DISTRICT COURT OF QUEENSLAND - Supreme Nursing

1 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)

2 , 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.

3 (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.

4 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.

5 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)

6 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.

7 [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 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 Between 28 September 2015 and 15 September 2016, the plaintiff had two branches but before this only WorkPac provides administrative services to each business centre including information technology and software development, human resources and credit and contract Through a process of sourcing and assessment, personnel are recruited to registerer s candidates with the Recruitment of candidates involves significant effort.

8 Time and expense and leaves to a collation of detailed It is governed by quality assurance and compliance and results in commissions being paid to recruitment consultants employed to undertake that 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 Those few generate 100 per cent of the plaintiff s income and represent the culmination of seven years investment and millions of 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 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 [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.

9 This is particularly so in the Nursing and health related sector, which operates 24 hours per day, seven days per [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 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.

10 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.