DISTRICT COURT OF QUEENSLAND

CITATION: WorkPac Healthcare v Rovic & Ors [2017] QDC 22

PARTIES: WORKPAC HEALTHCARE PTY LTD (ACN 130 095

135)

(plaintiff)

v

BRANKA ROVIC

(first defendant)

and

SUPREME NURSING PTY LTD (ACN 616 337 136)

(second defendant)

and

PRINCIPISSA BELLATRICUS PTY LTD (ACN 616 324

451)

(third defendant)

and

ELITE DUCE PTY LTD (ACN 616 234 014)

(fourth defendant)

FILE NO/S: B5047/2016

DIVISION: Civil

PROCEEDING: Application

ORIGINATING

COURT: District Court at Brisbane

DELIVERED ON: 10 February 2017

DELIVERED AT: District Court at Mackay

HEARING DATE: 25 January 2017

JUDGE: Smith DCJA

ORDER: Upon WorkPac Pty Ltd giving the undertaking recorded

in the affidavit of Praanesh Prasad filed on 21 December

2016 and upon the defendants by their solicitor

undertaking that they, and each of them, whether by

themselves or herself, the Directors (as the case may be),

employees, agents or otherwise howsoever, will not

disclose, use, or attempt to disclose or use, the plaintiff’s

trade secrets or “confidential information” described in

2

paragraphs 19 and 20 of the Further Amended Statement

of Claim and concerning the plaintiff’s clients and

plaintiffs candidates, or part thereof (the information) for

their benefit or to the detriment of the plaintiff.

1. The court orders that until the hearing and final

determination of this proceeding or 20 April 2017

(whichever is the earlier) or earlier order, the

defendants and each of them, whether by themselves

or herself, their directors (as the case may be),

employees, agents or otherwise howsoever, be

restrained from:

(a) Accepting, soliciting or carrying out orders from

any of the plaintiff’s clients (as described in

Annexure A to the Further Amended Statement

of Claim) for labour management services

(including roster management) or for the

placement of candidates (whether for temporary

or permanent placements, and whether such

personnel are to be employed by third persons or

by the other party) in nursing or health related

roles; or

(b) Encouraging or soliciting any of the plaintiff’s

candidates (as described in Annexure B to the

Further Amended Statement of Claim) to

register as their candidate.

2. By 17 February 2017, the defendants, and each of

them, deliver up to the plaintiff all documents

howsoever in their possession or control containing, or

compiled using the information.

3. Upon the close of pleadings, the parties have leave to

issue notices of non-party disclosure as they may be

advised without having completed disclosure inter

parties.

4. I will hear the parties as to costs.

5. Liberty to apply on the giving of 3 days written notice.

CATCHWORDS: EQUITABLE REMEDIES – INJUNCTIONS –

INTERLOCUTORY INJUNCTIONS – SERIOUS

QUESTIONS TO BE TRIED – BALANCE OF

CONVENIENCE – where it is alleged the first defendant

stole confidential information as an employee of the plaintiff

and established her own business in competition with the

plaintiff – whether breaches of confidential information –

whether a breach of restraint clause – whether serious

question to be tried – whether it was in the balance of

convenience to grant the injunction.

Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Ltd

[1991] 1 Qd R 301

3

Amalgamated Pest Control Pty Ltd v SM & SE Gillece Pty

Ltd and Ors. [2016] QCA 260

Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57

Breen v Williams (1996) 186 CLR 71

Cerilian Pty Ltd t/as Raine & Horne Gosford v Fraser [2008]

NSWSC 1016

Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) &

Anor (1987) 14 FCR 434

Eng Mee Yong v Letchumanan [1980] AC 331

Huhtamaki Australia Ltd v Botha [2004] NSWSC 386

John Fairfax Publications Pty Ltd v Birt [2006] NSWSC 995

Optus Networks Pty Ltd v Telstra Corp Ltd (2010) 265 ALR

281

Ormonoid Roofing & Asphalts Ltd v Bitumenoids Ltd (1930)

31 SR (NSW) 347

Multinail Australia Pty Ltd v Pryde (Aust) Pty Ltd [2002]

QSC 105

Patrick Stevedores Operations No 2 Pty Ltd v Maritime

Union of Australia (1998) 195 CLR 1

Re Divoca Pty Ltd’s Caveat [1991] 2 Qd R 121

COUNSEL: Mr G Handran for the plaintiff

Mr J Lavercombe for the defendants

SOLICITORS: Davidson Ryan Lawyers for the plaintiff

Lillas & Loel Lawyers for the defendants

Introduction

[1] This is an application by the plaintiff against the defendants seeking an interlocutory

injunction to restrain the defendants from using confidential information alleged to

have been acquired from the plaintiff and from approaching clients and candidates of

the plaintiff alleged to have been in breach of a restraint of trade provision.

[2] The defendants oppose the making of the injunction in the terms sought by the

plaintiff.

Background

[3] The plaintiff is part of the WorkPac group of companies which provide labour hire,

recruitment and ancillary services to third parties (clients) in various industries,

4

including the construction, mining and health related sectors.1 Each business centre

is conducted as an independent business and is managed by a business centre manager

(“BCM”).2 Some have “branches” in which there are more than one BCM.

[4] The plaintiff carries on business as a business centre in the nursing and health related

sector.3 Between 28 September 2015 and 15 September 2016, the plaintiff had two

branches but before this only one.4 WorkPac provides administrative services to each

business centre including information technology and software development, human

resources and credit and contract management.5 Through a process of sourcing and

assessment, personnel are recruited to registerer’s “candidates” with the plaintiff.6

Recruitment of candidates involves significant effort, time and expense and leaves to

a collation of detailed information.7 It is governed by quality assurance and

compliance and results in commissions being paid to recruitment consultants

employed to undertake that work.8 Each candidate is verified, including their

qualifications, through a detailed process of credentialing and reference checks and

only a few make it to a fully verified status.9 Those few generate 100 per cent of the

plaintiff’s income and represent the culmination of seven years investment and

millions of dollars.10 The third parties receiving candidates are “clients” of the

business centre. Business development managers (“BDMs”) are employed to develop

and maintain these relationships and to recruit new clients.11 The placement process

involves sourcing candidates and clients, encouraging clients to place job orders,

matching candidates with appropriate skill sets to available work and convincing the

candidate to undertake work which is the most appropriate.12

[5] The ratio of candidates to clients is important because it is essential to have enough

potential candidates to enable at least one to be found at any given time. This is

particularly so in the nursing and health related sector, which operates 24 hours per

day, seven days per week.13

[6] Candidates are continually assessed and rated based on feedback from clients to

ensure the best candidate is placed with a client at any point in time.14 This involves

data being kept of the clients and candidates and money being expended on this

process. A third party accessing such information would gain a huge advantage over

the plaintiff because that party could readily extract the best performing, most reliable

1 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 5-8. 2 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 6. 3 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 8. 4 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 31. 5 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 7. 6 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 9-10A. 7 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 10A – 10B. 8 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 10A – 10B 9 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 10B. 10 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 10B, 10D. 11 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 29. 12 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 29. 13 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 10A. 14 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 10B – 10C.

5

verified candidates without incurring substantial time and costs associated with the

recruiting, verifying or discovering those candidates.15

[7] Accordingly, a key part of the business is the possession of information which has

been gathered, analysed and collated on its clients and its candidates and its business.

This information is managed by a password protected server and specifically designed

recruitment management software on a database known as “Chilli Max.”16 The

database is substantial and was developed through skill, effort and secret processes

and expense by the plaintiff.17 Disclosure of this information to a competitor would

cause serious detriment to the plaintiff.

[8] Chilli Max and its database provide a competitive advantage to the plaintiff.18 Chilli

Max allowed operational staff (such as the first defendant) to add, access and use

information as required, which information was acquired, analysed and arranged by

staff of the plaintiff over seven years in a readily accessible, searchable and legible

format.19 Access to the WorkPac healthcare IT system is governed by the role and

responsibilities of the employee – higher level employees are given broader access

than junior staff.20

[9] Logins and passwords are not to be shared.21 Chilli Max is so precise that an

employee can search and gain knowledge of a particular client’s preferred candidate,

an hourly charge out rate (with margins) and measure that information against the

corresponding candidates pay rates, applicable pay awards, work availability,

contract details and reliability rating.22

[10] Further, information included pricing structures for all clients, the needs and capacity

requirements of clients, competitor analysis, business plans and growth strategies,

budgets, staff performance reviews, candidate reliability and private information of

candidates (including their superannuation and bank account details, qualifications

and certificates and availability).23

Evidence concerning Ms Rovic’s conduct

[11] There is a dispute in the evidence as to what Ms Rovic has done. I will firstly deal

with the evidence adduced by the plaintiff.

Plaintiff’s evidence

[12] Up until 20 October 2016, the plaintiff employed Ms Rovic as a BDM. She had

returned to that role on 19 September 2016, having been promoted to BCM on 28

15 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 10F, 48 and 48A. 16 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 10A, 48 and 49 – 58. 17 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 10A – 10F and 50. 18 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 53. 19 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 48A – 52. 20 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 52 and 89. 21 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 89. 22 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 48. 23 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 34(c), 47, 48 and 48A.

6

September 201524 from BDM, in which role she commenced on 6 January 2014.25

As a BDM and BCM, Ms Rovic was the face of the plaintiff and the main point of

contact to its clients.26 Both positions were vital to the success of the plaintiff’s

business, and carried entitlements to commissions (by profit share) and had

entertainment entitlements to forge and reinforce client relationships.27

[13] In both positions, Ms Rovic had unfettered access to the plaintiff’s confidential

information relating to its clients, candidates and operations.28 The BDM is the

interface between the plaintiff and its clientele. It is a position which enabled the

employee to gain trust and confidence and to be relied on in a client’s affairs.

[14] The BCM role occupied by Ms Rovic immediately before signing her final

employment agreement, is a senior role allowing Ms Rovic to control the plaintiff’s

business and have influence over its staff and candidates.29 As BCM, Ms Rovic

managed the plaintiff’s business, had day-to-day control over its operations and had

significant influence over its clients.30 Her employee entitlements included an

entertainment account to aid the employee to win and maintain custom for the benefit

of the plaintiff.31

[15] Ms Rovic was highly successful, in maintaining and strengthening relationships with

six prisons which became the plaintiff’s top clients, generating about 60 per cent of

its profits.32 Before Ms Rovic had been promoted to BCM in September 2015 there

were only four prisons, and together they only contributed to 10 – 15 per cent of the

plaintiff’s profits.33 The success was in part due to the entertainment expenses in

pursuit of custom.34

[16] Also relevant was the establishment of the “central staffing office” or “CSO.” CSO

was established to provide a dedicated roster management and associated

administrative services to Queensland Corrective Services, and Prison Health

Services which comprised five of the six prisons who are clients of the plaintiff.35

CSO provided the plaintiff with exclusive client information about client usage and

percentage performance of other competitor’s candidates.36 This was a competitive

24 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 24-25. 25 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 18-22. 26 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 32 and 35. 27 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 29 – 31, 34, 38 and 41 – 42. 28 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 46 and Affidavit of Shelley

Lingman filed 21 December 2016 (Document 8) para 45. 29 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 29 – 32. 30 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 39. 31 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 18 and 22. 32 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 33 – 38 (particularly 37(g))

and Affidavit of Shelley Lingman filed 21 December 2016 (Document 8) paras 14 – 16. 33 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 34(e) and (f). 34 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 38 and Affidavit of Shelley

Lingman filed 21 December 2016 (Document 8) para 17. 35 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 92 – 94. 36 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 94.

7

advantage to the plaintiff. Despite CSO running at a loss, Ms Rovic encouraged the

plaintiff to continue using this service.37

[17] Ms Rovic’s last employment agreement was entered into on 19 September 2016.38

The employment contract contains confidentiality provisions39 along with non-

solicitation clauses.40 All of the plaintiff’s clients and candidates are located within

a 250 km radius of its Milton office.41

[18] The longest period of restraint is six months (i.e. 20 April 2017). The non-solicitation

provisions mentioned only target activities, which are intended to bring about

recruiting employees for third parties whether by labour hire or otherwise in the

nursing or health related sector.42 The defendant did not seek to argue that the

restraint in this case was excessive.

[19] There were issues raised as to the level of Ms Rovic’s expenses. In her employment

agreement it was provided that her entertainment reimbursement was 50% of

authorised entertainment costs- up to $1800 per year.43 Despite this her entertainment

expenses far exceeded this. Mr Smart deposes that she hosted numerous events

including “drinking sessions” and she was reimbursed $15,517.58 in the 2014/2015

financial year44 and $38,948.71 in the 2015/2016 financial year45. Also Kiri Lingman

in an affidavit sworn 21 December 2016 deposes to the fact that Ms Rovic had been

given gift cards (meant for clients) which had gone missing. In May 2016 Mr Smart

took over as General Manager. He alleges that he discovered misappropriation and

breaches of company policy by Ms Rovic with her credit card kept at the maximum

limit46. He raised the more serious breaches with her shortly before she tendered her

resignation.47

[20] Ms Rovic, verbally and by email, sent 22 September 2016, gave notice of her

resignation which took effect on 20 October 2016.48 Another employee, Thomas

Atkin, also resigned on 22 September 2016. Mr Atkin would become a shareholder

37 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 94. 38 The employment agreement commences at p 32 of Exhibit DS-2 to Affidavit of Damien Smart, filed

16 January 2017 (Document 13). 39 Clause 19, at p 37-38 of Exhibit DS-2 to Affidavit of Damien Smart, filed 16 January 2017

(Document 13). 40 Clause 20, at p 38 – 40 of Exhibit DS-2 to the Affidavit of Damien Smart, filed 16 January 2017

(Document 13). 41 Affidavit of Daniel Edward Ryan, filed 23 January 2017 (Document 18). 42 See recruitment activities and restrained activities p 45 of Exhibit DS-2 to Affidavit of Damien

Smart, filed 16 January 2017 (Document 13). 43 Affidavit of Damien Smart filed 16 January 2017 (Document 13) Exhibit DS-2, p 32. 44 Affidavit of Damien Smart filed 16 January 2017 (Document 13) para 34 (k). 45 Affidavit of Damien Smart filed 16 January 2017 (Document 13) para 38. 46 Affidavit of Damien Smart filed 16 January 2017 (Document 13) para 61(d), 47 Affidavit of Damien Smart filed 16 January 2017 (Document 13) para 61 (e). 48 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) Exhibit DS-2, p 52 and Affidavit

of Shelley Lingman filed 21 December 2016 (Document 8) paras 20 – 21, 28.

8

in a company Ms Rovic incorporated in December 2016 which is alleged to have been

carrying on business in competition with the plaintiff.49

[21] On 7 October 2016, Ms Rovic was told that she could serve the last two weeks of her

notice period on “gardening leave.” She did not need to attend work therefore, save

for attending a handover meeting on 10 October 2016.50 As a result, Ms Rovic only

attended the plaintiff’s office on 10 October 2016 for that meeting where despite

request, Ms Lingman alleges Ms Rovic refused to provide her with the contact details

of key personnel within the Department of Justice or disclose her knowledge of the

plaintiff’s clients, and Ms Rovic alleged that someone had deleted all of the emails

from her email account.51 She alleges that the emails were deleted, in fact, by Ms

Rovic.52

[22] Mr Chand was employed by the plaintiff as a recruitment coordinator.53 He worked

closely with Ms Rovic and left with her after she collected her belongings following

the handover meeting.54 Earlier that day, his computer work station was used to

access Ms Rovic’s WorkPac IT user account (requiring her username and password)

and surreptitiously copy to a USB device 1,248 files stored on the plaintiff’s password

protected database in 121 folders.55 The next day, his computer was again used to

access Ms Rovic’s user account. A USB device was also inserted. The information

available to Ms Rovic’s user account was unfettered.

[23] In my view, it is most likely that the download related to confidential information

concerning candidates and clients for the following reasons:

(a) A large number of folders and files were involved, which is not

consistent with mere personal items.

(b) One of the files involved was “health care/jotin market

reports/confidential corrections/corrections database.xlsx” which

would appear to be an excel spreadsheet related to confidential

corrections information.

(c) The copying went through a number of processes before being

downloaded to the USB device which is highly unusual.

[24] I also draw the inference that Ms Rovic either copied the files herself or gave the

password to someone to do this for her. This is the only logical conclusion available

especially when Ms Rovic does not swear as to these matters in her material.

[25] The day after ceasing employment, Ms Rovic registered her first business name

“Supreme Nursing Australia” shortly followed by “Supreme Nursing” and “central

49 Affidavit of Daniel Edward Ryan, filed 23 January 2017 (Document 18) p 60 – Incorporation of

Supreme Nursing Pty Ltd. 50 Affidavit of Shelley Lingman filed 21 December 2016 (Document 8) para 23. 51 Affidavit of Shelley Lingman filed 21 December 2016 (Document 8) para 25. 52 Affidavit of Shelley Lingman filed 21 December 2016 (Document 8) paras 26 – 27 and Affidavit of

Melia Peel filed 21 December 2016 (Document 7) para 6. 53 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 78. 54 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 84 and 90. 55 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 51 - 57 and 85 – 88 and

Exhibit DS-2 pp 65 – 66.

9

staffing office” (“CSO”).56 Within four days of ceasing employment, Ms Rovic was

placing nursing candidates with Arthur Gorrie Correctional Centre.57 Around this

time, she transferred a candidate of the plaintiff, Gina Landimore, to her business and

paid her for work undertaken at the Arthur Gorrie Correctional Centre, without Ms

Landimore’s knowledge or consent which clearly involved using Ms Landimore’s

bank account and superannuation details.58

[26] Another candidate who was highly rated, Mauricio Toleo, coincidentally ceased

being available to the plaintiff from on or about 31 October 2016.59 Candidates

working at the Arthur Gorrie Correctional Centre were told they would not get any

shifts unless they were signed with Supreme Nursing.60

[27] In December 2016, three companies controlled by Ms Rovic were incorporated, one

of which is an operating entity.61 That company (Supreme Nursing Pty Ltd) has one

of the other companies and two former employees (being Mr Chand and Mr Atkin as

its members).

[28] Inadvertently, on 15 December 2016, emails between Ms Rovic and the Arthur Gorrie

Correctional Centre disclosed that she was placing nurses with the centre in the period

24 October 2016 until 27 November 2016.62 Also, communications with Ms

Landimore disclosed that WorkPac nurses were now working shifts at Arthur Gorrie

under Supreme Nursing63 and an email from Ms Rovic dated 24 December 201664

show that Ms Rovic was competing with the plaintiff for work at the prisons.65

[29] The plaintiff submits it can be readily inferred that she was using the relationships

and knowledge she gained solely by reason of her employment with the plaintiff, and

in fact the Arthur Gorrie Correctional Centre confirmed Ms Rovic’s business had

replaced that of the plaintiff.66 The evidence tends to prove that Ms Rovic solicited

and attempted to solicit candidates (and employees) from the plaintiff further to Mr

Chand and Atkin.67

56 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 63 – 64 and Exhibit DS-2 p

57. 57 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 63 – 64 and Exhibit DS-2 p

60. 58 Affidavit of Shelley Lingman filed 21 December 2016 (Document 8) paras 37 – 42 and Exhibit SL-1

pp 3-10. 59 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 75 – 85 and Affidavit of

P.W. Edwards filed 27 December 2016 (Document 6) para 15. 60 Affidavit of Shelley Lingman filed 21 December 2016 (Document 8) – Exhibit SL-1 p 9. 61 Affidavit of Daniel Edward Ryan, filed 23 January 2017 (Document 18) – Exhibit DR-3 pp 58-67. 62 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) – Exhibit DS-2 at p 60 – 63 and p

68. 63 Affidavit of Shelley Lingman filed 21 December 2016 (Document 8) paras 37 – 42 and Exhibit SL2

- 1 p 9. 64 Affidavit of Daniel Edward Ryan, filed 23 January 2017 (Document 18) – Exhibit DR-3 p 154. 65 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 63 and 68 and Exhibit DS-2 p

59-61 and Affidavit of Shelley Lingman filed 21 December 2016 (Document 8) paras 47-49. 66 Affidavit of P.W. Edwards filed 21 December 2016 (Document 6) para 13. 67 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) paras 64, 74-81 and Affidavit of

Shelley Lingman filed 21 December 2016 (Document 8) paras 29-31 and 37-42 and pp 3-10 of

Exhibit SL-1 and Affidavit of P.W. Edwards filed 21 December 2016 (Document 6) paras 14-15.

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[30] The plaintiff commenced proceedings against Ms Rovic on 21 December 2016 for

damages and other relief and applied urgently for an interlocutory injunction. Ms

Rovic owns no real property and had only recently been discharged from

bankruptcy.68

[31] Ms Rovic gave interim undertakings to the court on 22 December 2016. On 24

December 2016, she emailed the plaintiff’s solicitor confirming she had two nurses

working for her and revealed that she did not intend to “call the nurses out of a prison”

against the advice of her solicitor.69

[32] Further, correspondence inadvertently sent to the plaintiff disclosed Ms Rovic sought

to process an application for Mr Chand to obtain clearance to prisons which

correspondence occurred on 19 January 2017.70

The defendants’ material

[33] Ms Rovic, in her affidavit filed 23 January 2017 (document 25), alleges that on 22

September 2016 at about 5.30pm she had a telephone conversation with Mr Prasad,

the managing director of the WorkPac Group, in which following conversation

occurred:

“Ms Rovic: “I would appreciate if I could have my non-compete

and restraints removed. As you know, I am on my own with two kids.

I’m going to take some time off to be with them, and after that I might

need to join a competitor, because I need to make a living.”

Mr Prasad: “Fair enough, that’s not a problem. We can do that. I

wish you all the best.”

Ms Rovic: “Is there anything I need to do now?”

Mr Prasad: “Have you advised Shelley?”

Ms Rovic: “Not yet.”

Mr Prasad: “Please give her a call and let her know.”

Ms Rovic: “Not a problem. Thanks for everything. Bye.”

[34] She then alleges that on 26 September 2016, she received a letter from the plaintiff to

her concerning the acceptance of her resignation.71 Following the receipt of this

letter, she alleges she had a telephone conversation with Mr Paul Douglas of the

plaintiff’s Employee Relations Department, which conversation occurred on either

26 or 27 September 2016 in which she relevantly said:

Ms Rovic: “When I called Praanesh to resign, I asked that my

restraints and non-compete be removed because I

want to keep working in healthcare and I might need

to work for a competitor.

68 Affidavit of Daniel Edward Ryan, filed 22 December 2016 (Document 10) para 6 and 7. 69 Affidavit of Daniel Edward Ryan filed 23 January 2017 (document 18), Exhibit DR-3 p 154-155. 70 Affidavit of Daniel Edward Ryan filed 23 January 2017 (document 18), Exhibit DR-3 p 159-160. 71 Exhibit BR-1 to affidavit of Branka Rovic filed 23 January 2017 (document 25).

11

Mr Douglas: “Yeah mate, he removed those things. He had Katy

change the normal letter of acknowledgment and

resignation.”

Ms Rovic: “What do you mean?”

Mr Douglas: “Normally, the acknowledgement letters will re-

iterate non-competes and restraints. I don’t know how

you did it, but he had Katy take it out in yours. It’s

the first time I’ve seen it happen while I’ve worked

here.”

Ms Rovic: “Okay, so what does that mean?”

Mr Douglas: “Exactly that. They have no intention of enforcing the

non-compete or restraints. So once you have worked

out your four weeks, you are free to do whatever with

whoever you like.”

Ms Rovic: “Okay, brilliant. Thanks. The last thing I want is to

take a job somewhere and then find out I’ve done the

wrong thing.”

Mr Douglas: “Nope, you are fine. I wish you all the best. Stay in

touch.”

Ms Rovic: “You bet. I appreciate your time.”

[35] In a further affidavit filed 24 January 2017 (document 26), Ms Rovic alleges that the

defendants do not have in their possession or under their control any documents

relating to the plaintiff’s trade secrets or confidential information and the 1,248 files

of data and are incapable of providing or otherwise delivering up these documents,

but are prepared to undertake not to disclose or use the plaintiff’s trade secrets or

confidential information.

[36] She states that she is a single parent with two children, aged 6 and 12, living in

Paddington. Her weekly living expenses range between $800 and $2,000. She owns

no real property. The only income she receives is from the business conducted by the

second defendant and the only businesses that recruit for the placement of nurses in

the Arthur Gorrie Correctional Centre, which business has been conducted since

December 2016. She says that between early December 2016 and the date of the

affidavit, the weekly income the second defendant has received is ranged between

$3,000 and $11,000. The weekly profit of the business (excluding money she pays

herself as a wage) is between $1,000 and $2,000. After taxes the second defendant

pays her about $1,644 per week. The second defendant is currently trading at a loss.

She says that she believed, after ceasing work for the plaintiff, she was able to conduct

business in Queensland associated with the recruitment of placement of nurses in

health professions because of the conversations deposed to in the previous affidavit.

She also sets out in para 9 the steps she has taken concerning her business, and she

confirms she has had conversations with offices from Queensland Health concerning

the placement of nurses at five different correctional centres. She alleges that she has

12

incurred expenses of $55,454 in establishing her business. She also sets out a business

plan as Exhibit BK-1 of what she may have earned but for the undertakings provided.

[37] In a further affidavit sworn 25 January 2017 and filed by leave, she exhibits an email

from Marie Finley from Prisoner Health noting that they needed “another agency to

assist to fill the shifts”. Objection is taken to this email on the basis it has not been

properly approved. I think it is admissible as evidence of the fact Ms Rovic received

the email but in the absence of an affidavit of Ms Finley, goes no further.

[38] She further states that she received an email from Howard Powell of the plaintiff on

1 November 2016 (Exhibit BK-2) which he says was inconsistent with the agreement

she had previously had with the plaintiff. At para 7 she acknowledges that she has

placed three nurses with the Arthur Gorrie Correctional Centre which nurses

apparently were candidates of the plaintiff.

[39] Mr Lavercombe, in his affidavit sworn 25 January 2017, encloses correspondence to

the plaintiff’s solicitors seeking to provide undertakings which suit the defendants.

The plaintiff’s material in response

[40] Praanesh Prasad, in an affidavit sworn 24 January 2017 (filed by leave) swears that

he is the Chief Executive Officer of WorkPac and was appointed managing director

on 8 May 2016. He states that between September 2013 and October 2016, Ms Rovic

was an employee of WorkPac Healthcare. He states that in mid to late September

2016, Mr Smart informed him that he was investigating Ms Rovic’s conduct during

her employment with WorkPac Healthcare which he considered to be serious

breaches of her employment agreement and legal obligations generally. On 22

September 2016 at approximately 5.30pm, he received a phone call from Ms Rovic

in which the following words were spoken:

Mr Prasad: “Hi Branka, how can I help you?”

Ms Rovic: “I am very concerned about the way we are treating

clients in the business and I cannot stand by and watch

this happen.”

Mr Prasad: “Is there anything I can do to remedy this?”

Ms Rovic: “It’s not in me to do anything now. I would like to

resign. I still need to pay my bills as I have kids and

rent to pay.”

Mr Prasad: “I understand. If there’s anything I can do to help you

let me know.”

Ms Rovic: “Can I have my non-compete removed?”

Mr Prasad: “I cannot do that. Perhaps you should look at doing

something other than recruitment.”

Ms Rovic: “Thanks for your support in the business.”

Mr Prasad: “Again, let me know if there’s anything I can do.

Have you told Shelley yet?”

Ms Rovic: “Not yet.”

13

Mr Prasad: “You need to tell Shelley.”

Ms Rovic: “Okay.”

Mr Prasad: “All the best.”

Ms Rovic: “Thanks for that.”

[41] Mr Prasad denies that which is alleged in Ms Rovic’s affidavit dated 23 January 2017.

He also alleges (para 15) it is WorkPac’s usual practice to preserve and reserve all of

their rights under the employment agreements and he cannot think of any occasion in

which he has released or waived any employee from restraints and would not have

done so in Ms Rovic’s case.

[42] Paul Douglas, in an affidavit sworn 24 January 2017, swears that he is the employee

relationship adviser for the industrial relations team of the plaintiff. He reports to

Howard Powell, the national employee relations manager. In late September 2016,

Mr Powell informed him that Ms Rovic resigned. He confirms that on or about 26 or

27 September 2016 he received a phone call from Ms Rovic in which the following

was said:

Mr Douglas: “G’day Branka, how are you doing? Sorry to hear you

are leaving.”

Ms Rovic: “I’m good thanks. Time to move on. I want to spend

more time with the kids.”

Mr Douglas: “That’s fair enough.”

Ms Rovic: “I plan to hang out with the kids over the holidays and

then look for a job when they go back to school.”

Mr Douglas: “That sounds good. They’ll love that.”

Ms Rovic: “I’ve spoken to Praanesh and he has agreed to remove

the restraint period.”

Mr Douglas: “Oh, really? That’s unbelievable. We never do that.

I don’t know how you managed to get him to agree to

that but that’s good for you if he did.”

They then had a general chat about the kids.

[43] As to her affidavit sworn 23 January 2017, he denies that she told him she might or

intended to work for a competitor of WorkPac and denied that he was preparing

acknowledgment letters or that Prasad had advised him about the removal of

applicable restraints. During his employment with WorkPac, he cannot recall any

occasion on which an employee, let alone someone in Ms Rovic’s position, was

released from any restraints which is why he had said to her it was “unbelievable”.

He says that WorkPac does not issue a standard letter to each of the employees when

their employment comes to an end because the circumstances surrounding each

employee are different.

Submissions on the factual issues

Plaintiff’s submissions

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[44] The plaintiff submits that Ms Rovic still does not dispute any of the facts deposed to

by the plaintiff’s witnesses save that she deposes to not having possession or control

of any confidential information but she does not attempt to rebut any of the evidence:

(a) that she derived the confidential information Mr Smart deposes

to;

(b) that she refused to disclose any of the key personnel of the

prisons to Ms Lingman during her exit interview;

(c) that she lied to Ms Lingman during her exit interview by saying

that someone else had deleted her work emails;

(d) that there were extended entertainment entitlements beyond her

contract of employment;

(e) that the prisons provided the clear majority of the plaintiff’s

profits;

(f) her registering of the same business name offered services in

competition to the plaintiff;

(g) that she gave her log in and password to Mr Chan or somebody

else to facilitate the download of the data;

(h) that she surreptitiously obtained private details on Gina

Landimore with Ms Landimore’s knowledge or consent;

(i) her soliciting candidates or clients of the plaintiff on or before

24 October 2016; and

(j) she breached undertakings given on 22 December 2016.

[45] As to the promissory estoppel claim, it is submitted that the conversation alleged by

the plaintiff is most “improbable”. It is submitted that the representation was not

clear or precise. It is highly unlikely it would have been given and the defence raised

is patently weak.

Defendant’s submissions

[46] The defendant, on the other hand, submits that the statement made by Mr Prasad is

sufficiently clear. It is submitted there was not a strong probability the plaintiff would

be entitled to any relief bearing in mind the release of the restraint and non-compete

obligations. It is submitted that Mr Prasad and Mr Douglas would have reasons to lie

about this conversation as their positions would be at risk. It is submitted that Ms

Rovic has been candid in her affidavits. It is submitted that the scheme she

established was unsophisticated – why would she set it up if she had not been released

from the non-compete obligations?

Discussion on this point

[47] In Australian Broadcasting Corporation v O’Neill72, it was held that in assessing

applications for interlocutory injunctions an assessment needs to be conducted of the

72 (2006) 227 CLR 57 at [65]-[71].

15

strength of the plaintiff’s case. In other words it is desirable for the court to evaluate

the strength or weakness of the plaintiff’s case for final relief.73

[48] On the issue of credibility and reliability in Re Divoca Pty Ltd’s Caveat74 Connolly J

noted:

“The story is simply incredible and in my judgment there is not a

serious triable issue on this question. In Eng Mee Yong v Letchumanan

[1980] AC 331 Lord Diplock delivering the judgment of the Privy

Council said at 341:

‘Although in the normal way it is not appropriate for a judge

to attempt to resolve conflicts of evidence on affidavit, this

does not mean that he is bound to accept uncritically, as

raising a dispute of fact which calls for further investigation,

every statement on an affidavit however equivocal, lacking

in precision, inconsistent with undisputed contemporary

documents or other statements by the same deponent, or

inherently improbable in itself it may be. In making such

order on the application as he ‘may think just’ the judge is

vested with a discretion which he must exercise judicially. It

is for him to determine in the first instance whether

statements contained in affidavits that are relied upon as

raising a conflict of evidence upon a relevant fact have

sufficient prima facie plausibility to merit further

investigation as to their truth.’”

[49] In my view, the objective circumstances do not support that which is alleged by the

defendant.

[50] Firstly, I do consider it improbable that Mr Prasad ought to have released Ms Rovic

from the restraint obligations. Why would he do this? The evidence discloses the

plaintiff received a great income from corrective services – why would he allow

someone in Ms Rovic’s position to compete against WorkPac? I think it unlikely he

would lie to save his position- he is the CEO and Managing Director.

[51] Secondly, a little two hours after Ms Rovic spoke to Mr Prasad she emailed Ms

Lingman.75 Ms Rovic makes no mention in this email, copied inter alia to Mr Prasad,

that she had been released from the restraint of trade. The restraint of trade was an

important issue to Ms Rovic. It is unlikely it would not have been mentioned at

7.45pm on 22 September 2016 if there had been such an agreement.

[52] Thirdly there is no contemporaneous correspondence or documents to support the

allegation.

73 Amalgamated Pest Control Pty Ltd v SM & SE Gillece Pty Ltd & Ors. [2016] QCA 260. 74 [1991] 2 Qd R 121 at pp 126-127. 75 Affidavit of Shelley Lingman filed 21 December 2016 (Document 8), Exhibit SL-1, p 1.

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[53] Fourthly it is also surprising that if the assurance had been given, she made no

mention of this at her exit interview with Ms Lingman. If she had been released, why

was she uncooperative during the exit interview and why did she cleanse her work

emails?

[54] Fifthly the alleged conversation was not raised before 23 January 2017. No mention

was made of it before that date.

[55] Further, I note in her email to Mr Ryan76 no mention was raised in that email when

it may be expected to. Also I note the restraint is referred to in the letter dated 1

November 2016.77

[56] In those circumstances, I do not consider Ms Rovic’s evidence as to the release from

the restraints terribly convincing and find Mr Prasad’s and Mr Douglas’ versions

more probable.

[57] Also, based on the material I find as follows:

(a) Ms Rovic swiftly commenced a compete with the plaintiff for

work at the prisons shortly after the termination of her

employment;

(b) it may readily be inferred that she has used and is using the

relationships and knowledge she gained solely by reason of her

employment with the plaintiff;

(c) she has solicited and attempted to solicit candidates and

employees from the plaintiff;

(d) the plaintiff has demonstrated a strong case that Ms Rovic has

breached and continues to breach her employment agreement

including by soliciting work from the plaintiff’s clients,

approaching its candidates and taking confidential information

from the plaintiff by download (whether it be by herself or

agents);

(e) she has used and may continue to use confidential information of

the plaintiff; and

(f) she has acted in consultation with others, namely Mr Chand and

to date has failed to disclose the nature, extent and use of the

confidential information taken from the plaintiff during her

secure login.

[58] I find it telling that Ms Rovic has declined to descend into detail in her affidavits to

respond to the allegations raised by the plaintiff in its material.

Interlocutory injunctions – principles to be applied

76 Affidavit of Daniel Edward Ryan filed 23 January 2017 (Document 18), Exhibit DR3, p 154. 77 Exhibit BK2 affidavit of Branka Rovic sworn 25 January 2017 (document 29).

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[59] In an application for an interlocutory injunction, it is necessary to consider whether

the application has established a prima facie case (in the sense that if the evidence

remains as it is there is a probability that at the end of the action the applicant would

be entitled to relief) and whether the balance of convenience favours the grant of an

injunction.78

[60] Also recently the Queensland Court of Appeal in Amalgamated Pest Control Pty Ltd

v SM & SE Gillece Pty Ltd & Ors79 accepted that the conventional approach is to

determine whether there is a serious question to be tried or a prima facie case at trial

the plaintiff would obtain a final injunction and if so whether the balance of

convenience favours or disfavours the grant of an interlocutory injunction.

[61] It is sufficient to show sufficient likelihood of success to justify, in the circumstances,

the preservation of the status quo pending the trial and one needs to consider the

strength of the probability of ultimate success which involves considering the nature

of the rights asserted and the practical consequences which are likely to flow from

the orders sought80.

[62] The court weighs multiple discretionary considerations bearing on the balance of

convenience and requires the court to evaluate the strength of the plaintiff’s case for

final relief.81

[63] The balance of convenience comprehends questions such as adequacy of an award of

damages, the availability and sufficiency of the usual undertakings as to damages,

and the risk of irreparable injury to a party if the injunction is granted or refused.82

When assessing the balance of convenience, hardship visited upon third persons or

the public generally by the grant of an interlocutory injunction will rarely be

decisive.83

Causes of action

[64] The Further Amended Statement of Claim pleads breaches of the contractual

agreement of restraint and also misuse of the plaintiff’s confidential information.

[65] There is uncontested evidence here that the information on Chilli Max is not generally

known in the industry, is not in the public domain and was acquired for the sole use

and purpose of the plaintiff and its staff and was accumulated and improvised using

secret systems and processes designed and implemented by the plaintiff.

[66] It was acquired with the skill, effort and expense of the plaintiff and disclosed to Ms

Rovic solely for her to fulfil her roles and responsibilities.84 The contractual

78 Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57 at [65]-[72]. 79 [2016] QCA 260 at [19]. 80 Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57 at [65]. 81 Australian Broadcasting Corp v O’Neill (2006) 227 CLR 57 at [72]. 82 Active Leisure (Sports) Pty Ltd v Sportsman’s Australia Ltd [1991] 1 Qd R 301 at p.311.45. 83 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 at

[65]-[66] quoting Dr Spry on “Equitable Principles”. 84 Affidavit of Damien Smart, filed 16 January 2017 (Document 13) para 46-50.

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provisions between the parties were clear, in my opinion, and the contractual case

against Ms Rovic is strong.

[67] Also, there is a reasonable case against her, it seems, in equity relating to the misuse

of confidential information. The equitable protection of such information can be used

in preference to, or alongside, a contractual obligation.85 In equity, an employee is

not entitled to appropriate to himself or herself the employer’s confidential

information contained in the employer’s documents which he or she came to

acquire.86

[68] In Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) & Anor,87 Gummow J

(dissenting in the result) dealt with the equitable duty of confidence.88 His Honour

identified four criteria to make out a case for protection of equity, namely:

(a) identify with specificity and not just in global terms the

confidential information;

(b) demonstrate the information has a necessary quality of

confidentiality and is not, by contrast, common or public

knowledge;

(c) demonstrate the information was received by the defendant in

circumstances importing an obligation of confidence.; and

(d) demonstrate an actual or threatened misuse of the information.

The submissions

[69] The plaintiff submits that, in this case, the information downloaded to the USB was

commercially valuable and was surreptitiously downloaded or otherwise retained by

Ms Rovic. It is further submitted that damages would not be a wholly adequate

remedy for the plaintiff. It is submitted that damages are not a component of the action

for breach of confidential information. It is also submitted Ms Rovic has no assets

and concedes she is trading at a loss. It is submitted that the balance of convenience

here, favours the granting of the injunctions. It is further submitted that the injunction

should be granted in terms of the draft order, save for confidential information if Ms

Rovic offers an undertaking in the terms sought. It is submitted that Ms Rovic has

not suffered prejudice.

[70] The defendants, on the other hand, submit that the application should be dismissed as

the plaintiff has not sworn to the loss that would be suffered without restraint. The

defendants have undertaken to quarantine profits, there would be significant prejudice

to the defendant, bearing in mind her business expenses and her personal position if

the injunction is granted. It is submitted there is a serious question to be tried, she has

only on her material placed three candidates at the Arthur Gorrie Correctional Centre,

85 Optus Networks Pty Ltd v Telstra Corp Ltd (2010) 265 ALR 281 at [29]. 86 Ormonoid Roofing & Asphalts Ltd v Bitumenoids Ltd (1930) 31 SR (NSW) 347 at p.355. 87 (1987) 14 FCR 434. 88 Page 443.

19

and the plaintiff is not able to demonstrate damage suffered. In other words one

cannot analyse prejudice to the plaintiff as compared to the defendants.

Conclusion

[71] I accept the plaintiff’s submissions.

[72] It is my determination here that there is a serious question to be tried and the plaintiff

has a reasonably strong case against the defendants both in contract and in equity.

[73] It is has been said in restraint cases that “it is a rare case in which relief will be

declined on the basis that damages were a sufficient remedy”.89 The information is

highly confidential and very important to the conduct of the plaintiff’s business and

in my view has been used in breach of the contractual obligations and in breach of

equity.

[74] I also consider relevant that damages are not adequate here because of the difficulty

of detection of breach of the obligations, the difficulty of establishing causation

between loss of the business with customers and actions of Ms Rovic and the

difficulty of the calculation of any quantum of any damage arising from loss of

business.90

[75] Relevantly, Ms Rovic has not sworn:

(a) she has not received, taken or used any confidential information

from the plaintiff for personal commercial gain;

(b) contract or solicited work or provided services to clients of the

plaintiff and does not intend to do so; nor

(c) approached or encouraged any candidate registered with the

plaintiff at the time she registered to register with her or her

entities and does not intend to do so.

[76] I have also weighed up in this case the risk of damage to the plaintiff if the injunction

is not granted as compared to the risk of harm to the defendant if one is.91 In my view

the plaintiff’s business will be adversely affected if the defendants are permitted to

act in breach of the restraint of trade provisions and in breach of the duty of

confidence. I note from Mr Smart’s affidavit that the business with Corrective

services contributes 60% of the profit margin of $1,410,00092.

[77] On the other hand the granting of the injunctions will not stop Ms Rovic from

working. She remains able to work in sales, recruitment, business development,

labour hire or management roles as long as those roles are not in the nursing or

medically related sector. The fact is, Ms Rovic, on the evidence aware of the restraint

89 Cerilian Pty Ltd t/as Raine & Horne Gosford v Fraser [2008] NSWSC 1016 at [10]. 90 Huhtamaki Australia Ltd v Botha [2004] NSWSC 386 at [17] applied by Jackson J in Amalgamated

Pest Control Pty Ltd v SM & SE Gillece Pty Ltd & Ors [2016] QCA 260 at [41]. 91 Amalgamated Pest Control Pty Ltd v SM & SE Gillece Pty Ltd & Ors [2016] QCA 260 at [42]. 92 Affidavit of Damien Smart filed 16 January 2017 (document 13) para 38(d)-(g).

20

and confidentiality provisions, chose to set up in direct competition of the plaintiff

and ran the obvious risk of proceedings for an injunction. In such cases, claims of

financial hardship must be assessed in light of the obvious risk run by the employee.93

[78] I also accept the plaintiff’s submissions as to the claimed prejudice by Ms Rovic. The

fact is her business is running at a loss and may be unsustainable. In any event, as

noted, she can run the business outside the restraints. She does not say she cannot

obtain other employment within her relevant education, training or experience. I also

note that the injunction will expire on 27 April 2017.

[79] The undertakings offered by the defendants in my view insufficiently protect the

plaintiff’s position in light of the first defendant’s attitude to the undertakings she has

already given.94 Also it is relevant that I have found that at the least Ms Rovic was a

party to the surreptitious down loading of the confidential information and has not

explained this in her material.

[80] For completeness I note that the duty of confidentiality extends to the defendant

companies95. Also the action of inducing breach of contract is available against the

defendant companies here96.

[81] In all of the circumstances, I am persuaded on the balance to make the orders sought

by the plaintiff.

Conclusion

[82] The orders I make are as follows:

Upon WorkPac Pty Ltd giving the undertaking recorded in the affidavit of Praanesh

Prasad filed on 21 December 2016 and upon the defendants by their solicitor

undertaking that they, and each of them, whether by themselves or herself, the

Directors (as the case may be), employees, agents or otherwise howsoever, will not

disclose, use, or attempt to disclose or use, the plaintiff’s trade secrets or

“confidential information” described in paragraphs 19 and 20 of the Further

Amended Statement of Claim and concerning the plaintiff’s clients and plaintiffs

candidates, or part thereof (the information) for their benefit or to the detriment of

the plaintiff.

1. The court orders that until the hearing and final determination of this

proceeding or 20 April 2017 (whichever is the earlier) or earlier order, the

defendants and each of them, whether by themselves or herself, their directors

(as the case may be), employees, agents or otherwise howsoever, be restrained

from:

93 John Fairfax Publications Pty Ltd v Birt [2006] NSWSC 995 at [49]. 94 See email from First defendant to Mr Ryan- exhibit BK2 affidavit of Branka Rovic sworn 25 January

2017 (document 29) and the admissions of placement in her affidavit. 95 Breen v Williams (1996) 186 CLR 71 at pp 127-129. 96 See e.g. Multinail Australia Pty Ltd v Pryde (Aust) Pty Ltd [2002] QSC 105.

21

(a) Accepting, soliciting or carrying out orders from any of the plaintiff’s

clients (as described in Annexure A to the Further Amended Statement

of Claim) for labour management services (including roster

management) or for the placement of candidates (whether for

temporary or permanent placements, and whether such personnel are

to be employed by third persons or by the other party) in nursing or

health related roles; or

(b) Encouraging or soliciting any of the plaintiff’s candidates (as

described in Annexure B to the Further Amended Statement of Claim)

to register as their candidate.

2. By 17 February 2017, the defendants, and each of them, deliver up to the

plaintiff all documents howsoever in their possession or control containing,

or complied using the information.

3. Upon the close of pleadings, the parties have leave to issue notices of non-

party disclosure as they may be advised without having completed disclosure

inter parties.

4. I will hear the parties as to costs.

5. Liberty to apply on the giving of 3 days written notice.