MAK Industrial Water Solutions Pty Ltd v Doherty - [2023] WASC 146

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MAK INDUSTRIAL WATER SOLUTIONS PTY LTD -v- DOHERTY [2023] WASC 146
CORAM:   MASTER SANDERSON
HEARD:   12 APRIL 2023
DELIVERED          :   10 MAY 2023
PUBLISHED           :   10 MAY 2023
FILE NO/S:   CIV 2234 of 2022
BETWEEN:   MAK INDUSTRIAL WATER SOLUTIONS PTY LTD
Plaintiff
AND
BRENDAN DOHERTY
First Defendant
BWATER PTY LTD
Second Defendant
MICHAEL HARTNETT
Third Defendant
KYLE MATTHEWS
Fourth Defendant
MICHAEL HARTNETT
First Plaintiff by Counterclaim
KYLE MATTHEWS
Second Plaintiff by Counterclaim
AND
MAK INDUSTRIAL WATER SOLUTIONS PTY LTD
Defendant by Counterclaim

Catchwords:

Employment law - Application by former employer in relation to former employee - Turns on own facts

Legislation:

Nil

Result:

Consent orders made
Further injunctive relief refused

Category: B

Representation:

Original Action

Counsel:

Plaintiff	:	JF Park
First Defendant	:	TO Coyle
Second Defendant	:	TO Coyle
Third Defendant	:	TO Coyle
Fourth Defendant	:	TO Coyle

Solicitors:

Plaintiff	:	Dentons Australia
First Defendant	:	Capital Legal
Second Defendant	:	Capital Legal
Third Defendant	:	Capital Legal
Fourth Defendant	:	Capital Legal

Counterclaim

Counsel:

First Plaintiff by Counterclaim	:	TO Coyle
Second Plaintiff by Counterclaim	:	TO Coyle
Defendant by Counterclaim	:	JF Park

Solicitors:

First Plaintiff by Counterclaim	:	Capital Legal
Second Plaintiff by Counterclaim	:	Capital Legal
Defendant by Counterclaim	:	Dentons Australia

Case referred to in decision:

Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458

MASTER SANDERSON:

By chamber summons dated 16 December 2022 and amended chamber summons dated 6 April 2023, the plaintiff sought interlocutory injunctions and orders for delivery up of documents and devices against the first, third and fourth defendants. The application was supported by two affidavits of Andy Peter Byk, the first sworn 9 December 2022 and the second sworn 10 February 2023. Each of the first, third and fourth defendants swore an affidavit on 2 February 2023 and each of the defendants relied upon those affidavits. The defendants also relied on an affidavit of Murray Brown sworn 14 February 2023.
The relevant background facts can be succinctly summarised. Each of the first, third and fourth defendants were experienced senior managers who provided services to the plaintiff's business during their period of employment. The first defendant ceased his employment with the plaintiff on 6 May 2022. Before that date, the first defendant incorporated the second defendant. On 26 September 2022, both the third and fourth defendants ceased employment with the plaintiff. On 5 October 2022, the third and fourth defendants joined the first defendant as directors of the second defendant. The plaintiff alleges the second defendant directly competes with the plaintiff's business. Each of the defendants denies the second defendant is in fact in direct competition with the plaintiff. For the purposes of this application, that question is not relevant. What is relevant is restraints the plaintiff says are placed on the first, third and fourth defendants with respect to certain confidential information of the plaintiff and what might be called a non-solicitation clause. By this application,…

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.

Keep reading for free

Create a free CaseChat account to read MAK Industrial Water Solutions Pty Ltd v Doherty and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] WASC 146
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the plaintiff, MAK Industrial Water Solutions Pty Ltd, sought interlocutory injunctions and orders for the delivery of documents and devices against former employees, the first, third, and fourth defendants, as well as ancillary orders. The plaintiff alleged that the defendants were in possession of its confidential information and had breached non-solicitation clauses. The defendants denied these allegations. The court granted certain orders for the delivery up of USB devices, which were to be examined by independent accountants, but refused to grant the more extensive orders sought by the plaintiff. The court found that there was no sufficient evidence to justify the broad terms of the proposed injunctions, particularly given the defendants' denials and the lack of clear evidence of wrongdoing. The court also considered the balance of convenience, finding that it favoured the defendants. The court refused to grant the additional orders sought by the plaintiff, emphasizing the need for a strong prima facie case and reasonable terms before granting such relief.

The court's decision hinged on the principles of interlocutory injunctions and the specific circumstances of the case. The court noted that while there may be a triable issue regarding the defendants' possession of confidential information, the plaintiff had not provided sufficient evidence to justify the extensive relief sought. The court also highlighted the importance of considering the reasonableness of any restraint clauses and the adequacy of damages as a remedy. The court ultimately concluded that the balance of convenience favoured the defendants, and therefore, the additional orders sought by the plaintiff were refused. This decision underscores the need for a strong and clear case to warrant the grant of interlocutory injunctions, especially in cases involving former employees and confidential information.

Orders