Koops Martin v Dean Reeves

[2006] NSWSC 447

CITATION:	Koops Martin v Dean Reeves [2006] NSWSC 447
HEARING DATE(S):	05/04/2006
JUDGMENT DATE :	5 April 2006
JURISDICTION:	Equity Division
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	04/05/2006
DECISION:	Application rejected.
CATCHWORDS:	EVIDENCE – Trial on affidavits – leave to adduce oral evidence in chief – where preferred evidence would raise new issue in defendant’s case which plaintiff would not have reasonable opportunity to investigate
PARTIES:	Koops Martin Financial Services Pty Limited (formerly Koops Martin Financial Services Limited) ABN 23 098 362 246 Dean Reeves
FILE NUMBER(S):	SC 2005/06336
COUNSEL:	J Fernon SC with D Hand (P) P Russell (D)
SOLICITORS:	L S Juhasz of Koops Martin Lawyers (P) W J Langler of MBT Lawyers (D)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Wednesday 5 April 2006

6336/05 Koops Martin Financial Services Pty Limited v Dean Reeves

JUDGMENT – Ex tempore (on application for leave to adduce oral evidence)

1 HIS HONOUR: In a judgment given yesterday on the plaintiff's application for leave to file an amended summons, I recorded the procedural history of this matter.

2 The plaintiff's case has now closed, and the defendant Mr Reeves is giving his evidence in chief. Mr Russell seeks leave to adduce oral evidence, which he informs me is intended to show that there is a relationship other than a professional one between Mr Reeves and various of the clients of Koops Martin who are listed in paragraph 39 of the affidavit of Mr Malouf sworn 24 February 2006. Such evidence is intended to found a submission, to be made for the defendant, that his connection with at least some of those clients was based on close family or personal relations, and does not found a protectable interest such as could support a restraint of trade. No doubt it is intended to invoke what was said by Mr Heydon, as his Honour then was, in The Restraint of Trade Doctrine, 2nd Ed, p 100, under the heading "Friends", as follows:

One important point to note is that just as the customer contact necessary to support a restraint must result from something more than the employee's individual skill and persuasive manner, so the employee’s normal friendships and social acquaintances are not support for any restraint, even if these relations are with the employer’s customers.

3 In the pre-trial submissions lodged on behalf of the defendant on 30 March 2006, reference was made in paragraph 10 to that proposition (at sub-paragraph 10(f)). However, in the affidavit evidence there was not a skerrick of evidence as to any family or social relationship between the defendant and any of the relevant customers, save that it might be inferred that some who share the same surname as the defendant were his relations.

4 In the course of cross examination of the plaintiff's witnesses Mr Malouf and Mr Corkill, counsel has from time to time put to them propositions to the effect that they knew that certain of the listed clients were relatives or friends or acquaintances of the defendant. In at least some cases so much has been conceded by the plaintiff's witnesses, though in others I think it is fair to say that the witness did not know whether or not there was any relationship other than that of professional financial planner and client between the defendant and the relevant client.

5 If leave is granted to adduce the evidence which Mr Russell now wishes to adduce, it will result in there being, for the first time, affirmative evidence of relationships, other than the professional one, between the defendant and certain of the clients of the plaintiff. The plaintiff will have had no meaningful opportunity to investigate and respond to those allegations, because, so far as the material before me shows, there has been no notice that such allegation would be made (except to the extent that it is raised in the written submissions, and even there it is far from apparent that the allegation would be as extensive as it now appears to be, having heard the cross examination). I think that would work seriously to the prejudice of the plaintiff, who will effectively not be in a position to cross examine armed with the knowledge which investigation might produce of the subject matter of those allegations, nor to rebut them, nor to adduce evidence in reply to them which might qualify or limit their significance.

6 To my mind, granting the leave sought would permit evidence which is novel to be raised in the last part of the trial in circumstances which would be prejudicial to the plaintiff. While I do not overlook that the defendant obviously wishes to make this a significant part of his case, I think it is just too late to do so now, save to the extent that it can be supported from material elicited in cross-examination. I reject the application.

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