MENDES v ATEGA PTY LTD AS TRUSTEE OF THE  
KACHIRSKI FAMILY TRUST [2022] SASC 68 (11  
July 2022)  
Last Updated: 12 July 2022  
SUPREME COURT OF SOUTH AUSTRALIA  
(Appeal to a Single Judge)  
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory  
provisions prohibiting publication that may apply to this judgment. The onus remains on any  
person using material in the judgment to ensure that the intended use of that material does  
not breach any such order or provision. Further enquiries may be directed to the Registry of  
the Court in which it was generated.  
MENDES v ATEGA PTY LTD AS TRUSTEE OF THE KACHIRSKI FAMILY TRUST  
11 July 2022  
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS -  
DETENTION, INSPECTION AND PRESERVATION - SEARCH ORDERS  
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS -  
PROCEDURAL ASPECTS OF EVIDENCE - EXPERT REPORTS AND EXPERT  
EVIDENCE  
Appeal against dismissal of application to discharge search order.  
The respondent instituted an ex parte action in which the principal relief sought was a search  
order under rule 243.1 of the Uniform Civil Rules 2020.  
A Judge of the District Court made a search order at an ex parte hearing. The search order  
empowered a search party to attend at the house of the appellant and search for and copy  
defined things. The first defined thing was any document or information identified in certain  
spreadsheets listing folders and files contained in two OneDrive folders contained on the  
appellant’s work laptop.  
At the ex parte hearing, the respondent relied on an expert report by a computer expert, who  
expressed the opinion that one of the OneDrives on the appellant’s work laptop was  
unauthorised. The respondent also relied on an affidavit by its principal which in turn relied  
upon that opinion by the expert and a purported expression of opinion by the expert that the  
appellant’s “personal” OneDrive was synced to the business OneDrive.  
When the search party attended at his house, the appellant applied to discharge the search  
order. At the hearing of the discharge application, he adduced affidavit evidence by himself  
that both OneDrives were established as part of the ordinary operation of the company's  
business. He also adduced evidence from a computer expert engaged by him addressing the  
expert report by the respondent’s computer expert.  
The Judge dismissed the discharge application. In the course of his reasons for judgment, the  
Judge said that there was no challenge to the respondent’s computer expert's report.  
The appellant appeals, and seeks leave to appeal, against the dismissal of his application to  
discharge the search order on four grounds:  
1. The Judge erred in finding that there was no challenge to the report of the respondent’s  
computer expert.  
2. The Judge erred in not finding that the respondent had failed to satisfy its duty of  
disclosure in respect of the issue whether there was sufficient evidence that the appellant  
possessed important evidentiary material.  
3. The Judge erred in not finding that the respondent had failed to satisfy its duty of  
disclosure in respect of alternatives less intrusive than a search order.  
4. The Judge erred because it was not open to find that there was sufficient evidence that  
the appellant possessed important evidentiary material.  
Held:  
1. Observation concerning ex parte and inter partes hearings of applications for search  
orders (at [124]-[144]).  
2. The Judge erred in finding that there was no challenge to the report of the respondent’s  
computer expert (at [169]).  
3. The Judge erred in not finding that the respondent had failed to satisfy its duty of  
disclosure in respect of the issue whether there was sufficient evidence that he possessed  
important evidentiary material (at [188]).  
4. The Judge erred in not finding that the respondent had failed to satisfy its duty of  
disclosure in respect of alternatives less intrusive than a search order (at [199]).  
5. PCC's breaches of its disclosure obligations coupled with the fact that the evidence  
adduced at the ex parte hearing did not justify a search order entailed that it should have  
been discharged (at [229])  
6. It was not open to find that there was sufficient evidence that the appellant possessed  
important evidentiary material (at [257]).  
7. Leave to appeal should be granted (at [264])  
8. Leave to appeal granted. Orders by the Judge set aside. Parties to be heard on other  
orders (at [265]).  
Corporations Act 2001 (Cth) s 182, s 183, referred to.  
Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55; Bank Mellat v Nikpour [1985]  
FSR 87; Brink's-MAT Ltd v Elcombe [1988] 3 All ER 188; International Finance Trust Co Ltd  
v New South Wales Crime Commission [2009] HCA 49, (2009) 240 CLR 319; Lloyd’s  
Bowmaker Ltd v Britannia Arrow Holdings PLC [1988] 1 WLR 1337; Walter Rau Neusser  
Oel Und Fett AG v Cross Pacific Trading Ltd [2005] FCA 955; WEA Records Ltd v Visions  
Channel 4 Ltd [1983] 2 All ER 589, considered.  
MENDES v ATEGA PTY LTD AS TRUSTEE OF THE KACHIRSKI FAMILY TRUST  
[2022] SASC 68  
1. BLUE J: The respondent Atega Pty Ltd (Atega) instituted an ex parte action in which  
the principal relief sought was a search order under rule 243.1 of the Uniform Civil Rules  
2020 (SA) (the Rules).  
2. A Judge of the District Court made a search order at an ex parte hearing on 8 November  
2021. The search order empowered a search party to attend at the house of the appellant,  
Bruno Mendes, and search for and copy defined things. The first defined thing was any  
document, record, file or information identified in certain spreadsheets listing folders  
and files contained in two OneDrive folders contained on Mr Mendes’ work laptop.  
3. At the hearing, Atega relied on an expert report by a computer expert, who expressed the  
opinion that one of the OneDrives on Mr Mendes’ work laptop was unauthorised. Atega  
also relied on an affidavit by its principal which in turn relied upon the opinion by the  
expert and also a purported expression of opinion by the expert that Mr Mendes’  
“personal” OneDrive was synced to the business OneDrive.  
4. When the search party attended at his house, Mr Mendes applied to discharge the search  
order. At the hearing of the discharge application, he adduced affidavit evidence by  
himself that both OneDrives were established as part of the ordinary operations of the  
company’s business. He also adduced evidence from a computer expert engaged by him  
addressing the expert report by Atega’s computer expert.  
5. The Judge dismissed the discharge application. In the course of his reasons for  
judgment, the Judge said that there was no challenge to Atega’s computer expert’s  
report.  
6. Mr Mendes appeals, and seeks leave to appeal, against the dismissal of his application to  
discharge the search order on four grounds:  
1. The Judge erred in finding that there was no challenge to the report of Atega’s  
computer expert.  
2. The Judge erred in not finding that Atega had failed to satisfy its duty of disclosure  
in respect of the issue whether there was sufficient evidence that Mr Mendes  
possessed important evidentiary material.  
3. The Judge erred in not finding that Atega had failed to satisfy its duty of disclosure  
in respect of alternatives less intrusive than a search order.  
4. The Judge erred because it was not open to find that there was sufficient evidence  
that Mr Mendes possessed important evidentiary material.  
Background  
7. In 1978 William Kachirski incorporated Atega Pty Ltd, which became the trustee of the  
Kachirski Family Trust. In that capacity, Atega Pty Ltd commenced trading as the  
Posture Care Chair Company (PCC).  
8. PCC commenced carrying on business tailor-designing, manufacturing and supplying  
recliner chairs. It focused on recliner chairs for aged and vulnerable persons.  
9. PCC imported chairs from manufacturers in China who manufactured chairs to its  
designs. No evidence was adduced that PCC had exclusive agreements with these  
manufacturers. By 2021, it appears that PCC was importing chairs from a single  
manufacturer, Lang Haoxuan. The fact that Lang Haoxuan advertises products that it  
manufactures for PCC on its website (referred to below) indicates that PCC’s  
arrangements are not exclusive.  
10. In June 2013 Vasco Mendes (Mr Mendes’ father) (Vasco) commenced employment by  
PCC as Production Manager. In August 2013 Maria Mendes (Mr Mendes’ mother)  
commenced employment by PCC as Senior Sewing Machinist.  
11. In 2017 and 2018 the National Disability Insurance Scheme (NDIS) introduced a  
program for recliner chairs. In 2018 the federal government announced government-  
funded Home Care Packages capable of being used to provide funding towards the  
purchase of recliner chairs for eligible persons. PCC dealt with coordinators in respect of  
these programs (as well, perhaps, as end customers).  
12. At some stage (not disclosed on the evidence) PCC established a website with the domain  
name posturecarechair.com.au. Certain employees of PCC were allocated email  
addresses being “[name]@posturecarechair.com.au”.  
13. In October 2018 Mr Mendes commenced employment by PCC as Business Development  
Manager. He was provided by PCC with a laptop computer (Mr Mendes’ work laptop).  
He was also provided with a work email address, which was  
[email protected].  
14. Mr Mendes was presented with a copy of the Employee Handbook then in use by PCC  
(the Handbook) and signed an acknowledgement that he had received it on 17 October  
2018. He deposed in his affidavit that he returned it upon signing and was not provided  
with a copy to retain, which was not contradicted by Mr Kachirski in his responding  
affidavit. Under the heading Non-Disclosure, the Handbook stated that the protection of  
confidential business information and trade secrets was vital to the interests and success  
of PCC and identified in generic terms examples of confidential information, which  
included customer lists and preferences. It then stated:  
All employees are required to sign a non-disclosure agreement as a condition of employment.  
Employees who improperly use or disclose trade secrets or confidential business information  
will be subject to disciplinary action, up to and including termination of employment and legal  
action, even if they do not actually benefit from the disclosed information.  
15. A non-disclosure agreement to which the handbook apparently referred was signed by  
Mr Mendes on 4 July 2019 (the Confidentiality Agreement) after he was appointed  
General Manager on 17 June 2019 (if he signed an earlier non-disclosure agreement on  
appointment as Business Development Manager, Mr Kachirski did not depose to its  
existence or exhibit it). The Confidentiality Agreement contained provision for execution  
by PCC but the copy exhibited to Mr Kachirski’s affidavit is not executed by PCC. Clause  
1 defined “Confidential Information” in broad terms, including technical and business  
information relating to customers and clients. Clause 2 provided that:  
The Recipient agrees not to disclose confidential information obtained from the discloser to  
anyone unless required to do so by law.  
16. The wording of the Confidentiality Agreement was more apposite to address disclosure  
for example to a prospective purchaser of a business than to address disclosure by an  
employee.  
17. Shortly after Mr Mendes commenced employment with PCC, he advised Mr Kachirski  
that a cloud-based storage system would be more efficient for business. As a result, PCC  
engaged an information technology contractor to establish cloud-based storage for the  
business.  
18. The IT contractor recommended the use of Microsoft’s cloud-based storage system  
called OneDrive. Microsoft categorises OneDrive accounts as “Personal” or  
“Business/School” for pricing purposes.  
19. Microsoft offers one “Personal” OneDrive account per user together with five gigabytes  
of storage space for free or the user can purchase additional storage space for a  
subscription fee. In order to establish a “Personal” OneDrive account, a user must  
initially sign into OneDrive.com using a Microsoft account username (an email address  
associated with a Microsoft product such as Office365) with its associated password (if  
they do not have a Microsoft account the user can select to create one). Once the  
OneDrive account has been established, a user can use any email address (such as a  
Gmail address associated with the Google product) as their OneDrive username.  
20. Microsoft also offers one or multiple OneDrive accounts to businesses or schools who  
subscribe to Office365 or another relevant Microsoft product. In order to establish a  
“Business/School” OneDrive account, a user needs to sign into OneDrive.com using a  
Microsoft account username with its associated password. Unlike a “Personal” account, a  
“Business/School” account must continue to be accessed using a Microsoft account  
username.  
21. Although Microsoft describes OneDrive accounts as either “Personal” or  
“Business/School”, once established there is no limitation on the files that can be stored  
within a OneDrive account. Personal files can be stored on a “Business/School”  
OneDrive account and business files can be stored on a “Personal” OneDrive account.  
22. In order to access the folders or files contained within a OneDrive account, it is  
necessary to sign in using the username and password assigned to that OneDrive  
account. The password can be changed by the “owner” of the OneDrive account. The  
owner can set additional security steps to sign into a OneDrive account, such as two  
factor verification (for example, requiring entry of a code sent by Microsoft to the  
owner’s mobile phone number or email address).  
23. A user who has access to a OneDrive account can choose to save a folder or file to the  
hard drive (or other storage) of their own computer or to the cloud using Microsoft cloud  
storage or to both. If they save a folder or file to both, it can be accessed either via their  
computer’s hard drive (or other storage) or by signing into the relevant OneDrive  
account from any internet-enabled device.  
24. A OneDrive account was established to which the username of Mr Kachirski’s Gmail  
account ([email protected]) was assigned (OneDrive A). Files and subfolders  
were saved into a folder on Mr Mendes’ work laptop (OneDrive folder A).  
25. Another OneDrive account was established to which the username of Mr Mendes’ work  
email address ([email protected]) was assigned (OneDrive B). Files and  
subfolders were saved into a folder on Mr Mendes’ work laptop (OneDrive folder B).  
26. On 17 June 2019 Mr Mendes was promoted to the position of, and commenced as,  
General Manager. On a date not disclosed by Mr Kachirski in his affidavit, he sent to Mr  
Mendes an email setting out the job description of the position (the Jobs Description). It  
included the salary, provision for a bonus (not yet quantified) and title. It included  
various obligations but did not refer to any restraint after termination of employment or  
confidential information obligations.  
27. On 26 July 2019 PCC sent a letter to Mr Mendes stating that it offered employment in  
the position of General Manager for 12 months (the Letter of Offer). The letter attached:  
◦ a document entitled Standard Terms and Conditions of Employment which  
contained provision for execution by both parties (the Unexecuted Standard  
Terms); and  
◦ a document entitled Confidentiality Agreement which contained provision for  
execution by both parties (the Unexecuted Confidentiality Agreement).  
28. The Unexecuted Standard Terms and Unexecuted Confidentiality Agreement defined  
“Confidential Information”.  
29. The Letter of Offer requested Mr Mendes to sign the attached copy of the letter and the  
Unexecuted Standard Terms and Unexecuted Confidentiality Agreement and return  
them to PCC. The letter stated that the three documents were intended to create a legally  
binding employment contract when Mr Mendes signed and returned the copy of the  
letter.  
30. There were ongoing negotiations between the parties relating to the terms of Mr  
Mendes’ employment, including in particular in relation to bonuses. These negotiations  
were never finalised. Mr Mendes never signed or returned a copy of the Letter of Offer,  
Unexecuted Standard Terms or Unexecuted Confidentiality Agreement.  
31. In about July 2019 Mr Kachirski sent Vasco to China to visit factories manufacturing  
chairs for PCC to assist in designing new chairs for PCC. This included Lang Haoxuan.  
32. On 6 January 2021 a formal meeting was convened between Mr Kachirski and Mr  
Mendes and PCC’s Administration and Finance Manager. The minutes of the meeting  
record that Mr Kachirski said that he had lost confidence and even trust in Mr Mendes  
and there was then a detailed discussion in relation to numerous topics, culminating in  
an agreement on a restructure of processes and procedures of all areas of the business.  
33. On 7 March 2021 Mr Mendes used his work laptop to search for the availability of and  
purchase a domain name “tailormaderecliners” and search for the availability of a  
business name “tailor made recliners”.  
34. On 27 April 2021 PCC was granted a United States patent for a chair with a patented lift  
and recline mechanism which uses three motors. Mr Kachirski said in his affidavit that  
this mechanism was first patented in Australia but did not exhibit the Australian patent  
or identify when it was granted.  
35. On 20 May 2021 Mr Mendes sent a text message to Mr Kachirski apologising for an  
email sent earlier the same day and seeking to discuss an exit package.  
36. On 21 May 2021 Mr Kachirski sent an email to Mr Mendes acknowledging receipt of his  
text message. He said that, if Mr Mendes considered an exit package to be in his best  
interests, he should take Monday and Tuesday off to consider his options and let Mr  
Kachirski know on Wednesday morning. If he chose to remain, they would need to meet  
to discuss his performance management process. If he chose to resign, Mr Kachirski  
would hear him on a separation proposal. Mr Mendes responded by email saying that he  
had no intention of resigning, would be at work on Monday and welcomed his  
performance to be reviewed at any time.  
37. On or shortly after 25 May 2021 Mr Kachirski handed or had handed to Mr Mendes a  
letter drafted by PCC’s solicitors, Camatta Lempens. Mr Kachirski exhibited to his  
affidavit the draft letter received from his solicitors but not the final letter handed to Mr  
Mendes. The letter set out the history and referred to a letter said to have been written  
by Mr Kachirski to Mr Mendes earlier in the year, which earlier letter Mr Kachirski did  
not exhibit to his affidavit.  
38. The letter went on to state that Mr Kachirski would meet with Mr Mendes fortnightly  
over the next eight weeks, attended by a staff member to take minutes, PCC’s solicitors  
and, if he wished, a support person. A review would be undertaken at the conclusion of  
the eight week period. If Mr Mendes’ performance did not improve at a satisfactory rate,  
he may be subject to further performance management, alteration of his duties and/or  
remuneration in consultation with him or termination of his employment.  
39. On 31 May 2021, at Mr Mendes’ request, Mr Kachirski met with Mr Mendes with other  
persons present. There is a dispute on the evidence as to what was said during that  
meeting.  
40. On 4 June 2021 Mr Kachirski handed or had handed to Mr Mendes a letter (the 4 June  
letter). The letter articulated three allegations of misconduct and provided to Mr Mendes  
an opportunity to show cause by 9 June 2021 in effect why his employment should not  
be terminated. The first allegation included attempted extortion that allegedly occurred  
at the 31 May 2021 meeting. The third allegation was of failure to obey a direction to  
engage in performance management. The second allegation was that at the meeting on  
31 May 2021 Mr Mendes said that a family friend was willing to gift to him $1 million  
and he intended to approach the family friend and open an opposition business.  
41. The letter directed Mr Mendes not to attend at work while the subject matter of the letter  
was being investigated and considered. It directed him immediately to return all  
property belonging to PCC, including his iPad, work laptop and keys. It stated that he  
would be paid his normal wages during this period of garden leave.  
42. Mr Mendes departed the PCC premises after being given the 4 June letter. He left behind  
his work laptop. When Mr Mendes left, there were two OneDrive folders contained on  
his laptop, OneDrive folder A and OneDrive folder B.  
43. On 4 June 2021 Mr Kachirski handed or had delivered to Mr Mendes a second letter  
marked “Without Prejudice Save as to Costs”. It set out terms on which Mr Kachirski  
was open to a proposal for a resolution in relation to the cessation of Mr Mendes’  
employment. On the same day Mr Mendes sent a text message in response putting a  
proposal.  
44. On 7 June 2021 Mr Mendes sent a text message to Mr Kachirski responding to the 4  
June letter. In respect of the second allegation, he said that a family friend had  
approached him during the previous year to open a business and take his parents away  
given Mr Kachirski’s treatment of them but nothing came of it and Mr Mendes upheld  
his duties. It respect of the other two allegations, he denied them.  
45. On 10 June 2021 Mr Kachirski sent an email to Mr Mendes attaching a letter. The letter  
said that Mr Kachirski found the first and third allegations in the 4 June letter proven  
and the second allegation proven to a degree. It stated that Mr Mendes’ employment was  
terminated summarily effective immediately.  
46. On 13 or 20 June 2021 Mr Kachirski had a conversation with an unnamed employee of  
PCC. The Judge admitted evidence of the conversation not as truth of its content but for  
the limited purpose of explaining Mr Kachirski’s next actions.  
47. The employee showed to Mr Kachirski the website of PCC’s Chinese manufacturer [Lang  
Haoxuan]. Mr Kachirski identified that one of the chairs on the website was one of PCC’s  
designs at the time that Vasco went to China in July 2019. He identified that there were  
other chairs on the website that were part of PCC’s intended new modern product range.  
48. As a result of that conversation (and the earlier conversation with Mr Mendes on 31 May  
2021 concerning a competing business), Mr Kachirski caused PCC’s solicitors, Camatta  
Lempens, to engage Mar Noordin (an information technology consultant at Duncan  
Powell) to conduct a forensic examination of Mr Mendes’ work laptop to ascertain  
whether there was any evidence suggesting that PCC’s Property had been copied or  
distributed.  
49. Neither Mr Kachirski in his affidavit nor Mx Noordin in the Noordin report disclosed  
when Mx Noordin was engaged or the scope of instructions provided by Camatta  
Lempens at that stage (other than as described by Mr Kachirski in his affidavit as  
reproduced in the previous paragraph). By the time that Camatta Lempens sent the first  
letter to Mx Noordin that was exhibited to Mr Kachirski’s affidavit, the forensic  
examination had been completed. It may therefore be inferred that Mx Noordin was  
engaged by late June/early July 2021.  
50. On 2 July 2021 Benny Tak Kin Tang and Van Thuy Truong incorporated a company  
called Harrowford Pty Ltd (Harrowford). They became equal shareholders, and the  
directors, of Harrowford. Harrowford registered the business name Harrowford  
Recliners.  
51. On 9 July 2021 Vasco ceased employment with PCC, having resigned.  
52. In or after July 2021 Harrowford commenced to carry on business as a retailer of  
recliner chairs. It created a website www.harrowford.com.au (the Harrowford website)  
and a Facebook webpage under the name Harrowford Recliners (the Harrowford  
Facebook webpage). Harrowford engaged Mr Mendes as a mobile sales and marketing  
consultant to sell its recliner chairs.  
53. On or before 10 August 2021 Mx Noordin informed Camatta Lempens that the forensic  
examination had been completed.  
54. On 10 August 2021 Camatta Lempens sent a letter to Mx Noordin stating that they  
understood that the forensic examination had now been completed. They requested an  
expert report setting out:  
1. a detailed summary of the forensic examination undertaken;  
2. what was found in the course of the examination of Mr Mendes’ computer;  
3. if digital evidence was found, what were the risks, serious risks and actual damage  
to the security of PCC’s Confidential Information; and  
4. is there any evidence that Mr Mendes can access, or has in his possession or  
[1]  
control, PCC’s Confidential Information.  
55. On 11 August 2021 Camatta Lempens sent an email to Mr Mendes attaching a letter  
addressed to him. The letter set out various obligations said to be owed by Mr Mendes  
on termination of his employment, including by reference to clauses 8 to 11 of the  
Unexecuted Standard Terms and the general law. It demanded immediate return of any  
confidential information in the possession of Mr Mendes and a written undertaking by  
19 August 2021 in terms set out in the letter.  
56. On 11 August 2021 Mr Mendes sent an email to Camatta Lempens asking for a copy of  
the “alleged agreement (Employment Contract)” and stating that the terms of the  
Unexecuted Employment Contract had not been agreed upon and therefore it had not  
been signed.  
57. On 12 August 2021 Camatta Lempens sent an email to Mr Mendes contending that there  
was an agreement in terms of the Unexecuted Standard Terms implied from conduct, to  
which Mr Mendes responded denying this and contending that he was bound only by his  
initial agreement and by the original terms of the Employee Handbook.  
58. On 25 August 2021 Camatta Lempens sent a further letter to Mx Noordin requesting that  
the expert report:  
5. identify any records pertaining to user login credentials to web services;  
6. identify any records indicating use of cloud storage services;  
7. provide a timeline of events from 1 May 2021 to 10 June 2021; and  
8. identify the significance of the findings in relation to the data exfiltration of PCC’s  
[2]  
data and intellectual property.  
59. On 13 September 2021 Mr Kachirski caused searches to be undertaken in relation to  
Harrowford. They showed the registration in July of Harrowford as a company and of  
the business name Harrowford Recliners.  
60. Mr Kachirski caused searches to be undertaken on the World Wide Web for a  
Harrowford website or Facebook webpage. Those searches disclosed the existence of the  
Harrowford website and the Harrowford Facebook webpage. In his affidavit, Mr  
Kachirski said that the website and Facebook webpage depict products that are the same  
as advertised on PCC’s manufacturer Lang Haoxuan’s website.  
61. On 15 September 2021 Mx Noordin provided an expert report to Camatta Lempens (the  
Noordin report). The report addressed only questions 5 to 7 posed in the second  
Camatta Lempens letter dated 25 August 2021.  
62. The report was structured under major heading A Introduction and major heading B  
Findings. Under the heading B Findings, the report briefly described the laptop and  
number and types of data recovered from it. It then addressed questions 5 to 7 together  
with a description of Mr Mendes’s Internet search activity on 7 March 2021. Insofar as  
the report addressed questions 5 and 7, it was inconsequential for present purposes.  
63. In relation to question 6, the report identified OneDrive folder A and OneDrive folder B  
on Mr Mendes’ work laptop. It stated that:  
◦ OneDrive folder A contained 25,470 files within 53 subfolders (details of which Mx  
Noordin exported into an Excel spreadsheet (the OneDrive A spreadsheet); and  
◦ OneDrive folder B contained 50,377 files within 81 subfolders within two primary  
subfolders (details of which Mx Noordin exported into a second Excel spreadsheet  
(the OneDrive B spreadsheet).  
64. Mx Noordin said that OneDrive A appeared to be a “personal” account because it was  
not appended with the company name and OneDrive B appeared to be a business  
account because it was appended with the company name.  
65. The report was accompanied by the OneDrive A spreadsheet and the OneDrive B  
spreadsheet (collectively the Noordin spreadsheets). Each spreadsheet contained  
columns as follows:  
1. A sequential number for identification.  
2. Filename (the short name of the folder or file).  
3. Source (the full name of the folder or file).  
4. Size (in bytes).  
5. Created UTC (a date and time).  
6. Modified UTC (a date and time).  
7. Accessed UTC (a date and time).  
8. Is Deleted (yes or no – almost exclusively no).  
66. Mx Noordin did not explain the meaning of the columns. Although the first four columns  
are self-explanatory, there was no explanation of the meaning of the terms “Created”,  
“Modified”, “Accessed”, “UTC” or “Deleted”.  
67. The report stated that each drive was recorded as last “modified (or synced)” on 31 May  
2021 at 6.47 am. The report did not explain what it meant by “drive”, including whether  
this was each folder or something else. It did not explain whether or how that date and  
[3]  
time was recorded in either spreadsheet or otherwise derived. It did not explain what  
it meant by “modified” or “synced” or the phrase “modified (or synced)” or the  
significance if any of this to the matter.  
68. In this section of the report, Mx Noordin inferred that the OneDrive B account was a  
work account because the words “posturecomfortchair” appeared in its username and  
the OneDrive A account was a personal account because those words did not appear in  
its name. There was no assumption or instruction from Camatta Lempens on this topic.  
69. No other relevant findings were made in section B Findings.  
70. The report did not identify when Mx Noordin started examination of the laptop or how  
long Mx Noordin worked on the matter. The report did not address any of questions 1 to  
4 posed by Camatta Lempens in their request dated 10 August 2021. Despite having been  
requested in questions 1 and 2, the report did not provide a detailed summary of the  
forensic examination undertaken or what was found in the course of the examination of  
the laptop. It did not identify whether any of the files listed in the spreadsheets were  
opened or read or whether any access was made or attempted to OneDrive A or B in the  
cloud.  
71. In section A Introduction, under the subheading Summary of Findings, Mx Noordin set  
out what purported to be a summary of findings but in fact contained several findings  
that did not appear in section B of the report. The summary (with findings that did not  
appear in section B of the report italicised for identification) was as follows:  
1.1 I identified an unauthorised OneDrive account using Mr Mendes’ former employer’s (Mr  
Bill Kachirski) credentials linked on the computer.  
1.2 This unauthorised OneDrive account appears to contain 25,470 files which relate to The  
Posture Care Chair Company business.  
1.3 OneDrive is a cloud storage solution which allows a user access to their data from any  
location using an internet capable mobile device or computer. This means Mr Mendes was  
able to access that data contained in Mr Kachirski’s OneDrive account after his employment  
was terminated.  
1.4 I identified records of internet searches relating to the availability of internet domains and  
business registrations for “tailormade recliners”.  
1.5 I further identified records relating to the purchase and subsequent activation of the  
“tailormaderecliners” domain.  
1.6 In my experience, the combined discovery of the unauthorised OneDrive account  
containing The Posture Care Chair Company business data, its access and availability to Mr  
Mendes, and the searches for and subsequent purchase of the “tailor made recliners” internet  
domain are consistent with activity to utilise the Company data for purposes unrelated to  
the Company.  
72. Mx Noordin did not explain the basis of characterising the OneDrive A account as  
“unauthorised”; how it was determined that the files contained in that drive related to  
PCC’s business; how it was determined that Mr Mendes was able to access the data  
contained in that OneDrive account after his employment was terminated; or why  
discovery of that account (coupled with the 7 March 2021 Internet activity) was  
consistent with activity to utilise company data for unrelated purposes.  
73. On 28 October 2021 Mr Kachirski affirmed an affidavit intended to support an  
application for a search order against Mr Mendes and Bruno (Mr Kachirski’s affidavit).  
The affidavit contained 43 exhibits, including the Noordin report and the Noordin  
spreadsheets. It primarily comprised a chronological account of Mr Kachirski’s  
involvement with PCC, Mr Mendes and Vasco and of his investigations after the  
termination of Mr Mendes’ employment (which is generally included in the  
chronological narrative above).  
74. Paragraphs 86 and 87 of Mr Kachirski’s affidavit were as follows:  
[86] [The Noordin report] sets out that Bruno:  
86.1 synched his personal OneDrive to PCCC’s OneDrive;  
86.2 had and still has access to my personal email account for which we have since changed  
the passwords; and  
86.3 has over 25,000 files belonging to PCCC synched his personal OneDrive.  
[87] PCCC’s OneDrive contains Company Property and Confidential Information including  
that referred to at paragraph [26]. Noordin’s Report shows that Company Property and  
Confidential Information has been synced to Bruno’s personal OneDrive.  
75. Mr Kachirski did not identify why he referred to OneDrive A as “Bruno’s personal  
OneDrive”; why he said that the Noordin Report stated that Mr Mendes synced  
OneDrive A to OneDrive B; or why he said that the Noordin Report stated that Mr  
Mendes had over 25,000 files synched to OneDrive A.  
76. Curiously, Mr Kachirski did not give any evidence in his affidavit concerning the  
OneDrive accounts other than his purported summary of Mx Noordin’s report contained  
in paragraphs 86 and 87 of his affidavit reproduced above.  
77. Beyond the chronological account, Mr Kachirski concluded his affidavit with a section  
under the heading Anticipated Legal Proceedings. He said that he would take legal  
advice as to causes of action that could be pursued against Mr Mendes and/or Vasco as a  
result of the retention and use of PCC’s information and identified the following causes  
of action against Mr Mendes:  
◦ breach of contract (relying on the Unexecuted Standard Terms and Unexecuted  
Confidentiality Agreement);  
◦ negligence;  
◦ tortious interference; and  
◦ breach of fiduciary duty in equity and misuse of position and information in breach  
of sections 182 and 183 of the Corporations Act 2001 (Cth).  
78. He did not include a cause of action in equity for wrongful disclosure or use of  
confidential information. He did not identify what conduct by Mr Mendes was the  
subject of each potential cause of action.  
79. Otherwise, Mr Kachirski included the following paragraphs in this concluding section of  
his affidavit:  
[121] I am concerned that Bruno formed an intention to damage PCCC’s reputation and  
business during the issues relating to his performance as an employee of PCCC. I believe that  
Bruno has taken active steps to interfere with clients’ confidence in PCCC and has taken steps  
to cause financial difficulties for PCCC.  
[122] I believe that Bruno still has access to and is utilising Company Property and  
Confidential Information for Harrowford. I do not know but suspect he may also have stock of  
PCCC.  
...  
[129] I have already incurred loss, to be quantified, with respect to Bruno’s tortious  
interference and negligence which has resulted in PCCC’s inability to service its clients. This  
could have irreparable damage on PCCC’s business.  
[130] Should my suspicions be confirmed, and Bruno and/or Vasco, have been found to have  
utilised PCCC’s information (including confidential information and intellectual property) to  
establish competing businesses, the potential losses will be immeasurable as a result of PCCC’s  
niche market.  
[131] Not only does PCCC’s information include all of PCCC’s designs and patents but it also  
held details for all of our customer enquiries and costings which could be utilised by Bruno to  
undercut PCCC.  
[132] Given Bruno and Vasco’s responses to PCCC and refusal to provide declarations as to  
retaining PCCC’s Property I am concerned that they will seek to cover up their actions and the  
location of PCCC’s information including confidential material and intellectual property...  
[133] I urgently seek that the Court grant the orders sought to protect PCCC’s information  
(including confidential information and intellectual property) and prevent Bruno, Harrowford  
and Vasco from making use of PCCC’s Property for their financial benefit.  
80. It is clear from these paragraphs that the purpose of seeking the search order was related  
to the protection of confidential information of PCC (rather than the restraint of trade  
covenant in the Unexecuted Standard Terms or the allegations that Mr Mendes had  
sabotaged the business).  
81. On 1 November 2021 PCC, by its solicitors Camatta Lempens, filed in the District Court  
an ex parte originating application seeking, amongst other things, a search order against  
Mr Mendes supported by Mr Kachirski’s affidavit.  
82. On 8 November 2021 PCC’s application for a search order came before the Judge.  
Counsel appeared for PCC and informed the Judge that the originating application was  
ex parte. PCC relied on Mr Kachirski’s affidavit and tendered two exhibits: A1 being the  
Employee Handbook and A2 being an extract taken by counsel from 72 lines from the  
OneDrive A spreadsheet produced by Mx Noordin.  
83. The Judge made a search order in the terms sought by PCC. The order appointed Paul  
Bear as the independent lawyer and Mx Noordin as the independent computer expert. It  
authorised their attendance (together with a solicitor from Camatta Lempens) at Mr  
Mendes’ house and the search for and copying of the Listed Things. The Listed Things  
were defined to comprise five categories of things, including any file or information  
identified in the Noordin spreadsheets and any documents, files, information or  
property belonging or related to PCC.  
84. The order precluded disclosure to PCC of any material obtained as a result of the search  
until the return date. The return date shown in the order was 22 November 2021 (later  
changed to 24 November 2021).  
85. The Judge indicated that he would make an order in due course after the search had  
been carried out joining Mr Mendes, Harrowford and Bruno as respondents upon  
notification by PCC that the search had been carried out. It does not appear that any  
order was ever subsequently made joining any respondent. The Record of Outcome  
dated 8 November 2021 shows no respondent. The formal sealed search order shows Mr  
Mendes and Harrowford as Respondents despite there being no apparent order joining  
them as respondents.  
86. On the morning of 17 November 2021 the independent lawyer attended at Mr Mendes’  
house to execute the search order. He served the order together with the originating  
application and Mr Kachirski’s affidavit. Mr Mendes asked the him to leave his house  
while he sought legal advice and read the documents served on him.  
87. On 17 November 2021 Mr Mendes affirmed an affidavit in which he deposed to not  
having any documents or records of PCC and not having used its confidential  
information. He said that he was engaged by Harrowford as a contractor to market and  
sell products owned by Harrowford on its behalf.  
88. On 17 November 2021 Mr Mendes, by his solicitors Campbell Law, filed an urgent  
interlocutory application seeking discharge of the search order and a stay until that  
application was heard. The application was made returnable on 22 November 2021  
(being the return date shown in the search order) (later changed to 24 November 2021).  
89. On the afternoon of 17 November 2021 the matter came before the Judge. It was agreed  
that Mr Mendes would produce his Lenovo laptop/notepad and his iPhone immediately  
after court to Mr Bear as the independent lawyer, who would produce it to Mx Noordin  
as the independent computer expert, who would mirror the memories on those devices  
and return them to Mr Mendes when completed. It was agreed that the independent  
lawyer and independent computer expert would return to Mr Mendes’ house on the  
following day to search for other devices. The search order was varied consistently with  
these agreed matters.  
90. The search order was also varied to preclude until further order disclosure to PCC or  
anyone else (except the independent lawyer, independent computer expert and lawyers  
for the parties) of any material obtained as a result of the search. It was also varied to  
limit the scope of the search. The matter was adjourned to the return date of the search  
order and of Mr Mendes’ interlocutory application to discharge it and was ultimately  
adjourned for argument on 10 December 2021.  
91. On 30 November 2021 Campbell Law sent a letter to Jean-Pierre du Plessis, an  
information technology consultant. They requested an urgent expert report seeking his  
opinion on four questions. On 6 December 2021 Campbell Law sent a further letter to  
Mr du Plessis providing further materials and requesting that he address seven further  
questions.  
92. On 3 December 2021 Mr Mendes affirmed an affidavit (Mr Mendes’ affidavit)  
responding to Mr Kachirski’s affidavit. He deposed to the creation of the two OneDrive  
accounts as reproduced at [235] below. He denied entering into a contract in terms of  
the Unexecuted Standard Terms or Unexecuted Confidentiality Agreement.  
93. Mr Mendes said that he was contracted by Harrowford as a mobile sales and marketing  
consultant. He denied that the products sold by Harrowford were the same as the  
products sold by PCC. He said that he had returned his work laptop, and all other  
company property, on 4 June 2021 when his employment was suspended. He said that  
at that point PCC changed the password to his work email address and he was unable to  
access OneDrive B.  
94. On 8 December 2021 Mr du Plessis provided an expert report to Campbell Law (the du  
Plessis report). He said that it was not clear why Mx Noordin regarded the OneDrive A  
account as “unauthorised” and in his opinion it was not unauthorised because the email  
account belonged to Mr Kachirski, who must have provided his password to establish the  
OneDrive account. He expressed the opinion that PCC had control of both OneDrive  
accounts because the credentials to both accounts were under the control of PCC, which  
could change the passwords at any time. If the passwords were changed, Mr Mendes  
would have no access to the accounts. He said that both Google and Microsoft  
maintained records of password changes.  
95. Mr Mendes also addressed the Noordin spreadsheets and the potential ability of Mx  
Noordin to identify whether files stored on the OneDrives were downloaded or emailed.  
96. On 8 December 2021 Timothy Campbell affirmed an affidavit exhibiting the du Plessis  
report and his briefing correspondence to Mr du Plessis.  
97. On 9 December 2021 Mr Kachirski affirmed a further affidavit (Mr Kachirski’s  
responding affidavit) in response to Mr Mendes’ application to discharge the search  
order. It is largely reproduced at [236] below.  
98. On 10 December 2021 the Judge heard Mr Mendes’ application to discharge the search  
[4]  
order. The Judge delivered ex tempore reasons for dismissing the application.  
The ex parte hearing before the Judge  
99. Counsel for PCC took the Judge through the chronological narrative contained in Mr  
Kachirski’s affidavit up to paragraph 112. This included detailed references to the  
confidentiality clauses contained in the Unexecuted Standard Terms and the Unexecuted  
Confidentiality Agreement.  
100. When counsel reached paragraphs [86] and [87] of Mr Kachirski’s affidavit, emphasis  
was given to Mr Kachirski’s purported summary of Mx Noordin’s report. Counsel said:  
Relevantly it sets out that Bruno had synced his personal OneDrive to the computer that he  
used for his employment. So essentially there were two OneDrive instances or profiles that  
were identified on the computer, being Bruno's personal OneDrive and also the company's  
business OneDrive.  
Bruno had access to the business OneDrive for work purposes, however Ms Noordin's also  
identified that it appears he's synced the documents from the business OneDrive account to  
his personal OneDrive account.  
There were approximately over 25,000 files belonging to the company that were synced to his  
personal OneDrive which has raised concerns that he still has access to those documents.  
...  
It appears, based on Mar Noordin's report, that Bruno has and may still have access to those  
documents by virtue of what is synced to his personal OneDrive account.  
...  
Ms Noordin's report also provides further background and how it was identified; that the  
profile, the subject of that report, being users/Bruno/OneDrive appears to be a personal  
account. That's discussed at para.2.2.1 of her report at 875 [sic]. It notes that that OneDrive  
was recorded as last modified or synced on 31 May 2021, although I understand that there was  
access, according to that spreadsheet, on 4 June.  
...  
It's unclear whether or not and I can say no more than submitting that an inference can be  
drawn that those documents were copied deliberately, however, it's unclear as to whether this  
is where when it was last accessed, whether he had his system set up to sync these documents  
on a regular basis.  
101. Counsel referred to OneDrive A as a “personal” account and used the term personal in  
the sense that the account had nothing to do with PCC. By contrast, Mx Noordin had  
characterised it as “Personal” in the technical sense that Microsoft characterises  
accounts with usernames other than those connected to Microsoft products as Personal.  
As observed above, in that technical sense, a Personal account may be used for business  
purposes and a Business account may be used for personal purposes.  
102. Counsel tendered a document which became Exhibit A2 (Exhibit A2). Counsel said that  
she had sorted the OneDrive A spreadsheet by reference to the date in the “Accessed”  
column sorted from newest to oldest and printed the first 72 rows out of the 25,000 odd  
rows in the spreadsheet. When asked what the column heading “Accessed UTC” meant,  
counsel said that it meant the last date universal time when the relevant document was  
accessed. Reference was made to the fact that the most recent date in that column was 4  
June 2021 and to the fact that most of the rows in Exhibit A2 showed 30 May 2021 or 4  
June 2021 in that column, suggesting that Mr Mendes had accessed those files in the last  
week before his employment was suspended.  
103. There were three broad complaints or potential complaints by Mr Kachirski in his  
affidavit, namely that Mr Mendes had sabotaged the business, that he was working in a  
business in breach of the restraint covenants in the Unexecuted Standard Terms and  
that he was using or disclosing confidential information. However, it is clear from  
counsel’s submissions at the ex parte hearing (and indeed at the inter partes hearing  
and on appeal) that the purpose of the search order was related to the protection of  
confidential information of PCC (rather than the subject of the other two broad  
complaints).  
104. Counsel signalled an intention to move to the substance of the submissions as to why a  
search order should be made. Before doing so, counsel said  
So the application essentially is made on the base that a search order be granted with respect  
to Mr Bruno Mendes' residence, and essentially to seek access to his computer to identify  
whether those documents that have been referred to in Ms Noordin's report, or any further  
items of company property can be located on the computer drive.  
105. Counsel then turned to work through the terms of the proposed search order and the  
Judge suggested various modifications.  
106. The Judge then indicated that he was prepared to make the order and did not require  
counsel to make any submissions in support of the application for the order. This was  
unfortunate because counsel had not addressed the four prerequisites to making an  
order; they had not been clearly and separately articulated in Mr Kachirski’s affidavit;  
and the Judge did not give reasons for making the order. The combination of these  
factors makes it difficult to know how the Judge was satisfied that each of the four  
prerequisites had been established.  
The inter partes hearing before the Judge  
107. Counsel for Mr Mendes made both written and oral submissions.  
108. Counsel for Mr Mendes relied on three grounds to discharge the search order:  
1. PCC breached its duty of disclosure, both by failing to disclose material matters  
and by unintentionally misleading the Judge in relation to the manner in which the  
technology worked;  
2. PCC failed to identify alternative, less intrusive, methods of obtaining the  
information sought to be obtained by the search order and those methods should  
have been exhausted before applying for the search order;  
3. The evidence adduced by PCC did not satisfy the onus of establishing the  
prerequisites for making a search order.  
109. In relation to the first ground, counsel for Mr Mendes referred to Mx Noordin’s  
characterisation of OneDrive A as unauthorised, which in turn informed paragraphs 86  
and 87 of Mr Kachirski’s affidavit. Counsel contended that there was no basis disclosed  
by PCC for this statement or finding by Mx Noordin. Counsel submitted that this was the  
central thesis for the suspicion that Mr Mendes had retained company documents after  
his departure.  
110. Counsel referred to the submissions made to the Judge at the ex parte hearing  
reproduced at [100] above. Counsel contended that the submission that Mx Noordin’s  
report showed that Mr Mendes had synced his personal OneDrive A to the company’s  
OneDrive B was not based on anything contained in Mx Noordin’s report or any other  
evidence adduced before the Judge. Counsel also referred to the submission to the Judge  
at the ex parte hearing that an inference could be drawn that those documents were  
copied deliberately and submitted that there was no basis for that submission.  
111. Counsel referred to the submissions made to the Judge about the meaning of “accessed  
UTC” at the ex parte hearing and that Mr Mendes had accessed documents in OneDrive  
A on 30 May 2021 and 4 June 2021. Counsel submitted that there was no basis in the  
evidence for that submission and indeed the du Plessis report illustrated that it was  
made without a basis (in that various system maintenance applications such as antivirus  
and backup typically update the last access date when they run).  
112. Counsel submitted that there was no evidence that Mr Mendes could or did access either  
OneDrive after he was suspended on 4 June 2021.  
113. Counsel submitted that there was no reference in the evidence to examination by Mx  
Noordin of individual files and this should have been done and disclosed.  
114. In relation to the second ground, counsel for Mr Mendes submitted that there was no  
evidence adduced by PCC about any attempts to obtain information sought by other  
methods. Counsel referred for example to the potential methods identified in the du  
Plessis report (addressed in more detail below) and to the possibility of Mx Noordin  
examining what was recorded in the cloud. Counsel submitted that Mx Noordin should  
have examined these matters and either failed to do so or failed to disclose having done  
so. Counsel referred to the authorities about the need to exhaust less invasive methods  
before seeking a search order.  
115. In relation to the third ground, counsel for Mr Mendes submitted that the evidence  
adduced by PCC did not satisfy the onus of establishing the prerequisite that there was  
sufficient evidence that Mr Mendes possessed important evidentiary material.  
116. Counsel for PCC made submissions in reply, which it is not necessary to summarise.  
Essentially the same submissions were made on appeal.  
The Judge’s reasons  
117. After introducing the application and affidavit material, the Judge’s reasons were as  
follows (paragraph numbers inserted for ease of reference):  
2. The essence of [Mr Mendes’ counsel’s] submissions are that there were matters  
that should have been put before the Court on the ex parte application but were not  
such that the applicant did not squarely put the respondent’s case. In particular,  
that there were matters relating to the applicant’s expert report prepared by Ms  
Noordin that she should have, but did not address.  
3. I accept there are a number of matters which Ms Noordin, who carried out an  
investigation as to the respondent’s access to folders and files on the applicant’s  
computer network, could have done in addition to the work that she did do.  
4. I adopt with respect the observations of his Honour Judge Burnett DCJ in Road  
Transport Historical Society v Martin (No 2) [2021] SADC 62 at paras 76-83 and  
94.  
5. Nonetheless, I do not consider that the requirements of UCR 112.3 are not met  
[when] the extra material the first respondent relies on is considered and, in  
particular, it does not change the view I formed when deciding to make the order.  
Further, there is no challenge to Ms Noordin’s report.  
6. Having considered all the material put before me on this occasion and heard  
counsels’ submissions, I am satisfied that had the material the first respondent  
puts before the Court on this occasion been put before me on 8 November 2020, I  
would have been satisfied as to the matters in UCR 112.  
The search order regime  
118. Rules 112.2 and 112.3 of the Rules provide:  
112.2—Search order  
The Court may make an order (a search order), in any proceeding or in anticipation of any  
proceeding in the Court, with or without notice to the respondent, for the purpose of securing  
or preserving evidence and requiring a respondent to permit persons to enter premises for the  
purpose of securing the preservation of evidence that is, or may be, relevant to an issue in the  
proceeding or anticipated proceeding.  
Note—  
For an application in respect of an anticipated proceeding, see Chapter 19 Part 13.  
112.3—Requirements for grant of search order  
The Court may make a search order if the Court is satisfied that—  
(a) an applicant seeking the order has a strong prima facie case on an accrued  
cause of action;  
(b) the potential or actual loss or damage to the applicant will be serious if the  
search order is not made; and  
(c) there is sufficient evidence in relation to a respondent that—  
(i) the respondent possesses important evidentiary material; and  
(ii) there is a real possibility that the respondent might destroy such material or  
cause it to be unavailable for use in evidence in a proceeding or anticipated  
proceeding before the Court.  
119. Rules 243.1 relevantly provides:  
243.1—Institution  
(1) A person who seeks a search order under rule 112.2 ... in anticipation of instituting a  
substantive action may institute an action under this rule by filing an Originating Application  
and supporting affidavit in accordance with rule 82.1.  
(2) The supporting affidavit must depose to the matters referred to in rule 112.3 ...  
(3) The applicant must join the person against whom the order is sought as a respondent but  
need not serve the Originating Application documents on the person before the application is  
heard by the Court.  
(4) Chapter 10 Part 2 Division 1 and Schedule 2 otherwise apply to an application for a search  
order.  
120. Rule 112.8 applies Schedule 2 to applications for search orders made under rule 112 or  
rule 243.  
121. Schedule 2 rule 3 prescribes the requirements for the supporting affidavit in support of  
an application for a search order. It provides:  
3—Supporting affidavit  
The supporting affidavit must include the following information—  
(a) a description of the things or categories of things in relation to which the order  
is sought;  
(b) the address or location of the premises in relation to which the order is sought  
and whether they are private or business premises;  
(c) why the order is sought, including why there is a real possibility that the things  
to be searched for will be destroyed or otherwise made unavailable for use in  
evidence before the Court unless the order is made;  
(d) the prejudice, loss or damage likely to be suffered by the applicant if the order  
is not made;  
(e) the name, address, firm, and commercial litigation experience of an  
independent lawyer who consents to being appointed to serve the order, supervise  
its execution and do such other things as the Court considers appropriate; and  
(f) if the premises to be searched are or include residential premises—whether to  
the best of the applicant’s belief it is reasonably likely that the only occupants of  
the premises will be children under the age of 18 or other persons in a position of  
vulnerability because of age, mental capacity, infirmity, English language ability or  
otherwise (vulnerable persons).  
122. Schedule 2 rule 8 both recognises the general law requirement and imposes the  
requirement of full and frank disclosure on an ex parte application. It provides:  
8—Hearing of application  
(1) An applicant for a search order made without notice to the respondent is under a duty to  
the Court to make full and frank disclosure of all material facts to the Court.  
(2) Without affecting the generality of subrule (1), possible defences known to the applicant  
and any financial information that may indicate that the applicant is unable to meet the usual  
undertaking as to damages from assets within Australia must be disclosed.  
123. Schedule 2 rule 9(1) requires a search order to be modelled on form 82A, adapted to  
meet the circumstances of the particular case. Form 82A contains orders 2 and 3 which  
provide that the order has effect up to and including a specified Return Date, at which  
there is to be a further hearing (as required by Schedule 2 rule 11) and the respondent  
may apply at any time (including before the Return Date) to discharge or vary the order.  
These orders were included in the search order made by the Judge on 8 November 2021.  
124. There are four prerequisites for making a search order (derived from rule 112.3) of which  
the judge or magistrate must be satisfied and then the judge or magistrate has a  
discretion whether to make the order. Those prerequisites in a case, such as at present,  
under rule 243.1 are:  
1. the applicant has a strong prima facie case on an accrued cause of action;  
2. the potential or actual loss or damage to the applicant will be serious if the search  
order is not made;  
3. there is sufficient evidence that the respondent possesses important evidentiary  
material; and  
4. there is sufficient evidence that there is a real possibility that the respondent might  
destroy such material or cause it to be unavailable for use in evidence in an  
anticipated proceeding before the Court.  
125. The supporting affidavit is required (Schedule 2 rule 3) to address why the order is  
sought and hence to address each of the four prerequisites.  
126. The judgment of Allsop J in Walter Rau Neusser Oel Und Fett AG v Cross Pacific  
[5]  
Trading Ltd reproduced at [134] below demonstrates the importance of the  
identification in a clear, coherent and ordered way of the grounds for the search order.  
The supporting affidavit should at some stage address each prerequisite separately,  
sequentially and comprehensively rather than leaving the court to attempt to ascertain  
how it is said that each prerequisite is satisfied by combing through the whole affidavit.  
127. The prerequisites operate in a cascading fashion. Thus, the loss or damage the subject of  
the second prerequisite will be loss or damage on an accrued cause of action in respect of  
which the applicant has a strong prima facie case under the first prerequisite (not for  
example a cause of action on which the applicant has a weak prima facie case or no  
prospects of success). The evidentiary material the subject of the third prerequisite will  
be evidentiary material relevant to a cause of action that meets the first prerequisite, the  
loss or damage caused by the breach the subject of that cause of action meeting the  
second prerequisite. The risk of destruction of the evidentiary material the subject of the  
fourth prerequisite will be the evidentiary material the subject of the third prerequisite.  
128. In relation to the first prerequisite, it is necessary for the supporting affidavit to identify  
and prove each essential element of the cause of action and how the applicant has a  
strong prima facie case on each such element.  
129. In relation to the second prerequisite, it is necessary for the supporting affidavit to  
identify and prove the nature of the loss or damage or the relevant heads of loss or  
damage, their likely quantum (even if an estimate or a range), and how the damage will  
be caused by the respondent’s breaches and if the search order is not made.  
130. In relation to the third prerequisite, it is necessary for the supporting affidavit to identify  
in specific terms the evidentiary material and explain and prove why it is important to  
the proof of the relevant cause of action.  
131. In relation to the fourth prerequisite, it is necessary for the supporting affidavit to  
identify and prove the specific facts by reason of which there is such a real possibility.  
132. On this appeal, the only challenge is in respect of the third prerequisite and the issue  
whether there was sufficient evidence that Mr Mendes possesses important evidentiary  
material. However, this prerequisite needs to be considered in the context of the other  
prerequisites and in particular the first and second prerequisites.  
133. A search order is a species of injunction and the principles of injunctions, including in  
relation to ex parte and inter partes hearings generally apply. The common law power to  
grant a search order was first identified in Anton Piller KG v Manufacturing Processes  
[6]  
Ltd.  
134. An applicant who makes an ex parte application has a heavy duty of disclosure. In  
[7]  
Walter Rau Neusser Oel Und Fett AG v Cross Pacific Trading Ltd, Allsop J said:  
In an ex parte hearing, it is the obligation of the party seeking orders, through its  
representatives, to take the place of the absent party to the extent of bringing forward all the  
material facts which that party would have brought forward in defence of the application:.  
That does not mean stating matters obliquely, including documents in voluminous exhibits,  
and merely not mis-stating the position. It means squarely putting the other side’s case, if  
there is one, by coherently expressing the known facts in a way such that the Court can  
understand, in the urgent context in which the application is brought forward, what might be  
said against the making of the orders.  
...  
The high standard of candour and the heavy responsibility on those who seek ex parte orders  
is especially the case where (as it was here, and as will often be the case) a discretion is  
involved. The judge must be given the opportunity of analysing the facts from the perspective  
of any available case which can be put, or anticipated to be put, by the absent party. That was  
not done here. Facts were identified, but not in a fashion which illuminated with any clarity  
the known facts and not in a coherent and ordered way as plainly would have been done by the  
[8]  
absent party.  
135. The duty is to disclose all relevant matters that are known or would have been known if  
[9]  
the applicant had made all proper enquiries. In Brink's-MAT Ltd v Elcombe Ralph  
Gibson LJ (with whom Balcombe and Slade LJJ agreed) said:  
(1) The duty of the applicant is to make “a full and fair disclosure of all the material  
facts”.  
(2) The material facts are those which it is material for the judge to know in dealing  
with the application as made: materiality is to be decided by the court, and not by  
the assessment of the applicant or his legal advisers.  
(3) The applicant must make proper inquiries before making the application. The  
duty of disclosure therefore applies not only to material facts known by the  
applicant, but also to any additional facts which he would have known if he had  
[10]  
made such inquiries.  
136. A breach of the obligation of disclosure will almost invariably result in an ex parte order  
being discharged. In International Finance Trust Co Ltd v New South Wales Crime  
[11]  
Commission  
Hayne, Crennan and Kiefel JJ said:  
One particular basis for seeking to set aside an order obtained ex parte is exemplified by the  
decision of Isaacs J in Thomas A Edison Ltd v Bullock... Isaacs J held that a party asking for  
an injunction ex parte is duty bound "to bring under the notice of the Court all facts material  
to the determination of his right to that injunction, and it is no excuse for him to say he was  
not aware of their importance". As Isaacs J went on to say:  
"the party inducing the Court to act in the absence of the other party ... fails in his obligation  
unless he supplies the place of the absent party to the extent of bringing forward all the  
material facts which that party would presumably have brought forward in his defence to that  
application. Unless that is done, the implied condition upon which the Court acts in forming  
[12]  
its judgment is unfulfilled and the order so obtained must almost invariably fall."  
137. However, setting aside the order for breach of the obligation of disclosure does not  
preclude the applicant from seeking a fresh application inter partes and obtaining a  
fresh order after proper disclosure has been made. In Lloyd’s Bowmaker Ltd v  
[13]  
Britannia Arrow Holdings PLC  
Glidewell LJ said:  
[E]ven though a first injunction is discharged because of material non-disclosure, the court  
has a discretion whether to grant a second Mareva injunction at a stage when the whole of the  
facts, including that of the original non-disclosure, are before it, and may well grant a second  
injunction if the original non-disclosure was innocent and if an injunction could properly be  
[14]  
granted even had the facts been disclosed.  
138. However, an applicant who obtains an ex parte order as result of breaching its obligation  
of disclosure should not be permitted to enjoy the fruits of that breach. In Bank Mellat v  
[15]  
Nikpour  
Donaldson LJ (with whom Slade LJ agreed) said:  
This principle that no injunction obtained ex parte shall stand if it has been obtained in  
circumstances in which there was breach of the duty to make the fullest and frankest  
disclosure is of great antiquity... Warrington LJ in R v Kensington Income Tax  
Commissioners, ex parte Princess Edmond de Polignac ... said:  
It is perfectly well settled that a person who makes an ex parte application to the court – that  
is to say, in the absence of the person who will be affected by that which the court is asked to  
do – is under an obligation to the court to make the fullest possible disclosure of all material  
facts within his knowledge, and if he does not make that fullest possible disclosure, then he  
cannot obtain any advantage from the proceedings, and he will be deprived of any advantage  
he may have already obtained by means of the order which has thus wrongly been obtained by  
him...  
...  
As Warrington LJ said in the Kensington Income Tax Commissioners case, the court will be  
astute to ensure that a plaintiff who obtains an injunction without full disclosure – or any ex  
parte order without full disclosure – is deprived of any advantage he may have derived by that  
breach of duty.  
...  
The rule requiring full disclosure seems to me to be one of the most fundamental importance,  
particularly in the context of the draconian remedy of the Mareva injunction. It is in effect,  
together with the Anton Piller order, one of the law’s two “nuclear” weapons. If access to such  
a weapon is obtained without the fullest and frankest disclosure, I have no doubt at all that it  
[16]  
should be revoked.  
139. It has been said that a court has a discretion not to discharge an ex parte order when  
there has been a material breach of the obligation of disclosure. However, as observed  
above, technically this involves the court making a fresh order. This should only be done  
if:  
1. the breach was not deliberate;  
2. it was open to the court to make the original order on the material that was placed  
before the court by the applicant;  
3. the court is satisfied that the order should be made after taking into account the  
original material together with the material that should have been disclosed and  
any additional material adduced at the inter partes hearing (the applicant not  
being permitted to rely on any material obtained as a result of the breach of duty);  
and  
4. it is in the interests of justice that the original order not be discharged  
notwithstanding the breach of duty.  
140. An ex parte injunctive order is granted on an interim basis to preserve the status quo  
until both parties can be heard on whether the interim order should continue or be  
discharged. At the inter partes hearing, the court hears additional evidence that the  
parties wish to adduce. If on hearing the whole of the evidence the court is not satisfied  
that the order is justified, the court will discharge the ex parte search order. This is a  
corollary of the fact that the order was made without hearing the respondent and, if the  
respondent had been heard and the order would not have been made, the order should  
be discharged.  
141. In WEA Records Ltd v Visions Channel 4 Ltd,  
[17]  
Sir John Donaldson MR (with whom  
Dunn and Purchas LJJ agreed) said:  
As I have said, ex parte orders are essentially provisional in nature. They are made by the  
judge on the basis of evidence and submissions emanating from one side only. Despite the fact  
that the applicant is under a duty to make full disclosure of all relevant information in his  
possession, whether or not it assists his application, this is no basis for making a definitive  
order and every judge knows this. He expects at a later stage to be given an opportunity to  
review his provisional order in the light of evidence and argument adduced by the other side,  
and, in so doing, he is not hearing an appeal from himself and in no way feels inhibited from  
discharging or varying his original order.  
...  
If it were now clear that the defendants had suffered any injustice by the making of the order,  
taking account of all relevant evidence... the defendants would have their remedy and the  
[18]  
counter undertaking as to damages.  
142. As a matter of principle, in determining whether a search order should be continued or  
discharged, the applicant should not be permitted to rely on material obtained as a result  
of the search because that would permit the applicant to enjoy the fruits of an order that  
should not have been made. However, in a paragraph omitted from the reasons of Sir  
John Donaldson MR reproduced above, it was said that:  
[T]he defendants seek to go back to the beginning of the action saying that, regardless of  
whether the fruits of the order are such as to show that it was abundantly justified, the judge  
had insufficient material to justify his action at the ex parte stage. They therefore invite us to  
set the ex parte order aside and to order the return of the affidavits to the two personal  
defendants and the seized material to the defendant’s solicitors.  
[19]  
I regard this as wholly absurd.  
143. Sir John Donaldson MR went on in the last paragraph reproduced at [141] above to say  
that the relevant evidence to be taken into account included the affidavits of the personal  
defendants and the fruits of the search.  
144. The question whether an applicant can rely, at an inter partes hearing, on the fruits of  
the search does not arise on this appeal because PCC did not seek to rely on any fruits of  
the search at the inter partes hearing. I therefore heard no argument from the parties on  
that question. I would wish to reserve my opinion on whether this aspect of the decision  
in WEA Records Ltd should be followed.  
145. Although not a point taken on appeal, I observe that PCC did not comply with rule  
243.1(3) because it did not join Mr Mendes (or anyone else) as a respondent to the  
originating application. This led to uncertainty as to the identity of the parties to the  
action. First, no order was apparently made at any point joining any respondent to the  
action. Secondly, the documents filed by PCC in the action are inconsistent in naming  
respondents. The Judge was informed at the ex parte hearing that the respondents were  
to be Mr Mendes, Bruno and Harrowford. Mr Kachirski’s affidavits show Mr Mendes  
and Bruno as the respondents but not Harrowford. The 17 November 2021 record of  
outcome shows no respondent but the formal order shows Mr Mendes and Harrowford  
as the respondents and not Bruno. The Court’s record of the parties to the proceeding  
shows only Mr Mendes as the respondent.  
146. PCC explained the non-joinder of any respondent at the ex parte hearing as being due to  
a fear that, because the application would be listed for a hearing, it would be brought to  
the attention of the respondents and it was understood that this had occurred in the  
past. Whatever might have been the case in the early days of ECMS, it is the  
responsibility of the applicant to serve an originating application and inform the  
respondent of the hearing date: the court does not notify a respondent of the hearing  
date in those circumstances. If PCC had been concerned about potential notification, it  
should have raised the issue with the Registrar.  
147. Because Mr Mendes was treated by the parties and the Court as a respondent from 17  
November 2021 and because no point is taken, I proceed on the basis that PCC and Mr  
Mendes were the parties to the proceeding from 17 November 2021 onwards. However,  
the matters referred to at [145] above demonstrate the critical importance of applicants  
complying with rule 243.1(3) and joining the respondent or respondents against whom  
they seek a search order as the respondent or respondents to the originating application  
at the outset.  
Challenge to Noordin report  
148. I address the merits of the grounds of appeal before addressing leave to appeal.  
149. The first ground of appeal is that the Judge erred in finding that there was no challenge  
to the Noordin report.  
150. The Noordin report was challenged at the inter partes hearing on multiple levels.  
151. First, as described at [71] above, the opinions of Mx Noordin were contained in the  
summary at the outset of the report as follows:  
1.1 I identified an unauthorised OneDrive account using Mr Mendes’ former employer’s (Mr  
Bill Kachirski) credentials linked on the computer.  
1.2 This unauthorised OneDrive account appears to contain 25,470 files which relate to The  
Posture Care Chair Company business.  
1.3 OneDrive is a cloud storage solution which allows a user access to their data from any  
location using an internet capable mobile device or computer. This means Mr Mendes was  
able to access that data contained in Mr Kachirski’s OneDrive account after his employment  
was terminated.  
1.4 I identified records of internet searches relating to the availability of internet domains and  
business registrations for “tailor made recliners”.  
1.5 I further identified records relating to the purchase and subsequent activation of the  
“tailormaderecliners” domain.  
1.6 In my experience, the combined discovery of the unauthorised OneDrive account  
containing The Posture Care Chair Company business data, its access and availability to Mr  
Mendes, and the searches for and subsequent purchase of the “tailor made recliners” internet  
domain are consistent with activity to utilise the Company data for purposes unrelated to  
the Company.  
152. The italicised passages were challenged at the inter partes hearing. Mx Noordin’s  
characterisation at 1.1, 1.2 and 1.6 of OneDrive A being “unauthorised” and failure to  
provide any basis for that characterisation was heavily challenged by counsel for Mr  
Mendes in both his written and oral submissions. In addition, Mr du Plessis at section  
5.1 of his expert report gave contradictory evidence expressing the opinion that, on the  
face of the matters referred to in the Noordin report, OneDrive A was authorised and  
identifying the lack of any basis in the Noordin report for a conclusion that OneDrive A  
was unauthorised. Counsel for Mr Mendes submitted that, on this ground alone, the  
search order was vitiated. It was necessary for the Judge to address and resolve this  
issue.  
153. Mx Noordin’s opinion at 1.3 that Mr Mendes was able to access the data contained in  
OneDrive A after his employment was terminated was also heavily challenged by counsel  
for Mr Mendes. It was submitted, correctly, that there was no basis disclosed in the  
Noordin report or elsewhere in the evidence adduced by PCC for this conclusion. Mr du  
Plessis at section 5.1.4 of his expert report identified some of the facts that would need to  
be known to determine whether Mr Mendes could obtain access to OneDrive A after  
termination of his employment, which were simply not addressed in the Noordin report.  
154. Mx Noordin’s opinion at 1.6 was challenged by counsel for Mr Mendes because it again  
relied on OneDrive A being unauthorised.  
155. Secondly, it was submitted on behalf of Mr Mendes to the Judge that there was a failure  
by Mx Noordin and PCC to disclose various matters that needed to be known. These  
included the structure and operation of PCC’s computer systems, including the use of  
OneDrive accounts; which purported confidential information and intellectual property  
Mr Mendes had access to during his employment; and which purported confidential  
information and intellectual property he had access to, if any, after the termination of his  
employment, including the role of password and other security measures. Mr du Plessis  
in his report identified various matters that, in his opinion, ought to have been  
addressed by a computer expert in the position of Mx Noordin.  
156. Thirdly, the manner in which the content of the Noordin report was used by Mr  
Kachirski in his affidavit was strongly challenged by Mr Mendes during the inter partes  
hearing. It was submitted that each of the statements contained at paragraphs 86 and 87  
of Mr Kachirski’s affidavit, which were said to be derived from the Noordin report, were  
in fact completely unsupported by the Noordin report (other than the statement by Mx  
Noordin that OneDrive A was unauthorised, which was itself unsupported).  
157. Fourthly, the manner in which the content of the Noordin report was used by counsel for  
PCC at the ex parte hearing was strongly challenged by Mr Mendes during the inter  
partes hearing. While counsel for Mr Mendes made it clear that there was no suggestion  
that PCC’s counsel deliberately misled the Judge, nevertheless it was contended that  
submissions made to the Judge said to be based on the Noordin report were not in fact  
supported by the Noordin report. This included submissions that Mr Mendes had synced  
OneDrive A to OneDrive B; had and may still have access to those documents by virtue  
of what is synced to his personal OneDrive account; and that the Noordin spreadsheets  
showed that Mr Mendes last accessed the files on 4 June 2021.  
158. Fifthly, it was submitted on behalf of Mr Mendes to the Judge that Mx Noordin ought to  
have addressed alternative methods of seeking to ascertain whether Mr Mendes had  
taken possession of or used company documents, being methods identified by Mr du  
Plessis. Mr du Plessis at sections 5.4, 5.8, 5.9 and 5.10 of his report said that Microsoft  
and Google keep records available to PCC of password changes and expressed the  
opinion that an computer expert in the position of Mx Noordin could have ascertained  
whether a storage device (such as a USB drive) had been used on Mr Mendes’ work  
laptop and potentially (depending on the circumstances) could have ascertained whether  
Mr Mendes had emailed company documents to an external email address or whether  
the files of OneDrive A or OneDrive B had been downloaded to other devices outside  
PCC’s business.  
159. The Judge in his reasons did not refer to any of these challenges, except that at  
paragraph 2 of his reasons reproduced at [117] above, the Judge referred to Mr Mendes’  
contention summarised at [158] above.  
160. PCC contends that the statement by the Judge that “there is no challenge to Mx  
Noordin’s report” should be construed as meaning that neither Mr Mendes nor Mr du  
Plessis were disputing the balance of the Noordin report other than the references to  
OneDrive being “unauthorised” and “personal”.  
161. I reject that contention. The Judge in his reasons did not refer to the submissions made  
by Mr Mendes relating to Mx Noordin’s characterisation of OneDrive as “unauthorised”  
or PCC’s counsel’s characterisation of it as “personal”. To disregard the challenge to Mx  
Noordin’s report on the first and primary ground of challenge in characterising the  
report as unchallenged would be illogical. Further, as summarised above, there were  
other grounds of challenge apart from the characterisation of OneDrive A as  
“unauthorised”.  
162. PCC contends that the Judge did not consider that the Noordin report was challenged in  
the sense that it was inaccurate, referring to page 33 of the transcript of the inter partes  
hearing where counsel for PCC referred to reference having been made by Mr Mendes’  
counsel to “some of the inaccuracies in the way that the technology worked”, to which  
the Judge responded that he understood that those submissions were directed to other  
investigations that could have been made.  
163. I reject that contention. First, the passage is too cryptic to be of relevance. Secondly, on  
any view the passage was confined to addressing a submission by Mr Mendes concerning  
other investigations that could have been made and does not address the more  
fundamental criticisms made by counsel for Mr Mendes. Thirdly, the Judge’s reasons for  
making the order are to be discerned from his reasons for judgment and not by  
attempting to examine the “entrails” of exchanges between judge and counsel during the  
hearing.  
164. PCC contends that the Judge’s decision to make the orders was based on the clear  
evidence that Mr Mendes had access to the OneDrive. PCC refers to two passages from  
the transcript of the inter partes hearing at pages 18 and 24 at which reference was  
made by the Judge to the fact that Mr Mendes had access to the files in the OneDrives  
before his suspension on 4 June 2021.  
165. I reject that contention. First, in those passages the Judge did not suggest that the mere  
fact that Mr Mendes had access to documents while employed entailed that a search  
order should be granted. Indeed, if the Judge had so held, it would have been a clear  
error. Nor did the Judge suggest in that passage that, after the termination of his  
employment, Mr Mendes had possession of those documents. Secondly, the Judge’s  
reasons for making the order are to be discerned from his reasons for judgment and not  
by attempting to examine exchanges between judge and counsel during the hearing.  
166. PCC contends that it submitted to the Judge at the inter partes hearing that there was  
no challenge as to what was identified in the Noordin report, simply alternate  
explanations, referring to passages at pages 39 and 40 of the transcript. PCC implicitly  
contends that this is what the Judge meant by saying that there was no challenge to the  
Noordin report.  
167. I reject that contention. First, the reference in those passages was confined to the  
meaning of the word “accessed”, which was not an issue that arose on the Noordin  
report (Mx Noordin did not say anything about the Accessed column). Secondly, in any  
event, those passages do not contain a contention by PCC to the effect suggested.  
Thirdly, what may have been submitted by PCC does not affect the construction of what  
was said by the Judge in his reasons for judgment.  
168. PCC contends that it was not material to the search order made as to whether OneDrive  
A was authorised or not. I reject that contention. As demonstrated by paragraphs 86 and  
87 of Mr Kachirski’s affidavit and the submissions made on behalf of PCC at the ex parte  
hearing, the existence of the “unauthorised” OneDrive A was a central and critical plank  
for PCC’s contention that Mr Mendes had possession of important evidentiary material.  
169. This ground of appeal is established.  
170. Because the challenges to Mx Noordin’s report were central to Mr Mendes’ submissions  
in support of his discharge application and because the issues arising from the Noordin  
report were critical to the determination of the discharge application, the Judge’s  
decision to dismiss the discharge application is vitiated.  
Breach of duty of disclosure: facts  
171. The second ground of appeal is that the Judge erred in not finding that PCC had failed to  
satisfy its duty of disclosure at the ex parte hearing in respect of the issue whether there  
was sufficient evidence that Mr Mendes possessed important evidentiary material.  
172. Mr Mendes did not challenge the satisfaction of the other three prerequisites and his  
submissions at the inter partes hearing were, and on appeal are, confined to the third  
prerequisite.  
173. Mr Mendes contended, in both his written and oral submissions before the Judge, that  
PCC had breached its duty of disclosure in this respect. The Judge in his reasons for  
judgment did not address this ground on which Mr Mendes applied to discharge the ex  
parte search order.  
174. First, Mr Mendes contends that PCC made a factual misstatement that Mr Mendes had a  
“personal” OneDrive (OneDrive A) that was being “synced” with a “company” OneDrive  
(OneDrive B), which was a material failure to disclose that caused the Judge to proceed  
on an incorrect factual basis.  
175. As observed above, Mx Noordin used the term “Personal” in the technical sense used by  
Microsoft to describe a OneDrive with a username other than one connected to a  
Microsoft product. However, in submissions at the ex parte hearing, counsel for PCC  
used the term to indicate that the OneDrive was created and used for personal, non-  
company, purposes of Mr Mendes. This usage was not in fact justified by the Noordin  
report. PCC should have disclosed to the Judge that the mere fact that OneDrive A was a  
“Personal” account from Microsoft’s perspective did not entail that it was created and  
used for personal, non-company, purposes of Mr Mendes.  
176. There was nothing in the Noordin report that contained any suggestion that Mr Mendes  
had synced OneDrive A to OneDrive B such that files contained on OneDrive B were  
transferred (automatically or otherwise) from OneDrive B to OneDrive A. However, at  
the ex parte hearing, counsel for PCC put to the Judge that this is what the Noordin  
report showed had been done by Mr Mendes (and this was in turn based on Mr  
Kachirski’s erroneous statement at paragraphs 86 and 87 of his affidavit). It should have  
been disclosed to the Judge that there was no evidence that such syncing had occurred.  
177. The combined submission to the Judge at the ex parte hearing was that Mr Mendes had  
synced his own personal OneDrive A to the company’s OneDrive B such that company  
files contained on OneDrive B were transferred to Mr Mendes’ personal OneDrive A. If  
there were evidence that he had done this, it would have been probative of an intention  
to use company files and information for his own purposes. However, there was no  
evidence that he had done this and no suggestion in the Noordin report that he had done  
this.  
178. There is no suggestion that counsel for PCC knowingly misstated the position or the  
effect of the Noordin report. However, objectively there was a clear and important  
misstatement, amounting to a breach of PCC’s duty of disclosure.  
179. Secondly, Mr Mendes contends that PCC misled the Judge as to the meaning of the  
“Accessed UTC” column in the spreadsheets into believing that Mr Mendes opened  
numerous files shown on Exhibit A2 during the last days of his employment before he  
was suspended on 4 June 2021.  
180. At the ex parte hearing, counsel for PCC tendered Exhibit A2, being a document  
prepared by counsel taking the OneDrive A spreadsheet, sorting it by reference to the  
date in the “Accessed UTC” column, and including the most recent 72 rows with the  
most recent at the top. The spreadsheet showed six rows where the date was 4 June 2021  
and 44 rows where the date was 30 May 2021. It is clear from the transcript that the  
Judge understood that this showed that Mr Mendes accessed 50 files during the last  
week before his employment was suspended.  
181. Mx Noordin did not explain the meaning of the “Accessed UTC” column in the  
spreadsheets.  
182. Mr du Plessis in his report said that the last accessed date/time on a Windows computer  
can be defined as the last time the operating system, a user or any compliant application  
touched the file. He said that, in addition to user activity, antivirus, backup, syncing or  
other system maintenance applications typically update the last accessed date when they  
run. There was no challenge by PCC to this evidence.  
183. It is clear therefore that the mere fact that Mr Mendes’ work laptop recorded dates of 4  
June 2021 and 30 May 2021 as the “Accessed UTC” date and time in respect of 50  
files/folders contained in the OneDrive A folder did not evidence that he had himself  
accessed those files/folders. It may merely have been a consequence of system  
maintenance operations.  
184. An examination of Exhibit A2 discloses that there is no evidence that 49 of the 50 “files”  
that have an “Accessed UTC” date of 30 May 2021 or 4 June 2021 are in fact files. Mx  
Noordin did not identify which rows in the Noordin spreadsheets were files and which  
rows were folders. On the face of Exhibit A2, the second row appears to be a file, having  
a file name with the suffix.png and containing three megabytes. Row 49 appears to be  
merely a link, containing only 1 kilobyte. The remaining 48 rows in the first 50 rows  
appear to be folders typically containing only approximately 150 bytes. Although no  
expert evidence was adduced in relation to this and hence is not possible to draw any  
positive conclusion, the onus lay on PCC to adduce evidence concerning these matters.  
185. In addition, all of the entries in Exhibit A2 with an “Accessed UTC” date of 30 May 2021  
have an identical time of 21.18.27 UTC, indicating that they were all accessed at the same  
second. All but one of the entries with an “Accessed UTC” date of 4 June 2021 have an  
identical time of 08.36.05 UTC, indicating that they were all accessed at the same  
second. This suggests that they were indeed the consequence of system maintenance  
operations rather than user activity. Although it is not possible to draw any positive  
conclusion due to the lack of expert evidence in relation to this, the onus lay on PCC to  
adduce evidence concerning these matters.  
186. If PCC wished to rely upon the “Accessed UTC” column in the spreadsheets, it was  
incumbent on it to adduce evidence from Mx Noordin explaining what it meant. PCC  
breached its duty of disclosure by making the submissions which it did to the Judge at  
the ex parte hearing and not adducing expert evidence on the topics.  
187. PCC contends that, in assessing whether it breached the duty of disclosure, it is  
necessary to have regard to the degree of urgency and the time available for making  
enquiries. This is not a ground for excusing PCC’s conduct the subject of this ground.  
First, even if there had been a degree of urgency, it would not have justified the want of  
disclosure by PCC under this ground. Secondly, PCC commenced the investigation in  
June 2021 and did not apply for the search order until November 2021. It had ample  
time to make appropriate disclosure.  
188. This ground of appeal is established  
Breach of duty of disclosure: alternative methods to search order  
189. The third ground of appeal is that the Judge erred in not finding that PCC had failed to  
satisfy its duty of disclosure in respect of alternatives open to PCC less intrusive than the  
search order.  
190. Mr Mendes contended, in both his written and oral submissions before the Judge, that  
PCC had breached its duty of disclosure in this respect. The Judge in his reasons for  
judgment did not address this ground on which Mr Mendes applied to discharge the ex  
parte search order. The Judge at paragraph 3 reproduced at [117] above accepted that  
there were a number of matters which Mx Noordin could have done. However, the Judge  
only considered this in the context of whether the four prerequisites were met and made  
no reference to the non-disclosure argument advanced by Mr Mendes.  
191. Mr du Plessis in his report said that a computer expert in the position of Mx Noordin  
with access to Mr Mendes’ work laptop could identify whether a storage device (such as a  
USB drive) had been used on the laptop.  
192. Mr du Plessis said that a computer expert in the position of Mx Noordin with access to  
Mr Mendes’ work laptop using the appropriate forensic tools could identify whether files  
had been emailed to an email address unrelated to PCC if Mr Mendes’ mailbox was  
stored on the laptop and the emails had not been deleted in a manner that made them  
non-recoverable.  
193. Mr du Plessis said that a computer expert in the position of Mx Noordin with access to  
Mr Mendes’ work laptop could identify whether files within OneDrive A or OneDrive B  
had been downloaded to other devices depending on whether any other cloud storage  
facilities were used [interpolating for example Google Drive as opposed to Microsoft  
OneDrive]; whether any external devices were attached to the laptop at certain times;  
and whether the Microsoft logs recording access from other devices were available to the  
computer expert.  
194. Mx Noordin did not describe what investigations had been undertaken despite that  
being the subject of question 1 of Camatta Lempens’ letter of instruction dated 10 August  
2021. All that the report disclosed was that the laptop was examined to determine basic  
information (such as operating system, install date, last shutdown time, last logged in  
date); the quantity of different types of data (such as documents or web related); web  
services user login credentials; cloud services usage and a timeline of events.  
195. The Noordin report did not disclose what other investigations (if any) were made in  
respect of the laptop. For example, it did not disclose whether Mx Noordin opened or  
viewed any of the folders or files listed in the Noordin spreadsheets; whether Mx  
Noordin attempted to view folders or files stored on OneDrive A or B in the cloud;  
whether Mx Noordin attempted to gain access to Microsoft logs recording access to or  
downloads from OneDrive A or B in the cloud; or whether Mx Noordin attempted to  
ascertain whether any USB drive or other device had connected to the laptop.  
196. PCC owed a duty to disclose to the Judge the entirety of the investigation by Mx Noordin  
in respect of the laptop, including any investigations that identified any relevant facts  
(whether helpful or unhelpful to PCC’s case). If there were no other investigations apart  
from those disclosed in the report, PCC owed a duty to disclose that to the Judge. PCC  
owed a duty to disclose to the Judge the theoretical alternatives open to PCC, by its  
computer expert or otherwise, to ascertain the information sought by the search order,  
including whether any of those alternatives had been investigated and if so with what  
result and if not why not.  
197. PCC contends that, in assessing whether it breached the duty of disclosure, it is  
necessary to have regard to the time available for making enquiries. This is not a ground  
for excusing PCC’s conduct the subject of this ground. As observed above, PCC  
commenced the investigation in June 2021 and did not apply for the search order until  
November 2021. It had ample time to make appropriate disclosure.  
198. PCC breached the duty of disclosure in respect of alternatives open to PCC less intrusive  
than the search order.  
199. This ground of appeal is established.  
Consequence of non-disclosure  
200. Mr Mendes contends that the consequence of the non-disclosure the subject of grounds  
2 and 3 should be the setting aside of the search order. PCC contends that, on the  
material adduced at the ex parte hearing the prerequisites were established and the  
search order ought not to be discharged.  
201. If on the material adduced at the ex parte hearing, the prerequisites were not  
established, for the reasons given above, the ex parte search order should be discharged  
regardless of the evidence adduced at the inter partes hearing.  
202. The only prerequisite that Mr Mendes contends was not established is the third  
prerequisite that there was sufficient evidence that he possessed important evidentiary  
material.  
203. In relation to the first prerequisite, Mr Mendes contends that PCC did not establish that  
it had a prima facie case of breach of contract in respect of confidential information  
because the parties did not execute the Letter of Offer, the Unexecuted Standard Terms  
or the Unexecuted Confidentiality Agreement. I accept that contention.  
204. The Letter of Offer expressly stated that the documents were only intended to be legally  
binding upon execution and they were not executed. PCC contended that there was a  
contract arising from the parties’ conduct on the terms set out in the Unexecuted  
Standard Terms and the Unexecuted Confidentiality Agreement, except as to bonuses,  
Mr Mendes’ conduct in this respect in being acceptance of the title of General Manager  
and of the higher salary applicable to that position. I reject that contention.  
205. Considered objectively there is no reason to impute from his conduct the manifestation  
of an intention by Mr Mendes to be bound for example by the restraint clauses if there  
was no agreement on the consideration of the clauses which included bonuses.  
Moreover, Mr Mendes was appointed to the position of General Manager and  
commenced receiving the higher salary in mid-June 2019. He presumably received the  
Job Description at about that time to set out the conditions of his employment. He did  
not receive the Letter of Offer until the end of July 2019, by which time he had already  
been appointed to the position and was in receipt of the higher salary. Further, if PCC  
wished to contend that there was a contract arising from conduct, it was incumbent on it  
to adduce evidence of all of the communications between the parties concerning the  
terms of the contract, which Mr Kachirski failed to do.  
206. Nevertheless, Mr Mendes does not deny that he owed to PCC in equity a duty of  
confidence in respect of information he learnt as a result of his position that was truly  
confidential. Accordingly, it is not necessary to consider the first prerequisite as such,  
aside from the question of what information was truly confidential.  
207. At paragraphs 5 and 6 of his reasons for judgment reproduced at [117] above, the Judge  
said that he remained satisfied of the four prerequisites on the material adduced at the  
ex parte hearing. The Judge did not give reasons for that satisfaction. The Judge’s  
conclusion on these questions is vitiated by the error the subject of ground 1. It is  
necessary to consider this question afresh.  
208. The starting point is to identify what is the “evidentiary material” of which there is said  
to be evidence that Mr Mendes possessed. This is identified by PCC as being  
“confidential information of PCC”.  
209. Not all information of PCC in the possession of Mr Mendes will have been “confidential”  
and not all confidential information will have been “important”. PCC adopted a  
scattergun approach in identifying in a generic sense 19 categories of information which  
was either Property or Confidential Information as defined in the Unexecuted Standard  
Terms and Unexecuted Confidentiality Agreement listed at paragraph 26 of Mr  
Kachirski’s affidavit.  
210. It was incumbent on PCC to identify specifically what information was confidential and,  
of that information, what information was such that its disclosure or use was liable to  
cause serious loss or damage to PCC.  
211. There was no evidence that the identity of PCC’s suppliers, and in particular its  
manufacturer in China, was secret or confidential.  
212. The only specific confidential information identified by Mr Kachirski in the last section  
of his affidavit was that identified at paragraph 131 reproduced at [79] above. Although  
he stated that PCC’s confidential information included PCC’s patents, patents by  
definition are not secret or confidential.  
213. Although Mr Kachirski stated at paragraph 131 that PCC’s designs were confidential, he  
did not identify how they were confidential, particularly in circumstances in which the  
chairs in question are, according to his affidavit, publicly displayed on the Lang Haoxuan  
website. It is theoretically possible that aspects of the internal workings of the chairs are  
confidential, but there would appear to be no impediment to any competitor purchasing  
a PCC chair and ascertaining its internal workings. It was incumbent on Mr Kachirski to  
identify what aspects of the designs were confidential and how they were confidential.  
He ought also to have identified at least one document listed in the Noordin  
spreadsheets (the document itself and not merely its file name) that contained  
confidential designs.  
214. Mr Kachirski stated at paragraph 131 that PCC’s records of customer inquiries and  
costings are confidential. He did not state that the identity of customers (as opposed to  
other information relating to customers) is confidential and did not explain how PCC’s  
records of customer inquiries and costings could be used to undercut PCC or cause  
serious loss or damage to PCC. He ought also to have identified at least one document  
listed in the Noordin spreadsheets (the document itself and not merely its file name)  
that contained customer details.  
215. Despite these inadequacies, Mr Mendes does not contend that the documents listed in  
the Noordin spreadsheets did not contain confidential information, the disclosure or use  
of which was liable to cause serious loss or damage to PCC. I proceed on the assumption  
that they did.  
216. The parties contest the meaning of “possesses” in rule 112.3(c)(i) in the context of cloud  
storage. Mr Mendes contends that the mere fact that a person might have the means of  
accessing data stored in the cloud does not entail that that person has possession of the  
data. PCC contends to the contrary. I will proceed on the assumption that a person has  
possession of data in the cloud if they have the means of accessing it and an intention of  
doing so.  
217. The parties also contest the meaning of “sufficient evidence” in rule 112.3(c). Mr Mendes  
contends that it means proof on the balance of probabilities. PCC contends that it means  
a reasonable suspicion. The parties do not cite any authorities on the meaning of that  
term, despite the fact that the rules in relation to search orders are common in the rules  
of superior courts across Australia and were preceded by the common law.  
218. I consider that the word “sufficient” is used deliberately to give flexibility to the court in  
determining what will amount to enough evidence in all of the circumstances.  
Ordinarily, it will be more than a reasonable suspicion but not necessarily proof on the  
balance of probabilities.  
219. The evidence adduced by PCC at the ex parte hearing was not sufficient evidence that Mr  
Mendes possessed confidential information of PCC. PCC’s case in this respect relied  
primarily on proving that the creation and use of OneDrive A was a private secret  
venture by Mr Mendes to use PCC’s confidential information for his own purposes in a  
business competing with PCC’s business. However, at the ex parte hearing, PCC adduced  
no admissible evidence to this effect. Although Mx Noordin in the summary at the  
commencement of the Noordin report described OneDrive A as “unauthorised”, Mx  
Noordin was given no instruction by Camatta Lempens to that effect, nor did Mx  
Noordin identify any basis for so characterising OneDrive A or any reasoning for  
concluding that OneDrive A was unauthorised. The statement, whether of opinion or  
purported fact, was simply admissible.  
220. Mr Kachirski did not in his affidavit include any evidence of his own knowledge  
concerning OneDrive A or OneDrive B. All that he did was make his own interpretation  
(which was in fact a misinterpretation) of what the Noordin report showed. Nor was any  
evidence otherwise adduced by PCC from any other employees or from any information  
technology consultant concerning the information technology systems within PCC.  
221. In addition, Mx Noordin provided only an extremely superficial description of how  
OneDrive works in general. No description was provided by Mx Noordin or any other  
witness concerning the means of access available to PCC or Mx Noordin to OneDrive A  
either on Mr Mendes’ work laptop or in the cloud, such as its password, whether the  
password was stored in the memory of the laptop or otherwise.  
222. PCC contends that, even if any evidence relating to OneDrive A is ignored, the other  
evidence contained in Mr Kachirski’s affidavit was capable of amounting to sufficient  
evidence that Mr Mendes had possession of important evidentiary material. I reject that  
contention.  
223. The other evidence contained in Mr Kachirski’s affidavit was clearly capable of proving  
that, after the termination of his employment, Mr Mendes was working (whether as an  
employee or a contractor) for Harrowford. However, Harrowford was only incorporated  
and its business established after the termination of Mr Mendes’ employment. The mere  
fact that he started working for another business in the recliner chair industry after  
cessation of his employment is not probative that he took or was using PCC’s  
confidential information.  
224. Mr Kachirski’s affidavit was clearly capable of proving that in March 2021, while still  
employed by PCC, Mr Mendes registered the domain name “tailormaderecliners”.  
Assuming that this was probative that Mr Mendes contemplated, or even intended, to  
work in the recliner chair industry after the termination of his employment, it is not  
probative that he took or was using PCC’s confidential information.  
225. Mr Kachirski’s affidavit was clearly capable of proving that Harrowford was marketing  
and selling recliner chairs displayed on its website that appeared to be similar to recliner  
chairs displayed on Lang Haoxuan’s website, which in turn appeared to be similar to  
(and may well have been the same as) recliner chairs manufactured by Lang Haoxuan in  
accordance with PCC’s designs. However, this is not probative that anyone associated  
with Harrowford (such as Mr Mendes or Vasco) is using PCC’s confidential information  
concerning its designs. First, all it shows is that, at its highest, the external appearance of  
the recliner chairs is similar or even the same: it says nothing about the internal  
workings. Secondly, on the evidence contained in Mr Kachirski’s affidavit, Harrowford  
can obtain the chairs by purchasing them from Lang Haoxuan: it does not need to even  
know the internal workings.  
226. PCC contends that Mr Mendes refused to provide the undertakings sought by Camatta  
Lempens in their letter dated 11 August 2021 and implicitly contends that it can be  
inferred from this that he had possession of confidential information.  
227. I reject that contention. The Camatta Lempens 11 August 2021 letter referred to and  
relied upon clauses 8 to 10 of the Unexecuted Standard Terms and clauses 2.2 to 2.4 of  
the Unexecuted Confidentiality Agreement. It sought extensive written undertakings,  
including that Mr Mendes had not and would not use or disclose Confidential  
Information and would make available to PCC all electronic devices in his possession or  
control for forensic examination.  
228. Mr Mendes responded by saying that, before he commented on any of the statements, he  
requested copies of the allegedly signed agreements. Camatta Lempens admitted that  
there were no signed agreements but asserted agreements arising from conduct to which  
Mr Mendes demurred on 12 August 2021. Camatta Lempens did not on the evidence  
respond to Mr Mendes email of 12 August 2021, nor reiterate their demand for written  
undertakings. Mr Mendes had no obligation to provide the undertakings. The mere fact  
that he did not do so cannot be used as a makeweight for PCC to establish what it was  
required to establish by evidence.  
229. Given the significant breaches by PCC of its obligation of disclosure (albeit not suggested  
to be deliberate) and the fact that, on the evidence adduced at the ex parte hearing, PCC  
failed to establish the prerequisite that there was sufficient evidence that Mr Mendes  
possessed important evidentiary material, the appeal must be allowed and the order  
made by the Judge dismissing Mr Mendes’ discharge application must be set aside.  
Sufficient evidence of possession  
230. The fourth ground of appeal is that the Judge erred because it was not open to the Court  
to find that there was sufficient evidence that Mr Mendes possessed important  
evidentiary material.  
231. At paragraphs 5 and 6 of his reasons for judgment reproduced at [117], the Judge said  
that he remained satisfied of the four prerequisites on the material adduced at the inter  
partes hearing. The Judge did not give reasons for that satisfaction. The Judge’s  
conclusion on this question is vitiated by the error the subject of ground 1. It is necessary  
to consider the question afresh.  
232. I turn to the evidence adduced at the inter partes hearing on 10 December 2021 that was  
additional to the evidence adduced at the ex parte hearing on 8 November 2021.  
233. The evidence contained in the du Plessis report included an explanation of how  
OneDrive operates; that in the opinion of Mr du Plessis OneDrive A was not  
unauthorised and there was no basis in the Noordin report for a conclusion that it was  
unauthorised; that the “Accessed UTC” date could be generated by system maintenance  
applications as opposed to user activity; and that there were techniques available or  
potentially available to Mx Noordin to ascertain whether Mr Mendes had connected a  
USB drive to his laptop or downloaded or emailed files to other devices.  
234. The evidence contained in Mr Mendes’ affidavits included that he had no documents or  
records of PCC and had not used its confidential information (in his first affidavit) and,  
when his employment was suspended, he returned all of PCC’s property (in his second  
affidavit). He admitted registering the domain name “tailor made recliners” (saying that  
he had not used it and did not intend to do so) and admitted that he was contracted to  
Harrowford as a mobile sales and marketing consultant.  
235. Mr Mendes included a description of the establishment of OneDrive A and OneDrive B  
in the following terms:  
21 In relation to paragraphs 83 to 87 of the Affidavit and say as follows:  
21.1 Shortly after I commenced my employment with the Applicant, I advised that a cloud-  
based storage system would be more efficient for the business and the Applicant engaged an  
IT contractor (“the Contractor”) to set this up for the business.  
21.2 There were OneDrive accounts which were linked to Mr Kachirski’s email address that  
were the central or main account for the Business and then each employee that had a company  
email address, as I did, had a OneDrive account linked to their email address.  
21.3 Each employee that had a company email address had a licenced 365 Microsoft package  
and these automatically had a OneDrive account.  
21.4 To be clear I had a OneDrive account linked to my email address  
[email protected]. It is unclear to me whether this is the “personal OneDrive  
account” identified by Mar Noordin in their report.  
236. Mr Kachirski’s responding affidavit addressed this paragraph. It included the following:  
3. The first time I recall being made aware that my gmail account  
[email protected] was associated with the subject One Drive account was  
when I was informed by Mar Noordin (Noordin) during or after the examination  
of the Respondent’s work device.  
4. I was asked by Noordin whether I had authorised the use of my gmail account for  
this purpose.  
5. I recall in my discussions with Noordin that I did have a gmail account which had  
been set up some time ago. I told Noordin that I would not have and did not  
authorise any other person to associate this gmail account with OneDrive.  
...  
7. Once informed by Noordin that my gmail account had been used, I attempted to change  
the password with assistance from IT. I did not recall what the password was when we  
attempted to change it, the recovery email may have belonged to a former employee  
whose email was no longer valid.  
8. I relied on the Respondent to assist me with all technology based matters on my  
personal and business devices. The Respondent told me he had high level skills and a  
background in IT. Because of this, he had access to my personal and business passwords  
and log in details because I trusted him. I never authorised the use of my personal  
details for any other purpose except for assistance logging in on my personal device and  
only when on request.  
9. While the Respondent was employed, he instructed and provided direction to our IT  
staff and any contractors engaged by PCCC. This is because this was his area of expertise.  
It is not mine. I trusted him with the IT side of the business and to do what was in the  
best interests of PCCC.  
10. I am aware that there is a PCCC OneDrive with access to PCCC documents. The  
Respondent was authorised to access this account during his employment.  
11. I was not aware that there were other OneDrive accounts, and I was not aware that PCCC  
documents were stored on any other OneDrive account apart from the business  
OneDrive account... There is no commercial necessity for this and this was not  
authorised.  
237. There is at least an apparent inconsistency between the evidence of Mr Mendes  
reproduced at [235] above and the evidence of Mr Kachirski reproduced at [236] above.  
The Judge in his reasons did not refer to this evidence or make any finding in relation to  
it.  
238. The issue whether Mr Mendes created OneDrive A secretly and without authority for his  
own personal purposes as opposed to its being created by PCC’s IT contractor or being  
used for company purposes was a critical issue in relation to the third prerequisite. For  
the reasons given in the previous section, in the absence of PCC proving that it was the  
former, the other evidence adduced by it was incapable of amounting to sufficient  
evidence that Mr Mendes was in possession of important evidentiary material.  
239. Given the apparent inconsistency, there were three ways in which theoretically the issue  
could have been dealt with at the inter partes hearing:  
1. PCC accepted or assumed for the purpose of the application that Mr Mendes’  
account was correct and contended that nevertheless the other evidence adduced  
was sufficient evidence that he was in possession of important evidentiary  
material;  
2. PCC cross-examined Mr Mendes (and potentially Mr du Plessis) and Mr Mendes  
cross-examined Mr Kachirski (and potentially Mx Noordin) to examine whether  
and to what extent their evidence was inconsistent to enable the Judge to make  
factual findings in relation to the disputed issue;  
3. Mr Mendes accepted or assumed for the purpose of the application that Mr  
Kachirski’s account was correct and contended that nevertheless there was not  
sufficient evidence that he was in possession of important evidentiary material.  
240. At the inter partes hearing, neither party conceded that the evidence of the other party’s  
witness was correct (although each party adopted a fallback position in terms of 1 and 3  
above respectively). In these circumstances, it was incumbent on PCC to apply to cross-  
examine Mr Mendes and cross-examination should have been permitted, which would in  
turn have led to the cross-examination of Mr Kachirski. Unfortunately, this did not  
occur.  
241. Mr Mendes indicated a willingness to adduce oral evidence from Mr du Plessis and PCC  
indicated a willingness to cross-examine Mr du Plessis but the Judge discouraged this  
and neither party made an application for oral evidence to be adduced from Mr du  
Plessis. Neither party suggested that Mr Mendes or Mr Kachirski give oral evidence and  
the Judge did not raise the possibility.  
242. It will not always be appropriate to permit cross-examination on an application in  
relation to a search order or make findings of fact when the factual issue is or will be an  
ultimate issue in a substantive proceeding. For example, it would be unusual that cross-  
examination would be effective in relation to the first prerequisite that the applicant has  
a strong prima facie case because, for that purpose, the evidence of the applicant will  
usually be taken at its highest. However, where the factual issue relates to a primary or  
intermediate fact relevant to the third prerequisite, it will usually be necessary for the  
judge to make a finding of fact on the balance of probabilities in relation to that factual  
issue.  
243. On appeal, PCC contends that, assuming that Mr Mendes’ account in relation to the  
creation and use of OneDrive A was correct, nevertheless the other evidence adduced  
was sufficient evidence that he was in possession of important evidentiary material. I  
reject that contention for the reasons given above.  
244. The evidence of Mr Mendes in relation to the creation and use of OneDrive A was  
corroborated to a substantial degree by the content of the Noordin spreadsheets.  
245. The OneDrive A spreadsheet shows that OneDrive folder A was created in October 2018,  
which was at the commencement of Mr Mendes’ employment, and all of the subfolders  
and files (apart from two 2017 Christmas schedule spreadsheets) were created in August  
2019, which was shortly after Mr Mendes was promoted to the position of General  
Manager. It is inherently unlikely that Mr Mendes created a secret and private OneDrive  
so early in his employment. Further, the spreadsheet shows that all but one folder and  
five files (including the 2017 Christmas schedule spreadsheets) were last modified by  
August 2019. This suggests that virtually no files were saved to OneDrive A after August  
2019, which tends to negate that OneDrive A was created or used by Mr Mendes for  
nefarious purposes.  
246. The OneDrive B spreadsheet shows that a large number of subfolders and files in  
OneDrive folder B were created in August 2019 at the same time as the subfolders and  
files in OneDrive folder A were created. This tends to suggest that both OneDrive folders  
were populated with subfolders and files initially at the same time. The OneDrive B  
spreadsheet shows that additional subfolders and files were created on a monthly basis  
between September 2019 and June 2021, in contrast to OneDrive A. If Mr Mendes was  
using OneDrive A for nefarious purposes, it may be expected that he would have saved  
files to OneDrive A after September 2019.  
247. In addition, if Mr Mendes established OneDrive A for nefarious purposes, it is odd that  
he connected it to his work laptop and used Mr Kachirski’s gmail address as the  
username rather than connecting it to his personal computer.  
248. None of these matters was explored in cross-examination because Mr Mendes was not  
cross-examined.  
249. PCC did not adduce evidence that it might be expected to have adduced to rebut Mr  
Mendes’ contention that OneDrive A was created for work, rather than his own private,  
purposes. Mr Mendes’ evidence was that OneDrives linked to Mr Kachirski’s gmail were  
“the central or main account for the Business”. PCC did not adduce any evidence from  
any other employee to rebut this. Nor did it adduce any evidence to explain how the  
OneDrive accounts were set up.  
250. In Mr Kachirski’s responding affidavit at paragraph 11, he included a sentence “I  
contacted the PCCC IT consultant on 9 December 2021 to check this and this remains  
my understanding and belief”. This is plainly inadmissible. While hearsay may be  
permissible at a directions hearing under rule 101.4(1) if it will save time or expense, Mr  
Kachirski failed to identify the name of the person to whom he spoke and failed to set  
out what he was told: it is inadmissible for Mr Kachirski merely to say that his  
understanding was not changed as a result of that conversation. Mr Kachirski gave no  
evidence that it was not practicable to obtain an affidavit from that person. Moreover,  
the evidence of the IT contractor was critical and in the circumstances first hand  
evidence was required.  
251. On the face of Mr Kachirski’s responding affidavit, there are limitations and  
qualifications in his statements about OneDrive A. His evidence at paragraphs 8 and 9  
was that he left the establishment of information technology within PCC to Mr Mendes  
and the IT consultant. It is not inconsistent with that evidence that two OneDrives were  
established as Mr Mendes testified and this was generally known within PCC but not to  
Mr Kachirski (or that he did not understand it or did not recall it). This is why it was  
critical that PCC adduce evidence from other PCC employees and the IT consultant.  
252. Mr Kachirski did not explain the context or purpose of his providing his Gmail username  
and password to Mr Mendes. It would be very odd if he provided them to Mr Mendes so  
that Mr Mendes could view Mr Kachirski’s private emails: it seems inevitable that they  
were provided for business purposes, which is consistent with Mr Mendes’ evidence that  
they were used to establish OneDrive A.  
253. In addition, PCC did not adduce evidence as to what examination was made or could  
have been made of Mr Mendes’ laptop or OneDrive A in the cloud. For example, it did  
not adduce evidence from Mx Noordin or anyone else that the password to the OneDrive  
A in the cloud was stored in the memory of Mr Mendes’ laptop so that the OneDrive A in  
the cloud could be explored without having to be known or entered on the laptop. Nor  
did it adduce evidence from Mx Noordin as to whether any techniques were available,  
and whether any attempts were made, to gain access to the OneDrive A in the cloud.  
254. PCC observes that, in his affidavit, Mr Mendes explicitly states that, when his  
employment was suspended, PCC changed the password to his work email address and  
this precluded access by him to the OneDrive account linked to that email address  
(OneDrive B); whereas he did not address OneDrive A in this respect. Whether or not  
this was a deliberate omission is something that should have been explored in cross-  
examination of Mr Mendes. However, it is not a makeweight that makes up for the  
failure of PCC to adduce critical evidence to rebut Mr Mendes’ evidence concerning the  
creation and use of OneDrive A.  
255. Upon consideration of the whole of the evidence adduced at the inter partes hearing,  
PCC failed to adduce sufficient evidence to rebut Mr Mendes’ account of the creation and  
use of OneDrive A. Given that the other evidence was not sufficient evidence that Mr  
Mendes possessed important evidentiary material, PCC failed to establish that he did  
possess important evidentiary material.  
256. In addition, for the reasons given in the section commencing at [189] above, PCC failed  
to establish there were not alternatives open to it less intrusive than the search order to  
obtain the evidence it sought in relation to the use or potential use by Mr Mendes of its  
confidential information. It therefore failed to establish that, on the evidence adduced at  
the inter partes hearing, a search order should have been granted.  
257. This ground of appeal is established.  
Leave to appeal  
258. Mr Mendes accepts that, pursuant to rule 213.1(a) of the Rules, leave is required to  
appeal against the orders made by the Judge on 10 December 2021 because they were  
interlocutory orders.  
259. PCC opposes leave to appeal. PCC contends that the decision of the Judge is not  
attended by sufficient doubt; substantial injustice will not be occasioned if leave to  
appeal is refused because the search order has largely been executed; the appeal relates  
to a matter of practice and procedure; and the appeal does not raise an issue of principle  
or general importance.  
260. The rationale for generally requiring leave to appeal in respect of interlocutory orders is  
a combination of one or more factors:  
1. A decision reflected in an interlocutory order can usually be challenged as part of  
an appeal against the final determination of the proceeding. It is often not in the  
best interests of the administration of justice to fragment appeals by permitting  
appeals at the interlocutory stage and substantial injustice will not be occasioned  
by refusal of leave to appeal.  
2. A decision reflected in an interlocutory order often involves a decision on a matter  
of practice or procedure rather than the substantive rights of the parties and  
substantial injustice will not be occasioned by refusal of leave to appeal.  
3. It is desirable that there be a filter on appeals against interlocutory orders to  
ensure that such appeals only proceed where they are reasonably arguable.  
261. In the case of a search order made under rule 243.1 of the Rules, a decision dismissing  
an application by the respondent to discharge an ex parte search order is final in the  
sense that there is no substantive proceeding that will later be determined on which  
determination the respondent can include a contention that the court erred in not  
discharging the search order. The first rationale for requiring leave to appeal does not  
apply in the present case.  
262. In the case of a search order made under the Rules, the order does not relate to a mere  
matter of practice or procedure but rather determines the substantive right of the  
applicant to obtain, and the substantive duty of the respondent to afford access to,  
documents or other property of the respondent. The second rationale for requiring leave  
to appeal does not apply in the present case.  
263. I have already concluded that the Judge erred in failing to discharge the search order. If  
leave to appeal is granted, the Judge’s order must be set aside. Applying the filter the  
subject of the third rationale for requiring leave to appeal entails that leave to appeal  
should be granted. If leave to appeal is not granted, substantial injustice will be  
occasioned to Mr Mendes.  
264. Leave to appeal should be granted.  
Conclusion  
265. I will grant leave to appeal, allow the appeal and set aside the orders made by the Judge  
on 10 December 2021. I will hear the parties concerning other orders.  
[1]  
Questions renumbered for ease of reference.  
[2]  
Questions renumbered for ease of reference.  
[3]  
That date and time is not apparent in either spreadsheet.  
[4]  
Mr Mendes filed a second application to discharge the search order on 2 December 2021  
but this was otiose (except perhaps as to costs) because his original application dated 17  
November 2021 had not been heard or determined and was adjourned for subsequent  
determination.  
[5]  
[2005] FCA 955.  
[6]  
[1976] Ch 55.  
[7] [2005] FCA 955.  
[8]  
At [38], [47] (Citation omitted).  
[9]  
[1988] 3 All ER 188.  
[10]  
At 1356.  
[11]  
[2009] HCA 49, (2009) 240 CLR 319.  
[12]  
At [131] (Citations omitted).  
[13]  
[1988] 1 WLR 1337.  
[14]  
At 1343-1344. See also Dillon LJ at 1349.  
[15]  
[1985] FSR 87 (Citations omitted).  
[16]  
At 1343-1344. See also Dillon LJ at 1349.  
[17]  
[1983] 2 All ER 589.  
[18]  
At 593-594.  
[19]  
At 594.  


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