitable compensation would not be an adequate remedy. To the extent that DXC had an established business in the relevant field, before the events of which it complains, and that business is now lost by reason of those events, there is no obvious reason why DXC should not be able to calculate the quantum of its claims in the ordinary way when the matter comes on for hearing ...

204 In my view, although the plaintiff is an established business, damages are an inadequate remedy for the plaintiff's other claims, including breach of confidence, breach of fiduciary duty and breach of fidelity. This is because with respect to these claims there may, among other things, be a difficulty of establishing causation between any loss of business with customers and the actions of the defendants and the difficulty of the calculation of the quantum of any damage arising from loss of business. I also observe that the plaintiff relied upon the fact that the defendants have not proffered any undertaking to maintain an accounting of the finances of Hearing Consultants or of the income or profits derived by Mr Gupta and Mr Trampevski from Hearing Consultants. But they are parties to this proceeding and may be compelled to give discovery of documents containing such information.

WHERE DOES THE BALANCE OF CONVENIENCE LIE IN RELATION TO THE INTERLOCUTORY RELIEF SOUGHT?

205 In my view, the effect of making the relief, other than the Confidential Information Injunction and the Alternative Confidential Information Injunction, may be final relief. But this is difficult to determine on the present evidence. This is because, even if the plaintiff is entitled to relief, it may be for a periods that would be shorter between now and the hearing and determination of the trial. The trial will be listed for hearing on 27 October 2025 and, at best, will be determined later in 2025 or possibly early 2026. There is a serious question as to the duration of all of the relief. For example, the plaintiff submits that it should be one year[61] for Springboard Injunction, whereas the defendants submit that if the plaintiff were to be entitled to relief then it would only be for a couple of months. The plaintiff referred to this as being a 'hot contest' on the material to how long any springboard would be, assuming that it was available. The non-compete restraints also have a cascading restraint duration of 12, 6 and 3 months. In Jugovic,[62] Beach J said:

278. Where the effect of an injunction may in substance amount to final relief, this may tip the balance of convenience in a defendant's favour, all else being equal. In such circumstances, a stronger prima facie case may need to be shown by the plaintiff than otherwise to counteract. Further, in that context a greater than usual evaluation of the strength of the plaintiff's case may be justified.

279. Putting it another way, where determination of the interlocutory application is likely to be practically conclusive, in considering the prima facie case limb, there must be shown to be a sufficient likelihood of success to justify the preservation of the status quo pending trial. The status quo at the moment is that Mr Jugovic has not commenced his employment with ORDE. And in one sense, to grant an injunction is to maintain that position.

206 I refer to the matters I have addressed in relation to the serious questions on the claims, including the strength of those claims.

207 Damages are not an adequate remedy for the plaintiff's claims. I have addressed this earlier.

208 The plaintiff has proffered the usual undertaking as to damages. The defendants accept that the plaintiff has 'deep pockets'. In my view, if the Court grants some of the relief and then the plaintiff fails at trial and the defendants seek to enforce the plaintiff's undertaking, there is a risk that damages may be inadequate given the risk of damage to reputation and of the difficulty, for example, of establishing causation between any loss of business and the relief. Hearing Consultants has only just commenced trading and it may not have historical financial information that may assist in assessing its damages. I address this later in these reasons when addressing prejudice.

Defendants' undertaking as to confidential information

209 As I have already said, the defendants have proffered an undertaking. It is set out in Annexure A to this ruling. I refer to its terms. The defendants submitted that it concerns the information that is the subject of the plaintiff's claims.[63] I do not give much value to the undertaking. First, the undertaking is premised on there being 'documents' but the description of the documents in Schedule A does not identify any particular documents. It only refers to documents containing certain information. Second, the undertaking does not include all of the confidential information that the plaintiff alleges was misused. Third, in a material respect it is uncertain as it concerns 'confidential client information data'. This is because the defendants submit client information data is not confidential.

210 If the Court refuses to grant the Springboard Injunction then I am satisfied that will likely have a number of consequences:

(a) Mr Gupta and Mr Trampevski will continue to be engaged in, involved in and associated with Hearing Consultants and, as a result, Hearing Consultants will have the benefit of their continued involvement;

(b) it is likely that some of the plaintiff's current clients, including Mr Gupta's former clients, will continue to transfer their management to Hearing Consultants as a result of Mr Gupta's continued involvement in Hearing Consultants. This is evident from the transfers that have already taken place. But the Springboard Injunction does not prevent Hearing Consultants serving such clients. There is evidence that the sale of hearing aids, and associated fittings, constitutes by far the greatest part of the plaintiff's revenue;

(c) there is a risk that some of the plaintiff's current employees, including persons associated with Mr Gupta and Mr Trampevski, including audiologists, may be employed by Hearing Consultants as a result of Mr Gupta and Mr Trampevski remaining engaged in, involved in and associated with Hearing Consultants. There is evidence that the sale of hearing aids is facilitated directly through audiologists. But Hearing Consultants has already been present publicly at the Burke Road Premises since 12 April 2025 and trading since 3 July 2025, and the only evidence of employees leaving is in relation to Mrs Arshad. The Springboard Injunction does not prevent Hearing Consultants from taking any action to employ any employees of the plaintiff;

(d) if Hearing Consultants has obtained the springboard as alleged then it would be able to continue to take advantage of it, with the benefit of Mr Gupta and Mr Trampevski. But the Springboard Injunction does not prevent Hearing Consultants from continuing to take advantage of the springboard and compete with the plaintiff except insofar as it seeks to prevent certain conduct of Mr Gupta and Mr Trampevski;

(e) damages will not be an adequate remedy for the plaintiff's claims.

211 If the Court makes the Springboard Injunction then I am satisfied that it will likely have a number of consequences:

(a) Mr Gupta would have to take immediate steps to resign as an employee, director and secretary of Hearing Consultants and transfer the shares that are held by his company;

(b) Mr Trampevski would have to take immediate steps to resign as an employee and transfer the shares that are held by his company;

(c) Mr Gupta and Mr Trampevski would have to find alternate employment but the evidence concerning their difficulties of obtaining alternative employment is not cogent. This is because their evidence is premised on there being a much broader restraint. In addition, the order does not prevent them from servicing any of the plaintiff's existing clients at another competitor;

(d) there is a real risk that Mr Gupta's reputation will be damaged to an extent. This is because some clients have already transferred their management to Hearing Consultants and Mr Gupta's image was used to prominently and publicly promote Hearing Consultants' business and he would have to immediately cease his involvement with Hearing Consultants. He has been publicly involved in this business since 12 April 2025. Upon the making of the Springboard Injunction he would immediately cease that involvement. There is a real risk that this may damage his reputation;

(e) there is a some risk that Mr Trampevski's reputation may be damaged to some extent but his evidence concerning this is not cogent. There is no evidence that his image was publicly associated with Hearing Consultants;

(f) Mr Gupta and Mr Trampevski have invested significant monies into Hearing Consultants and they will not be able to continue to progress and further establish that business. This is in circumstances in which the business in the Burke Rd Premises and at other sites has only just commenced. It is obviously in an important stage of its establishment;

(g) Hearing Consultants would likely continue to compete with the plaintiff but without Mr Gupta and Mr Trampevski. This is significant as they are the founders of the business and Mr Gupta is a very senior and experienced audiologist in the local area. Hearing Consultants would not have the benefit and advantage of the services of Mr Gupta and Mr Trampevski and there is a real risk that its business will be affected to a significant extent.

212 If the Court refuses to grant the Non-Compete Injunction then I am satisfied that it will likely have a number of consequences:

(a) Mr Gupta will continue to be engaged in, involved in and associated with Hearing Consultants at the Burke Road Premises and as a result Hearing Consultants will have the benefit of his continued involvement at that location;

(b) the plaintiff will likely suffer detriment if Mr Gupta continues to be engaged in, involved in and associated with Hearing Consultants at the Burke Road Premises. I refer to the matters I have already addressed with respect to the plaintiff's clients and employees in relation to the Springboard Injunction;

(c) damages will not be an adequate remedy for the plaintiff's claims.

213 If the Court grants the Non-Compete Injunction then I am satisfied that it will likely have a number of consequences:

(a) Mr Gupta would have to take immediate steps to cease involvement with Hearing Consultant's business at the Burke Road Premises (except possibly as a shareholder, given the alternative form of order sought);

(b) Mr Gupta would have to work at other sites being operated by Hearing Consultants or possibly find alternate employment. The Non-Compete Injunction does not prevent him from servicing any of the plaintiff's existing clients at premises other than the Burke Road Premises or at another competitor;

(c) there is a real risk that Mr Gupta's reputation will be damaged to an extent. This is because some clients have already transferred their management to Hearing Consultants and Mr Gupta's image was used to prominently and publicly promote Hearing Consultants' business and he would have to be immediately cease his involvement with Hearing Consultants at the Burke Road Premises. He has been publicly involved in this business since 12 April 2025. There is real risk that this may damage his reputation even though the Non-Compete Injunction is confined to the business being operated out of the Burke Road Premises;

(d) Hearing Consultants will likely continue to compete with the plaintiff but without Mr Gupta being engaged in, involved in or associated with Hearing Consultants' business being operated out of the Burke Road Premises. This is significant as Mr Gupta is a very senior and experienced audiologist in the local area. Hearing Consultants would not have the benefit and advantage of the services of Mr Gupta at the Burke Road Premises and there is a real risk that its business will be affected to some extent.

214 I address the effects of granting and not granting the other relief when exercising my discretion below.

215 I will exercise my discretion to refuse the Springboard Injunction sought against Mr Gupta and Mr Trampevski. This is because the balance of convenience favours refusing the relief as:

(a) it is a weak claim for relief;

(b) if I grant the relief and the consequences occur that I have already identified and the plaintiff fails to establish the right to relief at trial then most significantly Mr Gupta may have suffered damage to his reputation and Hearing Consultants is likely to have suffered loss of business and may have difficulty in establishing such loss, including causation between any loss of business and the Springboard Injunction;

(c) if I do not grant the relief and the consequences occur that I have already identified and if the plaintiff establishes the right to relief at trial then the plaintiff is likely to suffer loss for which damages are not an adequate remedy;

(d) in my view, the prejudice to the parties of granting or not granting the relief is significant for the plaintiff and the defendants, possibly slightly more so for the plaintiff, but this is outweighed by it being a weak claim for relief which is a significant factor;

(e) as a result, this is the course that appears to carry the lower risk of injustice.

216 I will exercise my discretion to refuse the Non-Compete Injunction sought against Mr Gupta. The balance of convenience favours refusing the relief as:

(a) it is a very weak claim for relief;

(b) if I grant the relief and the consequences occur that I have already identified and the plaintiff fails to establish the right to relief at trial then Mr Gupta's reputation may be damaged and Hearing Consultants is likely to suffer loss of business and may have difficulty in establishing such loss, including causation between any loss of business and the Non-Compete Injunction;

(c) if I do not grant the relief and the consequences occur that I have already identified and the plaintiff establishes the right to relief at trial then the plaintiff is likely to suffer loss for which damages are not an adequate remedy;

(d) in my view, the prejudice to the parties of granting or not granting the relief is significant for both the plaintiff and the defendants, especially Mr Gupta and Hearing Consultants, but it is a very weak claim and this is a significant factor;

(e) as a result, this is the course that appears to carry the lower risk of injustice.

Confidential Information Injunction and Alternative Confidential Information Injunction

217 I have decided to exercise my discretion to grant the Alternative Confidential Information Injunction sought against all defendants and refuse the Confidential Information Injunction against all defendants. The balance of convenience favours this course as:

(a) the plaintiff has a claim concerning the misuse of the plaintiff's alleged confidential information against the defendants;

(b) the defendants have proffered a form of undertaking that is not adequate;

(c) the terms of the Alternative Confidential Information Injunction are more certain and precise than the Confidential Information Injunction. The claim based upon the Confidential Information Injunction is weak;

(d) if I grant the Alternative Confidential Information Injunction and the plaintiff fails to establish the right to relief at trial, no significant prejudice is likely be suffered by the defendants;

(e) if I do not grant the Alternative Confidential Information Injunction then there is a risk that they will misuse the plaintiff's confidential information and damages would not be an adequate remedy;

(f) this is the course that appears to carry the lower risk of injustice.

218 I have decided to exercise my discretion to refuse the Customer/Supplier Injunction sought against Mr Gupta. The balance of convenience favours refusing the relief as:

(a) it is a very weak claim for relief;

(b) if I grant the relief, there is a real risk that Mr Gupta's reputation will be damaged to an extent. This is because some clients have already transferred their management to Hearing Consultants and Mr Gupta's image was used to prominently and publicly promote Hearing Consultants' business and he would have to immediately cease his involvement with any client with whom he dealt while employed with the plaintiff. He has been publicly involved in this business since 12 April 2025;

(c) if I grant the relief, Hearing Consultants would likely continue to compete with the plaintiff but without Mr Gupta being able to solicit, canvass, approach or accept any approach from the plaintiff's clients with whom he had dealings with during his employment with the plaintiff. This is likely to be a detriment to Hearing Consultants;

(d) if I grant the relief and the plaintiff fails to establish the right to relief at trial and the consequences occur that I have identified above. Mr Gupta's reputation may be damaged and Hearing Consultants is likely to have suffered loss of business and may have difficulty in establishing such loss, including causation between any loss of business and the Customer/Supplier Injunction;

(e) if I do not grant the relief then it is likely that some of the plaintiff's current clients, including Mr Gupta's former clients, will continue to transfer their management to Hearing Consultants as a result of Mr Gupta soliciting, canvassing, approaching and accepting approaches from them. This risk is evident from the transfers that have already taken place;

(f) if I do not grant the relief and the consequences occur that I have already identified and the plaintiff establishes the right to relief at trial then the plaintiff is likely to suffer loss for which damages are not an adequate remedy;

(g) in my view, the prejudice to the parties of granting or not granting the relief is more significant for the plaintiff but this does not outweigh the factor that this is a very weak claim and this is a significant factor;

(h) as result, this is the course that appears to carry the lower risk of injustice.

219 I have decided to exercise my discretion to refuse the Employee Injunction sought against Mr Gupta. The balance of convenience favours refusing the relief as:

(a) it is a very weak claim for relief;

(b) if I grant the relief, Mr Gupta, including in his capacity as a director of Hearing Consultants, would not be able to induce, encourage or assist any employee to leave their employment with the plaintiff;

(c) if I grant the relief and the plaintiff fails to establish the right to relief at trial and the consequence takes place I have identified immediately above, then Hearing Consultants will have lost the potential benefit of being able to employ any of the plaintiff's employees. But, in my view, this is not significant;

(d) if I do not grant the relief there is a risk that Mr Gupta, including in his capacity as a director of Hearing Consultants, will, inter alia, induce, encourage and assist some of the plaintiff's current employees, including persons associated with Mr Gupta, to be employed by Hearing Consultants, and they may do so. This may result in detriment to the plaintiff. But as I have already said Hearing Consultants has already been present publicly at the Burke Road Premises since 12 April 2025 and trading since 3 July 2025, and the only evidence of employees leaving is in relation to Mrs Arshad;

(e) if I do not grant the relief and the consequences occur that I have already identified and the plaintiff establishes the right to relief at trial then I accept that there is a risk that the plaintiff may suffer loss for which damages are not an adequate remedy;

(f) in my view, the prejudice to the parties of granting or not granting the relief is much more significant for the plaintiff but this does not outweigh the factor that this is a very weak claim and this is a significant factor;

(g) as a result, this is the course that appears to carry the lower risk of injustice.

220 In conclusion, I will make an order in the terms of the Alternative Confidential Information Injunction and otherwise dismiss the plaintiff's summons. I will hear from the parties on other consequential orders, including on costs and the timetabling of this matter for an expedited trial commencing on 27 October 2025.

[INSERT NAME OF DEFENDANT] undertake undertakes, in relation to the documents referred to in Schedule A (the Documents), that:

1. Will not disclose or use the Documents or disclose the information or use the information contained in the Documents for any purpose other than the conduct of Supreme Court of Victoria proceeding S ECI 2025 04271 National Hearing Centres Pty Ltd v Gupta & Ors (Proceedings), unless:

1. [INSERT NAME OF DEFENDANT] have received the prior written consent of the plaintiff, National Hearing Centres Pty Ltd;

1. The Documents or the information contained in the Documents, has:

1. already been disclosed to the public in a way that waives the confidential status of the Documents otherwise than in contravention of a confidentiality undertaking;

1. already been disclosed in the Proceedings in a way that waives the confidential status of the Documents otherwise than in contravention of a confidentiality undertaking, including by way of evidence or documents over which general access orders have been granted;

1. Documents containing National Hearing Centres Pty Ltd's:

1. sales or financial information, including EBITDA, budgets, forecasts, retail stores sales performance and revenue and profitability datasets;

f. internal general practitioner marketing database;

NATIONAL HEARING CENTRES PTY LTD (ACN 075 889 262)

[3] First Hardie affidavit, [51]-[53].

[5] First Hardie affidavit, [55]-[56].

[8] First Hardie affidavit, [72]-[77] and [92]-[94]. See also Second Hardie affidavit, [7]-[8].

[9] First Hardie affidavit, [91]-[94].

[11] First Hardie affidavit, [95]-[96].

[12] Liberty Financial Pty Ltd v Scott (No 4) [2005] VSC 26; (2005) 11 VR 629, [13] (Harper J) (Scott).

[18] [2021] FCA 607, [180]-[181], [271]-[272], [277].

[23] [2009] NSWSC 987, [86]-[87].

[24] Third Hardie affidavit, [14]-[17].

[29] [2016] VSCA 334; (2016) 344 ALR 162, [30]-[39] (citations omitted).

[30] [2021] FCA 607, [271]-[276].

[31] [2023] FCA 1580, [63]-[64] (citations omitted).

[32] [2006] NSWSC 995, [19].

[36] T 105.21-24 (14 August 2025); [2021] FCA 607.

[39] Plaintiff's submissions, [10(a)].

[40] Plaintiff's submissions, [10(c)].

[42] [2023] WASC 361, [202]-[213] (Tottle J).

[43] [2004] VSC 33; (2004) 60 IPR 392, [145] (Nettle J).

[46] [1987] VicRp 50; [1987] VR 605, 613-4 (citations omitted).

[47] [2012] EWHC 80 (QB), [257] (emphasis added).

[48] [2008] VSC 164; (2008) 77 IPR 306, 343 [125] (citations omitted) (emphasis added).

[49] [2012] EWHC 80 (QB), [192] (citations omitted).

[51] [1995] SASC 5318; (1995) 66 SASR 301, see Doyle CJ at (306-7), Matheson J at (326-327) and Debelle at J (337-338) (Rentokil).

[52] (2013) 45 VR 657, [94] (citations omitted).

[54] [2005] VSC 318; T139.28-140.3 (15 August 2025).

[56] [2021] FCA 607, [283].

[57] [2012] WASC 282, [21] (citations omitted).

[58] T154.1-13 (14 August 2025), T148.23-149.18 (14 August 2015).

[60] [2017] NSWSC 1159, [61].

[62] [2021] FCA 607, [278]-[279] (citations omitted).