Mayne Nickless Ltd (ACN 004 073 410) v Dornin, M.A.J

[1991] FCA 697

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1   JUDGMENT No. ... 6.%~.9,,

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1 No. VG 275 of 1991
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BETWEEN :

- ACN 004 073 410

Applicant

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ANDREW JOEN DO-

First Respondent

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Second Respondent

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Third Respondent

Heerey J.

Melbourne	I
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29 October 1991	; 2

I propose to grant an injunction in terms of paragraph 3(a) of

the applicant's notice of motion dated 29 October 1991. - - - - -

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Although in this and all other respects I am not making any

.. ,	findings of fact as I would on a trial, the evidence on this issue is all the one way. It points to the conclusion that the respondents breached their clear obligations as employees
by soliciting an important customer of their employer to
transfer its business to them as soon as they had left their
employer's service. I refer to yessex Da- Limited v Smi#

[l9351 2 KB 80. The respondent's counsel conceded properly that there was an arguable case on this issue, but further, as

I understood the case, there was no positive defence advanced

against the applicant's claim.

The evidence does not enable me to find that: an injunction would be of no use to the applicant on the ground that Repco would in any case not deal with the applicant in future. The letter of 25 September 1991, exhibit TH9, to the applicant from Repco, tells against such a conclusion. I also think I can take into account on this issue the strength of the applicant's case, and as I have said, the absence of any proffered defence.

I decline to grant the order sought in paragraph 3(b). The practical choice is whether to restrain the use of information contained in the documents wrongfully obtained, that being substantially the relief sought in paragraph 4(a), or to take the view that such information must inevitably be misused in the obtaining of custom of those companies in the list of top 50 customers described significantly by the respondents as "target accounts" or at least some of them.

I view with considerable scepticism the explanation as to how

motion came to be in a filing cabinet in the premises at	the documents referred to in paragraph 3(b) of the notice of	33A Dennis Street, Northcote. But I think that to go further and assume that the respondents will keep in their mind detailed information of the kind that was in those documents
- and use it to secure -the custom -of	--the	- companiegconcerned is --

really no more than speculation.

Equally, I do not think I can infer that there are some other documents taken by the respondents from the applicant which have escaped the reach of the Anton Piller order. It may be, as counsel for the applicant points out, that between 16 September and 25 October when the Anton Piller order was executed that the respondents have used some of this information. However, that is not a matter which any interlocutory injunction granted now can remedy. I think also it would be wrong to grant an interlocutory injunction which would impair the respondent's capacity to compete, leaving aside for the moment the special case of Repco, when their contracts did not contain a restraint clause.

The relief sought in paragraph 3(c) is not opposed and I would grant an injunction in those terms.

Aa to paragraph 4(a), that was not opposed, subject to the

qualification, which I accept, that it should be restricted to information "other than information which is publicly availableg. That last phrase comes from the contractual term in the respondents8 contracts of employment.

I decline to make an order under paragraph 4(b). It does not seem to me that there is an arguable case of breach of copyright made out in relation to the only documents to which

I was referred on this point.

I make the order sought under paragraph 5 that the respondents forthwith deliver up to the applicant possession of the

property belonging to the applicant. Without making any	formal order I note that the applicant has indicated that it
will return any of the respondent's property which may have been included in the documents obtained under the Anton Piller order.

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Aa to the directions hearing and further directions, it may be convenient if I make an order at least for a defence at this stage as it is obviously desirable that interlocutory matters should be moved along as promptly as possible. I will direct that the respondents deliver defences on or before 12 November. I grant leave to the applicant to join

Robert John Pleming and Bonalix Pty Limited as respondents.

The direction as to defences will apply to those respondents also. I will direct that on or before 30 October the applicant file and serve an amended statement of claim and an amended application and copy of this order upon the respondents including Robert John Fleming and Bonalix Pty Limited. I note that the injunctions were granted upon the applicant giving the usual undertaking as to damages and I reserve the costs of this application. The adjourned dated is

22 November, the next general directions hearing day.

I certify that this and the

preceding three (3) pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice Heerey

Counael for the Applicant:  R mcaw QC with

Mr G Clarke

Solicitors for the Applicant:	Freehill, Hollingdale h Page
Counsel for the Respondents:	Mr F Davey
Solicitors for the Respondents:	S V Winter h CO