Delacamp Australia Pty Ltd v In Hue Ch'ng
[2002] VSC 278
•28 June 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 4655 of 2002
| DELACAMP AUSTRALIA PTY LTD | Plaintiff |
| v | |
| IN HUE CH'NG | Defendant |
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JUDGE: | GILLARD J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 28 June 2002 | |
DATE OF JUDGMENT: | 28 June 2002 | |
CASE MAY BE CITED AS: | Delacamp Australia Pty Ltd v In Hue Ch'ng | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 278 | |
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INTERLOCUTORY INJUNCTION – Employer-employee – Term of injunction fixed – Application to extend refused – Attempt to review original decision.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R. Miller | |
| For the Defendant | Mr P.G. Cawthorn |
HIS HONOUR:
On 4 March 2002 the plaintiff issued a writ against the defendant. The defendant was formerly employed by the plaintiff, left the employment and took on another employment, in a business, in which evidently, he had some leading role. He took with him information that he had gathered in the course of his former employment, and it is alleged by the plaintiff that the information was confidential. The confidential information was defined by an order later made by Beach, J. on 25 March 2002 as follows: "a customer list, and any list containing or incorporating the plaintiff's list of customers". See paragraph 1 of the order.
The plaintiff made application for an Anton Pillar order, and on 5 March 2002 Bongiorno, J. granted it.
The matter came on for hearing before Beach, J. on 21 March 2002. It was a contested hearing. In the course of the hearing a question arose as to the period of an interlocutory injunction.
The normal rule in interlocutory applications, is for an order to be made that the defendant be restrained until further order or until the trial of the action or some other determination. That is the usual order that is made. However, in cases such as this, it has been recognised that orders of an indefinite nature are usually undesirable, that is, in restraining an employee indefinitely from revealing anything he may have gathered in the course of his former employment. In the course of the case before Beach, J., he was referred to a number of cases, including Slevin and Brown v. Associated Insurance Brokers of Australia Qd Pty Ltd, a decision of the Queensland Court of Appeal[1]. That case was also referred to and adopted and applied in a case decided by Balmford, J. in this Court, of Rocket Records Pty Ltd v. White[2]. It appears that there is a principle that it is inappropriate to grant an indefinite injunction and there should be a limit to the period of the restraint.
[1]Unreported, 16 February 1996, QCA 18.
[2][2001] VSC 368.
Beach, J. heard the summons and reserved over the weekend. On 25 March 2002, he delivered short reasons in which he observed that the plaintiff had made out a prima facie case that there was obviously a serious question to be decided, and his Honour then made this observation:
"2. The dispute between the parties seems to me to basically boil down to whether there should be a limitation imposed on the continuation of any such order by virtue of what has been termed the "springboard principle": see Slevin and Brown v. Associated Insurance Brokers of Australia Qd Pty Ltd."
His Honour indicated that having considered the matter over the weekend, he thought it was appropriate to restrain the defendant in a manner contended for by his counsel, but for a longer period than was proposed. Mr Sifris of counsel appeared for the defendant and suggested a period of no longer than one month. His Honour disagreed with that and imposed an injunction period expiring on 30 June 2002. I understand from counsel today, that it was put by counsel appearing for the plaintiff, Mr R.E. Miller, who also appears today for the plaintiff, that he sought an injunction in the usual form, namely, until further order or trial. His Honour was not prepared to make such an order. His Honour then made orders, and paragraph 3 of the orders is as follows:
"3.Until 30 June 2002 or further order the defendant be restrained, whether by himself or his servants and/or his agents from:
(a) making any use of the confidential information;
(b)using any list, summary or record or other similar document recording the plaintiff's price information concerning any of the plaintiff's customers."
The parties attended before Master Kings, having been informed by a facsimile dated 17 April 2002 that the likely date for a trial would be during August, September or October 2002. The parties were definitely on notice at that point that the likelihood would be that there would be a trial after 30 June 2002. The parties appeared before the Master on 23 April. There is some dispute about what was said at that hearing. I do not need to resolve any of that. It is fairly clear that the Master fixed 5 August as being the hearing date, and that was the most likely date when the proceeding would be heard. There was some discussion evidently about a speedy hearing. The Master indicated that in accordance with the usual procedure, proper material would have to be placed before the court for a speedy hearing. None in fact was placed before her and no application was made. It appears that in the course of discussions it was indicated that if necessary the plaintiff could go back to the Practice Court and seek an extension of the injunction that had been granted. Even though there may have been an indication from the Master, in the end, it would be a matter for the plaintiff's advisers to consider the position and decide what ought to be done. A very late decision evidently was made to extend the time, because a summons was not issued until 26 June, returnable before me today, which is 28 June.
Mr Cawthorn of counsel on behalf of the defendant submitted that I should not extend the time because what in effect has been sought is a review of what Beach, J. decided. Though it is recognised that the court clearly has power to deal with its own interlocutory orders and if appropriate change them, it should not do so unless there are new facts or some compelling reason why a new order should be made. Mr Cawthorn referred to what was said by the High Court in Adam P. Brown Male Fashions Pty Ltd v. Phillip Morris[3], where the majority of the High Court said:
"The court must remain in control of its interlocutory orders. A further order will be appropriate whenever, inter alia, new facts come into existence or are discovered that render its enforcement unjust. Of course, changed circumstances must be established by evidence."
Mr Cawthorn also referred to what Griffith, C.J. said, as Chief Justice of Queensland, in Woods v. Sheriff of Queensland[4]. I note what the learned judge said in relation to the power, that it should not be exercised unless there are new facts or circumstances or there is some compelling reason why justice requires a change.
[3](1981) 148 C.L.R. 170 at 178.
[4](1895) 6 Q.L.J. 163 at 164-165.
Mr Miller submitted that there were changed circumstances in that we now know what the trial date is, namely 5 August whereas that was not known to Beach, J. He also emphasised that that is only a matter of five weeks away and that no prejudice would be caused to anybody by extending the period.
With respect to the fact that there is now a trial date , in my view one has to go back to 25 March 2002 and consider what Beach, J. would have known at that time. His Honour was faced with a dispute: should there be a limited injunction? One side said no, the other side said yes. It should be limited to run for a period of one month. His Honour considered that, and in the end he decided that it should be confined to a period of three months. The period was not related to the date of the trial. It would have been expected on 25 March, that unless there were compelling reasons advanced to the Listing Master, the prospects of a trial date before that date would have been remote. That does not mean to say that the plaintiff could not have done something about it and applied for a speedy hearing. But when his Honour made his decision the expectation would have been that the injunction would have expired before the trial. Further his Honour had rejected the submission that the injunction continue until trial
In my view what I am being asked to do today is to review what Beach, J. decided. He decided three months was appropriate on the material before the court. The same material is before me. I do not accept that the fact that the trial date is after the 30 June is something that could be described as a new fact. It was contemplated at the time that a trial would be after the 30 June 2002. On 23 April it was pointed out that application could be made for a speedy trial but no application has been made.
In my view there are no new facts, and whilst I accept that there is some substance in what Mr Miller put about the lack of prejudice if the period was extended for five weeks, in the end I am satisfied that Beach, J. decided that the period was sufficient. Given that, it seems to me that I should not interfere with what Beach, J. decided on 25 March. As Mr Cawthorn pointed out, plaintiff's counsel asked for a longer period. The argument was put. His Honour declined to do that. In my view I should not interfere unless there are compelling reasons to do so, and in my view there are not.
Accordingly the application is dismissed.
In my view, the normal order should be made. The plaintiff has brought this application; it has failed. Costs should follow the event unless there is very good cause. Mr Miller has suggested I leave it to the trial judge but I do not think that is appropriate. He may be right. The plaintiff may be successful but in my view, the normal rule should apply.
I order as follows:
1. That the plaintiff's summons filed on 26 June 2002 be dismissed.
2. That the plaintiff pay the defendant's costs of its summons.
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