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  4. Oranville Pty Ltd v Plum Property Pty Ltd - [2022] QSC 119

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Oranville Pty Ltd v Plum Property Pty Ltd[2022] QSC 119

Oranville Pty Ltd v Plum Property Pty Ltd[2022] QSC 119

SUPREME COURT OF QUEENSLAND

CITATION:

Oranville Pty Ltd and Anor v Plum Property Pty Ltd and Others [2022] QSC 119

PARTIES:

ORANVILLE PTY LTD ACN 081 368 069

(First Plaintiff)

AND

BRISFARM PTY LTD ACN 625 372 009

(Second Plaintiff)

v

PLUM PROPERTY PTY LTD ACN 609 806 920

(First Defendant)

AND

DANIEL MARK LEE

(Second Defendant)

AND

KYMBERLEY SAUNDERS

(Third Defendant)

AND

TYLER BEAN

(Fourth Defendant)

FILE NO/S:

BS 10176 of 2021

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

9 June 2022

DELIVERED AT:

Brisbane

HEARING DATE:

27 May 2022

JUDGE:

Brown J

ORDER:

The order of the Court is that:

  1. The parties are to confer and provide to my Associate by 4pm on 8 July 2022 a revised disclosure protocol and document management plan and proposed directions in relation to disclosure of documents, reflecting these reasons.
  2. I will hear the parties as to costs.

CATCHWORDS:

PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – GENERALLY – where the second to fourth defendants were former employees of the plaintiffs – where the plaintiffs claim damages for breach of contract and alternatively, equitable compensation for misuse of confidential information and other duties – where the plaintiffs apply for further disclosure pursuant to rule 223(4)(b), or alternatively, rule 371 of the Uniform Civil Procedure Rules 1999 (Qld) – whether objective likelihood that the duty to disclose has not been complied with

Uniform Civil Procedure Rules 1999 (Qld) rr 211, 223, 261A, 371

Ahga v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29, cited

Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd [2011] QSC 183, cited

Golden Vision Gold Coast Pty Ltd & Anor v Orchid Avenue Pty Ltd & Anor [2022] QSC 49, discussed

Integrated Medical Technology Pty Ltd v Gilbert (No 2) [2015] QSC 124, cited

Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102, cited

COUNSEL:

S S Monks for the applicants

A P Collins with S A Mackie for the respondents

SOLICITORS:

Jemmeson & Fisher Solicitors for the applicants

Harding Richards Lawyers for the respondents

  1. [1]
    BROWN J: The first and second plaintiffs, the applicants, apply for further disclosure brought pursuant to rule 223(4)(b)(i) of the Uniform Civil Procedure Rules 1999 (Qld) (“UCPR”), or alternatively pursuant to rule 371 for a failure to comply with the duty of disclosure in rule 211.  In that respect there is nothing unconventional about the application. However, the relief sought could not be described as conventional.[1]  The plaintiffs seek an order that the Court appoint an independent expert to review the first defendant’s Customer Relations Management (“CRM”) Software, computers containing emails sent by or on behalf of the second to fourth defendants from 1 April 2012, their respective mobile phones and any other electronic documents on which they stored information said to be Raine and Horne Confidential information, sent by the second and fourth defendants to themselves by email on various dates in 2012, 2015 and 2016.
  2. [2]
    The first to fourth defendants, the respondents, oppose the relief sought. The defendants in response sought to go on the front foot and notwithstanding it brought no application for further disclosure, complained about the plaintiffs’ disclosure on the basis that there are no documents which would permit the defendants to ascertain whether the content of the CRM database is genuinely confidential. It proposed orders whereby the plaintiffs provide further disclosure, and the defendants provide a schedule identifying by reference to each of the properties in Schedule A and Schedule B of the Statement of Claim (“SOC”), the circumstances by which the defendants were retained to sell each of the properties in Schedule A or manage each of the properties in Schedule B and the services provided which was verified by the defendants.

The plaintiffs’ case

  1. [3]
    The plaintiffs contend the second to fourth defendants are liable for damages for breach of contract and alternatively, equitable compensation for misuse of confidential information and other duties. The SOC includes allegations[2] that customer information maintained on the first plaintiff’s database was confidential information.
  2. [4]
    The second to fourth defendants were employees and sales representatives of the first plaintiff. The second defendant is alleged to have resigned in March 2016 from the first plaintiff and is said to have been responsible for the incorporation of the first defendant or causing the first defendant to become an active entity. The third defendant resigned from the first plaintiff in December 2017 and immediately commenced work with the first defendant. The fourth defendant resigned from the first plaintiff in May 2016 and worked with Remax for some months before commencing employment with the first defendant in September 2016.
  3. [5]
    It is alleged that the second and fourth defendants used their unique username and password to access confidential information in the plaintiffs’ CRM database and email that information to personal email addresses over a period of time prior to their resignation from the first plaintiff.  It is alleged that the confidential information taken by the second and fourth defendant was used, or they enabled others to use it to obtain listings for sales of properties in Schedule A and to obtain retainers as managing agent for some of the properties contained in Schedule B. It is alleged the third defendant also used the confidential information taken by both the second and fourth defendants to obtain listings for sale and obtain retainers as managing agents.[3] It is not alleged that the third defendant removed confidential information, but that she utilised the confidential information after she joined the first defendant in December 2017. Allegations are made that some clients or potential clients of the plaintiffs were diverted by the defendants to the first defendant.
  4. [6]
    It is alleged that the second to fourth defendants knew or should have known the information was confidential and were, inter alia, contractually obliged to not use or disclose that information without the plaintiffs’ consent.[4] It is further pleaded that they were subject to a restraint of trade clause which included not approaching or accepting any approach from any client with a view to soliciting the business of the client.[5] 

What must be established

  1. [7]
    The plaintiffs’ claim is primarily for the misuse of confidential information (namely the copying of client information in the employer real estate agency’s CRM database).
  2. [8]
    Although rule 223 of the UCPR provides for more flexibility than previous rules as to further discovery,[6] an order for further disclosure rule 223(4) may only be made if:

“(a) there are special circumstances and the interests of justice require it; or

(b) it appears there is an objective likelihood—

(i) the duty to disclose has not been complied with; or

(ii) a specified document or class of documents exists or existed and has passed out of the possession or control of a party.”

  1. [9]
    In the present case it is not submitted that there are any special circumstances which justify a further order. Therefore, the plaintiffs are required to show that the duty to disclose has not been complied with, i.e., there is an ‘objective likelihood’ that the duty to disclose has not been complied with.
  2. [10]
    The test for disclosure under the UCPR is whether the documents are directly relevant, namely, a document which tends to prove or disprove the allegation in issue.[7]
  3. [11]
    In Golden Vision Gold Coast Pty Ltd & Anor v Orchid Avenue Pty Ltd & Anor[8] Ryan J neatly summarised the relevant considerations that:

“In Gibson & Ors v The Minister for Finance, Natural Resources and the Arts & Anor [2012] QSC 12 at [8] and [9], Henry J explained that, in deciding whether there is an objective likelihood that the duty to disclose has not been complied with, the criterion of direct relevance is likely to be determinative. Also, the rule under which this application is brought is to be applied in the context of rule 5, with the objective of avoiding undue delay, expense and technicality and facilitating the rule’s purpose which is, in turn, to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. His Honour referred to the following observation of Pincus JA, in Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants and Bars Pty Ltd [2001] 1 Qd R 276 at 283:

If it appeared, for example, that an order for further disclosure would be likely to “facilitate the just and expeditious resolution of the real issues”, that would enable and perhaps require the making of such an order.

The just and expeditious resolution of the real issues in dispute is facilitated by an approach to disclosure which is designed to capture documents of direct relevance likely to assist in the determination of the issues – bearing in mind the need to take a proportionate approach in matters where documentation is voluminous.”

  1. [12]
    Ms Jemmeson, the solicitor acting on behalf of the plaintiffs, swore two affidavits in support of the application.[9] The defendants made a number of objections to the earlier affidavit of Ms Jemmeson sworn 19 May 2022,[10] which I address below.
  2. [13]
    The defendants made further disclosure just prior to the application and provided schedules of the commissions obtained through the sale of properties in Schedule A and the management fees for the management of properties in Schedule B. It is apparently also no longer in dispute that the second and fourth defendants emailed information of clients’ details with whom they had had contact while employed by the first plaintiff and properties to themselves, as admissions were made in relation to paragraphs [25] and [29] of the SOC on 25 May 2022. No admissions were made that there was any impropriety in their doing so or of the use of that information after the defendants left the employment of the first plaintiff. The defendants deny they did not make proper disclosure.

Parties’ disclosure

  1. [14]
    The defendants have made standard disclosure of 369 documents. The defendants, by agreement, have also disclosed on a ‘Fielder Gillespie’ basis, two Excel databases, which are copies of databases that were taken by Mr Lee and by Mr Bean respectively.
  2. [15]
    Of the 369 documents[11] apart from the databases, 233 of them are Property Occupations Act 2014 (Qld) Form 6 ‘Appointment and reappointment of a property agent, resident letting agent or property auctioneer’.
  3. [16]
    Of the remaining 136 documents:-
    1. (a)
      67 are emails between the defendants and the individuals behind the plaintiffs, Mr Craig Collette and Mr Frank Ham.  These emails deal with various administrative matters; many concern the small shareholdings in the first plaintiff that were given to Mr Lee in 2013/14 (Statement of Claim paragraph 4(e)) and to Mr Bean in 2014/15 (Statement of Claim paragraph 6(c)).
    2. (b)
      8 are trust account payment receipts.
    3. (c)
      8 are sale contracts (out of the 206 properties sold and listed in Schedule A).
    4. (d)
      6 are payslips and PAYG statements.
    5. (e)
      4 are solicitors’ correspondence in 2018 and 2019.
    6. (f)
      4 are Oranville Pty Ltd dividend statements.
    7. (g)
      4 are text messages between Kym Saunders and people in Raine & Horne’s office following her resignation.

Evidence of objective likelihood

  1. [17]
    The plaintiffs contend that there is an objective likelihood that full disclosure has not been made because:
    1. (a)
      there is a failure to disclose documents going to quantum, that are necessarily in the possession, power or control of the defendants, and not the plaintiffs. Only 8 out of 206 sale contracts relating to the properties in relation to which confidential information was alleged to have been used have been disclosed. The commission percentage in the Form 6s cannot be therefore calculated against a known sale price. However, the defendants submit that a table has now been provided setting out the commissions earnt;
    2. (b)
      nothing has been disclosed about earnings from the 27 rent roll properties in Schedule B of the SOC. The defendants again refer to a schedule now having been provided;
    3. (c)
      no documents are said to have been disclosed in relation to 19 properties out of the 233 that are identified in Schedules A and B to the SOC.[12]  I note an objection has been made to the relevant paragraph. I do not uphold the objection made. The paragraph and the basis for the statement made is sufficient for Ms Jemmeson to say as a matter of fact whether disclosure has been made of the documents in relation to the properties;
    4. (d)
      there are no documents said to go to what use they made of the plaintiffs’ confidential information that they took and/or used, notwithstanding there is evidence the properties were sold[13];
  2. [18]
    Ms Jemmeson gives examples of where she contends disclosure was incomplete. There are a number of irregularities in her evidence which are properly the subject of complaint. I have determined that I will not allow most objections but have taken them into account in considering the weight of the evidence.
  3. [19]
    Ms Jemmeson deposes that based on her review, the defendants have failed to disclose a single document, screenshot, print-out or other material from their CRM database. I reject the objection to the first sentence of paragraph [12]. She has set out the basis for her belief, namely her review of the documents. She is familiar with what is in such databases from her previous career as a real estate agent. I reject the objection to the second sentence. The relevance of the CRM database is obvious in the context of this case. The statements as to the CRM database do not need to be pleaded but support the objective likelihood of documents not having been disclosed. The objection to the third sentence is upheld. The objection to the fourth sentence is rejected. The basis of the belief is sufficiently established.
  4. [20]
    Paragraph [13] of Ms Jemmeson’s affidavit[14] is relevant insofar as the dropbox of database files are the same as those which the plaintiff has discovered which are the subject of allegations of misuse.
  5. [21]
    The objections to the fact that the document has been referred to without annexing the document in paragraphs [14], [17], [21] and [22] have been remedied by Ms Jemmeson’s later affidavit.[15]
  6. [22]
    Ms Jemmeson makes reference to the extent of disclosure of documents regarding 21 Pioneer Crescent, Bellbowrie. The defendants make objections to paragraph [14] which are objections of technicality, although strictly speaking correct. I consider that in the context of the present application, the basis of the statement made and where the instructions have been derived is sufficiently apparent, particularly given a document from the plaintiffs’ database has been disclosed in support, I will allow the evidence notwithstanding the irregularities. Paragraphs [15] and [16] are in the nature of submissions and I give them no weight.
  7. [23]
    Given however, the email which is the document referred to in paragraph [14] is a direct approach by a client Ms Saunders formerly dealt with, well after her resignation from the first plaintiff, it does not support an objective likelihood that the defendants’ database records contain information as to the use of confidential information to secure a listing after that email in 2020 or of diversion of a client.  
  8. [24]
    The document referred to in paragraph [17] was completed while Mr Lee was still working for the plaintiffs, but some four days after he had given notice. The circumstances of its completion does suggest the document was originally completed when Mr Lee was employed by the defendant, and demonstrates that the absence of disclosure of records as to the property’s sale by the first plaintiff and communications with the vendor establishes an objective likelihood that all documents directly relevant to the use of the confidential information that directly prove or disprove the allegation,[16] that the second defendant used confidential information to obtain a listing for the sale, have not been disclosed.
  9. [25]
    As to the third sentence of paragraph [18], I reject the objection. It is a statement of fact. As to the fourth and fifth sentences[17] they are in the nature of submissions and I give them no weight. The sixth and seventh sentences will be allowed despite the irregularities. The documents are sufficiently identified as is the disparity for the observation to be made.
  10. [26]
    As to the objections in paragraph [20], Ms Jemmeson is in a position to depose to those matters based on her review. There is a clear gap in the documents given the circumstances set out. The gap in information disclosed in paragraph [20] is relevant to objective likelihood. Full disclosure has not been made given some documents are in existence and have been disclosed.
  11. [27]
    The document referred to in paragraph [19] on its face was signed on 9 December 2017 by the third respondent and the agency was identified as the first defendant, some 11 days before Ms Saunders resigned from the plaintiff.[18] The commencement date was 19 December 2017. Ms Saunders resigned on 19 December 2017. In the case of Ms Saunders, the correspondence between Ms Saunders and the vendor of the property as well as the documents as to the subsequent sale, would be relevant to the allegation that she had acted contrary to the restraint of trade, and the use by first defendant of the plaintiffs’ confidential information. The absence of those documents suggests an objective likelihood that full disclosure has not been made.
  12. [28]
    As to the wish list of information identified by Ms Jemmeson in paragraph [21] which she would like to prove the plaintiffs’ case, that is a matter of no weight. The test is one of an objective likelihood that the defendants’ duty of disclosure has not been complied with, not what evidence the plaintiffs would like to have.
  13. [29]
    The circumstances surrounding the execution of the document referred to in paragraph [22] is similar to the circumstances of the document referred to in paragraph [21] of Ms Jemmeson’s affidavit. The document was signed the same day as Ms Saunders resigned and listed the real estate agency to be the first defendant, and also made reference to a marketing plan. Documents relevant to the sale by the first plaintiff including communications with the vendor would be directly relevant to the allegations in issue as to restraint of trade and use of confidential information. Ms Jemmeson deposes that documents and data records that she believes are in the possession of the defendants have not been disclosed. Given the time and sequence of events and the existence of other documents, there is an objective likelihood that all relevant documents have not been disclosed.
  14. [30]
    The objection to paragraph [23] is upheld. As to paragraph [24], it is more in the nature of a submission and will be treated as such.
  15. [31]
    The objections as to paragraphs [25] to [29] are not probative of the outcome of this application and it is surprising that objections would be taken to paragraphs which are directed to further steps the plaintiffs anticipate taking, and costs.
  16. [32]
    Ms Jemmeson does however provide a number of examples that demonstrate not only why the CRM database records are relevant and should have been disclosed, but also other relevant documents that would be expected to have been disclosed, but which have not been.
  17. [33]
    Examples were provided of screenshots of properties maintained by the plaintiffs on their database and the information contained on their database, none of which has been disclosed by the defendants according to Ms Jemmeson in relation to the properties in question.

Defendants’ position

  1. [34]
    The defendants do not contend any of the documents as to the use of the confidential information have been disclosed but contend that the relief sought is not justified. The defendants contend that they have engaged in making sensible admissions, disclosure of a substantial number of documents, and provided information which significantly truncates the need for voluminous disclosure.
  2. [35]
    Part of the focus of the defendants’ argument was on the fact that it was not established that the information was not confidential information. That is not the matter for determination in this application. The question in respect of disclosure relates to the allegations that have been made. However, that said there is evidence supporting the fact that information derived from the plaintiffs’ database of clients and associated client details as well as details of the property were emailed by the second and third defendants to themselves. The confidential information in question has been identified by the plaintiffs. Client lists of real estate agents has been found in the past to constitute confidential information and the act of forwarding that information to a personal email address to be a misuse of that information.[19] The plaintiffs must, of course, establish in the present case that the information is confidential. While the defendants point to information being able to be sourced from different avenues including real estate internet sites, that does not establish that the compilation of such information by the plaintiffs maintained in a database is not confidential. 
  3. [36]
    The defendants complain that the plaintiffs have themselves made inadequate disclosure and contend that the order sought, which is an intrusive order, should not be granted if the plaintiffs have themselves not made proper disclosure. That again is not an answer to the present application. The defendants, like the plaintiffs, can take steps to resolve any inadequate disclosure if that is in fact the case.  While the defendants complain that the plaintiffs have not justified how their information is confidential so that it can be assessed by the defendants in terms of the validity of the information, and made criticism of the plaintiffs’ pleading, that is not the point. Disclosure of documents is made on the basis of the pleaded allegations which are in issue.
  4. [37]
    However, the defendants have provided evidence in relation to the fourth defendant instructing Mr Richards that he does not hold documents for the properties which are referred to in LJ-9 because the fourth defendant was not working for the first defendant at the time, but another agency.  The Form 6s were subsequently provided after the defendants’ solicitors sought them from the fourth defendants’ former agency. The absence of disclosure of those documents is explained and does not suggest an objective likelihood of the full disclosure not having been made.

Conclusions

  1. [38]
    In the present case the contention of the plaintiffs is that documents that are directly relevant to the use of the confidential information and the extent of the use have not been disclosed, bearing in mind documents are directly relevant not only on the basis they prove but can also disprove the allegations in issue. It is now accepted that the second and fourth defendants emailed information to themselves of clients and properties while in the employ of the first plaintiff, although that was initially denied.  There is evidence that the second defendant established the first defendant prior to resigning from the first plaintiff, and soon after some information was emailed to his personal email. There is evidence which supports allegations that the second and third defendants may have diverted some clients away from the plaintiffs to the first defendant. While the defendants’ solicitors have indicated that there is nothing improper about emailing the alleged confidential information to be used to work at home, the correspondence does not state it was not used by the defendants after their resignation from the first plaintiff and subsequent employment by the first defendant.
  2. [39]
    The evidence supports the fact that there is an objective likelihood proper disclosure has not been made in relation to all of the properties identified in Schedules A and B of the SOC, as identified by Ms Jemmeson, bearing in mind the defendants have identified at least one property was not in fact sold by them. There is also an absence of any disclosure in relation to how the defendants were initially retainer by the owners of the properties in Schedules A and B, save for a couple of emails. While the defendants refer to the time that has passed since the confidential information was emailed, there is evidence they have actively dealt with the properties in question. The defendants do not identify any searches carried out of databases to support the fact that reasonable investigations have been made to identify relevant documents, which may have otherwise explained the absence of documents being disclosed where I have found that there is an objective likelihood may exist. 
  3. [40]
    There was an absence of disclosure as to the sales of the properties with only 8 out of 206 sale contracts disclosed, and as to the documents with respect to Schedule B of the SOC. The defendants have sought to address those matters through the provision of schedules. The absence of that disclosure originally however raises doubt as to the comprehensiveness of the searches carried out and the duty of disclosure having been complied with when disclosure was made. There is also an absence of any disclosure in relation to how the defendants were initially retained by the owners of the properties in Schedule A and B of the SOC, or their initial contact with those clients, save for a couple of emails. It is highly likely contact was made with clients prior to their signing the Form 6s and that there were texts or emails exchanged in that regard. The fact that the properties were owned by the clients in the schedule emailed by the second and fourth defendants, and the proximity of a number of those sales and the first defendant being retained to manage a number of the properties in Schedule B supports an objective likelihood that the disclosure that has been made by the defendants is incomplete.
  4. [41]
    In relation to some of the properties referred to above there is evidence to support the fact that the second and third defendant diverted clients or potential clients of the plaintiffs to the first defendant but where scant and incomplete documentation has been disclosed partially as to how the sales were progressed by the defendants. That again indicates an objective likelihood that the first defendant’s database does contain documents which would be directly relevant to the claim of restraint of trade and use of confidential information, given evidence of the subsequent sales of those properties, which have not been disclosed.
  5. [42]
    While the defendants through Mr Richards have provided a schedule of financial information as to commissions derived from the properties in Schedule A and a schedule identifying the amount of rent and the management fee, that information was largely only provided just prior to this application. While it should limit the need for disclosure of financial information of income derived from the properties in question, it does not provide disclosure in relation to the allegation of the use of the information. It could of course tend to disprove the allegation made by the plaintiffs.
  6. [43]
    I am satisfied that the plaintiffs have identified that there is an objective likelihood the defendants have not complied with their obligations of disclosure in relation to:
    1. (a)
      documents directly relevant to the allegation that the information that was emailed by the second and fourth defendants to personal email addresses was used by the first to fourth defendants to obtain listings or property management of the properties in Schedules A and B[20], which would include documents as to when and how they were retained for those properties, such as emails or texts with respect to the obtaining of the sale or property management with the vendor or owner of the property and when and what information was input into the database of the first defendant with respect to those properties;
    2. (b)
      documents in relation to the sales of 92 Whitmore St, 100 Goldsborough Rd Taringa,16 Jarrah Street and 20 Dalewood Place.
  7. [44]
    As I have set out above it should be noted the above disclosure may be directly relevant in terms of disproving the allegations made as much as they may be directly relevant to proving the allegations in issue.
  8. [45]
    However, I do not accept that a computer expert or Ms Jemmeson (as was proposed as an alternative in the plaintiffs’ submissions) should be permitted to access the first defendant’s database to identify relevant material, notwithstanding my finding above. I am not presently satisfied that the defendants will not seek to properly comply with Court orders in relation to making further disclosure, notwithstanding the inadequacies of disclosure I have identified. Such an order is highly intrusive into the conduct of a business of a competitor of the plaintiffs in circumstances where the confidential information was alleged to have been taken some years ago (some back to 2012).[21]Nor do I consider that the engagement of an expert would necessarily be a more efficient process of identifying relevant documents. The engagement of an expert is a significant cost which I do not think is justified in the present circumstances where I consider there is a less intrusive remedy available, which I address below.
  9. [46]
    I have also considered the proposal of the defendants. However, I do not consider that adequately addresses the need for proper disclosure to be made in relation to the relevant matters in issue. The defendants setting out their version of events as to their engagement without the relevant documents does not allow the plaintiffs to be able to test that version by reference to documents.
  10. [47]
    Given I have found there is an objective likelihood proper disclosure has not been made, it is not appropriate to simply dismiss the application without the granting of any relief, notwithstanding I am not satisfied that the relief sought in the application is appropriate.  I consider that the adequate disclosure can be provided for through the parties undertaking proper searches of the first defendant’s CRM database and the second, third and fourth defendants’ computers and phones by reference to keyword searches, particularly given the plaintiffs’ solicitor’s expertise.
  11. [48]
    The scope of the disclosure must be limited in a reasonable and proportionate way and must not be a general trawl to identify every single document ever created by the defendants in relation to the properties in question and which is remote in time from the resignation of the second to fourth defendants and their engagement with the first defendant. The scope of documents which Ms Jemmeson identified as documents she would wish to have access to are too broad and in any event broader than those documents required to be disclosed by reference to my findings above. It was evident from this application that the process can be narrowed, particularly because it is limited to particular properties identified in Schedule A and B to the SOC.[22] It is a matter of the parties identifying proper searches to identify when information with respect to the properties or clients which were the subject of the emailed information were created on the first defendant’s system and evidence of its use, if any, in relation to contact with clients and the retainer of the first defendant for the sale and management of the properties. For instance, the plaintiffs accepted that had they been provided with screenshots of what is on the first defendant’s database with respect to the properties in Schedule A and Schedule B, that would address a number of their complaints. The defendants indicated that they were able to do that[23]. Searches should also be able to be undertaken as to the time at which such information was input into the first defendant’s database, and by whom. Documents as to the engagement by the defendants in terms of their retainer for the sale or management of the properties and as to the initial contact with the owners of the properties would also be directly relevant to the allegation of whether confidential information of the plaintiffs was used to retain the defendants and should not be onerous to identify by appropriate searches of the defendants’ computers and the first defendant’s CRM database. I do not suggest that this is necessarily the limit of the searches that may be relevant to be made.
  12. [49]
    Mindful of the consideration of ensuring the task of disclosure is reasonable and proportionate, I consider the appropriate order is for the parties to confer to agree appropriate search terms or other means for searching the first defendant’s database and the second and fourth defendants’ personal electronic devices, limited in time and in an efficient and economical manner and prepare an updated document management plan. Given the third defendant is not said to have emailed confidential information to herself but only used it and to have diverted some clients to herself, searches undertaken in respect of the third defendant’s personal devices should be more limited. If the defendants have issues they wish to raise as to the plaintiffs disclosure, they can be raised at the same time and included in the disclosure protocol and document management plan.

Orders to be made

  1. [50]
    The parties are to confer and provide to my Associate by 4pm on 8 July 2022 a revised disclosure protocol and document management plan and proposed directions in relation to disclosure of documents, reflecting these reasons.
  2. [51]
    I will hear the parties as to costs.

Footnotes

[1]C.f. the requirements for grant of a search order pursuant to UCPR r 261A and r 261B.

[2]SOC at [25], [27], [29].

[3]SOC at [27].

[4]SOC at [17], [18].

[5]SOC at [18(f)].

[6]Integrated Medical Technology Pty Ltd v Gilbert (No 2) [2015] QSC 124 at [9].

[7]Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102 at 105.

[8][2022] QSC 49 at [132]-[133].

[9]Affidavits of Ms Jemmeson sworn 19 May 2022 (CFI 13) and 27 May 2022.

[10]CFI 13.

[11]One of them is a copy of the defendants’ signed Form 19 List of Documents, which is not included in the list of 368 defendants’ documents that is in exhibit LJ-6 to Ms Jemmeson’s affidavit (pp.22-35).

[12]CFI 13 at [11] and the list at exhibit LJ-9 (exhibits page 44).

[13]CFI 13 at [12]-[13].

[14]CFI 13.

[15]Affidavit of Ms Jemmeson sworn 27 May 2022.

[16]Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd [2011] QSC 183 at [16].

[17]Referred to as paragraphs.

[18]SOC at [5].

[19]Ahga v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29 at [132].

[20]As well as the allegation of sharing of the confidential information with the first defendant.

[21]Notwithstanding the plaintiffs allege that the defendants have deprived them of further opportunities of other sales.

[22]Which I note may be the subject of amendment.

[23]Albeit that they wished to have a quid pro quo as to the documents sought.

Close

Editorial Notes

  • Published Case Name:

    Oranville Pty Ltd and Anor v Plum Property Pty Ltd and Others

  • Shortened Case Name:

    Oranville Pty Ltd v Plum Property Pty Ltd

  • MNC:

    [2022] QSC 119

  • Court:

    QSC

  • Judge(s):

    Brown J

  • Date:

    09 Jun 2022

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Ahga v Devine Real Estate Concord Pty Ltd & Ors [2021] NSWCA 29
2 citations
Jump To
Cite 1 - [2021] NSWCA 29
Cite 2 - [2021] NSWCA 29
Central Queensland Mining Supplies Pty Ltd v Columbia Steel Casting Co Ltd [2011] QSC 183
2 citations
Jump To
Cite 1 - [2011] QSC 183
Cite 2 - [2011] QSC 183
Gibson v The Minister for Finance, Natural Resources and the Arts [2012] QSC 12
1 citation
Jump To
Cite 1 - [2012] QSC 12
Golden Vision Gold Coast Pty Ltd v Orchid Avenue Pty Ltd & Anor [2022] QSC 49
2 citations
Jump To
Cite 1 - [2022] QSC 49
Cite 2 - [2022] QSC 49
Integrated Medical Technology Pty Ltd v Gilbert (No 2) [2015] QSC 124
2 citations
Jump To
Cite 1 - [2015] QSC 124
Cite 2 - [2015] QSC 124
Robson v REB Engineering Pty Ltd [1997] 2 Qd R 102
2 citations
Jump To
Cite 1 - [1997] 2 Qd R 102
Cite 2 - [1997] 2 Qd R 102
Village/Nine Network Restaurants & Bars Pty Ltd v Mercantile Mutual Custodians Pty Ltd[2001] 1 Qd R 276; [1999] QCA 276
1 citation
Jump To
Cite 1 - [2001] 1 Qd R 276

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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