SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
MAXILIFT AUSTRALIA PTY LTD v DONNELLY
[2019] SASC 115
Judgment of The Honourable Justice Nicholson
5 July 2019
COURTS AND JUDGES - CONTEMPT - PARTICULAR CONTEMPTS - BREACH OF UNDERTAKING TO COURT - GENERALLY
COURTS AND JUDGES - CONTEMPT - GENERAL PRINCIPLES
The plaintiff brought an application pursuant to rule 303 of the Supreme Court Civil Rules 2006 (SA) that the defendant to be charged with contempt of court.
The defendant was previously employed by the plaintiff as a salesperson and commenced employment with a competitor company. An interlocutory application was filed seeking a declaration that the defendant is in contempt of court due to alleged breaches of an undertaking that the defendant had made to the Court. The defendant’s undertaking concerned use of the plaintiff’s confidential information and the defendant’s relationships with customers and contractors of the plaintiff during identified timeframes. The alleged breaches of the undertaking were in the form of communications between the defendant and the plaintiff’s customers and contractors. Whether there are reasonable grounds to suspect the defendant of the alleged contempt.
Held:
1. Pursuant to rule 303(7) of the Supreme Court Civil Rules 2006 (SA), the plaintiff has permission to issue a Summons to the defendant, in the form of Annexure A to these reasons, requiring the defendant to appear before the Court at a time nominated by the Registrar to answer the charge of contempt described in the Summons.
2. Costs reserved.
Supreme Court Civil Rules 2006 (SA) r 303, r 305, referred to.
Universal Music Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110, applied.
Mane Market Pty Ltd & Ors v Temple [1998] SASC S6986; McDonald v State of South Australia [2008] SASC 309; Witham v Holloway (1995) 183 CLR 525, discussed.
Testel Aust P/L v Rickard & Ors [2017] SADC 31, considered.
MAXILIFT AUSTRALIA PTY LTD v DONNELLY
[2019] SASC 115Civil: Application
NICHOLSON J.
Introduction and background
These reasons concern an application pursuant to subrule 303(1) of the Supreme Court Civil Rules 2006 (SA) (the 2006 Rules) by the plaintiff, Maxilift Australia Pty Ltd, that the defendant, Mr Donnelly, be charged with contempt of court.
The defendant was employed by the plaintiff as a salesperson, between 16 November 2009 and 10 November 2017. Prior to the defendant’s employment with the plaintiff he was employed by BG Crane Pty Ltd ACN 097 663 431 (BG Crane). This role involved managing sales on the northern New South Wales coast. On or about 7 March 2007, whilst the defendant was employed with BG Crane, the company changed its name to Hiab Australia Pty Ltd (Hiab). The defendant left Hiab to take up his employment with the plaintiff on 16 November 2009. On 8 January 2018, the defendant returned to employment with Hiab.
On 18 March 2010, after the defendant had commenced employment with the plaintiff, Hiab again changed its name to Cargotec Australia Pty Ltd (Cargotec).[1] However, Cargotec continued…
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Details
- Case
- [2019] SASC 115
- Decision Date
CaseChat Overview and Summary
The case of Maxilift Australia Pty Ltd v Donnelly involved a dispute where the plaintiff alleged that the defendant had breached an undertaking given to the Court. The defendant, Craig Donnelly, was accused of violating specific conditions of the undertaking by engaging in communications with various individuals connected to the plaintiff's business. The plaintiff, Maxilift Australia Pty Ltd, sought to proceed with a charge of contempt against Donnelly, claiming that there were reasonable grounds to suspect a breach of the undertaking. The court was required to determine whether the evidence presented was sufficient to warrant a finding of contempt and whether the proceedings should proceed under the alternative subrule 303(7) procedure.
The court examined the submissions and affidavits provided by both parties regarding the interpretation and scope of the undertaking. It found that the contentions of the plaintiff about the construction of the undertaking were reasonably arguable. While the court did not delve into a detailed analysis of the various arguments and counterarguments, it concluded that the framework of the undertaking as set out was adequate for assessing the alleged breaches. The court also considered the evidence provided, including affidavits from several individuals, which indicated that Donnelly had indeed communicated with various parties in a manner that might breach the undertaking.
Based on the evidence, the court concluded that there were reasonable grounds to suspect that Donnelly had breached the undertaking. It decided to proceed with the alternative subrule 303(7) procedure, permitting the plaintiff to issue a summons for contempt. The court also made several orders, including that the plaintiff could issue the summons within 28 days, that the plaintiff would bear the costs of prosecuting the charge, and that the matter would be remitted to a Master for management if contempt proceedings were commenced.
The court ordered that:
1. The plaintiff has permission to issue a summons to the defendant in the form annexed and marked A (Summons).
2. The plaintiff is permitted to issue and serve the Summons within 28 days of the date of the making of these Orders.
3. The plaintiff is to have the carriage of the prosecution of the charge described in the Summons.
4. The plaintiff is to prosecute the charge described in the Summons at its own expense and is to satisfy any costs orders made in favour of the defendant.
5. Costs reserved.
6. In the event that proceedings for contempt are commenced in accordance with these orders, the matter is to be remitted to, for management by, a Master of the Court.
The court examined the submissions and affidavits provided by both parties regarding the interpretation and scope of the undertaking. It found that the contentions of the plaintiff about the construction of the undertaking were reasonably arguable. While the court did not delve into a detailed analysis of the various arguments and counterarguments, it concluded that the framework of the undertaking as set out was adequate for assessing the alleged breaches. The court also considered the evidence provided, including affidavits from several individuals, which indicated that Donnelly had indeed communicated with various parties in a manner that might breach the undertaking.
Based on the evidence, the court concluded that there were reasonable grounds to suspect that Donnelly had breached the undertaking. It decided to proceed with the alternative subrule 303(7) procedure, permitting the plaintiff to issue a summons for contempt. The court also made several orders, including that the plaintiff could issue the summons within 28 days, that the plaintiff would bear the costs of prosecuting the charge, and that the matter would be remitted to a Master for management if contempt proceedings were commenced.
The court ordered that:
1. The plaintiff has permission to issue a summons to the defendant in the form annexed and marked A (Summons).
2. The plaintiff is permitted to issue and serve the Summons within 28 days of the date of the making of these Orders.
3. The plaintiff is to have the carriage of the prosecution of the charge described in the Summons.
4. The plaintiff is to prosecute the charge described in the Summons at its own expense and is to satisfy any costs orders made in favour of the defendant.
5. Costs reserved.
6. In the event that proceedings for contempt are commenced in accordance with these orders, the matter is to be remitted to, for management by, a Master of the Court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
The defendant made various submissions which, if accepted, would have the effect of narrowing or confining the ambit of the Undertaking, as propounded by the plaintiff, quite significantly. Nevertheless, I am satisfied that the contentions of the plaintiff as to the construction and ultimate breadth of the Undertaking are reasonably arguable. It would not be appropriate to go further and rule on the various arguments and counter-arguments put by the parties, much less formulate either an indicative or a final conclusion as to the proper construction of the Undertaking. For present purposes, the structure of the Undertaking as earlier set out is an adequate framework against which to assess the alleged breaching conduct by the defendant.The evidence There have been a number of communications between the defendant and clients of the plaintiff during the course of the defendant’s present employment with Hiab which the plaintiff submits are in breach of the Undertaking. In support of its contention that there are reasonable grounds to suspect the defendant of failing to observe the Undertaking, the plaintiff read and relied on the following affidavit evidence with respect to which there was no objection by the defendant.(i)Affidavit of Nathan Cox affirmed 24 May 2018 (FDN[13] 16).(ii)Affidavit of Michael McNamara affirmed 14 November 2018 (FDN 19).(iii)Affidavit of Louise McNamara affirmed 14 November 2018 (FDN 20).(iv) Affidavit of Kevin Schuhmann sworn 26 November 2018 (FDN 22).(v)Affidavit of David Robertson affirmed 5 February 2019 (FDN 24).(vi)Affidavit of Bridget Nunn affirmed 25 March 2019 (FDN 25).[13] FDN is a Registry acronym standing for file document number. The defendant argued that there are no reasonable grounds to suspect the defendant of the alleged contempt and that, at all times, he has complied with conditions 3(a) and 3(b) of the Undertaking. The defendant relied on asserted deficiencies in the plaintiff’s evidence and on the following affidavits which were read on the application without objection.1.Second affidavit of Bridget Nunn affirmed 11 April 2019 (FDN 30).2.Affidavit of Kymberly Davis affirmed 5 April 2019 (FDN 28).3.Affidavit of Neil Thomas Spivey sworn 29 March 2019 (FDN 26).4.Affidavit of Nathan Cox affirmed 24 May 2018 (FDN 16). The proposed charges of contempt were particularised in a document entitled “Particulars of Charge” filed by the plaintiff on 5 April 2019. The plaintiff submitted that I should not proceed on the basis that the evidence presently before the Court is the evidence as it would stand in the trial. Rather, the presently available evidence is, of itself, sufficient to warrant a finding that there are reasonable grounds to suspect that each of the particulars establishes a contempt, such that the matter should be permitted to go forward in this form. Particulars of the alleged contempt The affidavit evidence taken at its highest is capable of supporting the following conclusions. Particulars related to breach of condition 3(a)Particular 1(a) – CraneServe
Decision
Reasons for decision
NICHOLSON J
I take the view that the matter should proceed in accordance with the alternative subrule 303(7) procedure. There is no good reason why the resources of the Registrar and this Court should be burdened with these proceedings and notwithstanding the indemnity as to costs. In addition, and meaning no disrespect, it ought not be assumed that the plaintiff will continue, throughout the proceedings, to have the capacity to meet the indemnity.Conclusion Subject to hearing further from the parties as to form, I propose to make the following orders which (save for proposed order 6) are in the form of minutes of order that were provided by the plaintiff at the conclusion of the hearing.THE COURT ORDERS that:1.Pursuant to rule 303(7) of the Supreme Court Civil Rules, 2006 the plaintiff has permission to issue a summons to the defendant in the form annexed hereto and marked A (Summons) requiring the defendant to appear before the Court at a time nominated by the Registrar to answer the charge of contempt described in the Summons. 2.The plaintiff is permitted to issue and serve the Summons within 28 days of the date of the making of these Orders. 3.The plaintiff is to have the carriage of the prosecution of the charge described in the Summons. 4.The plaintiff is to prosecute the charge described in the Summons at its own expense and is to satisfy any costs orders made in favour of the defendant. 5.Costs reserved.6.In the event that proceedings for contempt are commenced in accordance with these orders, the matter is to be remitted to, for management by, a Master of the Court.Annexure A to the Minutes of OrderRules 302, 303 of the Civil Rules 2006; Rule 130(7)(a) of the Criminal Rules 2014 Form 55 Summons for contemptSUMMONS FOR CONTEMPTTO: Craig Donnelly of 7 Park Avenue, Bray Park, New South Wales Action requiredYou are required to attend before the Supreme Court on the hearing of this summons, which is issued by the Registrar of the Court, to answer a charge of contempt of Court in that you did breach:1.paragraph 3(a) of the undertaking given to the Court on 13 April 2018 (Undertaking) during the period 10 November 2017 to 12 April 2018 by communicating with, or in the alternative, accepting approaches from Customers or Contractors (as defined in the undertaking) with whom you had a business relationship through your employment with the Plaintiff that was not a pre-existing Customer or Contractor of Hiab with whom Hiab had dealings in the 12 months preceding 10 November 2017 in that you:a. in or around January or February 2018 had communications with Mr Nathan Cox (Mr Cox), owner of CraneServe, a Contractor of the Plaintiff, in the nature of a telephone call placed by the Defendant to Mr Cox regarding the installation of Hiab cranes;2.paragraph 3(b) of the Undertaking during the period 10 November 2017 to 12 April 2018 by communicating with or in the alternative, accepting approaches from individuals at Customers or Contractors with whom you had a business relationship through your employment with the Plaintiff in that you:a. on or around 10 January 2018 had communications with Mr David Robertson (Mr Robertson), Fleet Coordinator at Coffs Harbour City Council, a Customer of the Plaintiff, in the nature of a face to face discussion between Mr Robertson and the Defendant;b. on or around 18 January 2018 had communications with, and/or accepted the approach from, Mr Kevin Schuhmann (Mr Schuhmann) owner of K&J Trucks Coffs Harbour, a Customer of the Plaintiff, in the nature of a conversation and emails sent between the Defendant and Mr Schuhmann at around 9:58am and 12:07pm with the subject "Re: Hiab .99B3DUO 2016";c. on or around 18 January 2018 had communications with Mr Kevin Schuhmann in the nature of a conversation and an email sent by the Defendant to Mr Schuhmann at around 3:08pm with the subject "RE – COFFS CITY COUNCIL TENDER";d. in or around January or February 2018 had communications with Mr Robertson in the nature of an email sent to Mr Robertson by the Defendant advising of the Defendant's new contact details;e. in or around January or February 2018 had communications with Mr Cox in the nature of a telephone call placed by the Defendant to Mr Cox regarding the installation of Hiab cranes;f. on or around 27 February 2018 communicated with Mr Michael McNamara (Mr McNamara), part owner, director and Foreman at Vince McNamara Engineering and Sales (VME), in the nature of an email sent by the Defendant to Mr McNamara via the email address admin@vincemcnamara.com.au at around 2:17pm with the subject heading "re – Crane pricing – for Michael";g. in or around March 2018 had communications with Ms Rose-Anne Fletcher (Ms Fletcher), Administration Assistant for VME, in the nature of a face to face discussion between Ms Fletcher and the Defendant at the premises of VME at 12 Snow Street, South Lismore, New South Wales;h. on or around 6 March 2018 communicated with Mr Robertson in the nature of a telephone conference between Mr Robertson, the Defendant and a representative of K& J Trucks Coffs Harbour;i. on or around 6 March 2018 communicated with Mr McNamara in the nature of an email sent by the Defendant to Mr McNamara via the email address admin@vincemcnamara.com.au at around 8:50am with the subject heading "RE – DEMO TRUCK – K & J";j. on or around 22 March 2018 communicated with Mr McNamara in the nature of an email sent by the Defendant to Mr McNamara via the email address admin@vincemcnamara.com.au at around 7:56am with the subject heading "RE – NATIONAL PARK CALS";k. on or around 27 March 2018 communicated with Mr McNamara in the nature of an email sent by the Defendant to Mr McNamara via the email address admin@vincemcnamara.com.au at around 1:02pm with the subject heading "Fwd: Rous Water Calculation C1982_O1A";l. on or around 27 and 28 March 2018 had communications with Mr Schuhmann in the nature of emails sent between the Defendant, Mr Gary Roe (Mr Roe), Managing Director of Ekebol Pty Ltd and Mr Schuhmann at around 1:30pm and 5:26pm on 27 March 2018 and 9:25am on 28 March 2018 with the subject "Coffs Harbour Council Scania P360LB8X4MNB Tender LGP 912 QO" or "Re: Coffs Harbour Council Scania P360LB8X4MNB Tender LGP 912 QO";m. in or around March to June 2018 had communications with Mr McNamara in the nature of a face to face discussion with Mr McNamara at the premises of VME at 12 Snow Street, South Lismore, New South Wales;3.paragraph 3(b) of the Undertaking during the period 13 April 2018 to 30 June 2018 by communicating with or in the alternative, accepting approaches from individuals at Customers or Contractors with whom you had a business relationship through your employment with the Plaintiff in that you:a. (in the alternative to 0 above) in or around March to June 2018 had communications with Mr McNamara in the nature of a face to face meeting with Mr McNamara at the premises of VME at 12 Snow Street, South Lismore, New South Wales;b. in or around late April 2018 had communications with Ms Louise McNamara (Ms McNamara) part-owner and Administration Manager of VME, in the nature of a face to face discussion with Ms McNamara at the premises of VME at 12 Snow Street, South Lismore, New South Wales;c. on or around 30 April 2018 had communications with Mr Schuhmann in the nature of an email sent by the Defendant to Mr Roe, with a copy to Mr Schuhmann at around 8:39am with the subject "Re: Coffs Harbour Council Scania P360LB8X4MNB Tender LGP 912 QO";d. on or around 30 April 2018 communicated with Ms McNamara in the nature of an email sent by the Defendant to Ms McNamara via the email address admin@vincemcnamara.com.au at around 10:55am with the subject heading "RE – ACCOUNT APPLICATION";e. on or around 2 May 2018 communicated with Ms McNamara and Mr McNamara in the nature of an email sent by the Defendant to Ms McNamara and Mr McNamara via the email address admin@vincemcnamara.com.au at around 7:56am with the subject heading "RE – GREG CLARK BUILDING";f. on or around 4 May 2018 had communications with Mr Schuhmann in the nature of an email sent by the Defendant to Mr Roe and Mr Schuhmann at around 12:29pm with the subject "Re: Coffs Harbour Council Scania P360LB8X4MNB Tender LGP 912 QO";g. on or around 7 May 2018 had communications with Mr Schuhmann in the nature of an email sent by the Defendant to Mr Roe with a copy to Mr Schuhmann at around 7:52am with the subject "Re: Coffs Harbour Council Scania P360LB8X4MNB Tender LGP 912 QO";h. on or around 16 May 2018 communicated with Mr McNamara, in the nature of an email sent by the Defendant to Mr McNamara via the email address admin@vincemcnamara.com.au at around 8:02am with the subject heading "RE – TRUCK BUILD SPEC – GREG CLARK BUILDING";i. on or around 18 May 2018 communicated with Ms McNamara in the nature of an email sent by the Defendant to Ms McNamara via the email address admin@vincemcnamara.com.au at around 9:09am with the subject heading "RE – GREG CLARK BUILDING";j. on or around 31 May 2018 communicated with Mr McNamara, in the nature of an email sent by the Defendant to Mr McNamara via the email address admin@vincemcnamara.com.au at around 6:48am with the subject heading "RE – GREG CLARK INSTALL";k. on or around 12 and 15 June 2018 had communications with Ms Fletcher in the nature of an emails sent between the Defendant and Ms Fletcher via the email address admin@vincemcnamara.com.au at around 11:54am on 12 June 2018 and 3:09pm on 15 June 2018 with the subject heading "Rose-Anne crane quotation"; andl. in or around June 2018 met with and spoke to Ms McNamara at the premises of VME at 12 Snow Street, South Lismore, New South Wales.The application will be heard before…………………………… in the Supreme Court of South Australia, 1 Gouger Street, Adelaide on......................at ……….. or so soon afterwards as the business of the Court allows. The courtroom in which the application will be heard will be published:Ÿ on the Courts Administration Authority website the day before; andŸ on the notice board at the Courts Building.EndorsementsThis summons is issued pursuant to rule 303(7) of the Supreme Court Civil Rules 2006.This summons is issued at the instigation of the plaintiff, Maxilift Australia Pty Ltd whose address for service is Thomson Geer, Level 7, 19 Gouger Street Adelaide SA 5000.Date:
Ratio Decidendi
Legal Principle Established
Established by: NICHOLSON J
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