McCarthy v Dolpag Pty Ltd

Case [2000] WASCA 106


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE FULL COURT (WA)

CITATION:   McCARTHY & ORS -v- DOLPAG PTY LTD [2000] WASCA 106

CORAM:   ANDERSON J

SCOTT J

HEARD:   6 APRIL 2000

DELIVERED          :   20 APRIL 2000

FILE NO/S:   FUL 33 of 2000

BETWEEN:   PAUL CHARLES McCARTHY

First Appellant (First Defendant)

CARL ROBERT MAYOR
Second Appellant (Second Defendant)

MONEY TALKS (WA) PTY LTD (ACN 087 190 618)
Third Appellant (Third Defendant)

AND

DOLPAG PTY LTD (ACN 054 277 744)
Respondent (Plaintiff)

Catchwords:

Practice and procedure - Discovery - Discovery before action - Principles - Rules of the Supreme Court O 26A

Legislation:

Rules of the Supreme Court, O26A

Result:

Appeal allowed
Costs to be in the cause

Representation:

Counsel:

First Appellant (First Defendant) :             Mr D H Solomon

Second Appellant (Second Defendant)     :        Mr D H Solomon

Third Appellant (Third Defendant)           :        Mr D H Solomon

Respondent (Plaintiff)  :        Mr A Metaxas

Solicitors:

First Appellant (First Defendant)              :        Solomon Brothers

Second Appellant (Second Defendant)     :        Solomon Brothers

Third Appellant (Third Defendant)           :        Solomon Brothers

Respondent (Plaintiff)  :        Arthur Metaxas & Co

Case(s) referred to in judgment(s):

Buckley v Tutty (1971) 125 CLR 353

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Heron v The Port Huon Fruitgrowers' Co‑operative Ltd (1922) 30 CLR 315

Lindner v Murdock's Garage (1950) 83 CLR 628

O'Sullivan v Herdmans Ltd [1987] 3 All ER 129

Tipperary Developments Pty Ltd v Western Australia [1999] WASC 62; (1999) 21 WAR 250

Case(s) also cited:

Airservices Australia v Transfield Pty Ltd [1999] FCA 886; (1999) 164 ALR 330

Cardile v LED Builders Pty Ltd (1999) 162 ALR 294

Home Counties Dairies Ltd v Skilton [1970] 1 All ER 1227

Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 167 ALR 358

Jenkins v Smith (1997) 18 SR (WA) 304

Kent Coal Concessions Limited v Duguid [1910] 1 KB 904

Mann v Carnell [1999] HCA 66; (2000) 168 ALR 86

McLean v Burns Philip Trustee Co Pty Ltd [1985] 2 NSWLR 623

Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34

Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133

Stephens v Kuhnelle (1926) 26 SR (NSW) 327

  1. JUDGMENT OF THE COURT:  This is an appeal from a decision of Master Sanderson granting an application by the respondent for discovery before action.

  2. The authority to make such an order is contained in O 26A which, so far as is relevant, provides:

    "4(1)This rule applies if a person who may have a cause of action against a person … ('the potential party') wants ‑

    (a)to commence proceedings against the potential party

    …

    but the person, after reasonable enquiries, has not been able to obtain sufficient information to enable a decision to be made as to whether to commence or take the proceedings

    (2)If there are reasonable grounds for believing that the potential party had, has, or is likely to have…

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AGLC
McCarthy v Dolpag Pty Ltd [2000] WASCA 106
Case
[2000] WASCA 106
Decision Date

CaseChat Overview and Summary

The case of McCarthy v Dolpag Pty Ltd involved an appeal against a decision by Master Sanderson, which granted the respondent’s application for discovery before action. The appellants, who were employees of the respondent, were seeking information regarding their employment and subsequent business dealings after leaving the respondent's employment. The respondent, a finance broker, argued that the appellants had access to confidential information and client referrals that were crucial to its business, which were potentially misappropriated when the appellants left and started their own finance brokerage business. The legal issues that needed to be addressed were primarily whether the appellants had misappropriated confidential information and whether there were reasonable grounds for the application of discovery before action under O 26A of the Supreme Court Rules.

The court considered the principles governing discovery before action, focusing on whether the appellants had, had, or were likely to have had documents in their possession that could assist in determining whether to proceed with legal action. The court found that there were reasonable grounds for the belief that the appellants had access to and potentially misappropriated confidential client information and referral arrangements. The reduction in business from key referral sources shortly after the appellants left the respondent's employment supported this belief. The court determined that the respondent had made reasonable inquiries but was unable to obtain sufficient information to decide whether to proceed with legal action. Consequently, the application for discovery before action was justified.

The court upheld the decision of Master Sanderson, affirming that the appellants were indeed likely to have documents that could assist in deciding whether to proceed with legal action. The appeal was dismissed, and the order for discovery was maintained. The appellants were directed to provide the requested documents to the respondent, enabling the respondent to make an informed decision about pursuing further legal action.

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

JUDGMENT OF THE COURT: This is an appeal from a decision of Master Sanderson granting an application by the respondent for discovery before action. The authority to make such an order is contained in O 26A which, so far as is relevant, provides:"4(1)This rule applies if a person who may have a cause of action against a person … ('the potential party') wants ‑(a)to commence proceedings against the potential party …but the person, after reasonable enquiries, has not been able to obtain sufficient information to enable a decision to be made as to whether to commence or take the proceedings(2)If there are reasonable grounds for believing that the potential party had, has, or is likely to have had or to have, possession of documents that may assist in making the decision, the person may apply for an order under this rule." The respondent carried on business as a finance broker and the first and second appellants were its employees. They were initially engaged under employment agreements dated 13 May 1998 and 28 November 1998 respectively. The involvement of the third appellant, Money Talks (WA) Pty Ltd, comes about in the following way. At some time prior to March 1999, the respondent wanted to change the status of its employees. They were all offered engagement as contractors. The first appellant, Mr McCarthy, did not accept that offer. The second appellant, Mr Mayor, agreed to do so, subject to some further negotiation. While these negotiations were in train, there was an oral arrangement that the second appellant's remuneration would be paid to the third appellant. We gather this was in anticipation that a contractual arrangement would be concluded whereby the third appellant would contract with the respondent to provide the services of the second appellant to the respondent as a finance manager for a contract fee payable to the third appellant. So far as appears, that contract was never signed and by June 1999, both Mr McCarthy and Mr Mayor had left the respondent's employment. In the affidavit in support of the application for discovery before action, Mr Crouch, of the respondent, deposed that the respondent had an arrangement with a real estate group known as "The Professionals" and with a real estate and building organisation known as "The Summit Group". The arrangement was that persons dealing with these groups who required finance to build or buy homes might be referred to the respondent as a "preferred finance broker". The respondent did a lot of business with people referred under these arrangements. One or other or both of the appellants handled some or most of this business in the course of their employment with the respondent. According to Mr Crouch, from shortly after the appellants left the employment of the respondent, business from these two sources substantially reduced. He said that in the case of The Summit Group it "totally dried up". There is evidence that the appellants now carry on business together under the name M & N Mortgage Finance as finance brokers in competition with the respondent and that this organisation now receives business from the Summit Group.

Ratio Decidendi

Legal Principle Established

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