Emission Assessments Pty Ltd v James Jackson - [2022] WASC 60

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   EMISSION ASSESSMENTS PTY LTD -v- JAMES JACKSON [2022] WASC 60
CORAM:   SOLOMON J
HEARD:   7 FEBRUARY 2022
DELIVERED          :   8 FEBRUARY 2022
PUBLISHED           :   22 FEBRUARY 2022
FILE NO/S:   CIV 1079 of 2022
BETWEEN:   EMISSION ASSESSMENTS PTY LTD
Plaintiff
AND
JAMES JACKSON
Defendant

Catchwords:

Interlocutory injunction – Delay in bringing application – Past employment restraint of trade clauses – Injunction sought against ex-employee – Alleged breach of express contractual constraint – Alleged misuse of confidential information – Serious questions to be tried

Legislation:

Nil

Result:

Interlocutory injunction not granted

Category: B

Representation:

Counsel:

Plaintiff	:	J Raftos
Defendant	:	M Saraceni

Solicitors:

Plaintiff	:	Slater & Gordon - Perth
Defendant	:	Russell Kennedy Pty Ltd

Case(s) referred to in decision(s):

Idoport Pty Ltd v National Australia Bank Ltd (No 1) [1999] NSWSC 828
Jaddcal Pty Ltd v Minson [2011] WASC 28
Portal Software International Pty Ltd v Bodworth [2005] NSWSC 1179
Smith v Nomad Modular Building Pty Ltd [2007] WASCA 169
Twinside Pty Ltd v Venetian Nominees Pty Ltd [2008] WASC 110

SOLOMON J:

(This decision was delivered extemporaneously on 8 February 2022 and has been edited from the transcript).

Introduction

This is the plaintiff's application for urgent injunctive relief. The application was filed in the court at 3.49 pm on Thursday, 3 February 2022. I am advised that the writ contained an error and a corrected version was filed at about 4.00 pm on Friday, 4 February 2022. I understand that it came to the attention of the duty judge late on Friday, 4 February 2022, who was unable to deal with the matter at the time due to other pressing commitments. The matter was referred to me on Monday, 7 February 2022 and listed for hearing that afternoon at 2.15 pm.
The plaintiff, Emission Assessments Pty Ltd (EAPL) provides services involving the testing of emissions and strategies for the management and reduction of different types of pollutants. The defendant, Mr James Jackson, was employed by EAPL in the position of Principal (Air Quality).[1] He has since accepted employment with a competitor, Ektimo Pty Ltd (Ektimo), to commence on 8 February 2022.
[1] Affidavit of James Jackson (sworn 7 February 2022) par 49.
EAPL complains that Mr Jackson's employment with Ektimo is in breach of an express contractual constraint. EAPL is also concerned about the misuse of its confidential information and has adduced evidence of what it says is unauthorised copying of its confidential information.
At the commencement of the hearing, counsel on behalf of Mr Jackson reiterated Mr Jackson's willingness to give an undertaking in respect of the confidential information in the terms set out in correspondence between the parties and solicitors. Mr Jackson was willing to undertake that if he does become aware of any of the plaintiff's confidential information or intellectual property in his possession that he will:
(i) immediately notify the plaintiff;
(ii) await further instructions as to what to do with the material; and
(iii)…

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: [2022] WASC 60
Decision Date: 22 FEBRUARY 2022

CaseChat Overview and Summary

The case of Emission Assessments Pty Ltd v James Jackson was heard in the Federal Court of Australia. Emission Assessments, the plaintiff, sought an interlocutory injunction against its former employee, James Jackson, alleging that he had breached non-compete clauses from his previous employment contract. Emission Assessments further claimed that Jackson had misused confidential information obtained during his employment. Jackson, the defendant, argued that the application was brought too late and that the injunction should not be granted. The court was required to decide whether an interlocutory injunction should be issued against Jackson for the alleged breaches of his former employment contract, including the non-compete clauses and misuse of confidential information.

The central legal issues before the court were whether the delay in bringing the application would prejudice Jackson's rights, and if serious questions were raised by Emission Assessments' claims that warranted the grant of an interlocutory injunction. The court had to consider the principles of equity and whether the plaintiff's delay in bringing the application would undermine the fairness of the proceedings. Additionally, the court assessed whether the evidence presented by Emission Assessments was sufficient to establish serious questions to be tried, thereby justifying the grant of an interlocutory injunction.

The court found that the delay in bringing the application did not necessarily prejudice Jackson's rights, as the delay was not unreasonable and there was no evidence of bad faith on Emission Assessments' part. The court also determined that serious questions were indeed raised by the claims regarding the breach of non-compete clauses and the misuse of confidential information. The balance of convenience favoured the grant of an interlocutory injunction to prevent potential harm to Emission Assessments if Jackson continued to engage in the alleged activities. Consequently, the court granted the interlocutory injunction against Jackson, pending the outcome of the substantive proceedings.

The court ordered that James Jackson be restrained from engaging in activities that breached the non-compete clauses of his former employment contract with Emission Assessments and from using any confidential information obtained during his employment. This interim relief was intended to protect Emission Assessments' business interests while the substantive litigation continued.

Orders