Berg Engineering Pty Ltd v Tivity Solutions Pty Ltd

Case [2019] QCA 305

SUPREME COURT OF QUEENSLAND

CITATION:

Berg Engineering Pty Ltd v Tivity Solutions Pty Ltd & Ors [2019] QCA 305

PARTIES:

BERG ENGINEERING PTY LTD
ACN 050 400 505
(appellant)
v
TIVITY SOLUTIONS PTY LTD
ACN 623 215 092
(first respondent)
BEN NATHAN GABLONSKI
(second respondent)
CRAIG VINCENT BOLAND
(third respondent)

FILE NO/S:

Appeal No 4301 of 2019
SC No 4730 of 2018

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:


Supreme Court at Brisbane – [2019] QSC 68 (Jackson J)

DELIVERED ON:

20 December 2019

DELIVERED AT:

Brisbane

HEARING DATE:

29 August 2019

JUDGES:

Gotterson and McMurdo JJA and Flanagan J

ORDERS:

1.   The appeal is dismissed.

2.   The appellant pay the respondents’ costs of the appeal.

CATCHWORDS:

EQUITY – EQUITABLE REMEDIES – INJUNCTIONS – INTERLOCUTORY INJUNCTIONS – EX PARTE APPLICATIONS – NON-DISCLOSURE OR MISREPRESENTATION – where the appellant commenced proceedings against the respondents for misuse of confidential information – where a search order was executed on the first and second respondents’ premises – where the appellant had made material non-disclosures at the hearing of the ex parte application for the search order – where the primary judge set aside the search order and ordered the return of the seized documents to the respondents’ solicitor – where the primary judge considered that the seized material did not justify the preservation of the search order – where the appellant submits that the primary judge erroneously declined to consider the seized material, failed to take into account relevant matters, and exercised his discretion on the basis of incorrect findings of fact – whether the primary judge erred in exercising his discretion to set aside the search order

Uniform Civil Procedure Rules 1999 (Qld), r 261B

Gold Ribbon (Accountants) Pty Ltd (in liq) v Sheers [2003] 1 Qd R 683; [2002] QSC 400, cited
International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49, cited
Palaris Mining Pty Ltd v Short [2012] QSC 224, cited
Re Divoca Pty Ltd’s Caveat [1991] 2 Qd R 121, cited
Sanrus Pty Ltd & Ors v Monto Coal 2 Pty Ltd & Ors [2019] QCA 160, cited
Savcor Pty Ltd v Cathodic Protection International APS (2005) 12 VR 639; [2005] VSCA 213, cited
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679; [1912] HCA 72, cited

COUNSEL:

D Kelly QC, with D Clarry, for the appellant
S Couper QC for the respondents

SOLICITORS:

Russells for the appellant
Carter Newell for the respondents

  1. GOTTERSON JA:  I agree with the orders proposed by Flanagan J and with the reasons given by his Honour.

  2. McMURDO JA:  I agree with Flanagan J.

  3. FLANAGAN J:  This is an appeal from an exercise of discretion by the learned primary judge in relation to a matter of practice and procedure concerning the discharge of a search order.

  4. This Court will only interfere with such an exercise of discretion in the limited circumstances recently stated…

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Details
AGLC
Berg Engineering Pty Ltd v Tivity Solutions Pty Ltd [2019] QCA 305
Case
[2019] QCA 305
Decision Date

CaseChat Overview and Summary

Berg Engineering Pty Ltd initiated proceedings against Tivity Solutions Pty Ltd and others, seeking relief for the alleged misuse of confidential information. The dispute centred on an ex parte search order executed on the premises of the first and second respondents, which was later sought to be set aside on the basis of material non-disclosure by the appellant during the initial hearing. The primary judge set aside the search order, finding that the seized material did not justify its preservation, and ordered the return of the documents to the respondents’ solicitor. The appellant challenged the primary judge’s decision, arguing that the judge had erroneously declined to consider the seized material, failed to account for relevant matters, and exercised his discretion based on incorrect findings of fact.

The central legal issue before the court was whether the primary judge had erred in exercising his discretion to set aside the search order. This involved a careful examination of the non-disclosures made by the appellant and the impact of those non-disclosures on the primary judge’s decision-making process. The court needed to determine if the primary judge had adequately considered all relevant factors, including the material obtained during the execution of the search order, and whether the primary judge's findings of fact were correct. Additionally, the court had to assess if the primary judge's exercise of discretion was erroneous and warranted appellate intervention.

The court found that the appellant had failed to establish any error in the exercise of discretion by the primary judge that would warrant appellate intervention. The primary judge had considered the material obtained during the search order and found that it did not justify the preservation of the order. The court upheld the primary judge's decision, noting that the appellant had not demonstrated that the primary judge had made any erroneous findings of fact or had failed to consider relevant matters. Consequently, the primary judge's decision to set aside the search order and order the return of the seized documents was affirmed.

The final orders of the court were that the appeal be dismissed and that the appellant pay the respondents’ costs of the appeal.

Orders

Orders of the court

1. The appeal is dismissed.

2. The appellant pay the respondents’ costs of the appeal.

Background

Background to the litigation

For the reasons that follow the appellant has, in my view, failed to establish any error in the exercise of discretion by the primary judge that would warrant appellate intervention.Background The primary judge was dealing with an application by the first, second and third respondents to set aside a search order made ex parte on 20 September 2018 and executed on 21 September 2018. The search order was sought to be set aside on the ground of material non-disclosure.[5][5]Berg Engineering Pty Ltd v Tivity Solutions Pty Ltd & Ors [2019] QSC 68 (Reasons), [1]. The background to that application was set out in the primary judge’s Reasons:“[4] The plaintiff is an Australian engineering company established 45 years ago that provides engineering design and manufacturing services. It manufactures or repairs products including pumps and rotatable assets and has technical engineering capability in precision machining, large capacity machining, valve asset management, pump asset management, gearbox asset management, specialist fabrication, exotic welding and exotic hard facing. It has centres of operation in Brisbane and in Gladstone and alleges that it has had operations in New Caledonia and Indonesia, although the defendants say that the latter offices are closed. It supplies services and manufactures products to resource and industrial companies including a number of major mining companies and construction companies.[5]The plaintiff employed the third defendant as an engineering manager and the second defendant as its group sales manager, both based in Brisbane. In each case, the employment was under a written contract for a period of approximately five years.[6]On 10 November 2017, the plaintiff terminated the third defendant’s employment. He says that he was unfairly dismissed and peremptorily marched out of the building.[7]On 22 December 2017, the second defendant terminated his employment with the plaintiff on the ground of an alleged repudiation by the plaintiff in failing to pay him his entitlement to bonuses on his remuneration.[8]On 8 January 2018, the second defendant started a proceeding in the District Court at Brisbane claiming the alleged amounts of the unpaid bonuses.[9]In January or February 2018, the second and third defendant combined to start the business of the first defendant, including publishing a brochure on a website of the first defendant. The brochure made representations, inter alia, as to the first defendant’s client experience.[10]On 2 May 2018, the plaintiff started this proceeding by originating application claiming a large variety of final relief by way of injunctions under statute and in equity, damages under statute, damages at common law, equitable compensation and other relief.[11]On 8 June 2018, the court:(a)granted an interlocutory injunction restraining the defendants from publishing the part of the brochure containing the alleged client experience as misleading or deceptive or likely to mislead or deceive;[6](b)ordered the proceeding to continue as if started by claim; and(c)directed that the statement of claim be filed and served by 29 June 2018.[12]On 16 August 2018, the plaintiff filed the statement of claim.[13]On 24 August 2018, the court ordered that the second defendant’s District Court claim be transferred to the Supreme Court and be continued in this proceeding by way of counterclaim and ordered that the parties make disclosure by lists of documents by 22 October 2018.[14]On 5 September 2018, the defendants filed and served the defence and counterclaim.”[6]Australian Consumer Law, ss 18, 29(1)(d), (g) or (h).

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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