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Cameron Industrial Commercial Pty Ltd v Johnson

Cameron Industrial Commercial Pty Ltd v Johnson

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Case Copied 23 April 2021 48 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST

S ECI 2020 04782

CAMERON INDUSTRIAL COMMERIAL PTY LTD (ACN 633 231 740)	Applicant
v
JAMES JOHNSON	Respondent

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2021
DATE OF JUDGMENT:	23 April 2021
CASE MAY BE CITED AS:	Cameron Industrial Commercial Pty Ltd v Johnson
MEDIUM NEUTRAL CITATION:	[2021] VSC 195

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PRACTICE AND PROCEDURE – Preliminary discovery – Whether reasonable cause to believe that applicant has or may have a right to obtain relief against defendant – Whether the applicant has made all reasonable inquiries – Whether there is reasonable cause to believe the respondent has documents in the categories sought – Whether documents relate to the question of whether the applicant has a right to obtain relief – Whether inspection would assist the applicant to decide whether to commence proceeding – Preliminary discovery refused – Supreme Court (General Civil Procedure) Rules 2015 r 32.05 – Trofeo Pty Ltd v Confederation of Australian Motor Sport Ltd [2021] VSC 90.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R E T Wodak	MST Lawyers
For the Respondent	Mr R A Millar	Hutchinson Legal

TABLE OF CONTENTS

Summary.............................................................................................................................................. 1

Evidence............................................................................................................................................... 1

Background......................................................................................................................................... 1

Colchester Road, Bayswater North............................................................................................ 4
Clare Street, Bayswater................................................................................................................ 5
Whitehorse Road, Balwyn........................................................................................................... 6
Gabrielle Court, Bayswater North.............................................................................................. 6
Correspondence of lawyers......................................................................................................... 7

Applicable principles........................................................................................................................ 8

Is there reasonable cause to believe CIC has or may have a right to relief?........................ 13

CIC’s submissions....................................................................................................................... 13
Mr Johnson’s submissions......................................................................................................... 14
Analysis........................................................................................................................................ 15

Has CIC made all reasonable inquiries?..................................................................................... 21

CIC’s submissions....................................................................................................................... 21
Mr Johnson’s submissions......................................................................................................... 21
CIC’s submissions in reply........................................................................................................ 22
Analysis........................................................................................................................................ 23

Is there reasonable cause to believe the respondent has documents in the following categories and that they relate to the question of whether CIC has a right to obtain relief and inspection would assist CIC to decide whether to proceed?.............................................................................. 25

Category 1.................................................................................................................................... 25
CIC’s submissions............................................................................................................. 25
Mr Johnson’s submissions................................................................................................ 27
Analysis............................................................................................................................... 28

Category 2.................................................................................................................................... 30
CIC’s submissions............................................................................................................. 30
Mr Johnson’s submissions................................................................................................ 30
Analysis............................................................................................................................... 31

Category 4.................................................................................................................................... 31
CIC’s submissions............................................................................................................. 31
Mr Johnson’s submissions................................................................................................ 32
Analysis............................................................................................................................... 32

Category 5.................................................................................................................................... 32
CIC’s submissions............................................................................................................. 33
Mr Johnson’s submissions................................................................................................ 33
Analysis............................................................................................................................... 33

Conclusion......................................................................................................................................... 33

HER HONOUR:

The applicant, Cameron Industrial Commercial Pty Ltd (‘CIC’), operates a real estate agency specialising in the sale and leasing of commercial properties in the south-eastern suburbs of Melbourne. The respondent, Mr James Johnson, was employed by CIC and its predecessor for more than ten years as a sales and leasing agent. On 9 December 2020, Mr Johnson resigned. The following day Mr Johnson commenced employment with First National Treeby Commercial (‘Treeby’), an alleged competitor of CIC. Within one week of Mr Johnson leaving his employment with CIC, four of CIC’s clients left it and engaged Treeby. This ruling concerns CIC’s application for preliminary discovery.[1]
[1]By way of originating motion filed 23 December 2020 and summons filed 18 January 2021.

Summary

The application…

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.

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Details

Case: [2021] VSC 195
Decision Date: 23 April 2021

CaseChat Overview and Summary

Cameron Industrial Commercial Pty Ltd sought an order for preliminary discovery against Johnson. The applicant claimed it had a cause of action against the respondent for damages arising from alleged breaches of contract and related claims. The application was for discovery of documents in various categories, including those that evidenced communications, documents relating to certain matters, and documents that might exist. Johnson opposed the application, arguing that the applicant had not established reasonable cause to believe that it had a right to obtain relief against Johnson. The applicant also failed to demonstrate it had made all reasonable inquiries, and there was no reasonable cause to believe that Johnson had documents in the categories sought. Furthermore, Johnson contended that the documents, even if they existed, did not relate to the question of whether the applicant had a right to obtain relief, and that inspection of the documents would not assist the applicant to decide whether to commence proceedings.

The court considered the criteria for granting an order for preliminary discovery under rule 32.05 of the Supreme Court (General Civil Procedure) Rules 2015. The applicant needed to demonstrate a reasonable cause to believe that it had or may have a right to obtain relief, and that it had made all reasonable inquiries. The court also needed to be satisfied that there was reasonable cause to believe that the respondent had documents in the categories sought, and that the documents related to the question of whether the applicant had a right to obtain relief. Additionally, the court had to be satisfied that inspection of the documents would assist the applicant to decide whether to commence proceedings. The court found that the applicant had not satisfied the criteria for an order for preliminary discovery. The applicant had not established reasonable cause to believe that it had a right to obtain relief against Johnson, and had not demonstrated that it had made all reasonable inquiries. The court was also not satisfied that there was reasonable cause to believe that Johnson had documents in the categories sought, and that the documents related to the question of whether the applicant had a right to obtain relief. Finally, the court was not satisfied that inspection of the documents would assist the applicant to decide whether to commence proceedings.

The court refused the application for preliminary discovery. The court found that the applicant had not established the necessary criteria for an order for preliminary discovery, and that the application should be dismissed with costs. The court ordered that the applicant pay the respondent’s costs of and incidental to the application, on the standard basis.

Orders