Harrier Group Pty Ltd v Reynolds - [2021] WASC 174

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   HARRIER GROUP PTY LTD -v- REYNOLDS [2021] WASC 174
CORAM:   MASTER SANDERSON
HEARD:   5 MAY 2021
DELIVERED          :   2 JUNE 2021
PUBLISHED           :   2 JUNE 2021
FILE NO/S:   CIV 2266 of 2020
BETWEEN:   HARRIER GROUP PTY LTD
Plaintiff
AND
KELLY REYNOLDS
Defendant

Catchwords:

Discovery - application by plaintiff for pre-action discovery - Turns on own facts

Legislation:

Rules of Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	C Hood
Defendant	:	M Saraceni

Solicitors:

Plaintiff	:	HWL Ebsworth Lawyers (Perth)
Defendant	:	Brand Barristers & Solicitors

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

BWS v ARV [No 2] [2021] WASCA 62

MASTER SANDERSON:

By originating summons filed 24 December 2020, the plaintiff sought pre‑action discovery from the defendant. The application was brought under O 26A r 4 of the Rules of the Supreme Court 1971 (WA) (RSC). There was no dispute between the parties as to the relevant principles. The plaintiff must establish that it:
(a)may have a cause of action against the potential party;
(b)wants to commence proceedings against the potential party;
(c)after reasonable enquiries, has not been able obtain sufficient information to enable a decision to be made as to whether to commence proceedings;
(d)there are reasonable grounds for believing that the potential party had, has, or is likely to have, had, or to have, possession of documents that may assist in making the decision whether to commence proceedings; and
(e)the potential cause of action is against a person whose description has been ascertained.
The application must be supported by an affidavit which is served on the potential party. In this case, the plaintiff relied on an affidavit of David Sourbutts affirmed 21 December 2020 as supplemented by a further affidavit of Mr Sourbutts affirmed 15 April 2021. Mr Sourbutts is the chair of the board of the plaintiff. In response, the defendant relied upon her affidavit affirmed 12 March 2021.
The relevant background facts can be shortly summarised. The plaintiff is in the business of recruitment involving human resources consulting and executive search. It is headquartered in Western Australia and has an office in Sydney, New South Wales. Its business is conducted within Australia. The defendant was employed by the plaintiff as its chief executive officer from 29 June 2012 to 18 May 2020. The plaintiff terminated the defendant's employment summarily.
The defendant's terms and conditions of employment were set out in a contract of employment dated on or about 25 October 2017. Relevantly, clause 38 of the contract sets out restrictive covenants post termination of employment which are said to be designed to 'protect the goodwill of the business' in respect of its clients and customers. 'Client' is defined to be an actual client or customer of the plaintiff: cl 38.1. 'Competing Business' is defined to be any business that is substantially similar to or competitive with the plaintiff's business: cl 38.1. 'Restricted Areas' is relevantly defined in a cascading scale extending…

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: [2021] WASC 174
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, Harrier Group Pty Ltd sought pre-action discovery from Kelly Reynolds. The application was brought under the Rules of Supreme Court 1971 (WA) (RSC). The plaintiff sought discovery of documents from the defendant relating to communications between the defendant and representatives of 16 entities between 22 March 2020 and the date of any order. The plaintiff alleged that the defendant breached restrictive covenants in her employment contract by engaging in activities that were competitive with the plaintiff's business. The plaintiff argued it needed the documents to determine whether to commence proceedings against the defendant. The defendant denied any wrongdoing and argued that the plaintiff had not made reasonable enquiries to obtain the information it sought.

The court found that the plaintiff had failed to make reasonable enquiries of all but one of the entities named in the originating summons. The plaintiff had made no enquiries whatsoever of 15 of the entities. Even in respect of the 16th entity, Aurizon, the plaintiff had made only a single email enquiry. The court found that the plaintiff's enquiries of Aurizon were reasonable, as Aurizon had declined to provide further information. The court also found that the plaintiff had not made out a case that it may have a cause of action against the defendant. The defendant had gone on oath that she had no documents that fit the description in the originating summons. Any restraint of trade clauses in the defendant's employment contract had either expired or would expire shortly. The court dismissed the plaintiff's application.

The court gave the parties until 9 June 2021 to agree a minute of orders. If the parties could not agree on costs, they were to make short written submissions on this issue by 16 June 2021.

Orders