| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
EMPLOYMENT AND INDUSTRIAL LIST
S ECI 2024 04169
BETWEEN:
| LCA TRARALGON PTY LTD (ACN 632 445 660) | Plaintiff |
| v | |
| ASHLEE JOHNSON PTY LTD & ORS (according to the attached Schedule) | Defendants |
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| JUDGE | Ierodiaconou AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 October 2024 |
DATE OF RULING: | 7 October 2024 |
CASE MAY BE CITED AS: | LCA Traralgon Pty Ltd v Johnson Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2024] VSC 612 |
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EMPLOYMENT – Contract – Restraint of trade – Legitimate protection of interests – Client connections – Restraints of Trade Act 1976 (NSW) s 4 – Application in Victoria.
INJUNCTION – Interlocutory injunction – Significance of delay in bringing an application where notice of a prospective injunction application has been provided.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G A Pauline | Norton Rose Fulbright Australia |
| For the First and Second Defendants | Mr M J Hoyne | Pointon Partners Pty Ltd |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Summary.............................................................................................................................................. 1
Background......................................................................................................................................... 1
Applicable Principles – interlocutory injunctions...................................................................... 6
Application of Restraints of Trade Act 1976 (NSW).................................................................... 8
The restraints.................................................................................................................................... 12
Is there a serious issue to be tried?............................................................................................... 14
Whether the alleged breaches infringe the terms of the restraint and non-solicitation clauses................................................................................................... 14
Whether the restraint and non-solicitation clauses are contrary to public policy 15
Are damages an adequate remedy?.............................................................................................. 21
Balance of convenience................................................................................................................... 22
Delay................................................................................................................................................... 23
Undertaking as to damages............................................................................................................ 24
Conclusion......................................................................................................................................... 25
HER HONOUR
Introduction
The plaintiff seeks an interlocutory injunction to enforce restraint clauses in its contract with the first defendant and a deed poll with the second defendant. The injunction is opposed.
Summary
I will grant an interlocutory injunction, subject to the usual undertaking as to damages.
Background
The plaintiff carries on a business franchise known to the public as Laser Clinics Australia. Relevantly, a branch of that business carries out its practice at 81-89 Hotham Street, Traralgon, Victoria (‘plaintiff’s premises’).
The plaintiff provides laser hair removal and skin and non-surgical cosmetic injection treatments.
The first defendant, Ashlee Johnson Pty Ltd (‘AJPL’), is an independent contractor who provides injector cosmetic treatments.[1]
[1]Affidavit of Danielle Daniel, sworn on 17 September 2024 (‘Daniel affidavit’), [23].
The second defendant, Ashlee Johnson, is the sole director of the first defendant; she is a registered nurse who provides injection treatments.
The third defendant, known as Haven Aesthetics Gippsland, operates approximately 250 metres away from the plaintiff’s premises.[2] The third defendant played no active part in this application.
[2]Daniel affidavit, [42].
For shorthand, I shall collectively refer to the first and second defendants in this ruling as ‘the defendants’.
On 8 July 2019, the plaintiff engaged the first defendant as an independent contractor by contractor agreement.[3]
[3]Affidavit of Alexandra Shields, affirmed 17 September 2024 (‘Shields affidavit’), [7](b).
Per cl 4 of the contractor agreement, the second defendant was obliged to provide the Injecting Services and complete the jobs allocated by the plaintiff. The agreement provided that the first defendant was paid for the…
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- Case
- [2024] VSC 612
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the restraint of trade clause in the employee’s contract was valid and enforceable, and whether an interlocutory injunction should be granted to prevent the respondent from using confidential information and client connections obtained during their prior employment with the applicant. The court also had to consider the impact of the delay in bringing the application and the notice of a prospective injunction application provided to the respondent.
The court found that the restraint of trade clause in the employee’s contract was valid and enforceable under the Restraints of Trade Act 1976 (NSW) s 4, and that the respondent had breached the clause by using confidential information and client connections obtained during their prior employment with the applicant. The court also found that the delay in bringing the application was significant, but did not preclude the grant of an interlocutory injunction. The court considered the notice of a prospective injunction application provided to the respondent and found that it did not amount to an abuse of process. The court ultimately granted the interlocutory injunction sought by the applicant, restraining the respondent from using confidential information and client connections obtained during their prior employment with the applicant.
The court ordered that Johnson Pty Ltd refrain from using confidential information and client connections obtained during their prior employment with LCA Traralgon Pty Ltd. The court also ordered that Johnson Pty Ltd pay costs of the application. The court found that the delay in bringing the application was significant, but did not preclude the grant of an interlocutory injunction. The court also found that the notice of a prospective injunction application provided to the respondent did not amount to an abuse of process.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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