Avant Group Pty Ltd v Kiddle

In Avant Group Pty Ltd v Kiddle, the plaintiff sought interlocutory relief against the defendant, a former employee, alleging that she had solicited the plaintiff's clients and retained and used confidential information during her employment. The defendant had established her own business and admitted to soliciting the plaintiff's clients. The defendant's employment agreement included post-employment restraint of trade clauses. The court was required to determine the enforceability of these clauses, the balance of convenience, and whether the plaintiff had established a prima facie case justifying interlocutory relief.

The court found that the plaintiff's affidavit evidence made out a prima facie case that the defendant had solicited some of its clients, but the extent of the solicitation was not clarified by the defendant's evidence. The plaintiff's evidence also suggested that the defendant had retained and used confidential information during her employment. However, the court found that the plaintiff had not established a sufficiently strong prima facie case to justify interlocutory relief beyond the undertakings offered by the defendant. The court also found that the plaintiff's orders were imprecise and uncertain.

The court concluded that upon the defendant giving the undertakings to which the court had referred, the plaintiff's interlocutory application should be dismissed. The court referred the matter for further mediation and set out a timetable for the filing of concise statements and discovery of documents. The court reserved the question of costs for a later date.

The court found that the plaintiff's affidavit evidence had made out a prima facie case that the defendant had solicited some of its clients. This was not disputed by the defendant. The extent of the solicitation was open-ended on the plaintiff's evidence, and had not been clarified by the defendant's evidence. The direct evidence of solicitation included three emails from the defendant to the plaintiff's clients which were in similar terms. In those emails, amongst other things, the defendant offered her services at a 10% flat rate which she stated to the clients compared favourably to a different structure that was specified in the letter that the plaintiff claimed involved use of its confidential information about pricing.