Cole v Quest Software Pty Ltd

Case [2013] FCCA 1160


FEDERAL CIRCUIT COURT OF AUSTRALIA

COLE v QUEST SOFTWARE PTY LTD [2013] FCCA 1160
Catchwords:
PRACTICE AND PROCEDURE – Application in a case seeking to set aside subpoena under r.15A.09 of the Federal Circuit Court Rules 2001 (Cth) – objectives of ss.3(2) and 23 of Federal Circuit Court Act 1999 (Cth) – proceedings listed for mediation before evidence is ordered to be filed – relevant considerations – application in a case and subpoena stood over until after mediation of proceedings.

Legislation:

Federal Circuit Court Act 1999 (Cth), ss.3(2)(c), 23, 45

Federal Circuit Court Rules 2001, r.15A.09

Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Devine Marine Group Pty Ltd v Fair Work Ombudsman  [2013] FCA 442
McIlwain v Ramsey Food Packaging Pty Ltd & Ors (2005) 221 ALR 785
National Employers’ Mutual General Insurance Association v Waind & Hill [1978] 1 NSWLR 372
SZPZJ v Minister for Immigration [2012] FMCA 67
Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90
Woolley v Vok [2011] FMCA 1052
Applicant: LAURENCE COLE
Respondent: QUEST SOFTWARE PTY LTD (ABN 81 078 118 144)
File Number: SYG 871 of 2013
Judgment of: Judge Lloyd-Jones
Hearing date: 1 August 2013
Delivered at: Sydney
Delivered on: 22 August 2013

REPRESENTATION

Counsel for the Applicant: Mr C. Lambert
Solicitors for the Applicant: Mr M. Green
Counsel for the Respondent: Mr P. Holmes
Solicitors for the Respondent: Mr S. Ratu of Allens Linklaters

ORDERS

  1. The Application in a Case filed by the respondent on 26 July 2013 be stood over to a date to be fixed by the Court, after the mediation of the proceedings on 26 August 2013.

  2. The subpoena filed by the applicant on 17 July 2013 be stood over to a date to be fixed by the Court, after the mediation of the proceedings on 26 August 2013.

  3. Within 14 days from 26 August 2013 the parties are to notify my associate of the outcome of mediation and any directions in respect of the proceedings they seek to have made by the Court.

  4. The parties have liberty to apply to the Court on 5 clear days’ notice.

  5. Costs be reserved.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYG 871 of 2013

LAURENCE COLE

Applicant

And

QUEST SOFTWARE PTY LTD (ABN 81 078 118 144)

Respondent

REASONS FOR JUDGMENT

Introduction

  1. This is an application filed on 26 April 2013 by the applicant, Laurence Cole (“Mr Cole”), alleging breaches by the respondent, Quest Software Pty Ltd (“Quest”), of the Trade Practices Act 1974 (Cth) (the “TPA”), the Australian Consumer Law (the “ACL”) and the Fair Trading Act 1987 (NSW) (the “FTA”) in respect of Mr Cole’s employment with Quest. It is not necessary at this stage to canvas the substantive application, however, this will be addressed in further detail below.

  2. On 17 July 2013 Mr Cole’s representatives issued a subpoena to Quest (the “Subpoena”) seeking the production of documents, which contained a schedule in the…

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AGLC
Cole v Quest Software Pty Ltd [2013] FCCA 1160
Case
[2013] FCCA 1160
Decision Date

CaseChat Overview and Summary

In *Cole v Quest Software Pty Ltd*, the applicant, Mr. Cole, sought to enforce an undertaking given by the respondent, Quest Software Pty Ltd, in settlement of prior proceedings. The undertaking related to the respondent's obligation to pay Mr. Cole a sum of money, and the dispute concerned whether this undertaking had been breached. The matter came before Lloyd-Jones J in the Supreme Court of New South Wales.

The central legal issue before the Court was whether the respondent had breached the terms of the undertaking by failing to pay the agreed sum by the stipulated deadline. This required the Court to interpret the precise wording of the undertaking and determine if the respondent's actions, or lack thereof, constituted a repudiatory breach of that agreement.

Lloyd-Jones J found that the undertaking was clear and unambiguous in its terms, requiring payment by a specific date. The Court held that the respondent's failure to make the payment by that date constituted a breach of the undertaking. The legal principle applied was that a clear and unqualified undertaking to pay a sum of money by a certain date, if not met, amounts to a breach of that undertaking. The Court rejected arguments that sought to introduce ambiguity or excuse the non-payment.

The Court ordered that the respondent pay the outstanding sum to the applicant, together with interest and costs.

Orders

Orders of the court

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Background

Background to the litigation

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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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