Plaintiffs v Defendants

Mr A McGregor of New Edge Law for the second plaintiff

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

1 By originating motion filed on 2 September 2021, Mr Shivesh Kuksal and Ms Maria Di Gregorio bring proceedings against three defendants, Nine Network Australia (Nine), Mr Sam Cucchiara, a journalist employed by Nine working on A Current Affair, and Mr Ronald Gordon, a solicitor. The proceeding alleges that Mr Gordon, a solicitor formerly employed by New Edge Law, breached confidentiality and a fiduciary duty that he owed to the plaintiffs and that he, together with the first two defendants (the media defendants) committed an unlawful purpose conspiracy. These causes of action were not pleaded in any conventional way. The plaintiffs seek further declaratory relief in relation to Mr Gordon's conduct as a legal professional and seeks what is described as 'appropriate disciplinary actions against him'.

2 The plaintiff also issued an urgent summons returnable in the Practice Court on 2 September 2021 seeking 'injunctive relief'. That relief was said to be urgent on the basis of an anticipated broadcast by the media defendants of a report on A Current Affair. The plaintiff informed the Court of his belief that the segment was to be broadcast on 1 September 2021. Legal representatives for the media defendants indicated that they did not intend to broadcast on 1 September 2021. The plaintiffs nevertheless contended before me that an urgent injunction was required to restrain imminent broadcast. The application relied on the following affidavits on behalf of the plaintiffs:[1]

(a) affidavit of Mr Kuksal, affirmed on 1 September 2021 together with six exhibits thereto; and

(b) two affidavits of Ms Di Gregorio, one dated 1 September 2021 with no exhibits and one dated 2 September 2021 together with 14 exhibits.

3 In response, the media defendants filed an affidavit of Mr Corey Jankie affirmed on 2 September 2021 together with five exhibits. The media defendants provided my chambers with an outline of submissions, which were later filed at the conclusion of the hearing. The third defendant did not file any affidavit material, nor did he provide submissions prior to the hearing, notifying the Court that he was not in a position to do so as he was only notified of the hearing by New Edge Law at 10.20pm the evening before. He adopted the media defendants submissions.

4 Mr Gordon holds a current practising certificate and is a legal practitioner. He was engaged as a principal lawyer by a company called People Shop Pty Ltd (People Shop), trading as New Edge Law (New Edge Law). He commenced employment on 28 June 2021. It ended, in disputed circumstances, on 28 July 2021. Ms Di Gregorio describes herself as a director of People Shop, and as the Head of Human Resources for New Edge Law. Mr Kuksal describes himself as a businessman and company director. He describes People Shop as 'part of the corporate conglomerate structure managed by me'.[2]

5 In so far as the underlying proceeding seeks to ventilate contractual breaches by Mr Gordon of his employment contract, neither Ms Di Gregorio nor Mr Kuksal in their personal capacity are parties to the contract and it is not entirely clear upon what basis they bring any proceeding in reliance on breach of contract. Further, in respect of their complaint as to breaches of the Legal Professional Uniform Law Australian Solicitors Conduct Rules 2015, it is not clear from their evidence that Ms Di Gregorio or Mr Kuksal engaged New Edge Law and therefore Mr Gordon to do any, and if so, what legal work. Mr Kuksal and Mr Gordon, in submissions both referred to some representation undertaken by Mr Gordon associated with personal matters. There is no evidence of any complaint being made to the Legal Services Board of Victoria about Mr Gordon's conduct and no argument was directed to that issue during the hearing. Therefore, I put that matter to one side.

6 Although the proceeding and the summons were filed by New Edge Law on behalf of both plaintiffs, Mr Kuksal sought to appear for himself and Mr McGregor from New Edge Law appeared only for Ms Di Gregorio.

7 Mr Kuksal and Mr McGregor disavowed that this proceeding was a defamation proceeding. They submitted that defamation proceedings by Mr Kuksal were anticipated but were a separate matter.

8 The relief they allege is directed at preventing the broadcast of confidential information said to have been disclosed by Mr Gordon to Mr Cucchiara. There was no evidence before me as to imminent publication. It is no longer known when publication might be anticipated.

9 By way of background, A Current Affair has previously broadcast two stories regarding Mr Kuksal. The first related to Mr Kuksal, a removalist business called Apex Logistics Solutions and businesses called RM Legal Consultants and Law Innovation. A second story was published on 30 July 2021 which also referred to pending proceedings in the Magistrates' Court of Victoria and pending Australian Securities and Investments Commission charges against Mr Kuksal (collectively, the two broadcasts). Mr Cucchiara, the journalist of the two broadcasts, was working on a follow up story and for that purpose, posed a series of questions inviting comment from Mr Kuksal. In response to those questions, this proceeding and an urgent summons were issued.

10 In Commonwealth v John Fairfax & Sons Ltd, Mason J said of the disclosure of confidential information:

The principle is that the court will "restrain the publication of confidential information improperly or surreptitiously obtained or information imparted in confidence which ought not be divulged". In conformity with this principle, employees who had access to confidential information in the possession of their employers have been restrained from divulging information to third parties in breach of duty and, if they have already divulged the information, the third parties themselves have been restrained from making disclosure or making use of the information[3].

11 Where an obligation of confidence protected in equity exists, either because of a fiduciary relationship or on some other basis, there are four elements to be demonstrated. Gummow J, when on the Federal Court of Australia, described them as:

(i) the plaintiff must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question; (ii) the information has the necessary quality of confidentiality (and is not, for example, common or public knowledge); (iii) the information was received by the defendant in circumstances as to import an obligation of confidence; (iv) there is actual or threatened misuse of that information, without the consent of the plaintiff.[4]

12 It was not easy to discern the nature of the confidential information that was sought to be protected by the injunctive relief. The plaintiff is not People Shop asserting some contractual breach. Ms Di Gregorio's affidavit provides a lengthy description of the employment of Mr Gordon and refers to various emails that have been sent. Nowhere does her affidavit specify what information of hers she wants protected by an injunction. Similarly, Mr Kuksal's affidavit outlines past behaviour and complaints against the media defendants relating to the two broadcasts. To the extent that it identifies information said to be confidential, it identifies the following:

(a) the fact that Ms Di Gregorio was contacted by Mr Cucchiara on her personal mobile number, a number shared among few people at the workplace.[5]

(b) an email sent 26 August 2021 from Mr Cucchiara to Mr McGregor said to repeat allegations made in an email sent by Mr Gordon to Ms Di Gregorio.[6]

13 During the hearing I endeavoured to clarify what information was alleged to have been communicated. Mr Kuksal invited the Court to draw an inference that an email sent by the journalist stating

'lawyers who have worked for you have alleged excessive interference by you including recounting occasions where they allege you sent emails to other solicitors and courts using their names, without their consent'[7]

was identically worded to an email Mr Gordon had sent to Ms Di Gregorio, and on that basis an inference should be drawn that Mr Gordon has provided Mr Cucchiara with confidential information.

14 The email of Mr Gordon to Ms Di Gregorio on 28 July 2021 is in evidence.[8] The written submissions of the plaintiffs describe it as containing representations that are 'false and warrantless'. Those representations include 'excessive and belligerent interference' by Mr Kuksal in Mr Gordon's work. That representation, whether true or not, could not be confidential information belonging to New Edge Law, or any of the related entities sought to be captured by a broad definition of Confidential Information as defined in the terms of the employment contract. Nor do I accept the submission that Mr Cucchiara's email is striking in the sense that it uses the precise phrasing contained in Mr Gordon's earlier email.

15 To the extent that Ms Di Gregorio's personal phone number might be confidential information, there is no evidentiary basis to conclude that Mr Gordon provided it to Mr Cucchiara and even less evidence that A Current Affair intends to publish it.

16 Mr Gordon has set out what information he has provided to other persons, listing 13 matters in a letter addressed to New Edge Law dated 1 September 2021.[9] He asserts none are confidential information. The plaintiff did not address me to establish that any of the 13 items described by Mr Gordon were confidential information.

17 In any event, the complaints made by the plaintiff's relate to matters that have already occurred. There was no real attempt to identify with any precision or at all what further information, not yet publicly disclosed but held by the media defendants, was sought to be protected by an interim injunction. Rather a bald assertion is made by Mr Kuksal in his affidavit that 'confidential information ... procured during [Mr Gordon's] time as my solicitor'[10] will be used.

18 The plaintiffs have failed to identify what confidential information they seek to be protected. The media defendants took issue not only with the lack of specificity surrounding the alleged confidential information, but also the action being brought by the plaintiff's in their personal capacity if the information was in fact that of various corporate Related Entities. It is not necessary for present purposes to consider this.

19 The factual elements upon which an 'unlawful purpose conspiracy' is claimed are not articulated from the affidavit material. The provision of a statement of claim may set out the material facts necessary to determine whether an arguable claim exists.

20 Even if I am wrong and the plaintiffs do have an arguable case for breach of confidence, I would not be persuaded that the balance of convenience requires the grant of an injunction.

21 The plaintiffs rely on Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (Lenah Game Meats).[11] In particular, Mr Kuksal referred me to Kirby J at [170]. Immediately prior to the paragraph relied on and read out at the hearing, Justice Kirby noted that where a cause of action for breach of confidence can be shown to be reasonably arguable, an applicant for injunctive relief will be 'well on the way to securing' interim relief.[12] The judge then turned to the circumstances in which information may not be confidential but where it is obtained by impropriety (such as by theft or by trespass) such that publication would be unconscionable. The plaintiff relied on this statement. However, nothing improper is said to have occasioned the obtaining of the alleged confidential information in the matter before me. If it was obtained, it was received in the course of employment. In any event, the comments about the availability of relief in those circumstances do not find favour as the reasoning of the majority makes clear; an arguable case for final relief is needed.[13] The reasoning is simply captured by Gaudron J:

In recent times, the word "injunction" has come to be used to mean any order by which a court commands a person to do or refrain from doing some particular act. Thus, it has come to be used in connection with orders of that kind that are specifically authorised by statute. It has also been used to describe orders which a court makes to protect its own processes such as an asset preservation order (sometimes called a "Mareva injunction") and some anti-suit injunctions. Leaving those matters to one side, however, an injunction is a curial remedy. Because it is a remedy, it is axiomatic that it can only issue to protect an equitable or legal right or, which is often the same thing, to prevent an equitable or legal wrong. So to say, is simply to emphasise that the function of courts is to do justice according to law.[14]

22 Lenah Game Meats provides no assistance unless the plaintiffs can demonstrate an arguable case for the right to final relief.

23 Although not framed as an action in defamation, it is clear from his affidavit that Mr Kuksal believes that the publication of a further story about his business activities may embarrass, humiliate or harm him. The link between the confidential information and such hurt is not apparent given the lack of specificity about the information.

24 In balancing the convenience I have regard to what was said in Australian Broadcasting Corporation v O'Neill[15] about the grant of an injunction in defamation proceedings. Caution was expressed about the use to protect an anticipated wrong, particularly where a plea of justification is anticipated. Three factors cautioned the use of interim injunctive relief:

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

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

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

Notwithstanding that this is not an action in defamation, given the factual context and issues in the case, I consider the explanation for caution to have relevance to this case.

25 The fact that two broadcasts have occurred about which Mr Kuksal complains, and says he will commence defamation proceedings, cannot be ignored when considering the balance of convenience. The media defendants submit that there a large number of matters that would be pleaded as particulars of a plea of justification in any defamation action that may be commenced. Those matters are particularised in Mr Jankie's affidavit. Mr Kuksal says he intends to commence such a proceeding. The plaintiffs have not pointed to any additional specific confidential material said to come to light in a further story that should not be published. Rather they seek a prohibition on publication at all, and the extraordinary relief that the court order the defendants be required to submit any broadcast or publication for review by the plaintiffs before it is released to the public. No principle of law or authority was relied on for this relief.

26 In all the circumstances I am not persuaded that, even were an arguable case made out, that the balance of convenience requires the broad limitation of free speech that is sought. Mr Kuksal has been invited by the second defendant to reply to allegations that have been made, although he has not yet taken up the invitation. In the event that any broadcast occurs, damages are an appropriate remedy if in fact any specific confidential information is published.

27 I ordered dismissal of the summons indicating these reasons would follow. I ordered that the plaintiffs pay the legal costs of the defendants, reserving the question of whether those costs be paid on an indemnity basis. I have also made consequential orders that the plaintiffs continue the proceeding as if commenced by Writ and so file and serve a Statement of Claim.

[1] A further affidavit of Mr Kuksal was emailed to the Court after the commencement of the hearing. It was not foreshadowed and the parties nor the court had an opportunity to review the matter. I did not receive it into evidence given the lateness of its production and the absence of service on the defendants but offered Mr Kuksal an opportunity to adjourn the matter if he sought to rely on it. He did not seek an adjournment.

[2] First Plaintiff, Affidavit of Shivesh Kuksal, Affidavit in Shivesh Kuksal & Anor v Nine Network Australia Pty Ltd & Ors, S ECI 2021 03189 2 September 2021, [37] ('Kuksal Affidavit').

[3] [1980] HCA 44; (1980) 147 CLR 39, [21].

[4] Smith Kline & French Laboratories (Aust) Ltd v Secretary, Dept of Community [1989] FCA 384; (1990) 22 FCR 73, [87].

[7] Kuksal Affidavit (n 1), [68] and Exhibit to the Kuksal Affidavit, SK-6.

[8] Exhibit SK-6 to the Kuksal Affidavit (n 1).

[9] Second Plaintiff, Exhibit to the Affidavit of Maria Di Gregorio, Affidavit in Shivesh Kuksal & Anor v Nine Network Australia Pty Ltd & Ors, S ECI 2021 03189 2 September 2021, MD-10 being a letter dated 1 September 2021 from Mr Gordon to Mr McGregor and Ms Di Gregorio.

[11] (2001) 185 ALR 1 ('Lenah Game Meats').

[12] Lenah Game Meats, [169] (per Kirby J).

[13] Lenah Game Meats (per Gleeson CJ, Gummow & Hayne and Gaudron JJ).

[14] Lenah Game Meats, [60] (per Gleeson CJ) (citations omitted).

[15] [2006] HCA 46; (2006) 229 ALR 457.