Just Group Ltd v Peck (Ruling No 2) - [2016] VSC 432

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

EMPLOYMENT AND INDUSTRIAL LIST

S CI 2016 02141

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

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	25 July 2016
DATE OF RULING:	28 July 2016
CASE MAY BE CITED AS:	Just Group Ltd v Peck (Ruling No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 432 (First Revision 29 July 2016)

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PRACTICE AND PROCEDURE – Discovery – Scope of discovery – Relevance of documents sought – Relevance test – r 29.11(a) and r 29.08 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Discovery of some documents allowed – Subpoena to non-party before trial – Production to Prothonotary – Application to set aside subpoenas – Two-stage test – Whether documents sought relevant to issues in dispute – Whether legitimate forensic purpose in seeking the documents – Some documents not ‘for evidence’ – Some subpoenas set aside – Supreme Court (General Civil Procedure) Rules 2015 rr 42A.01, 42.04.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S J Wood QC with Mr B Jellis and Mr D Ternovski	Arnold Bloch Liebler
For the Defendant	Mr P J Jopling QC with Mr N P De Young	Ashurst
For the Subpoenaed Parties	Mr O Bigos	Hall & Wilcox

HER HONOUR:

Introduction

This proceeding concerns a restraint of trade clause in an employment contract between the plaintiff and the defendant. In dispute is whether the clause has been breached, or will be breached, by the defendant taking up new employment within the Cotton On group.

The plaintiff has discovered an unsigned employment contract with Cotton On Group Services Pty Ltd.[1] The covering letter bears the Cotton On Group letterhead. A reference to ‘Cotton On’ in this ruling is a reference to Cotton On as defined in paragraph 2 of the amended statement of claim filed 25 July 2016. That is, ‘a group of related companies and entities more commonly known as ‘Cotton On’’.
[1] Affidavit of Nicole Peck (Affidavit of Documents) affirmed 3 July 2016.

This ruling concerns two interlocutory matters. First, whether the plaintiff is entitled to particular discovery of documents outlined in its summons filed 19 July 2016 (‘the discovery summons’). Second, whether objections to the plaintiff’s subpoenas should be allowed.

During the course of the hearing on 25 July 2016, further pleadings were filed by both parties. The plaintiff filed an amended statement of claim (‘the ASOC’) and a further amended reply (‘amended Reply’). The defendant filed an amended defence (‘the amended defence’).

The plaintiff, defendant and subpoenaed parties made oral submissions at the hearing. In addition, the plaintiff and subpoenaed parties also provided written submissions. It is unnecessary to reiterate all the submissions in this ruling. The key submissions are referred to below.

Summary

For the reasons below, the Court will make orders for particular discovery of some, but not all, categories outlined in the discovery summons. The Court will allow some,…

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: [2016] VSC 432
Decision Date: 28 July 2016

CaseChat Overview and Summary

The case of Just Group Ltd v Peck (Ruling No 2) involved a dispute concerning the scope of discovery and the relevance of documents sought. The plaintiff, Just Group Ltd, sought to discover documents from the defendant, Peck, who was a non-party. This application arose before the trial and was heard in the Supreme Court of Victoria. The court had to determine whether certain documents were relevant to the issues in dispute and if there was a legitimate forensic purpose in seeking them.

The legal issues before the court were whether the documents sought were relevant to the matters in dispute and if there was a legitimate reason for seeking those documents under the relevant rules. The court applied the two-stage test established in the Supreme Court (General Civil Procedure) Rules 2015. Under rule 29.11(a), the documents had to be relevant to the issues in the proceeding. Under rule 29.08, the party seeking the documents had to show that there was a legitimate forensic purpose in seeking them. Additionally, the court considered the provisions of rules 42A.01 and 42.04 regarding subpoenas to non-parties.

The court found that some of the documents were relevant to the issues in dispute and that there was a legitimate forensic purpose in seeking them. However, it also determined that some of the documents were not intended for use as evidence. As a result, the court set aside the subpoenas that sought the non-relevant documents. These subpoenas were ordered to be produced to the Prothonotary. This decision balanced the need for relevant information with the protection of non-parties from unnecessary discovery requests.

The court made specific orders concerning the subpoenas, setting aside those that sought documents not relevant to the issues in dispute. The relevant documents were to be produced in accordance with the rules, while the non-relevant ones were to be handed to the Prothonotary. This ruling clarified the scope of discovery in cases involving non-parties and reinforced the importance of the relevance test and legitimate forensic purpose in discovery proceedings.

Orders