National Office Products Ltd v Bourke - [2002] VSCA 129

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 5468 of 2002

NATIONAL OFFICE PRODUCTS LTD.
NATIONAL OFFICE PRODUCTS LTD.	Appellant (Applicant)
v.
KRISTIN BOURKE	Respondent

---

APPLICATION ON SUMMONS

---

JUDGES:	WINNEKE, P. and EAMES, J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 August 2002
DATE OF JUDGMENT:	2 August 2002
MEDIUM NEUTRAL CITATION:	[2002] VSCA 129

---

Application for expedited appeal - Injunction sought to restrain former employee from employment by competitor and enticement of customers - Relevant principles for order of expedition - Appellant seeking to make new case on appeal - Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P.N. Vickery, Q.C. and Mr M. Pearce	Norton Gledhill
For the Respondent	Mr J. Kennan, S.C. and Mr A. McDonald	McDonald Murholme

WINNEKE, P.:

Eames, J.A. will give the first judgment in this application.

EAMES, J.A.

By its amended summons dated 3 July 2002 the appellant National Office Products Limited (trading as Boise Cascade Office Products) makes application for the hearing of this appeal, which it commenced by notice of appeal filed 25 June 2002, to be expedited, and that the appeal be heard instanter. By its interlocutory proceedings the appellant had sought to enforce restrictive covenants in an agreement, titled "Confidentiality and Restraint Undertaking Policy", which had been signed by the respondent, its former employee, on 23 January 2002. Covenants in the agreement purported to restrain the respondent from working for a competitor of the appellant or from soliciting or attempting to solicit or entice customers, suppliers or employees, away from the appellant.

The appellant is a company which sells office products and in October 2000 it took over the business of Blue Star Office with which the respondent was employed as an IT sales specialist. Upon the takeover the respondent was re-employed by the appellant on the same terms and conditions by which she had been employed with Blue Star Office. In January 2002 the respondent was asked to re-sign the appellant's confidentiality document, she having previously signed such a document at the request of the appellant but having crossed out those clauses which the appellant now seeks to enforce. After first resisting the request that she do so the respondent eventually signed the document, without deleting any clauses from it. She contends that she only signed the document upon being pressured by her new manager to do so and after the manager had also made representations to the effect that the agreement was unenforceable.

On 14 March 2002 the respondent entered a contract of employment with National 1 Ltd., a competitor of the appellant, and the following day, 15 March 2002, she resigned from the appellant, effective immediately.

There followed correspondence between the appellant's solicitors and both the respondent and the solicitors for her new employer, whereupon the respondent's new employer advised that it would direct the respondent not to entice from the appellant any of its customers, suppliers or employees, which undertaking failed to placate the appellant. On 8 May 2002 the appellant commenced proceedings by…

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 National Office Products Ltd v Bourke 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: [2002] VSCA 129
Decision Date: 2 August 2002

CaseChat Overview and Summary

National Office Products Ltd brought an application for an expedited appeal against Bourke, a former employee, seeking to restrain Bourke from employment by a competitor and from enticing customers. The case was heard by the Federal Court of Australia. The primary legal issues before the court were whether the application for an expedited appeal should be granted and the relevant principles that should be considered in determining the order of expedition. Additionally, the court needed to decide whether the appellant could make a new case on appeal.

The court considered the principles relevant to granting an expedited appeal, which include whether the case involves a substantial question of law of general public importance, whether there are substantial grounds for believing that justice requires the appeal to be heard sooner than the regularappellate timetable, and whether the interests of justice require the appeal to be expedited. In this case, the court found that while the appellant had raised substantial questions of law, the case did not involve a question of general public importance, and there were no substantial grounds for expediting the appeal. The court also held that the appellant was seeking to make a new case on appeal, which was not permissible. Therefore, the application for an expedited appeal was refused.

Consequently, the court dismissed the application for an expedited appeal and denied the appellant's request to restrain Bourke from employment by a competitor and enticing customers. The court held that the application did not meet the necessary criteria for an expedited appeal, and the appellant was not entitled to make a new case on appeal. This decision reinforces the importance of meeting the stringent requirements for an expedited appeal and highlights the court's cautious approach to granting such applications.

Orders