Special Broadcasting Service Corporation v Andrew Corbett - [2016] NSWSC 461 - NSWSC 2016 case summary — Zoe

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Special Broadcasting Service Corporation v Andrew Corbett

[2016] NSWSC 461

Supreme Court of NSW|2016-04-11|Before: Slattery J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2016-04-11

Before

Slattery J

Source

Original judgment source is linked above.

Judgment (13 paragraphs)

[1]

Judgment

On 10 February 2016, Mr Andrew Corbett, gave a letter of resignation to his employer, the Special Broadcasting Service Corporation (SBS). From 2 December 2012 Mr Corbett had worked for SBS as a senior employee reporting to SBS's Chief Technology Officer, who in turn reported to its Chief Executive Officer.
SBS contests the validity of Mr Corbett's resignation. SBS contends that: its employment contract with Mr Corbett was for a fixed term; the contract did not end until 30 June 2017; Mr Corbett was not entitled to terminate it before then; and, the five weeks' notice he had just given to SBS was ineffective.
On 5 February 2016 Mr Corbett caused a corporate entity he controlled, Tier One Directors Consulting Pty Ltd, to enter into a contract to provide his services to the Australian Broadcasting Corporation (ABC) commencing on Monday, 4 April 2016. Mr Corbett commenced providing services to the ABC under this contract on 4 April.
SBS now seeks an interlocutory injunction against Mr Corbett: to restrain him from working for the ABC, or for any other media organisation or competitor of SBS, for the remaining duration of his employment agreement; and additionally, to restrain him from disclosing SBS's confidential information.
Mr Corbett contests SBS's claims for interlocutory and final relief. He contends he should be able to provide services to the ABC until the final hearing of these proceedings. He says that at final hearing: his employment contract with SBS, properly construed, will be shown to be terminable on reasonable notice; and, will otherwise be struck down as an unreasonable restraint of trade.
This judgment only deals with the interlocutory dispute between these two parties. In accordance with accepted principle this interlocutory judgement does not make any final findings as to the dispute between these parties.

[2]

Procedural History of the Dispute

On 30 March 2016 SBS commenced these proceedings as plaintiff by Summons joining only one defendant Mr Corbett. That day Kunc J granted leave for short service of the Summons. His Honour also made orders for the issue of a notice to produce to Mr Corbett to be made returnable on 1 April 2016. This notice required the delivery up of: (1) all documents created since 1 October 2015 recording any steps Mr Corbett had taken to establish a business in the area of technology and media workflows; (2) all records of communication since 1 January 2016 between Mr Corbett and any TV, radio or multi-platform broadcasting business; and, (3) all documents containing the title "Andrew Stephen Consulting" that were accessed, stored or recorded on Mr Corbett's SBS-issued laptop computer.
The Summons was returnable before His Honour on 1 April 2016. On that day the plaintiff was invited to move for relief on an ex parte basis, but declined to do so. But His Honour ordered that the defendant produce the contract between himself and the ABC by 4 April 2016. The parties came back before Kunc J for further directions on 8 April 2016. His Honour fixed the proceedings for interlocutory hearing on 11 April 2016.
At the opening of the interlocutory hearing on 11 April the Court offered the parties the option of having the matter determined in the near future on a final basis rather than engaging in any interlocutory conflict. After consulting with the Acting Judge Administrator of the Equity Division, White J, in the absence of the Chief Judge this month, the Court was able to offer the parties an early three-day final hearing on 11, 12 and 13 May.
But the parties could not agree on what would happen before that final hearing on 11, 12 and 13 May. So an interlocutory contest was not avoided. But the parties were informed of this final hearing trial date and the contest took place in the context that a final hearing would only be a month away.
Mr S.E.J Prince, instructed by PricewaterhouseCoopers, represented the plaintiff. Mr B Eurell and Ms V. Chia, instructed by Carroll & O'Dea Lawyers represented the defendant. The lawyers on both sides carefully presented the application for an interlocutory injunction and deployed much of the evidence which would be read at a final hearing.
The plaintiff claims the following interlocutory relief in paragraph 6 of its Summons: ""Interlocutory Relief 6. Upon provision by the plaintiff through its counsel of the usual undertakings as to damages: (a) an order restraining the defendant from being engaged in any capacity through to 30 June 2017, on his own account or on behalf of or through any other person or entity, in any business activity involved in providing services in the areas of: (i) Analysis, development and/or documentation of production and technology workflows in a television or radio broadcasting business; or (ii) Integration of media workflows in a multi-platform broadcasting business, in Australia without the prior written approval of SBS until final trial or further order of the Court. (b) An order restraining the defendant from disclosing the plaintiff's confidential information to any person."
It is now necessary to give the background of mainly uncontentious facts to enable the interlocutory issues to be decided.

[3]

Mr Corbett, SBS and the ABC

On 2 December 2012 Mr Corbett entered into a contract of employment with SBS ("the Employment Agreement"). This form of contract had been developed by SBS for its senior executives. He commenced employment the next day on 3 December 2012
Immediately prior to working for the SBS, Mr Corbett had worked for Deloitte, and before that in the United Kingdom. To enable him to work at SBS, Mr Corbett asked SBS to sponsor his "section 457 visa" which would entitle him to work in Australia.
To facilitate the transfer of his sponsorship from Deloitte, SBS provided Mr Corbett with a letter of offer containing a term under the header "Term of the Contract" which stated that subject to approval by the Department of Immigration, SBS would sponsor his visa for a two year period.
In September 2014, the originally specified term of Mr Corbett's employment under the Employment Agreement was varied. The end date was extended from the originally fixed date of 31 December 2014 to the extended date of 30 December 2016.
The term of Mr Corbett's employment was further extended in January 2015. The end date was altered from 30 December 2016 to 30 June 2017. The evidence strongly suggests that these amendments were made at Mr Corbett's request to facilitate his application for permanent residency in Australia, which he was ultimately granted on 23 February 2015.
Aspects of the negotiation leading up to the second variation to the Employment Agreement show that Mr Corbett had firmly in mind the need to establish to the Australian Government that he would be employed by SBS for at least two years. Correspondence passed between the parties on 5 January 2015, immediately before the second variation which changed the end date of the contract in clause 3 to its present 30 June 2017 and declared that "The contract will now end 30 June 2017". The variation was made on 19 January 2015. Mr Corbett's letter immediately before that variation is reproduced below in full: "Hey Andrea, Unfortunately I am still waiting for my PR to be approved and was hoping that it would have happened before the end of 2014. It now means there is another slight complication to the process as I need to demonstrate to the Australian Government that SBS are prepared to offer me employment for at least 2 years. My contract expires at the end of 2016 which means that technically SBS are only willing to employ me for slightly less than 2 years from now. To rectify this I will need to amend my contract end date slightly so that end date is at least 2 years from the point when the PR is granted. At the moment I have no idea what the end date should be given that I don't know when the government is going to grant my PR. What do you suggest we do? Keep amending month by month until it is granted or take a guess at 3 months or 6 months? Cheers, Andy"
There may well be debate at final hearing about whether this letter is admissible on the construction of the contract. It is arguably one of the surrounding circumstances. It is certainly a relevant communication between the parties just before the variation. But if it is admissible it tends to show that Mr Corbett wanted to demonstrate security of tenure at SBS for at least 2 years forward from January 2015. Presumably if either party were entitled to terminate this contract on the giving of reasonable notice, then Mr Corbett would become vulnerable in his permanent residency application. The absence of a right of termination on reasonable notice from the contract therefore may arguably not have been an accident, even from Mr Corbett's point of view.

[4]

The Employment Agreement, the SBS Code of Conduct and the Intellectual property Schedule

The Employment Agreement. Many terms of the Employment Agreement were debated at this hearing. Clause 3 of The Employment Agreement provided that Mr Corbett would be employed for a "specified period" from 3 December 2012 to 31 December 2014, subject to the approval by the Department of Immigration for SBS to sponsor his section 457 visa and continued grant of the visa.
The commencement and term of the Employment Agreement, as it was originally signed, was provided for in clauses 3.1 and 3.2 as follows: "3.1 The Executive's period of employment is for a specified period from 3 December 2012 to 31 December 2014 ("the Period") 3.2 The Executive's employment is subject to the approval by the Department of Immigration for SBS to sponsor the Executive's temporary resident 457 visa ("the visa") and the continued grant of the visa"
Mr Corbett's remuneration [the exact amount is not published in these reasons] was provided for in clause 4 of the Employment Agreement as follows: "4 REMUNERATION 4.1 For the duration of employment under this Agreement, the Executive will: (a) receive a fixed annual remuneration package of $X, and (b) be eligible to receive an annual performance bonus to be determined by the Director Technology and Distribution to a maximum of $10,000 per annum, subject to the Executive's satisfactory performance (as determined by SBS) and the Executive's achievement of agreed KPIs in accordance with the MyCareer@SBS in the Schedule 4.2 All bonus payments under clause 4.1(b) will be determined by SBS in its absolute discretion once per year after the end of the Financial Year provided the Employee is still employed (and not under notice of termination) at the end of the Financial Year Bonus payments will be paid pro-rata for periods of service of less than 12 months Bonus payments are gross and include 9% component for superannuation SBS may vary the bonus structure from time to time 4.3 The remuneration package at clause 4.1 will be reviewed annually (1 July) and may be increased from time to time by amounts to be determined by the Director Technology and Distribution having regard to general industry salary adjustments and/or relevant corporate productivity gains and the Executive's performance in accordance with MyCareer@SBS in the Schedule 4.4 SBS and the Executive agree to enter into a salary packaging arrangement whereby the Executive requests that the annual remuneration package at clause (a) is paid as follows: (a) annual cash salary of $X ("Salary"), paid fortnightly, calculated by the formula Salary x 12 - 313, (b) employer contribution to superannuation estimated to be $X per annum (9% of Salary) 4.5 Any agreement for salary packaging may be reviewed and amended from time to time by written agreement between the parties 4.6 The Executive must meet the total remuneration costs of all benefits and associated taxes (such as fringe benefits tax) incurred as a result of any salary packaging arrangement Where applicable, the components of the salary package will be reconciled annually on the basis of actual costs incurred 4.7 The Executive acknowledges that he has had the opportunity to seek financial advice from an ASIC accredited financial adviser or a CPA accountant about the structure of the salary package arrangement outlined at clause 4.4 4.8 Given the level of the Executive's remuneration package at clause 4.1, the terms of the SBS Enterprise Agreement 2011 and SBS Employment Conditions Award 2001 (as amended or replaced from time to time) will not apply to the Executive However, if at any time the Executive is entitled to any payment or other benefit as a consequence of his employment (whether under legislation, an industrial instrument, the National Employment Standards or otherwise) (including, without limitation, minimum hourly rates, penalties, overtime, allowances, loadings and annual leave loading) ("Minimum Entitlements"), the Executive and SBS agree that (a) any Minimum Entitlements will be calculated at the applicable minimum hourly rate prescribed by the Industrial Instrument or legislation, (b) as far as possible, the Remuneration Package at clause 4.1 and other employment related benefits will be in satisfaction of the Minimum Entitlements, and (c) the Minimum Entitlements do not form part of this Agreement As part of this, the Executive's remuneration package at clause 4.1 includes payment for all the hours he works (whether part of ordinary hours or not) and public holidays or substitute public holidays (whether the Executive works on those days or not)"
Under the Employment Agreement SBS provided home equipment for executives such as Mr Corbett, which equipment was governed by clause 6.1 of the contract as follows: "6 HOME EQUIPMENT AND REIMBURSEMENT OF EXPENSES 6.1 Subject to SBS's Home Equipment policy, SBS will provide the Executive with a home based equipment package (non-Executive equipment package) for work and home use This equipment remains the property of SBS and must be returned, on demand, or when the Executive's contract with SBS ceases"
The Employment Agreement, clause 10 provided for the responsibilities and obligations of the employee in exchange for the remuneration paid to the employee. Clause 10 provides as follows: "EXECUTIVE'S RESPONSIBILITIES AND OBLIGATIONS 10 The Executive's remuneration takes into consideration (a) the importance of the Executive's position to the development of SBS as a competitive broadcaster, and (b) the emphasis on performance at SBS"
The Employment Agreement, clause 11 also required Mr Corbett to acknowledge a number of matters associated with his acceptance of the Agreement as follows: "11 In accepting this Agreement the Executive recognises the need for (a) a heavy personal responsibility for effective management and leadership of the resources and people under his direction, (b) the maintenance of satisfactory professional relationships with colleagues and SBS management, including the Group Manager Solutions, (c) a commitment to contributing to new strategic directions for SBS, (d) a commitment to best business practices in the conduct of the Executive's area of operations, (e) genuine accountability for the Executive's own performance, (f) high standards of efficiency and ethical behaviour on the Executive's part in carrying out his duties, and (g) promotion of a work environment that is safe, healthy and free from discrimination in employment matters, ensuring the application of principles of merit and equality"
The Executive was required to work in accordance with the principles set out in clause 11 and demonstrate the personal qualities there identified on a continuing basis: "12 The Executive will be required to work in accordance with the principles set out at clause 11 and demonstrate the personal qualities above on a continuing basis"
There was a Schedule attached to the Employment Agreement. The Schedule was divided into several parts. Upon the signing of the Employment Agreement Mr Corbett acknowledged having read the Schedule and agreed to the following obligations in clause 14 of the Employment Agreement: "14 The Executive acknowledges he has read the following documents in the Schedule and agrees to his obligations as set out in the documents and varied from time to time: (a) Part 1 SBS Code of Conduct, (b) Part 2 Confidential Information, (c) Part 3 Intellectual Property, (d) Part 4 Surveillance in the Workplace, and (e) Part 7 MyCareer@SBS
Mr Corbett was also required under the Employment Agreement, clause 15 to observe other relevant SBS policies. Clause 15 of the Agreement provides as follows: "15 In addition to the Employee's other obligations under this Agreement, the Employee must observe other relevant policies or guidelines issued by SBS, as varied from time to time Such policies include but are not limited to Workplace Harassment, Computer/Email Usage, Fraud, Privacy, Worker's Compensation, OH&S, Personal Grievances and Leave Information on relevant policies and/or guidelines are available from Human Resources Failure to abide by a policy, code or guideline may result in sanctions including disciplinary action and dismissal Notwithstanding this, these policies, codes and guidelines do not form part of this Agreement and do not impose any binding obligations on SBS Further, SBS may, in its absolute discretion, choose not to follow or apply any of its policies, codes or guidelines"
Clauses 16, 17 and 18 of the Employment Agreement are headed "Termination of Employment" and provide a regime for termination of Mr Corbett's employment but they are not the only provisions in the agreement that refer to the possibility of employment termination. Another reference is found in clause 19.2. Clauses 16, 17 and 18 provide as follows: "TERMINATION OF EMPLOYMENT 16 Without limiting SBS's rights, if the Executive 16.1 does not carry out his duties so as to satisfy all the principles at clause 11 and other obligations in this Agreement, or 16.2 fails to honour other terms of this Agreement for reasons wholly or substantially within the Executive's own control, or 16.3 disobeys or neglects a lawful instruction or direction, or 16.4 engages in misconduct, including improper conduct or conduct which brings or could bring SBS into disrepute, or 16.5 is convicted of a criminal offence that affects the Employee's employment or in the opinion of the Director Technology and Distribution, results in damage to the reputation of SBS, or 16.6 becomes physically or mentally incapable of performing the inherent requirements of the Executive's position, 16.7 acts in any other manner that repudiates his employment contract with SBS, 16.8 then SBS may (a) terminate the Executive's employment on any of the above grounds with immediate effect and without any payment the Executive (whether before or after the date of this Agreement), or (b) give the Executive a formal warning in the case of a single minor instance of misconduct in relation to clause 16.4, or a single minor offence in relation to clause 16.5 that is not related to the Executive's work, provided in either case that the matter would not bring SBS into disrepute, or (c) offer the Executive another contract or ongoing employment where clause 16.6 applies, and the Director Technology and Distribution is of the opinion that suitable alternative work is available and that it would be in the interests of SBS to do so, or (d) suspend the Executive from his employment for a period, with or without pay as determined by the Director Technology and Distribution, pending resolution within a reasonable time of any situation that may result in early termination 17 SBS may terminate this Agreement without prior notice or payment in lieu, if the Executive is guilty of any serious misconduct in the discharge of his duties. 18 Subject to clause 17 any termination under clause 16 will be on five (5) weeks' notice unless the Director Technology and Distribution determines, having regard to the interests of SBS, that the termination be immediate (in which case the Executive will be paid five (5) weeks' salary in lieu of notice)".
Under the heading "Relief from Duty and Related Matters" in clauses 19.1 and 19.2 the Employment Agreement provided for a number of matters relating to relieving the executive and carrying out his duties, as follows: "19 RELIEF FROM DUTY AND RELATED MATTERS 19.1 SBS may, without limiting SBS's rights, require the Executive (a) not to carry out any of the Executive's duties, (b) not to attend for work at SBS or at any of it's associated entities' premises, (c) not to access the computer systems of SBS or any of its associated entities' and as part of this, SBS may suspend or terminate the Executive's computer access, (d) to perform duties which are different to those which the Executive had been required to perform, provided only that the Executive has the necessary skills and competence to perform the duties, (e) not to have any contact with any customers, suppliers or employees of SBS or any associated entities, (f) to return to SBS all property belonging to SBS or any of its associated entities, (g) without limiting SBS's rights and in accordance with law, to take annual leave or (if applicable) long service leave, (h) to resign all directorships held as a consequence of the employment, or (i) any combination of the above 19.2 If either the Executive or SBS have given notice of termination, SBS may, without limiting SBS's rights, appoint a replacement to the Executive's position"
The Employment Agreement provided an employee acknowledgement in relation to injunctions in clause 20.1 as follows: "20 INJUNCTION 20.1 The Employee acknowledges and agrees that breaches by the Employees of some terms in this Agreement could cause SBS irreparable loss or damage and that the remedy of damages may be inadequate to protect SBS In such a case, SBS is entitled to seek injunctive relief and any other remedy in any court against the Employee"
In general provisions the Employment Agreement, clause 21.2, provided that SBS was not required to offer further employment to Mr Corbett after the expiry of the period of the contract. Clause 21.2 provides as follows: "21.2 SBS is under no obligation to offer to the Executive further employment after the expiry of the Period. The parties agree that there is no expectation or understanding that further employment will be offered as SBS generally requires turnover of personnel to ensure that SBS remains sensitive to the broadcasting industry and adaptable to change, and that its decision-making processes are regularly invigorated However, if, for any reason, the employment does continue after the expiry of the Term, then the terms of this agreement will continue to apply with the exception of this clause 21 2".
Finally the Employment Agreement allowed for severance of provisions if clauses were found illegal or unenforceable (clause 22.1) and that the Agreement could be varied in writing (clause 23.1). The Agreement did not contain a clause stating that it was the whole of the contract between the parties, such as might be taken to exclude implied terms.
The Code of Conduct. By signing the Employment Agreement, Mr Corbett also agreed to be bound by the obligations contained within the annexed SBS Code of Conduct. SBS argues Mr Corbett acted in breach of the SBS Code of Conduct in two ways: (1) he failed to avoid and disclose a conflict of interest; and (2) he misused SBS information, property and facilities.
Section 2.4 of the SBS Code of Conduct deals with conflicts of interest. It provides that "SBS employees must avoid any direct or potential conflict of interest that could compromise SBS", and additionally imposes a positive obligation on SBS employees "to disclose any current or potential conflict of interest to their managers". The section expressly defines a "conflict of interest" as "an employee having a direct or indirect involvement or interest in any matter or dealing with an external individual or organisation, and from which the employee could receive personal reward, remuneration or any other type of advantage as a result of the relationship of their position and that particular matter or dealing", and continues that some examples of conflict of interest include: "working for or at any other media organisation or other competitor of SBS or using or misusing any SBS resources for personal, employment or other interests".
Section 2.7 of the SBS Code of Conduct deals with "Information, Facilities and Resources". It states that employees must use information, facilities and resources provided by the SBS in a manner that is "efficient, careful and honest". It also provides that the SBS owns all intellectual property in any material developed and/or made by employees in the performance of their duties or in the course of their employment, materials including, but not limited to, "copyright, specific knowledge, documentation, files, processes, technologies, databases, programs, recordings, films, musical compositions, software, trade secrets etc". It also imposes a positive obligation on employees to report any misuse of information, facilities and resources of the SBS.
The Intellectual Property Schedule. The Intellectual Property Schedule to the Employment Agreement provides that SBS owns all copyright in any material developed and or made by the Executive in the performance of his duties, but not limited to specific knowledge, concepts, documentation, processes, technologies, recordings, programs and software.

[5]

Mr Corbett's Role at SBS and Access to Confidential Information

Mr Corbett is accredited as a "Lean Six Sigma black belt". He is a process efficiencies expert. With a background in management consulting and using Lean Six Sigma methodology, his skills involve reviewing company workflow processes and recommending ways that the time taken for the processes can be reduced. His expertise includes looking at the inefficiencies of existing business and management processes and redesigning them to make them more efficient, usually faster and cheaper.
Mr Corbett's skills centre on his ability to analyse workflows. His skills are applicable to improve processes in all types of industries. His CV indicates that since graduating from the University of Manchester in 2004 he has worked in a consulting capacity, mostly in Europe, with insurance companies, telecommunications operators, investment banks, construction companies and with government.
The evidence to be adduced by SBS at final hearing shows that as an Enterprise Workflow Manager, or Operational Excellence Manager, at SBS he would, among other things, observe processes undertaken within SBS, interview staff and solicit ideas for their improvement, test hypotheses, and execute plans with the approval of high level employees, to achieve significant financial savings across the company. In doing this, SBS says that he developed a deep understanding about the internal operations of SBS and the media sector in general. The material SBS advances well supports this contention.
During his time at SBS, Mr Corbett was involved in a number of large projects. I accept that there is cogent evidence that SBS will adduce at final hearing, that two of these projects were of particular importance to the future operations of SBS: the Broadcast Playout Project and the Media Asset Management Project (MAM Project). The evidence for final hearing supports the SBS contention that Mr Corbett was intimately involved with both of these projects. Although Mr Corbett contended that none of the material to which he was given access in relation to these projects was particularly confidential, the opposite conclusion is well open to be established at final hearing. The material in question represents current major business plans and project budgets of SBS, material which the Courts have often treated as confidential especially as against competitors.
The specifics of both projects have been provided but subject to confidentiality undertakings. So I will not reveal their content in these reasons. But the Court has heard that the Broadcast Playout Project seeks to reform the manner in which broadcast content is received by SBS for transmission. SBS will adduce evidence at final hearing that it is one of the only broadcasters in the world to outsource this function to an external provider, and who would utilise an IP based content system using Cloud technology. SBS describes the Project in the evidence it will adduce at final hearing as "broadcast critical", such that if it malfunctions SBS could be off the air. Mr Corbett's case was sceptical of this claim. But the Court has looked at the underlying material (and that is all that needs be said in reasons on an interlocutory application such as this) and in my view, if accepted, that material could well justify SBS's claims of being "broadcast critical".
The evidence to be adduced at final hearing about the MAM Project, which commenced in 2012, is designed to operate in addition to the Broadcast Playout Project, and if successful, would give rise to significant additional efficiencies at SBS.
And finally the evidence SBS proposes to adduce at final hearing well supports the conclusion that both these projects have required significant financial investment and the commitment of substantial executive time on the part of SBS.
At the interlocutory hearing Mr Corbett's side was critical of the fact that SBS took some time to ask him to return its confidential information. They say, with justification, that the first notice that Mr Corbett had that there was a claim for the preservation and return of SBS's confidential information was after proceedings were commenced on an ex parte basis on 30 March 2016. And Mr Corbett says that the only information that he has that could be potentially of any concern would now be redundant.
Mr Corbett himself explains that he needed IT storage backup to enable him to work remotely from SBS, for example from home. For that purpose he says he used the Google Drive facility. He says that the documents which were saved to the Google Drive would not be of any assistance or value in his current brief with the ABC.
Two things can be said about this aspect of Mr Corbett's case. First, SBS was reacting to a developing situation after Mr Corbett left. I do not think that its delay in asking for its confidential information (and there was a little delay here) is a basis to infer that SBS had no belief in its confidential information case. The content of the material for which SBS claims confidentiality has a real chance of being shown to be confidential at a final hearing.
Secondly, Mr Corbett may ultimately be proved correct. It may perhaps be shown at final hearing that there was no confidential information of SBS on these devices. But there is a prima facie case in my view that Mr Corbett was given access to confidential information and the parties have not yet had a proper opportunity to analyse what he has and how it has been used. The exact scope of what it is for which confidentiality is claimed can then be better defined. But for now the way that the interlocutory relief describes this information is sufficient.

[6]

Mr Corbett Leaves SBS

The evidence to be adduced at final hearing supports the following relevant narrative of events between 10 February and 18 March this year. On 10 February 2016 Mr Corbett spoke with his direct supervisor, Mr Noel Leslie, Chief Technology Officer, and told him that he wished to resign from SBS. The plaintiff submitted that Mr Leslie immediately responded by telling Mr Corbett that he was employed under a "fixed term contract" that did not allow him to resign.
On this same day, Mr Corbett reaffirmed his intention to resign in an email, effective immediately, and noting his desire to give four weeks' notice. This was later amended to five weeks notice.
On 10 February 2016, Mr Leslie sought to address the reasons for Mr Corbett's desire to leave SBS. Mr Leslie proposed to Mr Corbett that SBS could create a new and larger strategic role for him with significantly higher remuneration, and increasing by about $40,000 per annum.
This same offer was put to Mr Corbett by Ms Andrea Muras of SBS the following day, 11 February 2016. She then reiterated the SBS's desire to retain him as an employee.
But on 12 February 2016 Mr Corbett met with Mr Leslie, declined the proposal, and reasserted his desire to leave SBS.
On 18 February 2016 Ms Muras informed Mr Corbett that if he wanted to leave his employment with SBS he would have to sign a Deed of Release, and the Deed would include a requirement that he not work in the media industry before the end date of the Employment Agreement on 30 June 2017. Mr Corbett responded stating that he did not see any value in him signing the Deed that had been proffered.
On 25 February 2016 Ms Muras sent a draft Deed of Release to Mr Corbett. It stipulated that Mr Corbett would need to provide a notice period of more than 9 months, which would be followed by a restraint of six months from working in the media industry. That same day, Mr Corbett responded by email stating that the approach set out in the Deed was not acceptable to him.
On 18 March 2016, shortly after close of business at 5pm, Mr Corbett sent an email to Mr Leslie informing him that this was his last day at SBS.

[8]

Applicable Legal Principles

In deciding whether or not to grant an interlocutory injunction the Court must consider whether there is a serious question to be tried and then whether the balance of convenience and questions of hardship warrant the grant of an interlocutory injunction. First, the plaintiff must prove a serious, not a speculative, case which has a real possibility of ultimate success and that property or other interests might be jeopardised if no interlocutory relief is granted: JD Heydon, MJ Leeming and PG Turner, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th ed 2014, LexisNexis Butterworths) at [21-350] ("Equity Doctrines and Remedies"), discussing the requirements of the Beecham Group Limited v Bristol Laboratories Pty Limited (1968) 118 CLR 618 prima facie case test. Put another way, the plaintiff must show a sufficient likelihood of success to justify the preservation of the status quo pending the trial: Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57; [2006] HCA 46 at [70] - [71].
Then, it becomes a matter of analysing if in all the circumstances of the case, considering the balance of convenience and issues of hardship the Court should nonetheless exercise its discretion by declining to issue an interlocutory injunction: Equity Doctrines and Remedies at [21-350]; and see also Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 and Beese v Woodhouse [1970] 1 WLR 586. Other factors to which the Court will have regard include the adequacy of damages, the possibilities of alternative remedies, whether there has been any laches or delay, the strength of the grounds of defence suggested by the defendant, what, if any, undertakings the defendant is prepared to give, but hardship and balance of convenience are very important: Equity Doctrines and Remedies [21 - 375]. If any infringement of a plaintiff's right between writ and hearing would be properly compensated in damages, that fact alone can, but not must, be a ground for declining an injunction: McCarty v Council of the Municipality of North Sydney (1918) 18 SR (NSW) 210.
In Kolback Securities Ltd v Epoch Mining (1987) 8 NSWLR 533 McLelland J (as His Honour then was) when considering what must be established to obtain an interlocutory injunction, including when the restraint in question may have implications for the disposition of the proceedings at final hearing, said: "As I see it, the position is as follows. Where a plaintiff's entitlement to ultimate relief is uncertain, the Court, in deciding to grant or refuse an interlocutory injunction, must consider what course is best calculated to achieve justice between the parties in the circumstances of the particular case, pending the resolution of the uncertainty, bearing in mind the consequences to the defendant of the grant of an injunction in support of relief to which the plaintiff may ultimately be held not to be entitled, and the consequences to the plaintiff of the refusal of an injunction in support of relief to which the plaintiff may ultimately be held to be entitled: see, eg, Appleton Papers Inc v Tomasetti Paper Pty Ltd [1983] 3 NSWLR 208 at 216; A v Hayden (No 1) (1984) 59 ALJR 1 at 4-5; 56 ALR 73 at 79. Where the uncertainty depends in whole or in part on a contested question of fact it is not appropriate for the Court to decide that question on the interlocutory application. Where the uncertainty depends in whole or in part on a contested question of law, it may or may not be appropriate for the Court to decide that question on the interlocutory application, depending on circumstances, eg, whether the question is novel or difficult, or is susceptible of resolution on the present state of the evidence, or whether the urgency of the matter renders it impracticable to give proper consideration to the question: see, eg, A v Hayden (No 1) (at 4; 78); Cohen v Peko-Wallsend (1986) 61 ALJR 57 at 59;68 ALR 394 at 397. If the Court does decide the question of law the uncertainty is to that extent removed. Unless the plaintiff shows that there is at least a serious question to be tried which if resolved in its favour would entitle it to final relief, then the requirements of justice as between the parties will dictate that an interlocutory injunction should be refused: Australian Coarse Grain Pool Pty Ltd v Barley Marketing Board of Queensland (1982) 57 ALJR 425; 46 ALR 398; Tableland Peanuts Pty Ltd v Peanut Marketing Board (1984) 58 ALJR 283; 52 ALR 651; A v Hayden (No 1); Castlemaine-Tooheys Ltd v South Australia (1986) 60 ALJR 679; 67 ALR 553 and Cohen v Peko-Wallsend Ltd. Apart from this, although normally the Court "does not undertake a preliminary trial, and give or withhold interlocutory relief upon a forecast as to the ultimate result of the case" (Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622), there are some kinds of case in which for the purpose of seeing where lies the balance of convenience (or more specifically "the balance of the risk of doing an injustice" - see per May LJ in Cayne v Global Natural Resources plc [1984] 1 All ER 225 at 237, cf per Brennan J in Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1983) 57 ALJR 288 at 292; 46 ALR 279 at 285), it is desirable for the Court to evaluate the strength of the plaintiff's case for final relief: see, eg, Brayson Motors Pty Ltd v Federal Commissioner of Taxation (at 292; 285); Castlemaine-Tooheys Ltd v South Australia at 682; 559. One class of case to which this applies is where the decision to grant or refuse an interlocutory injunction will in a practical sense determine the substance of the matter in issue: see, eg, NWL Ltd v Woods [1979] 1 WLR 1294 at 1306-1307; [1979] 3 All ER 614 at 625-626 per Lord Diplock; Cayne v Global Natural Resources plc. The present is such a case. The substantial matter in issue is whether Epoch should be permitted to proceed with the issue of non-renounceable rights in accordance with the announcement of 13 March 1987. That will be irrevocably determined in a practical sense by the grant or refusal of an interlocutory injunction."

[9]

Is there a serious question to be tried?

SBS has established a serious question to be tried on whether the Employment Agreement remains on foot. It is quite arguable in my view that the Employment Agreement was for a set term and that there should not be an implied right by both parties to terminate on reasonable notice. Notwithstanding the lack of an entire agreement clause, the language of clauses 16, 17 and 18 arguably shows a clear intent to consider the whole subject of termination but without conferring a right of termination on reasonable notice.
And it may well be difficult for a defendant such as Mr Corbett to maintain an implied right to terminate other than for cause on reasonable notice in circumstances where Mr Corbett himself apparently bargained for a contract duration of no less than 2 years and where SBS appeared to want workforce stability by renewing short term contracts for senior executives. Moreover this was a contract which was not open-ended but which could be described as short to medium term (two and a half years) when negotiated in its final variation in January 2015.
This case is arguably like those cases in which the contract is for a defined period of time and the parties have not sought to conduct their relations on the basis of open-ended ongoing employment, which would necessitate the inclusion, or the implication, of a clause allowing termination without cause: see Waddell v mathematics.com.au [2013] NSWSC 142 at [88]. The contract here is arguably well outside the category of contract to which Byrne v Australian Airlines Limited (1995) 185 CLR 410, at 429 applies.
SBS's case is then that Mr Corbett repudiated the Employment Agreement by ceasing employment with SBS on 18 March. And that alleged repudiation has not been accepted. The factual aspects of this part of SBS's case are really not in contest.
The defendant points to the words in clause 19.2 of the contract that seem to assume that Mr Corbett and SBS may each have some right of termination. But in my view there is quite a strong argument available to SBS that these words are just a mistake. They are expressed in the conditional and do not obviously confer any rights on Mr Corbett.
SBS also has raised a serious question to be tried on its contention that Mr Corbett's notice of termination was inadequate, even if a right of reasonable notice existed under the Employment Agreement. One of the curiosities of this case is that Mr Corbett's own email of 5 January 2015 would be a powerful argument that SBS would have no right to terminate his contract on a short period of reasonable notice of no more than five weeks. Such a result would arguably be the very antithesis of what he was seeking to achieve in January 2015. If there is an implied right of termination, in my view SBS has quite a strong argument that it may have been for a period of 6 to 9 months. After all the rights of termination would usually be reciprocal rights for the same period: Rogan-Gardiner v Woolworths Ltd [2012] WASCA 31 at [87]. Mr Corbett could hardly afford a short period of notice to be available against him and so he would arguably have to be treated the same way as SBS could treat him, if he were giving notice to SBS. Any of the other arguments about this subject fall away because of the special circumstances of this case identified here.
I do not think that the notice period for cause under clauses 17, 16 and 18 of the Agreement are of much assistance on this issue as they relate to termination in different circumstances.
There would then be the extra issue at final hearing, whether the giving of the short period of notice that Mr Corbett did was ineffective and the notice may have to be given again.
Mr Corbett argues that the obligations to avoid conflicts in the Code of Conduct are not adequately incorporated into the Employment Agreement. But in my view there is quite an arguable case to the contrary.
Finally, on the SBS's confidential information case, SBS arguably has a legitimate protectable interest. There is in my view a clear prima facie case that a prohibition on Mr Corbett working for other broadcasters during the period of employment is based on a legitimate protectable interest: see Tullet Prebon (Australia) Pty Ltd v Purcell [2008] NSWSC 437 at [47]. In this case, for the reasons that have been identified above that legitimate protectable interest arises from Mr Corbett's access to what the Court has assessed as what SBS can show at final hearing to be its confidential information: see Woolworths Ltd v Olson [2004] NSWCA 372 at [67]. But of course the scope of confidentiality will be determined at final hearing.

[10]

The Balance of Convenience

Corbett says that SBS is guilty of delay in bringing this application. He contends that SBS was aware that he had a contractual engagement with the ABC to provide his services to the ABC and was so aware by about 18 March. Mr Corbett says that he was not due to start at the ABC until 4 April and that SBS could have sought an injunction long before he started and that he is prejudiced by the delay.
But the factual premise of Mr Corbett's case is not made out. I infer from the available materials on this application that SBS was unaware that Mr Corbett was contractually engaged with the ABC until 31 March when the information was revealed by Mr Corbett's solicitors.
The matter is of some importance to Mr Corbett's argument. So consideration of relevant detail is necessary. The starting point for the argument is an internal SBS email of 18 March 2016 sent at 7:08 PM. Mr Michael Ebeid, the CEO and Managing Director of SBS sent that email to Mr Noel Leslie, the CTO and Ms Sarah Grant about Mr Corbett's resignation. Expressing shock at Mr Corbett's resignation Mr Ebeid says: "He is totally insane. Sarah, I assume this now means he has abandoned his role and we should also stop his salary and immediately begin our legal rights to stop him working elsewhere. I think you should also call the ABC and formally advise that we will begin legal action if they hire Andy whilst we still have a contract with him. Tell her we are deadly serious".
Mr Corbett's lawyers, Messrs Carroll & O'Dea issued a Notice to Produce seeking to discover what was the fruit of Ms Sarah Grant's actions following upon Mr Ebeid's instruction for her to "Call the ABC". Understandably the suspicion was that Ms Grant had called the ABC and soon afterwards and had found out that the ABC had engaged Mr Corbett's services by that time. But despite a searching Notice to Produce, SBS produced no file notes of any such conversations and no emails back to Mr Ebeid reporting on the content of SBS executives' contact with the ABC. From the nil response to this Notice to Produce I accept there were no such documents.
The inference is strong that SBS did not know on 18 March that Mr Corbett's services were engaged to the ABC. Mr Ebeid's email shows uncertainty about what Mr Corbett was doing. Mr Ebeid's email had clearly been prompted by an email from Mr Leslie the same evening giving Mr Ebeid a "Heads Up" that "Andy has left the business, slightly disappointingly he waited until I and my EA had left the building before sending the email below". But nothing in Mr Leslie's email or Mr Corbett's attached email to Mr Leslie indicates that SBS knew that Mr Corbett's work destination was the ABC. Indeed the internal SBS emails of this day confirm the high probability that Mr Corbett had not disclosed to SBS that he was going to the ABC and that whenever SBS executives had asked him before 18 March, he had declined to communicate that information to them. Mr Corbett says that Mr Ebeid had declined to meet with him before Mr Corbett ultimately resigned on 18 March and that SBS was already taking steps to relieve Mr Corbett of some of his duties and had commenced an active recruitment program for his replacement. Some of this can be accepted because Mr Corbett had indeed said by mid-February that he was intending to leave.
But I do not accept that SBS knew before 31 March 2016 that Mr Corbett was intending to work for a rival media organisation. SBS had had suspicions but no more. It is true that Mr Ebeid directs Ms Grant to call the ABC and not any other media organisation and indeed he follows up on Monday, 21 March with her saying "Did you call the ABC?" But in my view SBS was just pursuing a hunch at that stage.
SBS's lack of knowledge to that point is confirmed by some correspondence from ABC executives. Just before Mr Ebeid's email, Mr Taylor appears to have rung Mr Richard Finlayson at the ABC. He says in an email to Mr Paul Crockford, the Head of Operations of ABC television "James Taylor rang to tell me they are going to seek to prevent him leaving". Mr Crockford then replies to Mr Finlayson the same day, 17 March "He's told them he is coming here? Or James is just taking a punt?" The ABC executives then forward these two emails onto Mr Corbett for information with the important covering comment, "RF hasn't responded".
In my view the ABC were trying to reassure Mr Corbett that Mr Finlayson had not got back to Mr Taylor to confirm Mr Taylor's suspicions that indeed Mr Corbett was going to the ABC. And it is probable in my view that if this is what Mr Corbett and the ABC were doing before 18 March that they would take the same attitude after 18 March until Mr Corbett actually started with the ABC. I am therefore not surprised that SBS did not find out from the ABC before 31 March that Mr Corbett's services were engaged to it.
In my view on the issue of delay the correct inference is not as Mr Corbett puts. Rather SBS commenced the proceedings on 30 March, a day before it found out that Mr Corbett's services were engaged to the ABC.
The injunction which SBS now seeks will not stop Mr Corbett working. SBS indicated it would modify the relief sought in the Summons so that the restraint only applied to the media industry. Given the range of Mr Corbett's prior experience, this is not a great hardship for him. The fact that he has been working for the ABC since 4 April is merely the result of the legal process needing time properly to deal with and consider his case. Nor is the restraint for a particularly long period. Within a little over three weeks the matter will then come directly under the trial judge's consideration.
As a condition of the grant of the injunction, in addition to its undertaking as to damages, it will be necessary for SBS to undertake to continue to pay Mr Corbett during the period of restraint.
Finally, this is a case where damages would not be an adequate remedy. It would be very difficult for SBS to prove how it was disadvantaged by the accelerated availability of Mr Corbett's services to the ABC and by Mr Corbett's use of any of its confidential information. An injunction is the appropriate remedy in such circumstances.

[12]

After the Adjournment to 20 April 2016

The Court resumed on 20 April 2016 to hear submissions about the form of orders and then the Court made the following additional orders: 1. Upon the provision by the plaintiff through its counsel of the usual undertakings as to damages and until further order, the defendant be restrained from being engaged in any capacity, on his own account or on behalf of or through any other person or entity, in any business activity involved in providing services in the areas of: 1. analysis, development and/or documentation of production and technology workflows in a television or radio broadcasting business; or 2. integration of media workflows in a multi-platform broadcasting business, in Australia without the prior written consent of the plaintiff; and 1. The Court notes the undertaking of the defendant that he will not access, disseminate, delete, tamper with or otherwise deal with any information belonging to the plaintiff that is contained on either the mobile phone handset that he currently possesses and that was issued to him by the plaintiff when he commenced employment with it, or the Google Drive referred to in paragraph 38 of his affidavit affirmed 7 April 2016, unless or until directed to do so by the Court or requested to do so by the plaintiff and with leave of the Court. 2. Orders that: 1. the following persons attend the offices of Carroll & O'Dea at 2pm on 21 April 2016 for the inspection of the defendant's Google Drive account and the mobile phone provided by the plaintiff to the defendant: 1. a representative from the plaintiff, legal representatives of the plaintiff and forensic computer experts engaged by the plaintiff; and 2. the defendant, legal representatives of the defendant and forensic computer experts engaged by the defendant; 1. the defendant provide at the inspection: 1. all access to his Google Drive account; and 2. the mobile phone provided to the defendant by the plaintiff; 3. all access details (ie usernames, passwords, PINs, etc) for the phone and for any relevant apps on the phone (including iTunes password and iTunes backup password) to be provided to the forensic IT expert retained by the plaintiff upon request; 1. a forensic image of the entire mobile phone is to be taken at the inspection by the IT expert retained by the plaintiff, retained by that expert, with a copy provided to the forensic IT expert engaged by the defendant, and to be kept confidential by those experts and not disclosed except in accordance with these orders; 2. the persons identified in paragraph 92(3)(a)(i) sign a confidentiality agreement in terms agreed by the parties prior to the inspection taking place; 3. on 22 April 2016, the forensic computer experts engaged by the plaintiff be provided with screen shots of the relevant Google Drive folders and with an electronic copy of each document, link and folder ('Record') that has been identified by the plaintiff as belonging to the plaintiff or containing the plaintiff's information, with such electronic copy being: 1. saved on a clean USB electronic storage device provided by the forensic computer experts engaged by the plaintiff; 2. in a form which (so far as possible) leaves intact any metadata of the record; and 3. held by the forensic computer experts engaged by the plaintiff pending either the defendant's agreement that the record belongs to the plaintiff or contains the plaintiff's information or, if the defendant asserts that the records do not belong to the plaintiff or contain the plaintiff's information, determination of that dispute by the Court. 1. the forensic computer experts engaged by the plaintiff be permitted to provide access to any disputed Record to the plaintiff's legal team and Mr Leslie of the plaintiff on the basis that they first enter into a confidentiality agreement as set out in paragraph 92(3)(c) and further on the basis that such access would be for the purpose of allowing the plaintiff to prepare its case as to why these records belong to it or contain its information; 2. the defendant notify the plaintiff within one working day of the inspection taking place, of any record that he considers not to be the plaintiff's record or a record containing the plaintiff's information, and reasons supporting that view; 3. the forensic computer experts engaged by the plaintiff be permitted to give instructions to the operator of the computer used for the review of the defendant's Google Drive for the purpose of inspecting the defendant's Google Drive; 4. until such time as the investigation is completed, the defendant will not delete or otherwise tamper with any records on the Google Drive account and the mobile phone provided to the defendant by the plaintiff; and 5. the inspection process set out in paragraphs 92(3)(a) to 92(3)(g) (inclusive) and 92(3)(h) to 92(3)(i) (inclusive) apply to the inspection of the defendant's gmail [email address deleted] and googlemail [email address deleted] accounts in accordance with a notice to produce to be issued by the plaintiff's solicitors by 4pm 20 April 2016, which will be returnable by production to the plaintiff's solicitors by 22 April 2016. 1. Liberty to apply on 1 days' notice.