Industrial Workwear Pty Ltd v Ryan - [2022] WASC 287

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   INDUSTRIAL WORKWEAR PTY LTD -v- RYAN [2022] WASC 287
CORAM:   CURTHOYS J
HEARD:   27 APRIL 2021
DELIVERED          :   31 AUGUST 2022
FILE NO/S:   CIV 3020 of 2018
BETWEEN:   INDUSTRIAL WORKWEAR PTY LTD
Plaintiff
AND
MADISON ANN RYAN
First Defendant
AQUA TERRA OIL AND MINERAL SERVICE AND SUPPLY COMPANY PTY. LTD.
Second Defendant
NOGARD AUSTRALIA PTY LTD
Third Defendant

Catchwords:

Practice and procedure - Application by third defendant for strike out or summary judgment - Application by second and third defendants for security for costs

Legislation:

Corporations Act 2001 (Cth), s 131(1), s 1335(1)
Rules of the Supreme Court 1971 (WA), O 16 r 1, O 20 r 19(1), O 25 r 1

Result:

Summary judgment granted for third defendant
Application for security for costs adjourned

Category: B

Representation:

Counsel:

Plaintiff	:	C Slater
First Defendant	:	No appearance
Second Defendant	:	T J Carmady
Third Defendant	:	T J Carmady

Solicitors:

Plaintiff	:	Aherns Lawyers
First Defendant	:	MDC Legal
Second Defendant	:	Williams & Hughes
Third Defendant	:	Williams & Hughes

Cases referred to in decision:

Cockman v Gorman [2022] WASC 125
El Ajou v Dollar Land Holdings plc [1994] 2 All ER 685
English v Vantage Holdings Group Pty Ltd [2021] WASCA 47
Gerovich v Maxwell John Gerovich as executor of the estate of Anthony Gerovich [2018] WASC 153
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398

CURTHOYS J:

Introduction

The third defendant, Nogard Australia Pty Ltd (Nogard Australia), applies to strike out certain paragraphs of the reamended statement of claim filed by the plaintiff, Industrial Workwear Pty Ltd (Industrial Workwear) and for the action to be dismissed as against Nogard Australia pursuant to O 20 r 19(1)(a) and (c) of the Rules of the Supreme Court 1971 (WA) (Rules), or alternatively for summary judgment to be entered for Nogard Australia pursuant to O 16 r 1 of the Rules.
Further, Nogard Australia and the second defendant, Aqua Terra Oil and Mineral Service and Supply Company Pty Ltd (ATOM), apply for security for costs by payment into court, pursuant to s 1335(1) Corporations Act 2001 (Cth) and O 25 r 1 of the Rules.
The fundamental basis of the applications is that Industrial Workwear has not pleaded material facts to establish that Nogard Australia received certain confidential information nor to establish that the knowledge of ATOM's directors is to be imputed to Nogard Australia.
For the reasons that follow, I have ordered summary judgment for the third defendant. In the event that the application for summary judgment had not been successful I would have struck out those parts of the statement of claim relating to Nogard Australia.

Background

On 23 November 2018, Industrial Workwear issued a writ of summons against the first defendant, its former employee, Madison Ann Ryan.
Ryan was employed by Industrial Workwear from 1 November 2015 to 21 September 2018. Ryan was then employed by ATOM from 3 October 2018.

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: [2022] WASC 287
Decision Date

CaseChat Overview and Summary

Industrial Workwear Pty Ltd brought an action against Madison Ann Ryan, Aqua Terra Oil and Mineral Service and Supply Company Pty Ltd (ATOM), and Nogard Australia Pty Ltd (Nogard Australia) in the Supreme Court of Western Australia. The central dispute revolves around Industrial Workwear's allegations that Ryan, a former employee, misappropriated confidential information during her employment and disclosed it to ATOM and Nogard Australia, leading to their use to Industrial Workwear's detriment. Industrial Workwear seeks injunctive relief, the return of the confidential information, and damages. The defendants, particularly Nogard Australia and ATOM, sought to strike out certain parts of Industrial Workwear's pleadings and for summary judgment against Industrial Workwear, arguing that the claim lacked a factual basis and was legally untenable. They also applied for security for costs.

The court examined whether Industrial Workwear had pleaded sufficient facts to establish that Nogard Australia was a party to the Embroidery Agreement or benefited from it, as well as whether the knowledge of ATOM's directors could be imputed to Nogard Australia. The court found that Industrial Workwear's claim against Nogard Australia failed on the pleadings as it could not establish that Nogard Australia was a party to or benefited from the Embroidery Agreement, nor that the knowledge of ATOM's directors could be imputed to Nogard Australia. Given these findings, the court granted summary judgment in favour of Nogard Australia, dismissed the relevant parts of Industrial Workwear's claim against Nogard Australia, and struck out other parts of the statement of claim as surplus to requirements. The application for security for costs was adjourned pending the outcome of further pleadings.

Orders