National Display Systems Pty Ltd v Dynamic Display Solutions Pty Ltd

[2006] QDC 131

[2006] QDC 131

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1107 of 2006

NATIONAL DISPLAY SYSTEMS PTY LTD
(ACN 112 968 117)

Applicant

and

DYNAMIC DISPLAY SOLUTIONS PTY LTD
(ACN 116 316 306)

and

SHEREE ANNE DAVIES

First Respondent

Second Respondent

BRISBANE

..DATE 28/04/2006

ORDER

CATCHWORDS:  Considerations of appropriate terms of an order sought and made ex parte restraining on an interim basis use by a former employee of confidential information and including an Anton Piller component - interlocutory injunction until trial resumed

HIS HONOUR:  This is the second application on the Court's list today seeking restraining orders against former employees from using what is perhaps robustly described as "confidential information" of the employer in the service of a new employer which is a competitor.  The field of enterprise on this occasion is the manufacture and supply of retail shop fitting and merchandise display units.

The material before the Court on this ex parte application indicates that the second defendant who worked several years for the plaintiff, becoming its manager in the last period, has now become associated with a competing business operated by the first respondent company, of which her father is said to be a director.  There is material indicating that the plaintiff's clients have been approached, that its designs are being used and the like.  The claim relies on a former employer's common law rights, rather than on any agreement.

Mr Coveney for the plaintiff has somewhat optimistically sought that the orders be granted on an interlocutory basis, meaning that they would run until trial or until the respondents came to the Court seeking to have the orders set aside or varied.  He has not been able to point to any authority to justify disregarding what I take to be the longstanding approach that injunctions granted ex parte are ordinarily of limited duration until a suitable early date can be found when the question is whether or not the interim injunction ought to become an interlocutory one, extending until trial or earlier order.

It is always concerning if a restraint is put in place in circumstances where the litigant who has the advantage of it is in practical terms left with no incentive to show that it should continue.  In effect, often the party obtaining such an injunction may be reluctant to come to a trial at which it may be lost or cut down.

For that reason, the restraints ordered by the Court today ex parte run only until 5 p.m. this day fortnight.  I regard that as an unusually long period.  It is selected in deference to Mr Coveney's and his instructing solicitor's other obligations, and also as a time which the Court's information indicates may be available before the applications Judge in the next weeks.  Liberty to apply is incorporated in the order as a new paragraph 13, occasioning the renumbering of the proposed paragraph 13 which provided that costs be reserved.

That is a new paragraph 12, adjourning the application until 10 a.m. on the 12th of May 2006.  If there is no appearance by the respondents on or before that time, it may be relatively straightforward for the applicant to obtain interlocutory relief running until trial or earlier order.

The order provides in paragraph 1 that the proceeding that was started by originating application continue as if started by claim.  A statement of claim was filed yesterday.  It was perhaps somewhat optimistic for the applicant to imagine that there would be no factual issues here.  A more realistic attitude is taken now.

The restraints on the respondents which will now run until
5 p.m. on the 12th of May 2006 or further earlier order, relate to use of the applicant's intellectual and other property rights, if I may describe them loosely in that way.  This ought not to embarrass the respondents unduly in their liberty to trade. 

I have allowed the 14 days of the adjournment period rather than seven for the respondents to hand over a certain list of customers and price lists associated with the applicant.  If there is any difficulty about that, it can be resolved on or before the 12th of May.

There is an Anton Piller order sought in relation to two premises, one of which is said to be the second respondent's residence.  It is included on the basis of the associated business use of it.  The suggested order has been ameliorated by confining the computer housed material which must be made available to material relevant to the applicant's claim in this proceeding.  The basis of printing out of such material is the applicant's undertaking to meet the costs. 

I have also amended a proposed paragraph which would restrain the respondents from informing the other "or any other person" of the existence of the order for a period of three days.  As Mr Coveney has explained, this order which he says is precedented, is calculated to stop information about the order being transmitted between respondents.  I cannot see any justification for a restraint in respect of the whole world, and that which was sought would, strictly construed, have precluded the respondents from obtaining legal advice.  The quoted expression has been deleted.

There will be an order in terms of the initialled draft.  Other special features of it which I ought to mention are that it now records the usual undertaking as to damages given by the applicant and by - I'll add the words "its director, Michael Ronald Morris".  Mr Morris in his affidavit had proffered the undertaking.

The operation of the order is also made "subject to service or production of a copy of this order, this application and supporting affidavits and statement of claim".

...

-----