INDEPENDENT CORPORATE SERVICES LTD -v- STEVENS [2002] WASC 280

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 280
Case No:	CIV:2489/2002	Heard:	19 NOVEMBER 2002
Coram:	ROBERTS-SMITH J	Delivered:	26/11/02
No of pages:	28	Judgment Part:	1 of 1
Result:	Application for interlocutory injunction refused
Category:	B
PDF Version

Parties:	INDEPENDENT CORPORATE SERVICES LTD (ACN 008 077 325) GEOFFREY STEVENS
Catchwords:	Employment Business in competition with former employer Fiduciary duty Fidelity Acts preparatory to establishing business Whether breaches of duty to employer Whether knowledge of customer lists, billing cycle and fees confidential information Canvassing of customers of former employer Whether breach of duty Interlocutory injunction Contract of employment Implied terms of fidelity and confidentiality Whether use of confidential information to canvass customers of former employer Evidence Whether serious question to be tried
Legislation:	Nil
Case References:	American Cyanamid Co v Ethicon Ltd [1975] AC 396 Birch Investments Pty Ltd v Lim, unreported; SCt of WA; Library No 7396; 12 July 1988 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148 Cayne & Anor v Global Resources PLC [1984] 1 All ER 225 Commissioner of Taxation v Ahern (1986) 87 FLR 112 Faccenda Chicken Ltd v Fowler & Ors [1986] 1 All ER 617 Hubbard v Vosper [1972] 2 QB 84 McCorkhill Holdings Pty Ltd (Receiver and Manager Appointed) v Fraser, unreported; SCt of WA (Rowland J); Library No 920621; 26 November 1992 Mott v Mount Edon Gold Mines (1994) 12 ACLC 319 N P Generations Pty Ltd v Feneley [2000] SASC 240 Re Juson Pty Ltd (1992) 8 WAR 13 Savings & Investment Bank Ltd v Gasco Investments (Netherlands) BV [1984] 1 WLR 271 Wessex Dairies Ltd v Smith [1935] 2 KB 80 ABC v Lenah Game Meats Pty Ltd [2001] HCA 63 Canadian Aero Services Ltd v O'Malley (1973) 40 DLR (3d) 371 CE Elley Ltd v WairoaHarrison (1987) 1 NZELC 95,620 Everiday Brushes, Amber v Lamont (1989) 4 NZCLC 64,936 Fejo v Northern Territory (1998) 195 CLR 96 Graham Sargant v Lowndes Lambert Australia Pty Ltd [2000] WAIRC 263 Green v Bestobell Industries Pty Ltd [1982] WAR 1 Hartleys Ltd v Yukich & Ors [2002] WASC 184 Hospital Products v United States Surgical Corporation (1984) 156 CLR 41 Maryland Metals Inc v Metzner (1978) 302 A (2d) 564 Morris & Anor v A1 Pools Pty Ltd & Ors [2000] WASCA 335 Patrick Stevedores Operations No2 Pty Ltd v MUA (1998) 195 CLR 1 Peninsular Real Estate Ltd v Harris (1992) 2 NZLR 216 Stenhouse Australia Ltd v Phillips [1974] AC 391 Target Recruitment Services Ltd v Lewin (1988) 2 NZELC 95,704 Weldon v Harbison [2000] NSWSC 272 Westminster Chemical NZ Ltd v McKinley [1973] 1 NZLR 659

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : INDEPENDENT CORPORATE SERVICES LTD -v- STEVENS [2002] WASC 280 CORAM : ROBERTS-SMITH J HEARD : 19 NOVEMBER 2002 DELIVERED : 26 NOVEMBER 2002 FILE NO/S :

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: [2002] WASC 280
Decision Date

CaseChat Overview and Summary

This is an application for an interlocutory injunction in which the plaintiff, Independent Corporate Services Ltd, seeks to restrain the defendant, Geoffrey Stevens, from soliciting clients of the plaintiff and enjoining the defendant to provide certain details of established and potential clients of the plaintiff whom he has contacted directly or indirectly since the defendant ceased his employment with the plaintiff. The plaintiff's claim is that by reason of his senior position and the circumstances in which he left the plaintiff's employ, the defendant was under express and implied obligations of confidentiality and fidelity which expressly extended beyond the termination of his employment with the plaintiff, and that further he was in a position of trust and confidence with respect to the plaintiff, which imposed a fiduciary duty upon him. The plaintiff further pleads the defendant directly approached at least two clients of the plaintiff whilst still in the plaintiff's employ, indicating that he was intending to leave that employ and establish a corporate registry business on his own account and that he was soliciting the clients regarding the provision of corporate registry services by him following his leaving the plaintiff's employ. The plaintiff also claims that it is the belief of the plaintiff that the defendant is engaged in a concerted plan to materially damage the commercial interests of the plaintiff in an effort to entice clients to his new business. The plaintiff seeks a range of injunctive relief directed to restraining the defendant from soliciting employees or clients of the plaintiff and providing to the plaintiff, details of specified client information, together with a claim for equitable compensation by reason of the alleged breaches of fiduciary duty and confidence. The application for interlocutory injunction was opposed by the defendant. The court found that the plaintiff's case did not establish a serious question to be tried and that there was no adequate remedy available to the plaintiff in damages. The court also found that the balance of convenience lay in refusing the application. The application for the interim injunction was refused.

Orders