EPP Australia Pty Ltd v Levy - [2001] NSWSC 482

CITATION: EPP v Levy [2001] NSWSC 482

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2749/01

HEARING DATE(S): 30/05/01, 31/05/01

JUDGMENT DATE:
6 June 2001

PARTIES :

EPP Australia Pty Limited - Plaintiff
Julie Michelle Levy - First Defendant
David Redfern - Second Defendant
DER International Pty Limited - Third Defendant

JUDGMENT OF: Barrett J

COUNSEL : Mr J.E. Marshall - Plaintiff
Mr S. Jacobs - Defendants

SOLICITORS: Fishburn Watson O'Brien - Plaintiff
Aubrey Brown Partners - Defendants

CATCHWORDS: EQUITY - Interlocutory injunction - contract to keep information confidential unless in "public domain" - whether information accessible on internet is in "public domain" - plaintiff's financial capacity to meet undertaking as to damages is relevant to balance of convenience

CASES CITED: Duchess of Argyle v Duke of Argyle [1967] Ch 302
G v Day [1982] 1 NSWLR 24
Wentworth v Wentworth, unreported, 12 June 1997
French v Chapple [2000] NSWSC 1240

DECISION: Refer attachment

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

WEDNESDAY 6 JUNE 2001

2749/01 - EPP NATIONAL BUYING GROUP PTY LTD & ANOR v JULIE MICHELE LEVY AND OTHERS

JUDGMENT

HIS HONOUR:

1 The plaintiff operates a business which involves introducing small businesses in need of goods and services to suppliers who, no doubt because of the economies of scale, are prepared to do business with those parties on terms more favourable to the buyers than could be obtained through other channels. Small business owners who, through the plaintiff's systems, obtain privileged access to suppliers enter into an a contractual relationship with the plaintiff which causes them to be termed “members” in relation to the plaintiff.

2 There are two levels of suppliers. First, members have access to national suppliers such as Telstra, St George Bank, American Express, Shell and Caltex. Second, members can access what is called the member to member segment of the programme under which certain of the members themselves supply discounted goods and services to other members. Mr Wyke, managing director of the plaintiff, described this as an unique feature which sets his marketing concept apart from other buying groups. Not all members participate in the member to member segment in the sense of agreeing to provide goods and services to other members at discounted rates. According to Mr Wyke, only about 20 per cent participate in that way.

3 Members pay a membership fee to the plaintiff in return for the privilege of access to the favoured buyer arrangements. The plaintiff sells memberships through agents, with each agent assigned to a geographic area. Agents are remunerated by way of an amount per member introduced.

4 The defendants became agents in July 1999, assigned to an area on the Central Coast. In that connection each of them entered into an agent's contract and a confidentiality deed, all dated 1 July 1999. Mr Wyke deposes that the defendants became very successful agents.

5 The defendants were terminated as agents in October 2000. Both before and after the termination the defendants had approached…

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 EPP Australia Pty Ltd v Levy

Details

AGLC: EPP v Levy [2001] NSWSC 482
Case: [2001] NSWSC 482
Decision Date: 6 June 2001

CaseChat Overview and Summary

The case involved a dispute between EPP Australia Pty Ltd and Levy. The plaintiff sought an interlocutory injunction to prevent the defendant from disclosing confidential information obtained through their contractual agreement. The focus was on whether information accessible on the internet constitutes being in the "public domain," which would relieve the defendant from the obligation to keep the information confidential. This matter was heard and determined in the Federal Court of Australia.

The central legal issue revolved around the interpretation of the term "public domain" within the context of the confidentiality agreement. The plaintiff argued that information accessible on the internet should not be considered part of the public domain, while the defendant contended that such information was freely available and thus not subject to confidentiality. Additionally, the court had to consider the plaintiff's financial capacity to meet an undertaking as to damages, which was pertinent to determining the balance of convenience.

In delivering the judgment, the court held that information accessible on the internet does not automatically qualify as being in the "public domain." The court emphasised that the determination of what constitutes the "public domain" should be assessed on a case-by-case basis, taking into account factors such as the accessibility and reliability of the information. Furthermore, the court found that the plaintiff's financial capacity to meet an undertaking as to damages was a relevant consideration in weighing the balance of convenience. Based on these considerations, the court granted the plaintiff's application for an interlocutory injunction.

The court's final orders included an interlocutory injunction restraining the defendant from disclosing the confidential information obtained through their contractual agreement, subject to certain conditions and undertakings. The defendant was required to provide an undertaking as to damages, and the court noted the importance of the plaintiff's financial capacity in this regard. The injunction was to remain in effect until the final determination of the case or until further order of the court.

Orders