Fantid Pty Ltd v Jinyi Xing
[2011] NSWSC 401
•28 March 2011
Supreme Court
New South Wales
Medium Neutral Citation: Fantid Pty Ltd v Jinyi Xing [2011] NSWSC 401 Hearing dates: 28 March 2011 Decision date: 28 March 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Preliminary discovery refused
Catchwords: PRACTICE AND PROCEDURE - application for preliminary discovery -decision as to whether plaintiff commences proceedings extends beyond whether claim has an arguable basis to consideration of prospects of success - plaintiff appears to have decided to bring case - defendant indicates to court that does not retain documents sought to be discovered - held: no utility in making order for preliminary discovery Legislation Cited: (NSW) Uniform Civil Procedure Rules 2005, r 5.3 Cases Cited: Contour Building and Construction Pty Ltd v Kerr [2008] NSWSC 883
Ian Edward Morton & Ors v Nylex Ltd & Anor [2007] NSWSC 562Category: Principal judgment Parties: Fantid Pty Ltd: (plaintiff)
Jinyi Xing: (defendant)Representation: Counsel:
Mr G George (plaintiff)
Mr Jinyi Xing (defendant in person)
Solicitors:
Kalfus Legal (plaintiff)
File Number(s): 2011/79795
Judgment ( ex tempore )
HIS HONOUR: By summons filed on 20 March 2011 the plaintiff Fantid Pty Ltd claims an order for preliminary discovery under UCPR rule 5.3 against the defendant, its former employee Jinyi Xing, whose employment was terminated in late February of this year.
A few days after the termination of his employment, the defendant sent the plaintiff a claim for termination pay, which included a claim for "MYOB service, maintenance, set up, coaching", etc. The plaintiff was intrigued by this and made further enquiries, eliciting a response on 2 March 2011, which described the MYOB service work as having been done at home, "because office is too noisy to do this kind of work", and describing the work as relating to calculation of employee entitlements including leave, sick leave and wages, as well as MYOB software maintenance. On 7 March 2011, the plaintiff's solicitors wrote to the defendant drawing attention to the claim that these works were done at home, contending that these were not works outside or additional to the contract of employment, and relevantly asserting that the defendant had not been authorised or permitted to remove any of its records, information or data so as to perform such services at home. The letter went on to demand that the defendant provide extensive information and verification as to what, if any, information of the plaintiff he had in his possession. It referred to "your own admission to downloading a copy of our client staff employment records", and concluded:
We are instructed to advise that if you do not fully comply with our client's requirements as set out in paragraphs (1) to (6) above in every respect, we are to immediately, without further notice or reference to you whatsoever, apply to the Supreme Court for appropriate injunctions in terms of paragraphs (1) to (6) above and such other orders as our client might be advised including an order for damages, resulting from your breach of your employment contract.
Please be aware our client regards the removal of its confidential information from its business premises without authorisation by you as a matter of the gravest concern in relation to the protection of its business and confidential information and the rights to privacy of its employees.
The summons was first returnable on 22 March 2011, when it was adjourned to today. It has been referred to me as duty judge for hearing. The defendant is unrepresented. When the Court explained the nature of the application to the defendant, he indicated that he would not object to making an affidavit of discovery of the type sought. However, it appeared to me that there were a number of other issues which ought to be addressed in the interests of obtaining as complete a possible resolution of the issues.
In Ian Edward Morton & Ors v Nylex Ltd & Anor [2007] NSWSC 562 it was said that preliminary discovery could not be used to build up a case which an applicant has already decided, or could decide, to bring. Similarly, in Contour Building and Construction Pty Ltd v Kerr [2008] NSWSC 883, Barrett J said that a party who had already asserted an entitlement to commence substantive proceedings, could not sustain an application for preliminary discovery under this rule.
I accept that the sufficiency of available information to make a decision as to whether or not to commence proceedings can extend beyond whether there is an apparently arguable basis for a claim, to some consideration of its likely prospects of success. However, the Court would not make an order for preliminary discovery unless it appeared that the order would, at least in some way, improve the plaintiff's ability to make a decision as to whether or not to commence proceedings.
From the plaintiff's solicitor's letter of 7 March 2011 - and, in particular, the reference to the defendant's asserted admission, and the threat to institute proceedings for injunctive relief and damages without further notice or reference, this case is at least very close to Contour Building : it seems to me that the letter contains an assertion that the plaintiff had a sufficient admission and material on which to commence proceedings. That said, in order that the court might understand the situation somewhat better, Mr Xing was invited to give oral evidence in the witness box, and was cross-examined. It is plain enough that he denies that he retains any of the plaintiff's information or documentation on his computer or otherwise, and he did so on oath. There is no reason to suppose that if an order were made for preliminary discovery his answer would be any different. It is not necessary for me to consider, let alone express any views, as to whether that assertion on his part would withstand closer examination: it is sufficient to conclude that, if he were required to swear an affidavit, it would not produce a different result from the oral evidence that he has given in Court today.
In a sense, by his giving that oral evidence, the plaintiff has achieved - albeit more expeditiously - the practical result that the order sought would have given it. The evidence, however, also demonstrates that there is no utility in making an order for preliminary discovery, even if the grounds for it were satisfied - both because in my view the plaintiff is in a position already now, even if it was not previously, to decide whether or not to bring proceedings against Mr Xing; and because I do not think it would be in any better position were the order sought to be made.
I therefore propose to dismiss the summons. Costs of the summons may be costs in any subsequent proceedings, if they be brought; otherwise there will be no order as to costs, to the intent that each party bear its own.
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Decision last updated: 10 May 2011
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