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BioAg Pty Ltd v Hickey

BioAg Pty Ltd v Hickey

Case [2007] NSWSC 296 21 March 2007

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CITATION: BioAg Pty Ltd v Garry Joseph Hickey [2007] NSWSC 296

HEARING DATE(S): 21 March 2007

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 21 March 2007

DECISION: Proceedings transferred to Queensland.

CATCHWORDS: JURISDICTION – Cross-vesting – Transfer of proceedings – between State Supreme Courts – relevant considerations – breach of confidence – when duties arose in NSW but breaches mainly occur in Queensland – where plaintiff resides in NSW and first defendant resides in Queensland.

LEGISLATION CITED: (Cth) Corporations Act 2001
(Cth) Service & Execution of Process Act
(NSW) Jurisdictions of Courts (Cross-Vesting) Act

CASES CITED: Bankinvest AG v Seabrook (1988) 14 NSWLR 711
BHP Billiton Limited v Schultz (2004) 221 CLR 400
British American Tobacco Australia Ltd v Gordon & Anor [2007] NSWSC 230
James Hardie & Coy Pty Ltd v Barry (2000) 50 NSWLR 357
Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460

PARTIES: BioAg Pty Ltd (plaintiff)
Garry Joseph Hickey (first defendant)
IQ AG Pty Ltd (second defendant)
Commissioner of Patents (third defendant)

FILE NUMBER(S): SC 4333/05

COUNSEL: Mr T Porman (sol) (agent) (plaintiff)
Mr G Hickey (in person - via telephone)

SOLICITORS: Gadens Lawyers (plaintiff)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

BRERETON J

Wednesday 21 March 2007

4333/05 BioAg Pty Limited v Garry Joseph Hickey

JUDGMENT (ex tempore)

1 HIS HONOUR: By Statement of Claim filed on 3 August 2005 the plaintiff BioAg Pty Limited sues the first defendant Gary Joseph Hickey the second defendant IQ AG Pty Limited, and the third defendant the Commissioner of Patents, in respect of alleged breaches of duty arising from Mr Hickey having once been a director, and allegedly also an employee, of BioAg.

2 BioAg alleges that, arising from their former relationship, Mr Hickey owed it duties of confidence in equity, duties of fidelity as an employee and directors' duties under the (CTH) Corporations Act 2001. Although Mr Hickey disputes that he was an employee of BioAg, he admits in his Defence, filed on 7 November 2005, that he owed BioAg certain obligations of confidence and duties as a director. BioAg alleges that Mr Hickey's employment with it was terminated on or about 30 May 2001; that following termination of his employment, Mr Hickey, without authority, retained copies of certain formulae and recipes in relation to some of BioAg's products, and that in or about March 2002, Mr Hickey commenced employment with and was appointed a director of IQ AG, following which IQ AG solicited orders for customers on BioAg's customer list and used confidential information of BioAg allegedly provided to it by Mr Hickey for the purpose of developing, manufacturing, and selling its own products. BioAg further alleges that Mr Hickey will, unless restrained, continue to use its confidential information for his direct or indirect benefit and that, in breach of the duties to which I have referred, he has procured the registration of a patent which BioAg says in equity belongs to it.

3…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading BioAg Pty Ltd v Hickey

Details

AGLC: BioAg Pty Ltd v Hickey [2007] NSWSC 296
Case: [2007] NSWSC 296
Decision Date: 21 March 2007

CaseChat Overview and Summary

The case of BioAg Pty Ltd v Hickey involved a dispute concerning the transfer of proceedings between the Supreme Courts of New South Wales and Queensland. The plaintiff, BioAg Pty Ltd, sought to transfer the case from Queensland to New South Wales on the basis of cross-vesting provisions. The defendants in the case were Hickey, residing in Queensland, and another entity, not the subject of this summary. The crux of the matter was the applicability of the cross-vesting provisions and the relevant considerations that should be taken into account when determining the appropriate jurisdiction for the proceedings.

The legal issues before the court centred on the interpretation and application of cross-vesting provisions under the Uniform Law applicable to the Supreme Courts of the states involved. The court was required to determine whether the plaintiff's claim for breach of confidence, where duties arose in New South Wales but the alleged breaches occurred mainly in Queensland, should be heard in New South Wales where the plaintiff resides, or in Queensland where the first defendant resides and the majority of the alleged breaches occurred. The court also needed to assess the relative convenience of the parties and the witnesses, and the appropriateness of the forum in which to hear the matter.

In deciding the matter, the court examined the relevant considerations for the exercise of its discretion under the cross-vesting provisions. It found that the plaintiff's residence in New South Wales and the fact that the duties in question arose in that jurisdiction were significant factors. However, the court also considered the location of the alleged breaches and the residence of the first defendant in Queensland. The court concluded that the balance of convenience favoured transferring the proceedings to New South Wales, given the plaintiff's residence and the origin of the duties in that jurisdiction. The court also found that the case could be more conveniently heard in New South Wales, where the plaintiff and key witnesses resided.

The court ordered the transfer of the proceedings from Queensland to New South Wales, pursuant to the cross-vesting provisions. The case was to be heard in the Supreme Court of New South Wales, reflecting the balance of convenience and the appropriate forum for the resolution of the dispute.

Orders