Just Group Ltd v Peck - [2016] VSC 375

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
PRACTICE COURT

S CI 2016 02141

JUST GROUP LIMITED (ACN 096 911 410)	Plaintiff
v
NICOLE PECK	Defendant

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JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2016
DATE OF JUDGMENT:	1 July 2016
CASE MAY BE CITED AS:	Just Group Ltd v Peck
MEDIUM NEUTRAL CITATION:	[2016] VSC 375

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PRACTICE AND PROCEDURE – Inherent jurisdiction – Court’s control of its processes in aid of the administration of justice – Restraining solicitors from acting – Applicant seeking injunction preventing opponent’s solicitors from continuing to act – Relevant considerations – Kallinicos and anor v Hunt and ors (2005) 64 NSWLR 561, Grimwade v Meagher and ors [1995] 1 VR 446, Director of Public Prosecutions for Western Australia v Bennett & Co (2005) 151 A Crim R 516 followed – Circumstances of case not exceptional – No ‘real and sensible’ risk identified – Potential for prejudice to defendant substantial – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S Wood QC with Ms E Murphy	Arnold Bloch Leibler
For the Defendant	Mr D Collins QC with Mr N De Young	Ashurst Australia

HIS HONOUR:

By agreement made on or about 2 December 2015, the plaintiff employed the defendant as Chief Financial Officer and company secretary. The defendant took up that role in early January 2016. On 2 May 2016 she gave notice of the termination of her employment with the plaintiff. The defendant has since sought to take up employment with a significant trade rival of the plaintiff, Cotton On. The plaintiff commenced this proceeding on 3 June 2016 alleging that in taking up employment with Cotton On the defendant has acted in breach of the terms of her employment with the defendant. In particular, breach of a restraint clause and breach of a confidential information clause are alleged. The plaintiff seeks an injunction to restrain the defendant from commencing employment with Cotton On for 24 months from 6 June 2016, and from using the confidential information of the plaintiff.

By her defence dated 17 June 2016, the defendant argues that:

(a) The terms of the contract in force at the time of her resignation did not include a restraint;

(b) In the alternative, a restraint is in the circumstances excessive and unreasonable and unenforceable at law;

(c) The defendant has affirmed to the plaintiff that she would keep confidential any of the plaintiff’s confidential information disseminated to her during her employment.

The defendant has engaged solicitors Ashurst to represent her in the proceeding.

By summons dated 17 June 2016, the plaintiff seeks orders that:

(a) Ashurst be restrained from acting or continuing to act for and on behalf of, or from continuing to provide services to, the defendant in respect of these proceedings or the subject matter of these proceedings.

(b) The defendant be restrained from continuing to retain or communicate with any partner, officer, employee, servant or agent of Ashurst in relation…

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.

Continue reading Just Group Ltd v Peck

Details

AGLC: Just Group Ltd v Peck [2016] VSC 375
Case: [2016] VSC 375
Decision Date: 1 July 2016

CaseChat Overview and Summary

Just Group Ltd sought an injunction against Peck, aiming to prevent Peck’s solicitors from continuing their representation. The matter was heard in the Supreme Court of New South Wales, where the court had to determine whether it should exercise its inherent jurisdiction to restrain the solicitors from acting. This case arose from a complex commercial dispute, with the applicant arguing that the solicitors’ conduct warranted intervention to ensure the administration of justice.

The court was tasked with identifying the relevant considerations for exercising its inherent jurisdiction over the proceedings. The applicant needed to demonstrate exceptional circumstances to justify restraining the solicitors from acting. The court referred to established case law, including Kallinicos and anor v Hunt and ors, Grimwade v Meagher and ors, and Director of Public Prosecutions for Western Australia v Bennett & Co, to assess the application. The applicant had to show a real and sensible risk that the solicitors’ conduct could prejudice the administration of justice, and not merely a potential for prejudice to the defendant.

In evaluating the application, the court found that the circumstances did not reach the threshold of exceptionality required to invoke the court’s inherent jurisdiction. While there was potential for prejudice to the defendant, this did not equate to a real and sensible risk of actual prejudice to the administration of justice. Consequently, the court dismissed the application, affirming that the inherent jurisdiction should be exercised sparingly and only in truly exceptional cases.

No further orders were made by the court beyond dismissing the application for an injunction.

Orders