Injunction: SBS v Corbett [2016] NSWSC 461

A man was issued an injunction to prevent him from working in the media industry for a specified period of time after the Supreme Court of New South Wales found his previous employer had a serious case and not granting an injunction may jeopardise their business.

In 2012, Corbett entered into an employment contract with Special Broadcasting Service Corporation (SBS) with a fixed end date of 31 December 2014.

SBS was sponsoring Corbett’s “section 457 visa”, which entitled him to work in Australia.

In September 2014, the fixed end date was amended to 30 December 2016. In January 2015 the fixed end date was further amended to 30 June 2017. Evidence would suggest these amendments were made on the request of Corbett, whose permanent residency had yet to be granted.

On 10 February 2016, Corbett expressed a desire to leave his position at SBS. On 18 March 2016 Corbett sent an email informing his employer that he was resigning and this was his last day.

Corbett entered into a contractual relationship with Australian Broadcasting Corporation (ABC) with a start date of 4 April 2016.

SBS claim that Corbett was not entitled to terminate his employment contract as it was for a fixed term. Further, SBS claim Corbett had confidential information and seeks to restrain him from disclosing this information and additionally seeks an interlocutory injunction to prevent him from working in the media industry until the fixed end date on his employment agreement is reached.

Corbett claims his termination of the employment contract was valid due to reasonable notice. Further, Corbett claims SBS knew about his contractual engagement with ABC and could have sought an injunction before they did and he has been prejudiced as a consequence of the delay.

Decision

The Court noted that in order for an injunction to be granted, SBS must prove their case “has a real possibility of ultimate success”. As there was no express mention of a right to terminate on reasonable notice, the Court had to consider whether there was an implied right that could be proven.

The Court believed there was no implied right based on a number of factors. Firstly, if SBS were to terminate giving reasonable notice, Corbett would be in a vulnerable position with his application for permanent residency. Secondly, it appeared Corbett negotiated for a contract of no less than two years. The Court ruled that based on these factors, the absence of a right of termination on reasonable notice in the contract may have been deliberate.

Further, if there was a right to terminate on reasonable notice, the Court believed SBS had a strong argument that the period of reasonable notice would have been 6 – 9 months. The Court thus concluded SBS had a “real possibility of ultimate success” in proving the termination was not valid.

The Court ruled there was no evidence to suggest SBS delayed seeking an injunction and found that while SBS suspected Corbett may go to the ABC, they did not know this.

The Court noted that in order for an injunction to be granted, SBS must also prove “that property or other interests might be jeopardised if not interlocutory relief is granted”. Based on Corbett’s involvement in projects related to the future operations of SBS and his use of Google Drive to store work related documents, the Court found Corbett had access to confidential information. The Court ruled Corbett must “not access, disseminate, delete, tamper with or otherwise deal with any information belonging to the plaintiff” that had been issued to him by SBS.

The injunction sought by SBS was to prevent Corbett from working in the media industry for the remainder of his employment agreement. The Court believed this would not cause Corbett great hardship as he had a wide range of prior experience outside of the media industry and the time period was not excessive.

Further, the Court found damages would not be an appropriate remedy in this circumstance as it would be difficult for SBS to prove how they were disadvantaged.

Based on these conclusions, the Court believed that failing to grant an injunction may jeopardise SBS. As such, the Court granted an injunction preventing Corbett from performing further work with ABC and other organisations in the media industry until the proceedings were concluded.

Read the full decision here  

* PCC Lawyers are a team of employment practitioners based in Sydney, with many years of combined knowledge and experience in workplace law, industrial relations, workplace investigations and training.  They provide a high standard of excellence and an exceptional level of personal service to a variety of clients in the Sydney metropolitan area, Central Coast, regional NSW and interstate. 

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