The decision in Concept Cosmetic Medicine Holdings Pty Ltd trading as Concept Cosmetic Medicine v Chater [2026] NSWSC 574 concerned an interlocutory application and did not finally determine CCM’s claims. However, it provides useful guidance on the construction of restraint provisions, the evidence required to establish misuse of confidential information and the importance of acting promptly when seeking urgent injunctive relief.
Background
CCM had operated cosmetic medical clinics for more than 20 years. The Practitioner, a specialist general practitioner and cosmetic physician, provided services at CCM’s Bowral and Drummoyne clinics as an independent contractor under a licence agreement (the Licence Agreement). The Employee worked in a part-time clerical support role under an employment agreement.
In late 2025, the Practitioner gave notice terminating her arrangement with CCM to establish her own practice, MBSI, which was to be located approximately 750 metres from CCM’s Bowral clinic. In December 2025, the Employee submitted her resignation to CCM and, after serving her notice period, commenced employment with MBSI in January 2026.
CCM gave evidence that revenue from its Bowral clinic had fallen by approximately 50% during January and February 2026 compared with the corresponding period in 2025.
CCM alleged that the Practitioner had breached the Licence Agreement and that the Practitioner, the Employee and MBSI had obtained and misused CCM’s confidential information, including patient contact information, employee contracts and a drug register, to divert patients to MBSI.
CCM sought interim injunctions that would, inter alia, restrain the Practitioner, the Employee and MBSI from soliciting or treating “CCM Clients” pending the final determination of the proceeding or until 19 December 2026, whichever occurred first.
Findings
Interpretation of the Restraint Clause
The restraint claim focused on clause 21 of the Licence Agreement, which CCM contended prevented the Practitioner from treating “CCM Clients” for one year after the agreement ended (the Restraint Clause).
The term “patients” was used generally throughout the Licence Agreement, while “CCM Clients” was specifically defined in the Restraint Clause. The definition referred to people whom CCM had identified or referred to the Practitioner as “leads”.
The Court considered that, for a person to become a “CCM Client”, CCM was required to take an active step by providing that person’s contact information to the Practitioner. The mere appearance of a patient’s details in CCM’s database was insufficient.
CCM was unable to establish that most of the patients treated by the Practitioner at its Bowral clinic had been referred to her by CCM. The Practitioner gave evidence that many patients had come to her through her social media presence or personal contacts.
The Court considered CCM’s proposed constructions of the Restraint Clause to be “barely arguable”. It ultimately found that CCM’s allegation of a breach of clause 21 did not raise a serious question to be tried because there was no evidence that patients treated by the Practitioner at MBSI were “CCM Clients” within the meaning of the clause.
Alleged misuse of confidential information
CCM also alleged the Practitioner, the Employee and MBSI had misused confidential information to contact patients while the Practitioner was still working at CCM and encourage them to follow her to MBSI.
The Court did not accept CCM’s characterisation of those communications. The evidence indicated that the Practitioner and the Employee had contacted a limited number of patients to advise that the Practitioner would not be available for their upcoming appointments.
The Court considered those communications to be consistent with a physician showing professional courtesy to patients who might otherwise attend an appointment and discover that they were to be treated by a practitioner they had not chosen.
There was no evidence that the Practitioner or the Employee had copied, removed or exported information from CCM’s electronic systems. CCM’s allegations concerning a missing drug register and a folder containing employment contracts and practitioner licence agreements were also unsupported by evidence linking those documents to either individual.
Delay and adequacy of damages
The Court was critical of the timing of CCM’s application. Although CCM had been aware of the potential competitive threat by December 2025, it did not commence proceedings until mid-April 2026.
The Court treated delay as a “litmus test” of the seriousness of the alleged infringement and found that CCM’s unexplained four-month delay undermined its case for urgent interlocutory relief.
The Court also considered that damages would be an adequate remedy for any breach of clause 21 ultimately established. In particular, the clause provided for a monetary payment calculated by reference to the licence fees CCM would otherwise have received.
Change of employment
The Court found that there was “nothing unusual, let alone wrong” with an employee accepting an offer from a new employer before giving notice of termination to their existing employer, as the Employee had done.
Ultimately, the Court refused to grant the interim injunctions sought by CCM.
Implications
The decision reinforces several principles relevant to applications for interlocutory relief.
- A party seeking interlocutory relief must first identify a reasonably arguable contractual right. If a clinic intends to restrain a departing practitioner from treating all patients previously seen at the clinic, the agreement should define that class clearly and consistently. Narrow or inconsistent terminology may prevent the clinic from establishing a serious question to be tried, regardless of the commercial impact of the practitioner’s departure.
- Urgency must be demonstrated by the applicant’s conduct. An unexplained delay in commencing proceedings may undermine the request for urgent interlocutory relief.
- A decline in revenue, patient movement or the establishment of a competing clinic will not necessarily justify an injunction without evidence of solicitation, misuse of confidential information or other relevant conduct.
- Interlocutory relief may be refused where financial loss can be quantified, particularly where the agreement itself provides a mechanism for calculating loss. Courts may also be reluctant to restrain practitioners, employees or a new clinic where the practical effect would exceed the contractual protection bargained for.
