30Mr Gaha put his case that Transfield Services acted unreasonably on various alternative bases.
31First, he submitted that it was unreasonable for Transfield Services to commence these proceedings at all without notice and that if notice had been given Mr Gaha would have agreed to the orders ultimately sought in the summons, making the proceedings unnecessary. I do not accept that submission. Transfield Services had evidence which suggested that Mr Gaha had kept copies of information belonging to it without its agreement. I do not think it was unreasonable in those circumstances for Transfield Services to commence the proceedings without notice.
32Second, Mr Gaha submitted that it was unreasonable for Transfield Services to pursue its case after 14 April 2011, when Minter Ellison responded to the offer from Whittens made on 12 April 2011. In that offer, Whittens indicated that Mr Gaha was prepared to give undertakings in terms of the orders sought in paragraphs 1 to 4 of the summons and to make his computer and other electronic devices available for inspection, provided Transfield Services bore the costs of inspection. Mr Moorhouse, who appeared for Mr Gaha, submitted that, if Transfield Services had accepted that offer, it would have obtained all the orders it sought in the summons, and it was therefore unreasonable for Transfield Services to continue with the proceedings.
33I do not accept that submission. It is true that, if the offer had been accepted, Transfield Services would have obtained in substance all the final relief that it sought in the summons. I accept that normally it would be unreasonable for a plaintiff to continue proceedings once an offer in those terms had been made. However, in this case it is important to bear in mind that the proceedings were commenced on an urgent basis when Transfield Services did not know and had no means of ascertaining all the relevant facts. It was for that reason it also sought an interlocutory order giving it access to Mr Gaha's home computer and other storage devices. It was reasonable to anticipate that Transfield Services may have needed to amend the relief that it sought once it had obtained further information. If the only final orders Transfield Services sought were the orders identified in the summons then, once Mr Gaha agreed to those orders, there was no utility in the order for access. Neither party, however, proceeded on that basis. Transfield Services wanted access to determine whether it should seek other final relief, and Mr Gaha accepted (properly, in my view) that it was appropriate for Transfield Services to adopt that course, admittedly on the basis that Transfield Services should bear the costs of the expert. The important point, however, was that Mr Gaha did not assert that an order for access was not appropriate because he was prepared to agree to all of the final relief that Transfield Services had and, for the reasons I have given, I do not think that it was open to Mr Gaha to make that assertion at that stage. In those circumstances, it was not unreasonable for Transfield Services to continue the proceedings.
34Third, Mr Gaha submitted that it was unreasonable for Transfield to pursue the proceedings after the court made the orders on 20 April 2011. I do not accept that submission. The orders made by the court included detailed interlocutory orders relating to the inspection of Mr Gaha's computer and other electronic storage devices. Those orders were interlocutory orders which could not remain in effect following final resolution of the proceedings. For the reasons I have given, it was reasonable for Transfield Services to keep the proceedings on foot to obtain the benefits of those orders. The fact that the investigations ultimately did not reveal the existence of any further copies of confidential information does not make the investigations themselves unreasonable.
35Fourth, Mr Gaha submitted that it was unreasonable for Transfield Services to continue the proceedings following the offer made by Whittens on 26 September 2011. At the time that offer was made, Transfield Services had conducted its investigations and had not discovered any use of confidential information or any further copies of confidential information belonging to it. The offer was an offer to continue the existing orders and undertakings, which corresponded to the final relief in the summons. Mr Gaha also agreed to the destruction of the relevant data on all storage devices and agreed to swear an affidavit confirming that he had not breached Transfield Services' confidence. He proposed that each party bear his or its own costs of the proceedings or alternatively that the court determine the question of costs. Mr Cheshire, who appeared for Transfield Services, submitted that it was reasonable for Transfield Services to refuse to accept that offer because Minter Ellison in its letter dated 8 September 2011 had proposed more detailed orders in place of the orders made on 20 April 2011. By Whittens letter dated 26 September 2011, Mr Gaha rejected that offer, although ultimately Mr Gaha agreed to those more detailed orders.
36I do not accept Mr Cheshire's submission. The offer made in Whittens letter dated 26 September 2011 gave Transfield Services all the orders it sought in its summons and more. By that stage, the expert had completed his investigations. No further breaches of confidence were revealed by that investigation. Whittens' proposal to deal with the disputed issue of costs was a reasonable one. The final orders agreed between the parties were more detailed than those sought in Minter Ellison's letter dated 8 September 2011 and those that were ultimately agreed. However, I do not think it could be said that the orders were significantly different in substance. As I have said, the offer made by Whittens reflected what was sought in the summons. In my opinion, it was unreasonable for Transfield Services to pursue the proceedings from that time.
37Mr Gaha seeks his costs on an indemnity basis from 26 September 2011. However, in the circumstances of this case, I do not think that it is appropriate to award costs on that basis. Mr Gaha ultimately agreed to the form of orders sought by Transfield Services in Minter Ellison's letter dated 8 September 2011; and I do not think Transfield Services' conduct was so unreasonable to justify an order for indemnity costs.