Burton & Eising v. Wright Trading Pty Ltd - [2007] QSC 17

SUPREME COURT OF QUEENSLAND

CITATION: Burton & Eising v Wright Trading [2007] QSC 017

PARTIES:  GEOFFREY CHARLES BURTON AND DARREN      EISING
(Applicants)
v
WRIGHT TRADING PTY LTD
  (Respondent)

FILE NO: S392 of 2006
DIVISION: Trial Division

DELIVERED ON: 19 January 2007

DELIVERED AT:           Rockhampton
HEARING DATES:        29, 30 November and 1 December 2006
JUDGE:   Dutney J

ORDERS:            Declare that:


1.     The memorandum from the respondent to the   applicants dated 16 August 2006 did not constitute a   repudiation of the applicants’ employment contracts dated   1 April 2005.

2. The restraint of trade clause in the employment contracts dated 1 April 2005 is a valid restraint only insofar as it prohibits the making use of the information described in paragraph 1(b) of the clause for a period of six months from 26 September 2006.

Order that:

1. The respondent , its solicitors and counsel deliver up to the applicants’ solicitors, and be restrained from

making any use of, any document or other written record

within any of their possession containing or relating to

information derived from any correspondence contained

in exhibit “PGF-7” to the affidavit of Peter Frederick

Gray filed 9 November 2006.

2. The respondent, its solicitors and counsel delete,

and be restrained from making any use of, any

electronic copy and any record whatsoever of any

document or information described in 1.

CATCHWORDS: CONTRACT – REPUDIATION – Where a significant portion of the applicants’ income was conditional on an agreement between the employer and a third party – Where contract between employer and third party was terminated – Whether term guaranteeing ongoing arrangement could be implied into the contract - Whether fundamental breach.

CONTRACT – REPUDIATION – Where applicants had   made leave arrangements prior to termination of agreement   between employer and third party – Where employer had   cancelled all leave arrangements at the same time as   notifying staff that the third party arrangement would no   longer continue – Whether repudiation of employment   contract.
CONTRACT – RESTRAINT OF TRADE – Where ‘step’   clause inserted into employment contract by employer –   Where clause widely drafted both as to duration and   geography – Whether clause valid.
EVIDENCE – PRIVILEGE – LEGAL PROFESSIONAL   – Where emails inadvertently sent to other side – where   emails contained legal advice in relation to the   proceedings – Whether privilege waived.

CASES:Associated Newspapers v Bancks (1951) 83 CLR 322, applied.
Butt v Long (1953) 88 CLR 476, applied.
Hartleys Limited v Martin [2002] VSC 301 referred to
Koops Martin v Reeves [2006] NSWSC 449 considered

Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989)166 CLR 633, considered.
Lindner v Murdock’s Garage (1950) 83 CLR 628, applied.

Lloyd’s Ships Holdings Pty Ltd v Davross Pty Ltd (1987) FCR 505, considered.

COUNSEL: Mr P Tucker for the applicants

Mr S Fisher for the respondent

SOLICITORS: Hollingworth & Spencer for the applicants.
Gadens Lawyers for the respondent.

Background

The applicants, Mr Burton and Mr Eising were employees of the defendant Wright Trading…

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 Burton & Eising v. Wright Trading Pty Ltd

Details

AGLC: Burton and Eising v Wright Trading Pty Ltd [2007] QSC 17
Case: [2007] QSC 17
Decision Date: 19 January 2007

CaseChat Overview and Summary

Burton and Eising brought proceedings against their employer, Wright Trading Pty Ltd, seeking to establish that the employer had repudiated their employment contracts and to have a restraint of trade clause in their contracts declared void or, at least, limited in its scope. The dispute arose out of the termination of an agreement between the employer and a third party, ABN Amro Morgans, under which the employer had been operating. The employer sent a memo to the applicants on 16 August 2006 advising that the agreement would not be renewed when it expired on 31 January 2007 and that staff leave was cancelled until further notice. The applicants claimed that this constituted a fundamental breach of their employment contracts and they purported to accept the employer's repudiation of those contracts. The employer denied that it had repudiated the contracts but accepted the applicants' purported repudiation as valid. The restraint of trade clause in the applicants' contracts limited the areas in which they could work and the time for which they could not compete with the employer. The applicants claimed that the restraint clause was unreasonable and void in its entirety. The court found that the employer had not repudiated the contracts, but if it had, the applicants would not have been entitled to terminate the contracts. The court considered that the restraint of trade clause was valid only insofar as it prohibited the applicants from using confidential information for six months from 26 September 2006. The court also found that the employer had obtained privileged documents inadvertently and was restrained from using them.

Orders