ROBERT HALF AUSTRALIA PTY LIMITED -v- CROSS [2013] WASC 137

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 137
Case No:	CIV:1556/13	Heard:	11 APRIL, 2013
Coram:	PRITCHARD J	Delivered:	11/04/13
No of pages:	8	Judgment Part:	1 of 1
Result:	Interim interlocutory injunction granted
Category:	B
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Parties:	ROBERT HALF AUSTRALIA PTY LIMITED Edward CROSS John COLBOURNE PROFESSIONAL SEARCH GROUP PTY LTD
Catchwords:	Interlocutory injunction application Restraint of trade clause Balance of convenience
Legislation:	Nil
Case References:	AGMA Chemical Company Ltd v Hart (1984) SLT 246 - 248 Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57 Emeco International Pty Ltd v O'Shea [2012] WASC 282 Smith v Nomad Modular Building Pty Ltd [2007] WASCA 169 Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 Wellard Rural Exports Pty Ltd v Robinson III [2013] WASC 89

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ROBERT HALF AUSTRALIA PTY LIMITED -v- CROSS [2013] WASC 137 CORAM : PRITCHARD J HEARD : 11 APRIL, 2013 DELIVERED : 11 APRIL 2013 FILE NO/S : CIV 1556 of 13 BETWEEN : ROBERT HALF AUSTRALIA PTY LIMITED

Plaintiff

AND

Edward CROSS

First Defendant

John COLBOURNE

Second Defendant

PROFESSIONAL SEARCH GROUP PTY LTD

Third Defendant

Catchwords:

Interlocutory injunction application - Restraint of trade clause - Balance of convenience

Legislation:

Nil

(Page 2)

Result:

Interim interlocutory injunction granted

Category: B

Representation:

Counsel:

Plaintiff : Mr M F Holler

First Defendant : No appearance

Second Defendant : Mr M G Pendlebury

Third Defendant : No appearance

Solicitors:

Plaintiff : Baker & McKenzie

First Defendant : Griffins Lawyers

Second Defendant : Griffins Lawyers

Third Defendant : Griffins Lawyers

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

AGMA Chemical Company Ltd v Hart (1984) SLT 246 - 248
Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57
Emeco International Pty Ltd v O'Shea [2012] WASC 282
Smith v Nomad Modular Building Pty Ltd [2007] WASCA 169
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679
Wellard Rural Exports Pty Ltd v Robinson III [2013] WASC 89

(Page 3)

PRITCHARD J

(This judgment was delivered extemporaneously on 11 April 2013 and has been edited from the transcript.)

1 This is an application by the plaintiff for an interim interlocutory injunction, the proposed terms of which are set out in an amended chamber summons dated 9 April 2013.

Factual background

2 In brief, the background is that the second defendant worked for the plaintiff until 26 February 2013 as a recruitment consultant. The plaintiff operates a recruitment business primarily (or perhaps only) in the areas of accounting and finance.

3 The employment relationship between the second defendant and the plaintiff was governed by a contract dated 26 March 2010 and par 18 of the contract contained a restraint of trade clause (the restraint clause). I will not refer to the specifics of the restraint clause at this stage but it suffices to say that it was in quite extensive terms.

4 Subsequent to leaving his…

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 Robert Half Australia Pty Limited v Cross

Details

AGLC: Robert Half Australia Pty Limited v Cross [2013] WASC 137
Case: [2013] WASC 137
Decision Date

CaseChat Overview and Summary

Robert Half Australia Pty Limited sought an interim interlocutory injunction against Edward Cross, John Colbourne and Professional Search Group Pty Ltd in the Supreme Court of Western Australia. The plaintiff alleged that Mr Cross, a former employee, breached a restraint of trade clause by becoming a director of Professional Search Group Pty Ltd, a recruitment business. The plaintiff claimed that Mr Cross may have been contacting former clients or placing individuals with former employer clients of the plaintiff. The plaintiff sought an injunction to restrain this alleged conduct. The court considered whether there was a serious question to be tried, whether damages would be an adequate remedy and whether the balance of convenience favoured the grant of an injunction. The court found that there was a serious question to be tried, damages may not be an adequate remedy and the balance of convenience favoured the grant of an injunction. The court granted the injunction in terms of order 2 of the chamber summons, which effectively prevented Mr Cross from procuring clients of the plaintiff. The injunction was granted on an interim basis only, to permit Mr Cross the opportunity to have further time to respond to the plaintiff's material.

Orders