certain computers and a cloud storage account. Mirus Australia Pty Ltd (Mirus) provides certain services to operators of
Judgment Summary Supreme Court New South Wales
Mirus Australia Pty Ltd v Gage [2017] NSWSC 1046 Ward CJ in Eq The Supreme Court has found Mr Gage guilty of contempt of court and struck out parts of his defence as an abuse of process following his deletion of documents and files from certain computers and a cloud storage account. Mirus Australia Pty Ltd (Mirus) provides certain services to operators of aged care facilities in Australia. Mr Gage was a senior employee of Mirus. Mr Gage resigned on 13 July 2015 and his employment terminated on 7 August 2015. A dispute arose between Mirus and Mr Gage after Mirus became aware that Mr Gage was taking steps to set up a new business with another former employee of Mirus, Mr Wilson. On 24, 26 and 28 August 2015, Mirus’ solicitors wrote to Mr Gage. These letters of demand asserted, among other things, that Mr Gage was in breach of his non-compete obligations, demanded delivery up of all of Mirus’ confidential information and intellectual property, and expressly foreshadowed legal action. Mirus commenced proceedings on 7 September 2015. Mr Gage became aware by about 1pm on 7 September 2015 that the proceedings had been commenced. In August 2016, Mirus made two applications: first, that Mr Gage be found guilty of contempt (the contempt motion); and second, that certain parts of Mr Gage’s defence be struck out as an abuse of process (the strike out motion). Both motions were founded on the allegation that Mr Gage deleted certain documents and files from his computers and cloud storage devices of relevance or potential relevance to the proceedings. Mirus pointed to three instances of alleged deletions: first, that on the evening of September 7 September 2015 Mr Gage deleted material from his Surface Pro (the laptop deletions); second, that between 29 August 2015 and 11 September 2015, Mr Gage deleted material from his personal Google Drive account (the cloud storage deletions); and third, that on 11 September 2015 Mr Gage deleted material from his principal home computer, PC05. In relation to the contempt motion, Ward CJ in Eq held that the first charge of criminal contempt (which related to the laptop deletions) was established beyond reasonable doubt. Her Honour was not satisfied that the second charge of contempt (which related to the cloud storage deletions) was established beyond reasonable doubt. In relation to the strike out motion, Ward CJ in Eq was satisfied that Mr Gage’s conduct was an abuse of process of the Court and that parts of his defence should be struck out.
This summary has been prepared for general information only. It is not intended to be a substitute for the judgment of the Court or to be used in any later consideration of the Court’s judgment.
