Hannaford v Cactus Imaging Pty Ltd - [2008] NSWCA 260

New South Wales

Court of Appeal

CITATION: Hannaford v Cactus Imaging Pty Ltd [2008] NSWCA 260

HEARING DATE(S): 13 October 2008

JUDGMENT DATE:
13 October 2008

JUDGMENT OF: McColl JA at 1

EX TEMPORE JUDGMENT DATE: 13 October 2008

DECISION: See [14].

CATCHWORDS: PRACTICE AND PROCEDURE - application for expedition of appeal - applicant restrained by injunction from engaging in certain employment said to be in breach of restraint of trade clause - risk of loss of livelihood to applicant if expedition not granted.

CATEGORY: Procedural and other rulings

CASES CITED: Elders Rural Finance Limited v Smith (1995) 38 NSWLR 395

PARTIES: Bradley William Hannaford - Applicant
Cactus Imaging Pty Ltd - Respondent

FILE NUMBER(S): CA 40324 of 2008

COUNSEL: Mr A J Sullivan QC and Mr M J Darke - Applicant
Mr M J Steele - Respondent

SOLICITORS: Allens Arthur Robinson - Applicant
Somerville & Co - Respondent

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 4641 of 2008

LOWER COURT JUDICIAL OFFICER: Rein J

LOWER COURT DATE OF DECISION: 22 September 2008

CA 40324/08
McCOLL JA

Monday 13 October 2008

BRADLEY WILLIAM HANNAFORD v CACTUS IMAGING PTY LIMITED

JUDGMENT Ex Tempore

1 McCOLL JA: The Court has before it an application for expedition made pursuant to a Notice of Motion filed on 3 October 2008. The Motion seeks both expedition of the Summons seeking leave to appeal and, if leave to appeal is obtained, that the hearing of the appeal itself be expedited. In the course of submissions, Mr A J Sullivan of Queen’s Counsel who appears with Mr M J Darke for the applicant, submitted that if expedition of the leave application were granted, there should be a concurrent hearing of the applications for leave and if granted, the appeal.

2 Mr M J Steele, who appears for the respondent, does not oppose the application, but he does not consent to it for various evidentiary reasons to which I will come.

3 The proceedings from which leave to appeal is sought, were commenced by the respondent against the applicant in the Equity Division on 10 September 2008. On 22 September 2008, Rein J ordered, inter alia, that the applicant be restrained until further order, from continuing his employment with, being employed by, or providing his services as an employer or otherwise, to a company called, Omnigraphics Australia Pty Ltd or any of its related entities. On 26 September, Palmer J made an order for expedition of the first instance proceedings. They are now fixed for hearing on a final basis before Brereton J on the 18–19 February 2009. As a condition of obtaining interlocutory relief, the respondent gave the usual undertaking as to damages.

4 The restraint of trade clause which Rein J enforced, operated for twelve months. The effect of the interlocutory injunction is that the applicant is restrained for the period July 2008 to July 2009, from engaging in employment within the terms of that injunction.

5 The application for…

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: [2008] NSWCA 260
Decision Date: 13 October 2008

CaseChat Overview and Summary

The applicant, Hannaford, sought expedition of an appeal against an injunction that restrained them from engaging in certain employment, which was alleged to be in breach of a restraint of trade clause. The primary concern raised by the applicant was the risk of losing their livelihood if expedition was not granted. The application was heard by McColl JA of the Court of Appeal of New South Wales.

The central legal issue before the court was whether the circumstances warranted the expedition of the appeal. This involved considering the potential prejudice to the applicant if the appeal was not heard expeditiously, particularly in light of the restraint of trade clause and the alleged impact on their ability to earn a living.

McColl JA determined that expedition was appropriate in this instance. While the specific reasoning is not detailed in the provided text, the decision to grant expedition suggests the court weighed the applicant's asserted risk of significant and potentially irreparable harm to their livelihood against the usual processes of the court. The court's orders reflect a clear intention to expedite the appellate process.

The court ordered that the hearing of the summons seeking leave to appeal be expedited and heard concurrently with the hearing of the appeal itself. Costs of the motion were reserved to be costs in the cause. The parties were granted leave to approach the Registrar to arrange a date for the expedited hearing.

Orders

Orders of the court

(1) Expedite the hearing of the Summons seeking leave to appeal.

(2) Summons seeking leave to appeal be heard concurrently with the hearing of the appeal.

(3) Costs of the motion to be costs in the cause.

(4) I give the parties leave to approach Registrar Schell today with a view to obtaining a date for the expedited hearing.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Hannaford v Cactus Imaging Pty Ltd [2008] NSWCA 260
HEARING DATE(S):	13 October 2008
JUDGMENT DATE:	13 October 2008
JUDGMENT OF:	McColl JA at 1
EX TEMPORE JUDGMENT DATE:	13 October 2008
DECISION:	See [14].
CATCHWORDS:	PRACTICE AND PROCEDURE - application for expedition of appeal - applicant restrained by injunction from engaging in certain employment said to be in breach of restraint of trade clause - risk of loss of livelihood to applicant if expedition not granted.
CATEGORY:	Procedural and other rulings
CASES CITED:	Elders Rural Finance Limited v Smith (1995) 38 NSWLR 395
PARTIES:	Bradley William Hannaford - Applicant Cactus Imaging Pty Ltd - Respondent
FILE NUMBER(S):	CA 40324 of 2008
COUNSEL:	Mr A J Sullivan QC and Mr M J Darke - Applicant Mr M J Steele - Respondent
SOLICITORS:	Allens Arthur Robinson - Applicant Somerville & Co - Respondent
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC 4641 of 2008
LOWER COURT JUDICIAL OFFICER:	Rein J
LOWER COURT DATE OF DECISION:	22 September 2008