DST Bluedoor Pty Ltd v AMP Services Ltd - [2020] VSC 254

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL COURT

COMMERCIAL LIST

S ECI 2019 03205

DST BLUEDOOR PTY LTD (ACN 110 853 377)	Plaintiff/defendant by counterclaim
v
AMP SERVICES LTD (ACN 081 143 786)	Defendant/plaintiff by counterclaim

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
WRITTEN SUBMISSIONS:	2, 14 and 17 April 2020
DATE OF JUDGMENT:	11 May 2020
CASE MAY BE CITED AS:	DST BLUEDOOR PTY LTD v AMP SERVICES LTD
MEDIUM NEUTRAL CITATION:	[2020] VSC 254

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PRACTICE AND PROCEDURE - Defendant’s application for separate trial of questions -Plaintiff’s claim dismissed if questions answered favourably for defendant but substantial counterclaim still to be heard and determined - fairness, utility and economy of separate trial of questions not beyond question - application dismissed Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 47.04.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S W Stuckey QC with Mr A Sykes	Gilbert + Tobin
For the Defendant	Mr M I Borsky QC with Mr L A Merrick	Minter Ellison

HIS HONOUR:

On 30 June 2008 the plaintiff (“DST”) and NM Computer Services Pty Ltd (“AXA”) entered into a Master Licence and Service Agreement (“MLSA”). Under the MLSA, DST granted a licence to AXA to use software known as ‘Wealth.Net’ and subsequently renamed ‘Bluedoor’, designed for businesses providing wealth management, superannuation and investment services to the public.

On 19 November 2014 DST and the defendant (“AMP”) executed a deed of novation whereby AMP was substituted for AXA in respect of all its rights and obligations under the MLSA as varied.

Clause 30.6 of the MLSA provided:

Except as provided for in clause 30.7, during the term of the MLSA, and for a period of one year thereafter, each party must not directly solicit for employment any person who is employed by, or has a contract to supply services to, the other party.

DST claims that from at least January 2019 until May 2019, AMP solicited employees of DST in breach of clause 30.6.[1] DST claims that as a result of AMP’s solicitation, 11 employees (“the ex-employees”) resigned from their employment with DST and accepted employment with AMP.[2] DST alleges that it has suffered loss and damage as a result.
[1]Para [19]-[20] of the statement of claim.
[2]Ibid [21].

Each of the employment contracts of the ex-employees contained a clause to the effect that:

(a)after the employee's employment with the Company ends, that employee would not, during the Restraint Period within the Restraint Area, for him or her-self or for any other person, without the written consent of DST, directly or indirectly do any of the following:
(i) canvas, solicit, or accept any approach from any client or customer of DST, with a view to obtaining the custom of that client or customer, for a business that competes with DST or provides the same or similar services;
(ii)canvas, solicit, induce or encourage any person…

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: [2020] VSC 254
Decision Date: 11 May 2020

CaseChat Overview and Summary

DST Bluedoor Pty Ltd commenced proceedings against AMP Services Ltd, seeking a declaration and an injunction regarding the use of a particular domain name. The dispute also involved a counterclaim from AMP Services Ltd. The case was heard in the Supreme Court of Victoria. The central issue before the court was whether it was appropriate to grant AMP Services Ltd's application for a separate trial of specific questions, despite the plaintiff's claim being potentially dismissed if the questions were answered in AMP's favour. The court needed to assess the fairness, utility, and economy of conducting a separate trial of these questions, considering the potential impact on the remaining counterclaim.

The court carefully considered the principles and objectives of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), particularly Rule 47.04, which governs applications for a separate trial of questions. It assessed whether the separate trial of the questions would be fair to both parties, considering the potential impact on the remaining issues in the case. The court also evaluated the utility and economy of such a trial, ensuring that the overall proceedings would not be unnecessarily protracted or complex. After weighing these factors, the court concluded that the fairness, utility, and economy of a separate trial of the questions were not beyond question. Therefore, the application was dismissed, and the case would proceed as a unified trial of all issues.

As a result of the court's decision, the case will continue to be heard and determined as a whole, with all questions and counterclaims being addressed in a single proceeding. The court's ruling ensured that the trial process would be conducted in a manner that balanced the interests of both parties and maintained the efficiency of the judicial process. The final orders of the court will reflect the decision to proceed with a unified trial of all issues, without the separate trial of specific questions as requested by AMP Services Ltd.

Orders