Percival Publishing Co Pty Ltd v Caldwell - [1989] FCA 678

JUDGMENT NO ........ ........ ... L 67fr g 9 , 1. :
i
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LIMITED DISTRIBUTION

CATCHWORDS

Employees1 duties - interlocutory injunction - retention of benefits gained in breach of employeesf duties - unjust enrichment - participation in breach - freedom of trade.

Confidential Information - interlocutory injunction - whether former employee should be restrained from using information obtalned in the course of employment - freedom of trade.

Percival Publishing CO Pty Limited v. Caldwell & Ors

NO. G566 of 1989

Davies J.
10 November 1989

Sydney

LIMITED DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA

) )
NEW SOUTH WALES DISTRICT REGISTRY

) NO. G566 of 1989
)
GENERAL DIVISION )

BETWEEN: PERCIVAL PUBLISHING CO PTY
LIMITED
Applicant

AND : KAY COLDWELL
Respondent

REGINALD DE GOUMOIS

Second Respondent

EXECUTIVE MEDIA PTY
LIMITED

Third Respondent

SCOTHOUSE CORPORATION PTY

LTD

Fourth Respondent

HICHAEL HARATSIS

Fifth Respondent

MICHAEL JAMES HARATSIS

-.

Sixth Respondent

ELIZABETHAN PUBLISHING PTY
LTD (t/a "HARGREEN

PUBLISHING COMPANY") r

Seventh Respondent

CORAM: Davies J.
DATE : 10 November 1989

PLACE : Sydney

MINUTES OF ORDER

UPON the applicant, by its counsel, giving the usual undertaking as to damages,

THE COURT ORDERS THAT:-

The respondents and each of them be restrained until 31 March 1990 or prior order, as principal, employee or otherwise, and by themselves, their servants or agents from publishing or being knowingly concerned in or soliciting, the publication of the following matter:-

Client Publication

(1) The Amalgamated Metal Metal Trades
Workers Union of (General) Award
Western Australia
(2) Australian Stevedoring Australian
Supervisors Association Stevedoring
Supervisor
(3) Department of Defence Naval Supply
(Navy Office) Newsletter
( 4 ) The Motor Inn and Motel Innews
Association of Australia
(5) Foremen Stevedores The Australian
Association Foremen Stevedores
Review
( 6 ) Building Workers The SA Building
Industrial Union (SA) Worker and Engine
Driver
(7)(a) Transport Workers Transport Worker

Union (SA Branch)

(b) Transport Workers Transport Workers
Union (NSW Branch) Industry Guide;
TWU Safety Guide
(C) Transport Workers The New Transporter
Union (Brisbane
Sub-branch)

(8) Federated Ironworkers (a) PIA Awards
Association of (b) FIA Occupational

Australia Health and Safety
Handbook

(9) Cattlemen's Union Cattlemen's Union
(ad) Directory
(10) Northern Territory Northern Territory
Cattlemen's Association Cattlemen's
Association Yearbook
(ll)(a) Australian Workers Australian Workers
Union (NSW Branch) Union (NSW Branch)
Cement Workers Awards

(b) Australian Workers Australian Workers
Union (SA Branch) Union (SA Branch)
Yearbook

W)@) Australian Workers (a) AWU Safety Guide
Union

(b) AWU Construction
Guide
(C) AWU Delegates
Guide

(b) Australian Workers AWU Pastoral Awards
Union Pastoral

(13) Printing & Kindred (a) Graphic Arts

Industries Union Award

(b) PKIU Technology
Guide Book
(c) PKIU Health and
Safety Guide Book

The Australian The Australian
Firefighters Union Fire Fighter
TAFE Teachers Union The Australian
TAFE Teacher
Trade Union The same publications

Information and as produced for the
Research Centre Miners Federation -
see below
The Caravan Club of The Caravanner
Australia Limited
Miners Federation

(a) Australian Trade
Union Migrant
Handbook
(b) Unions and the
Challenge of
Technology
(c) Review of Careers
and Employment
Bricklayers,…

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.

Continue reading Percival Publishing Co Pty Ltd v Caldwell

Details

AGLC: Percival Publishing Co Pty Ltd v Caldwell [1989] FCA 678
Case: [1989] FCA 678
Decision Date: 10 Nov 1989

CaseChat Overview and Summary

Percival Publishing Co Pty Ltd brought an application for interlocutory injunctions against former employees, Kay Coldwell and Reginald De Goumois, and several companies associated with the respondents. The injunctions sought to restrain the respondents from using or disclosing confidential information and from retaining benefits gained through the respondents' breaches of their employment duties. The primary issues before the court were whether there were serious questions to be tried and what orders should be made considering the balance of convenience.

Davies J found that Coldwell and De Goumois had breached their duties during their employment by working to entice away clients and employees of Percival Publishing. The evidence also established a prima facie case that the third to seventh respondents consciously participated in those breaches of duty. The court held that an interlocutory injunction may be granted to prevent further harm and to restore to Percival Publishing that which prima facie ought not to have been taken from it. However, the injunction should not preclude the respondents from exercising their general skills in their chosen occupation.

The court granted an interlocutory injunction restraining the respondents from publishing certain materials until 31 March 1990. The court also granted an interlocutory injunction restraining the respondents from divulging or using certain confidential information until the determination of the proceedings. The injunctions were limited in scope to protect Percival Publishing's confidential information while allowing the respondents to compete fairly. The costs of the motion were ordered to be costs in the cause, and a further directions hearing was fixed at an early date.

Orders