Showcorp Pty Ltd v James Barton Ashcroft

REASONS FOR JUDGMENT 1 Late on Friday afternoon, 21 September 2001, Showcorp Pty Limited commenced a proceeding in this Court by filing an application, which application was accompanied both by a statement of claim and by two supporting affidavits. One of those two affidavits had been sworn by Mr Colin Baldwin, Showcorp's managing director, and the other had been sworn by Mr Tony Townsend, who is employed by Showcorp as a "production manager". 2 Showcorp named as respondents to the application Augment Communications Pty Limited ("Augment") and Mr James Barton Ashcroft. In these reasons for judgment, I will refer to Mr Ashcroft as Mr Barton, because that is apparently the name by which he is and, for some years at least, has been usually described. 3 By its application, Showcorp was seeking interlocutory, as well as final, relief against both Augment and Mr Barton. 4 The Judge acting as duty Judge on Friday, 21 September 2001, whom Showcorp had approached for the purpose, made Showcorp's application for interlocutory relief returnable before the docket Judge or, in default of the docket Judge, the duty Judge, on Wednesday morning, 26 September 2001. The duty Judge also made orders abridging the time for service on the respondents of the application, statement of claim and supporting affidavits. 5 As I was the docket Judge for the proceeding and was available on Wednesday morning, 26 September 2001, to hear Showcorp's application for interlocutory relief, that application came on before me on that morning and I heard it during that day. 6 It is convenient at the outset of these reasons for judgment to relate certain background facts about the parties to the proceeding, which facts, for the purpose of Showcorp's application for interlocutory relief, are not in dispute. 7 Showcorp specialises in the staging and production of commercial exhibitions and special events, including motor shows. 8 Augment, the managing director of which is Mr Anthony Paul Huxley, provides corporate communications services which involve the staging of marketing projects, events, roadshows and exhibitions, the production of videos and the provision of multimedia services for the promotion of corporate goods and services. 9 It will be apparent from the descriptions which I have just given of their respective business activities that, to some extent at least, Showcorp and Augment are in competition with one another. 10 On 7 February 1996, Mr Barton signed a letter written by Showcorp which had been addressed to him at his residential address, had been dated 5 February 1996, had stated that it confirmed his employment by Showcorp as a "production manager" commencing on 5 February 1996 and had asked him to sign it in order to signify his agreement with the terms of his employment by Showcorp as set out in it. 11 One of those terms was that Mr Barton sign a confidentiality agreement. On 27 March 1996, he did so. 12 Another of those terms was that Mr Barton could terminate his employment with Showcorp by giving it one week's notice. Having worked for Showcorp since February 1996, Mr Barton, on 17 April 2001, took advantage of that term of his employment by giving Showcorp one week's notice of the termination of his employment. Six days earlier, on 11 April 2001, he had entered into a written employment agreement with Augment, pursuant to which he was to begin employment with Augment on 24 April 2001. Accordingly, he began his employment with Augment immediately on the termination of his employment with Showcorp. 13 In its statement of claim which was filed together with the application commencing the present proceeding, Showcorp pleaded a great many causes of action, some against Augment and the balance against Mr Barton. It is, however, unnecessary for present purposes, to summarise those causes of action. That is because, for the purpose of its application for interlocutory relief, Showcorp relied only on an allegation which it had made against Mr Barton in its statement of claim that he had breached fiduciary duties which he had owed to Showcorp. Those fiduciary duties were pleaded to have been: to act bona fide in the best interests of Showcorp as a whole; to avoid placing himself in a position where his duties as an employee of Showcorp conflicted with his own personal interests or with the interests of other persons or companies in respect of which he had any form of interest or with which he was otherwise associated; and not to use his position with Showcorp to gain an advantage either for himself or for any other person or company. 14 It is convenient now to set out those forms of interlocutory relief appearing in its application which Showcorp ultimately sought before me, most of which, as will be seen, were directed, in terms, to Mr Barton, rather than to Augment. In setting out the forms of interlocutory relief sought, I will silently substitute, for the parties' designations as either applicant or as first or second respondent, their names. As well as setting out those forms of interlocutory relief as appearing in Showcorp's application, I will also refer to certain modifications which those forms of interlocutory relief underwent during the interlocutory hearing. 15 The first of them was as follows: "Pending the determination of the proceeding[ ], Mr Barton be restrained from: i. soliciting; ii. communicating with; iii. approaching or soliciting for orders or financial arrangements from customers of Showcorp, whose names are or were obtained by or became known to Mr Barton from the records of, or information obtained from, the records of Showcorp, or who were clients or customers of Showcorp at any time during Mr Barton's period of employment and/or contract with Showcorp." 16 During the interlocutory hearing, that relief was refined by substituting for the reference to "customers of Showcorp" a reference to a number of identified companies. As set out in a document handed up by Showcorp during the hearing, those companies were: ATP Tour, Australian Paralympics, Citrus PR, Daimler Chrysler, Hyundai, Hyundai Automotive, KPMG, Lexmark International (Australia), Mortgage Choice, Peppers Home Loans and Schwarzkopf. 17 The second and third forms of interlocutory relief were as follows: "Order that pending the determination of the proceeding[ ], Mr Barton be restrained from using or copying any customer list or other document or record containing information obtained or retrieved from and relating to Showcorp's business. Order that Mr Barton, within seven … days, deliver up to Showcorp by its solicitor the original and all copies of any client list and any other document or any other form of record and information containing or referring to Showcorp's business and its clients or customers." 18 During the interlocutory hearing, Showcorp sought orally additional interlocutory relief against Mr Barton consequential on the relief which I have just set out, namely, that Mr Barton be required to swear an affidavit identifying certain computer files to which he had referred in an affidavit which had been sworn by him on the day of the interlocutory hearing and had been read on his behalf at that hearing. In that affidavit, Mr Barton had asserted that, on 17 April 2001, at Showcorp's offices in Artarmon, New South Wales, he had copied from his personal laptop computer to an iMac computer "all computer files then stored on [his] personal laptop, and immediately after the transfer [had] deleted all of the same files from the hard drive of the laptop". 19 I now set out verbatim the last form of interlocutory relief sought: "Order that Augment permit Showcorp's solicitor to inspect the books of account of Augment and the records of the said bank accounts relating thereto upon reasonable notice being given." Something has plainly gone wrong in the drafting of that prayer for relief, although I am not sure what; perhaps it was simply the addition of a stray "said". 20 Showcorp presented its final submissions before me in support of its application for interlocutory relief by dealing separately with two issues: first, whether it had established that there existed a serious question to be tried as to whether Mr Barton had, while an employee of Showcorp, breached fiduciary duties owed by him to it; and, secondly and on the assumption that Showcorp had established the existence of such a serious question, whether the balance of convenience favoured Showcorp so far as the granting of the interlocutory relief which it sought was concerned. 21 Showcorp's dealing with the matter in that way was orthodox. As Hill J (with whom Sweeney J agreed) said in Trade Practices Commission v Santos Limited (1992) 38 FCR 382 at 392, "Where an interlocutory injunction is sought, there can be no doubt as to the proper test to be applied: Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283; Epitoma Pty Ltd v Australasian Meat Industry Employees' Union (No 2) (1984) 3 FCR 55 at 58-59. The court must determine whether it is satisfied that there is a serious question to be tried. The court will also determine where the balance of convenience lies. These two matters are not independent of each other, although it will often be convenient to consider them successively." 22 Mr Barton was content to respond, on their own terms, to Showcorp's final submissions as I have described them above. However, in one respect, Augment was not. It argued that, instead of the "serious question to be tried" test, I should apply the older test, apparently more onerous from Showcorp's point of view, of requiring Showcorp to establish the existence of a "prima facie case". That was because, according to Augment, the granting of the interlocutory relief primarily sought by Showcorp would have the practical effect of granting to it final relief. Why that latter proposition was correct in the present circumstances, Augment did not explain and, since I have been unable to perceive its correctness myself, I propose to proceed herein by reference to the "serious question" test. I add that, in any event, Augment made submissions before me on the basis that the "serious question" test was the appropriate test to be applied. 23 I should also emphasise now the statement made by Hill J in Santos about the lack of independence of the "serious question to be tried" issue from the "balance of convenience" issue. In particular, on the assumption that an applicant for interlocutory injunctive relief has established the existence of a serious question to be tried, the apparent strength of the applicant's case may appropriately be taken into account in determining where the balance of convenience lies. That matter was adverted to by Woodward J (with whom Smithers and Sweeney JJ agreed) in Bullock v Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464. Woodward J said (at 472), "[T]he two legs of the test need not be considered in isolation from each other. Thus an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises 'a serious question to be tried') may still attract interlocutory relief if there is a marked balance of convenience in favour of it." 24 One other matter of a general nature regarding interlocutory injunctive relief to which it is appropriate for me to refer now, in light of certain submissions which were made before me at the interlocutory hearing, was discussed in the reasons for judgment of a Full Court of this Court (Bowen CJ and Beaumont and Foster JJ) in Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1987) 76 ALR 633 at 638 ("the CUB (NSW) case"). Their Honours stated: "The grant of injunctive relief, interim or final, is, of course, discretionary. Delay by an applicant in instituting or in prosecuting a claim for an injunction may be a ground for refusing relief, even at a final hearing. Where an interim injunction is sought on the basis that the applicant need show only a 'serious' question…, delay in seeking that relief is an important discretionary consideration…." Of course, the passage which I have just quoted must be understood, as the Court, subsequently in its reasons for judgment, made clear, as referring to a delay in seeking interlocutory injunctive relief for which the applicant is without reasonable excuse. A delay of that type can be, as the Court there described it (at 639), a "decisive" factor against the grant of such relief, as it was held to be in that case. 25 In substance, Showcorp's case on the first of the two issues for my consideration was that there existed a serious question to be tried as to whether Mr Barton had breached his fiduciary duties to Showcorp by wrongfully making use of confidential information which he had acquired while in Showcorp's employ. By way of illustrative cases concerning breaches of that type, Showcorp referred me to the decision of Wilcox J in Warman International Ltd v Envirotech Australia Pty Ltd (1986) 11 FCR 478 at 496-97 and to the decision of the New South Wales Court of Appeal in Halliday & Nicholas v Corsiatto [2001] NSWCA 188 (Spigelman CJ and Handley and Heydon JJA, 29 August 2001, unreported), particularly at [32] and [37]. 26 Showcorp relied before me on a multiplicity of evidentiary matters in its submissions on the "serious question" issue and I turn now to those matters, beginning, by way of background, with certain evidence concerning Hyundai, the motor vehicle importer (or perhaps merely distributor; there was no evidence before me on the point). 27 According to the evidence of Mr Baldwin, Hyundai had been a client of Showcorp since about 1994 and Showcorp had undertaken all of Hyundai's "conferencing product launches and exhibitions". Then, in about August 1997, Mr Barton was appointed manager of Showcorp's exhibition division, which involved his supervising the Hyundai Motor Show, which was one of Showcorp's most lucrative exhibition contracts. 28 I add that I understand the reference to the Hyundai Motor Show to be a reference to a series of motor shows open to the public at which, as one of numerous automotive companies, Hyundai would exhibit its motor vehicles. 29 On 10 August 2000, the then marketing manager of Hyundai, Mr James Warburton, asked Showcorp to "develop a new stand design with an emphasis on new technology and large scale visual components in time for Melbourne 2001". 30 I add that I understand the reference to "Melbourne 2001" to be a reference to a motor show scheduled to take place in Melbourne in 2001. 31 On 24 October 2000, Showcorp presented its proposal, on which Mr Barton had worked, to Hyundai and received an encouraging response to it from Mr Warburton. 32 On 21 November 2000, Mr Barton produced the final draft of the Hyundai motor stand proposal for presentation. 33 On 5 December 2000, Messrs Baldwin and Barton met with Mr Peter Evans, who had just replaced Mr Warburton at Hyundai. At that time, Mr Evans assured Showcorp that Hyundai's longstanding relationship with Showcorp would continue. However, on or about 19 December 2000, Mr Barton informed Mr Baldwin that Mr Evans had decided to put the build of the new Hyundai motor show stand out to tender. 34 Following Hyundai's decision to go to tender, Mr Barton worked on Showcorp's proposal, which, because of the terms of the tender, required the development of a proposal different from the one earlier presented. 35 In April 2001, the 23rd of that month was set as the date for an initial presentation regarding the Hyundai motor show stand. When, on 17 April 2001, Mr Barton gave notice of his departure from Showcorp, Mr Townsend took over supervision of the project from Showcorp's point of view. However, Mr Barton still attended the presentation on 23 April 2001 on behalf of Showcorp. 36 I turn now to certain evidence of Mr Townsend regarding Hyundai. 37 According to Mr Townsend, on 24 April 2001, he learned that Showcorp "had made the final three" so far as the Hyundai motor show stand was concerned. I add that, although Mr Townsend did not so assert in his affidavit, Mr Baldwin asserted in his that Mr Townsend had told him (Mr Baldwin) contemporaneously that Showcorp had made the final three and that the one of the other two contenders was Augment. 38 Then, between 24 April and about 4 May 2001, Mr Townsend supervised further work on Showcorp's proposal and, on about 4 May 2001, Showcorp made a second presentation to Hyundai. 39 Next, on about 12 June 2001, Mr Townsend discovered from Mr Richard Smith of Hyundai that Augment (for whom, of course, Mr Barton was now working) had been the successful tenderer for the motor show stand. I add that, although Mr Townsend did not so assert in his affidavit, Mr Baldwin asserted in his that Mr Townsend had told him (Mr Baldwin) contemporaneously that Augment had been the successful tenderer. 40 According to Mr Townsend, on the same occasion when he learned from Mr Smith that Augment had prevailed over Showcorp for the Hyundai motor show stand, Mr Smith also discussed with him the picking up from Showcorp of old Hyundai properties, saying "James Barton on behalf of Augment will touch base with you to arrange pick-up of properties and other matters". 41 I add that I understand the properties being referred to to be accessories used in connection with a motor show stand, in other words, something like properties in a theatrical sense. 42 On 25 June 2001, according to Mr Townsend, he was told by Mr Smith, "James Barton will be heading the Hyundai Motorshow on behalf of Augment and it will be necessary for him to be on site in [y]our warehouse". Mr Townsend, however, told Mr Smith that Mr Barton would be refused entry to Showcorp's warehouse for that purpose. I add that, although Mr Townsend did not so assert in his affidavit, Mr Baldwin asserted in his that Mr Townsend had told him (Mr Baldwin) contemporaneously what Mr Smith had said about Mr Barton. Mr Baldwin also asserted that, immediately thereafter, he had consulted Showcorp's solicitor for advice. I infer that the advice sought related to the position of Showcorp in relation to Augment and Mr Barton. 43 The picking up of the properties occurred on 27 June 2001 without Mr Barton's involvement, at which time, according to Mr Townsend, Mr Smith told him that the properties being picked up were to be incorporated into the Augment stand design. According to Mr Townsend, he then asked Mr Smith how Mr Huxley would have known what properties existed and whether to include them in the Augment design, unless he had received some assistance or advice with his design from Mr Barton. According to Mr Townsend, Mr Smith replied, "Tony Huxley had a real good look at the existing stand at the Brisbane Motorshow in Feb 2001. In February at the Brisbane Motorshow I discussed designs with Mr. Huxley and his concept. It was very different. And it … was pretty much the same concept as we discussed in February that he presented to us in April." 44 Showcorp placed at the forefront of its submissions before me on the issue whether there existed a serious question to be tried as to whether Mr Barton had wrongfully made use of confidential information which he had acquired while in Showcorp's employ the evidence which I have just quoted to the effect that Mr Smith had said that, at the Brisbane Motorshow in February 2001, Mr Huxley had had a "real good look" at the existing stand. Showcorp submitted that the appropriate inference was that Mr Huxley's "real good look" at the existing stand could not merely have been the sort of examination of the stand which would be obtainable by an ordinary member of the public attending the show; that would not have been sufficient for Mr Huxley's purposes. Instead, the appropriate inference was that Mr Huxley had gained some special access to the stand and that that special access had been wrongfully provided to him by Mr Barton. 45 Another matter on which Showcorp relied was certain acknowledged contacts between Messrs Barton and Huxley, as disclosed by them in affidavits which they swore for the purpose of the interlocutory hearing and which were read on behalf of Mr Barton and Augment respectively at that hearing. 46 Showcorp pointed in particular to Mr Huxley's assertion that, between April or May 2000 and March 2001, he and Mr Barton had "met on three or four occasions[,] including to play golf". Showcorp pointed also to the assertions of both Mr Barton and Mr Huxley that, in March 2001, they had met in Melbourne (at a motor show, according to Mr Huxley), at which time Mr Barton had indicated to Mr Huxley that he "would like to discuss employment with Augment". Those meetings, submitted Showcorp, provided occasions on which Mr Barton could wrongfully have made use of Showcorp's confidential information by disclosing it to Mr Huxley. 47 Another matter on which Showcorp relied was records of telephone calls made from Mr Barton's mobile telephone, either to Augment's office telephone number or to Mr Huxley's mobile telephone number, while Mr Barton remained a Showcorp employee. The earliest date shown on the records which were tendered by Showcorp at the interlocutory hearing was 5 October 2000 and the latest 9 April 2001. According to those records, Mr Barton had rung either Augment's office telephone number or Mr Huxley's mobile telephone number twelve times between those two dates, as follows: Date Start time Call to Duration 6/10/00 16:22:21 Mr Huxley 7:45 14/2/01 17:04:49 Augment :29 14/2/01 17:06:05 Augment :46 26/2/01 09:27:03 Augment :34 28/2/01 16:37:20 Mr Huxley :40 28/2/01 20:25:48 Mr Huxley :16 29/3/01 12:47:54 Mr Huxley :39 29/3/01 17:12:55 Mr Huxley :23 29/3/01 17:19:44 Mr Huxley :28 2/04/01 17:17:21 Mr Huxley 3:31 6/04/01 12:43:39 Augment 3:22 9/4/01 14:11:41 Augment 1:07 I note that, when Showcorp tendered those records before me, it foreshadowed a submission in final submissions demonstrating that the calls which I have listed above had all followed closely on important events occurring in Showcorp's preparation of its Hyundai stand proposals, with the implication that Mr Barton had been reporting to Mr Huxley about those events. However, no such submission eventuated. Instead, Showcorp merely submitted that those calls were so numerous that the appropriate inference was that they were unlikely to have related solely to the question of Mr Barton's obtaining employment with Augment, from which it followed that they could have had an improper purpose. 48 Another matter on which Showcorp relied was the opinions expressed by Mr Baldwin and Mr Townsend respectively in their affidavits that Mr Barton's work on the Showcorp proposal to be presented to Hyundai on 23 April 2001 was "not up to the usual Showcorp standard" and was "of a poor quality". 49 Another matter on which Showcorp relied related to a company called Biodata. 50 According to Mr Baldwin's evidence, at about the beginning of 2001, Mr Barton had been assigned the task of preparing a proposal for an exhibition stand for Biodata, an information technology company. Then, on 16 February 2001, according to his evidence, Mr Baldwin had asked Mr Barton about the Biodata proposal, to which Mr Barton had replied, "There's nothing happening with that job, it[']s gone away … [t]here was nothing in it for us". Finally, on 20 July 2001, according to Mr Baldwin, he discovered that the Biodata job had been awarded to Augment at some time unspecified by Mr Baldwin. 51 Another matter on which Showcorp relied related to a standard letter intended to be sent to Showcorp clients concerning Mr Barton's departure from the company. According to Mr Baldwin's evidence, after a certain discussion with Mr Barton during the latter's last week with the company, Mr Baldwin had instructed two employees of the company "to type up letters to the clients that Barton was looking after on behalf of Showcorp and have him sign them as soon as possible". Then, according to Mr Baldwin, "Subsequent to Barton's departure from Showcorp, I have caused searches to be made of Showcorp's computer data base. I am informed and verily believe that these searches have revealed that … copies of the standard letter … are missing." Showcorp submitted that an appropriate inference to be drawn from that evidence was that Mr Barton had deleted the copies referred to by Mr Baldwin, so as to prevent Showcorp from discovering to which of its clients the standard letter had been sent. 52 Finally, on the "serious question" issue, Showcorp relied on evidence that Mr Barton had made a number of knowingly false representations to Showcorp, both before and after entering into the employment agreement with Augment on 11 April 2001. 53 As to those made before 11 April 2001, Showcorp relied on Mr Baldwin's evidence that, in early March 2001, he had said to Mr Barton that he (Mr Baldwin) had heard a rumour that Mr Barton was looking for alternate employment, but that Mr Barton had replied, "That's not true, I'm here for the long haul". Showcorp relied also on Mr Baldwin's evidence that, on 19 March 2001, he had heard Showcorp's solicitor ask Mr Barton what his intentions were regarding Showcorp, since he (the solicitor) had heard rumours that Mr Barton might be leaving, and that Mr Barton had replied "I'm here for the long run". 54 Showcorp contrasted that evidence with Mr Barton's evidence in his affidavit that he had decided, in about late February or early March 2001, that he would seriously explore employment with Augment and that he had met with Mr Huxley shortly thereafter for that purpose. 55 As to knowingly false representations made by Mr Barton to Showcorp after 11 April 2001, Showcorp again relied on Mr Baldwin's evidence. Mr Baldwin gave evidence that, on the day he announced his departure from Showcorp, Mr Barton had said to Mr Baldwin, "[Y]ou have my total commitment to ensuring Showcorp retain the [Hyundai] work. I will be available to help you present the proposal to Hyundai if required…. … My leaving shouldn't interfere with Showcorp retaining the work and besides I'll do everything in my power to help you." Mr Baldwin further gave evidence that, on the following day, Mr Barton told him, in response to a question about who he was going to work for, "I'm going to freelance for a while and I don't plan working with any particular company. I want a change in direction, maybe film production". Mr Baldwin further gave evidence that, between 17 and 24 April 2001, Mr Barton said to him, "[R]est assured, I will do everything in my power to help Showcorp retain the [Hyundai] business". Next, Mr Baldwin gave evidence that, on 20 April 2001, Mr Barton, in response to a question whether he was going to work for a named competitor of Showcorp (not Augment), said, "I am going to freelance for a while". He added, "I will do everything in my power to help Showcorp retain the [Hyundai] business". Then, when asked whether he would help Showcorp manage the show if it retained the Hyundai business, he answered, "Of course[,] that's exactly the ongoing relationship I want with Showcorp". Finally, Mr Baldwin gave evidence that, after the preceding occasion, but before 24 April 2001, when asked whether he was going to work for Augment, Mr Barton said, "Yes, I will be doing some work for Tony Huxley of Augment" and later added, "I would like to think that I could do work for Showcorp in the future and bring work to Showcorp". 56 I turn now to the submissions made by Mr Barton and Augment on the "serious question" issue. 57 I mention first that it was the position of both Mr Barton and Augment that I should conclude that Showcorp had not established that there existed a serious question to be tried as to whether Mr Barton had, while an employee of Showcorp, breached fiduciary duties owed by him to it by wrongfully making use of confidential information which he had acquired while in Showcorp's employ. It is convenient to deal with most of the particular submissions made by them in that respect without attributing them specifically to either one or the other or both of the two respondents and to deal first with what was submitted specifically about various of the evidentiary matters to which I have referred above as having been relied on by Showcorp. 58 As to the evidence regarding Mr Huxley's having had a "real good look" at the existing stand at the Brisbane motorshow in February 2001, the respondents drew attention to the fact that Mr Smith had made no reference to Mr Barton's involvement in the matter. Further, they submitted that there was nothing before me to justify a conclusion that a public inspection of the existing stand would not have been sufficient for Mr Huxley's purposes. 59 As to the evidence regarding pre-contractual contacts between Messrs Barton and Huxley, the respondents submitted that innocent explanations had been given on oath for those contacts, namely, that they had related to Mr Barton's proposed employment by Augment. Alternatively, it was put (presumably on the basis that I might ignore such explanations for the purpose of deciding whether there was a serious question to be tried) that an inference as open from such contacts as one of impropriety was that such contacts had been innocent. 60 As to the opinions of Messrs Baldwin and Townsend about the quality of Mr Barton's work on the second Hyundai proposal, it was submitted that they were not persuasive, given their source. 61 As to the evidence regarding the standard letter to Showcorp's clients, it was submitted that that evidence was unpersuasive on the question whether Mr Barton had deleted the copies referred to and that the absence of evidence from the two employees who had been instructed to type up the letters was significant. 62 Finally, as to the various alleged knowingly false representations by Mr Barton, it was acknowledged that it was open to me to conclude that Mr Barton had deliberately misled Showcorp in certain respects at least. However, such misleading, it was submitted, would not establish the existence of the breach of fiduciary duties relied on by Showcorp. 63 At a more general level, Mr Barton submitted that Showcorp had not, in its evidence, identified any of its confidential information allegedly wrongfully used by him and that its failure to do so was fatal to a conclusion that it had made out a serious question to be tried of the sort which it had undertaken to make out. That submission was reminiscent of the proposition that in order to make out a case for protection in equity of allegedly confidential information, the moving party must be able, among other things, "to identify with specificity, and not merely in global terms, that which is said to be the information in question": see, for example, Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443 (Gummow J). 64 Having summarised the respective parties' submissions on the issue whether there exists a serious question to be tried in the present proceeding, I return now in greater detail to the decision of a Full Court of this Court in the CUB (NSW) case. 65 That was a case in which CUB (NSW) had been refused interlocutory injunctive relief by Wilcox J solely on the basis that it had failed to demonstrate the existence of a serious question to be tried in the proceeding: see Carlton and United Breweries (NSW) Pty Ltd v Bond Brewing New South Wales Ltd (1987) 16 FCR 351 at 353. CUB (NSW) then sought from a Full Court leave to appeal against that refusal, arguing that Wilcox J had erred in holding that there was no serious question to be tried in the proceeding and had erred, in particular, because he had failed to deal with one of CUB (NSW)'s principal claims in the proceeding. 66 However, the Full Court did not find it necessary to determine whether Wilcox J had failed to deal with that claim and, if so, whether that claim raised a serious question. According to the Full Court (at 638), that was because, even if the Full Court were to assume in favour of CUB (NSW) that that claim did raise a serious question to be tried, "… the balance of convenience remains; and no useful purpose would be served in granting leave to appeal on the question whether Wilcox J erred in holding that no serious question arose, if, as a matter of discretion, an interlocutory injunction should be refused in any event." 67 It was after having stated that it would approach the application for leave to appeal in the manner to which I have just referred that the Full Court made the statements regarding delay to which I have earlier referred and dismissed the application for leave to appeal, considering CUB (NSW)'s delay in bringing the proceeding as being, "of itself, a sufficient reason for declining to grant an interlocutory injunction" (see at 638). 68 Given the view which I take of Showcorp's delay in commencing the present proceeding, I have decided, as was done by the Full Court in the CUB (NSW) case, to assume, without deciding, in Showcorp's favour that it has established the existence of a serious question to be tried in the proceeding, but to dismiss Showcorp's application for interlocutory injunctive relief by reason of its delay in seeking such relief: for a similar approach to an application for interlocutory injunctive relief, see University Co-operative Bookshop Ltd v University of New South Wales (FCA: Branson J, 12 June 1997, unreported) and see also Bropho v Ball (FCA: Carr J, 1 February 1997, unreported). 69 I should, however, note that, although I am prepared to assume, without deciding, in Showcorp's favour that it has established the existence of a serious question to be tried in the proceeding, I certainly consider its claim, on the evidence thus far relied on by it before me, to fall into the "more doubtful", rather than into the "apparently strong" category, to use the language used by Woodward J in Bullock. That being the case, I would not have been disposed, even leaving aside the question of Showcorp's delay, to grant to it the interlocutory relief which it sought, there not being, in my view and using again the language of Woodward J in Bullock, "a marked balance of convenience in favour of it", that is, in favour of Showcorp's claim. However, that is a matter which need not be pursued in the present circumstances. 70 I set out as follows a number of dates which appear to me to be of primary importance on the delay question: on 17 April 2001, Mr Baldwin became aware from Mr Barton that, contrary to his recent assertions, Mr Barton would soon be leaving Showcorp; between 17 and 24 April 2001, Mr Baldwin became aware from Mr Barton that Mr Barton would be doing at least some work for Augment; on 24 April 2001, Mr Barton left Showcorp and Mr Baldwin became aware through Mr Townsend that Augment was one of the finalists for the Hyundai job; on 12 June 2001, Mr Baldwin became aware through Mr Townsend that the Hyundai job had been awarded to Augment; on 25 June 2001, Mr Baldwin became aware through Mr Townsend that Mr Barton would be heading the Hyundai Motorshow on behalf of Augment and immediately consulted Showcorp's solicitor; and, on 27 June 2001, I infer, Mr Baldwin became aware through Mr Townsend that Mr Huxley had had a "real good look" at the existing stand in February 2001. It was not, however, until almost three months from 27 June 2001, namely, on 21 September 2001, that the present proceeding was commenced and interlocutory relief sought. 71 The explanation essentially given for such leisurely progress by Showcorp was, as I understood it, a difficulty in accessing Showcorp's records between (at least) late June 2001 and shortly before the commencement of the present proceeding, such difficulty being associated with Showcorp's having moved premises. 72 However, Showcorp's case for interlocutory relief as sought to be made out in the affidavits on which it moved relied little on such records. No records at all of Showcorp were annexed to Mr Townsend's affidavit and the only records of Showcorp annexed to Mr Baldwin's affidavit were copies of Showcorp's letter to Mr Barton of 5 February 1996, the confidentiality agreement made on 27 March 1996 and a draft of the standard letter to be sent to Showcorp's clients about Mr Barton's departure from the company. I add that I admitted into evidence on Showcorp's tender during the interlocutory hearing copies of the records of Mr Barton's mobile telephone calls to which I have already referred above. However, none of that documentary material was, I consider, of great significance to Showcorp's case for interlocutory relief as presented. 73 In any event, I consider that any inaccessibility of Showcorp's records for the reason relied on by it was an inadequate excuse for its delay in commencing the present proceeding and in seeking interlocutory relief. Showcorp was, of course, free to make whatever arrangements it chose regarding the premises from which it conducted its business and in which it stored its records. It was also free to make whatever arrangements it chose regarding the tasks to which it allocated its employees, whether, for instance, to have them concentrate on moving premises or, alternatively, on searching among its records for material relevant for present purposes. However, those matters being ones within its control, it cannot expect any delay of its own making caused by its choices in that respect to be accepted as an excuse when it takes such a serious step as seeking to invoke the judicial process in order to obtain urgent interlocutory relief against others. 74 As well as there not being before me a satisfactory excuse for Showcorp's delay in commencing the present proceeding, there is also evidence before me that the respondents have been prejudiced by such delay. In essence, that evidence was that the interlocutory relief primarily sought by Showcorp would remove Mr Barton from involvement on behalf of Hyundai in a motor show which will begin within a fortnight, in circumstances in which, if Showcorp's application for interlocutory relief had been made in a timely way and determined in its favour, the adverse effects of such removal of Mr Barton could more easily have been overcome by Augment. I am prepared to act on that evidence, on which Showcorp did not seek to cross-examine either Mr Barton or Mr Huxley. 75 I note that, although not seeking to cross-examine either Mr Barton or Mr Huxley on that evidence, Showcorp did seek to overcome the effect of that evidence by relying on what had been said by Hamilton J in the case of Ingersoll-Rand (Aust) Ltd v Industrial Rollformers Pty Ltd [2000] NSWSC 177 (11 February 2000, unreported). Hamilton J had said (at [11]), "In Martin Engineering Company v Trison Holdings Pty Ltd (1988) AIPC 90‑511, Gummow J, then a Judge of the Federal Court, discussed the application of the principles relating to interlocutory injunctions in patent cases, and drew attention to the consideration applicable in many such cases that a defendant who sets out to act in the face of a claimed patent does so with eyes open to the possibility that the patent will be found valid and enforced. That principle was applied also by Burchett J in the Federal Court in Tidy Tea Ltd v Unilever Australia Ltd (1995) 32 IPR 405. Whilst that proposition was enunciated in patent cases, it seems to me that it is not limited to cases that are strictly or technically patent cases, but has, in appropriate circumstances, wider application. In cases where it is known that there is a claim that the defendant's actions are in breach of a duty of confidentiality, or even in the face of a known claim that there is a restraint by contract of its activity, unless the claim is manifestly bad, the situation that the defendant faces is that it has chosen, for its own commercial reasons, to embark on its course of action, knowing that the claim has been made and may ultimately be enforced by the courts." 76 However, I regard the remarks which I have just quoted as irrelevant in present circumstances. I take that view because there is no evidence before me that, before either Augment or Mr Barton had embarked on any course of action which would be adversely affected by the interlocutory injunctive relief now sought, Showcorp had made them aware of a claim by it that Mr Barton had breached fiduciary duties owed to it, which breach would render that course of action susceptible to being adversely affected by such interlocutory injunctive relief. 77 Showcorp submitted before me that Hamilton J's remarks justified going further in ignoring claims of prejudice by a party against which interlocutory injunctive relief is sought than cases in which the party moving for interlocutory injunctive relief has earlier put the party moved against on notice of its claim. Showcorp submitted that those remarks justified ignoring claims of prejudice by the party against whom interlocutory injunctive relief is sought when that party knew that its conduct would probably be the subject of such claim, even in the absence of such notice. I do not accept that that is so. Nor do I find in either of the two decisions of this Court relied on by Hamilton J in the passage from his reasons for judgment which I have just quoted any warrant for adopting Showcorp's approach. 78 I note in any event that I consider it somewhat artificial for Showcorp to be submitting that Mr Barton must have known, before engaging in the course of action now said by the respondents to be adversely affected if interlocutory injunctive relief should be granted, that Showcorp would probably proceed against him for breach of fiduciary duties owed by him to it. The topic of fiduciary duties and their breach is not one which one readily imagines being present to the minds of persons who are not lawyers. The artificiality of such a submission is increased, to my mind, by the fact that Showcorp procured the making by Mr Barton at the outset of his employment by it of express contractual promises to it regarding confidentiality of information. 79 In all the circumstances, I will dismiss, with costs, Showcorp's application for interlocutory relief. I certify that the preceding seventy-nine (79) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Katz.