JUDGE:	Warren J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 September 2001
DATE OF JUDGMENT:	11 September 2001
CASE MAY BE CITED AS:	Creative Brands Pty Ltd v Franklin & Ors
MEDIUM NEUTRAL CITATION:	[2001] VSC 338

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Confidential Information – claim of disclosure – former employee – need for specific allegations in pleadings.

O.23.02, Chapter I, Rules of the Supreme Court – striking out statement of claim for failing to show a cause of action.

Discovery – further and better discovery of confidential documents.

Commercial List Practice – discouragement of requests for particulars.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Bick QC with Mr D. Farrands	Meerkin & Apel
For the Defendants	Mr L. Glick	Strongman & Crouch

TABLE OF CONTENTS

Background Matters.......................................................................................................................... 2

The Strike-out Application............................................................................................................... 4

Application by the Plaintiff for Further Discovery.................................................................... 10

(1) Employment and Personnel Files....................................................................................... 10
(2) Home, Work and Mobile Telephone Accounts of the First, Second and Third Defendants 10
(3) Customer and Supplier Levels............................................................................................ 11
(4) Documents Pertaining to the Formation and Business of Heat..................................... 12
(5) The Nature of Documents Relating to Communications and/or Dealings between the Defendants and Customers or Suppliers of the Plaintiff........................................................................... 13

Further and Better Particulars Sought by the Plaintiff of the Defence.................................. 13

HER HONOUR:

The plaintiff brings these proceedings alleging against the defendants' disclosure of confidential information, breach of employment agreements and breach of duties owed under the Corporations Act.

The first to third defendants were previously a director or employees of the plaintiff ("Creative Brands"). In 2000 they left the employ of Creative Brands and established their own business, the fourth defendant ("Heat"). The proceeding was commenced on 14 May 2001 in the Commercial List of this Court. I have before me the return of three applications. First, an application on summons by the defendants to strike out parts of the plaintiff's statement of claim. Second, an application on summons seeking further and better discovery of documents by the defendants. Third, an application by the plaintiff for further and better particulars of the defendants' defence. I deal with each application in turn. Before doing so, it is appropriate to set out the relevant background facts as known to the Court at this time.

Background Matters

The general relevant facts of the proceeding are described. In an affidavit sworn by one Graham Joseph Smorgan on 19 July 2001.

Creative Brands is engaged in the business of marketing and distributing cosmetics and other similar products throughout Australia. It is said that the market is very competitive. Heat has established itself in very recent times as a strong competitor of Creative Brands.

The first defendant, Gillian Anne Franklin, was employed by Creative Brands in about September 1992 as general manager. In mid 1995 Franklin was appointed…

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 Creative Brands Pty Ltd v Franklin

Details

AGLC: Creative Brands Pty Ltd v Franklin [2001] VSC 338
Case: [2001] VSC 338
Decision Date: 11 September 2001

CaseChat Overview and Summary

The case of Creative Brands Pty Ltd v Franklin involved a claim for the disclosure of confidential information by a former employee. The plaintiff, Creative Brands, alleged that the defendant, Franklin, had disclosed confidential information obtained during their employment. The matter was heard in the Supreme Court of Victoria. The primary issue before the court was whether the plaintiff's statement of claim contained specific allegations sufficient to establish a cause of action. The court was also required to consider whether the plaintiff's request for further and better particulars should be granted and if the commercial list practice discouraged such requests.

The court found that the plaintiff's statement of claim was insufficient in that it failed to provide specific allegations to support the claim of disclosure of confidential information. The court relied on the requirement of Rule 23.02 of the Supreme Court Rules, which mandates that a statement of claim must disclose a cause of action. The plaintiff's claim was struck out because it did not meet this standard. Regarding the request for further and better particulars, the court noted the commercial list practice which generally discourages such requests, reinforcing the need for specificity in the initial pleadings. The court concluded that the plaintiff had not met the necessary threshold to proceed with the claim.

The court's decision was that the plaintiff's statement of claim was struck out due to its failure to disclose a cause of action. The plaintiff's request for further and better particulars was denied, aligning with the commercial list practice that discourages such requests without sufficient specificity in the initial pleadings. As a result, the case was dismissed, and no further discovery of confidential documents was ordered.

Orders