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Plaintiffs Seek Injunction for Breach of Confidentiality
Kuksal & Anor v Nine Network & Ors [2021] VSC 552 (6 September 2021)
The plaintiffs seek injunction against the defendant due to breach confidentiality and a fiduciary duty that he owed to the plaintiffs. Urgent summons were also issued due to an anticipated broadcast by the media defendants. The Court, in ruling upon whether or not balance of convenience favours grant of injunction, took into consideration three factors cautioning the use of interim injunctive relief as discussed in relevant jurisprudence.
Facts:
A Current Affair has previously broadcast two stories regarding Mr Kuksal. The first related to Mr Kuksal, a removalist business called Apex Logistics Solutions and businesses called RM Legal Consultants and Law Innovation. A second story was published on 30 July 2021 which also referred to pending proceedings in the Magistrates’ Court of Victoria and pending Australian Securities and Investments Commission charges against Mr Kuksal. On 2 September 2021, Mr Shivesh Kuksal and Ms Maria Di Gregorio brought proceedings against three defendants, Nine Network Australia (Nine), Mr Sam Cucchiara, a journalist employed by Nine working on A Current Affair, and Mr Ronald Gordon, a solicitor.
The plaintiff alleges Mr Gordon, a solicitor formerly employed by New Edge Law, breached confidentiality and a fiduciary duty that he owed to the plaintiffs and that he, together with the first two defendants (the media defendants) committed an unlawful purpose conspiracy. The plaintiffs seek further declaratory relief and seek ‘appropriate disciplinary actions against him’. The plaintiff also issued an urgent summons returnable in the Practice Court on 2 September 2021 seeking ‘injunctive relief’ due to an anticipated broadcast by the media defendants of a report on A Current Affair. Legal representatives for the media defendants indicated that they did not intend to broadcast on 1 September 2021.
Issue:
Whether or not balance of convenience favours grant of injunction.
Applicable law:
Australian Broadcasting Corporation v O’Neill [2006] HCA 46; (2006) 229 ALR 457 - where caution was expressed about the use to protect an anticipated wrong, particularly where a plea of justification is anticipated. Three factors cautioned the use of interim injunctive relief:
(a) the public interest in the right of free speech;
(b) until a trial of the facts it cannot be known whether any publication would invade a legal right;
(c) the general character of a plaintiff may be an important matter in the outcome of a trial.
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 185 ALR 1 - Justice Kirby noted that where a cause of action for breach of confidence can be shown to be reasonably arguable, an applicant for injunctive relief will be ‘well on the way to securing’ interim relief.
Commonwealth v John Fairfax & Sons Ltd [1980] HCA 44; (1980) 147 CLR 39 - Mason J said that the principle is that the court will “restrain the publication of confidential information improperly or surreptitiously obtained or information imparted in confidence which ought not be divulged”.
Analysis:
Neither Ms Di Gregorio nor Mr Kuksal in their personal capacity are parties to the contract and it is not entirely clear upon what basis they bring any proceeding in reliance on breach of contract. Further, in respect of their complaint as to breaches of the Legal Professional Uniform Law Australian Solicitors Conduct Rules 2015, it is not clear from their evidence that Ms Di Gregorio or Mr Kuksal engaged New Edge Law and therefore Mr Gordon to do any legal work. Ms Di Gregorio’s affidavit does not specify what information of hers she wants protected by an injunction. In the email sent by Mr Gordon and alleged by Ms Di Gregorio as false and warrantless, it was not found that there is confidential information belonging to New Edge Law, or any of the related entities sought to be captured by a broad definition of Confidential Information as defined in the terms of the employment contract.
The complaints made by the plaintiff’s relate to matters that have already occurred. There was no real attempt to identify with any precision or at all what further information, not yet publicly disclosed but held by the media defendants, was sought to be protected by an interim injunction.
Conclusion:
The Court is not persuaded that the balance of convenience requires the broad limitation of free speech that is sought. In the event that any broadcast occurs, damages are an appropriate remedy if in fact any specific confidential information is published. The Court ordered the dismissal of the summons indicating these reasons would follow. The plaintiffs are to pay the legal costs of the defendants, reserving the question of whether those costs be paid on an indemnity basis.
A current affair ran the story here :
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