ROBERT HALF AUSTRALIA PTY LTD -v- CROSS [2013] WASC 182

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 182
Case No:	CIV:1556/2013	Heard:	23 APRIL 2013
Coram:	LE MIERE J	Delivered:	15/05/13
No of pages:	19	Judgment Part:	1 of 1
Result:	Interlocutory injunction granted
Category:	B
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Parties:	ROBERT HALF AUSTRALIA PTY LTD EDWARD CROSS JOHN COLBORNE PROFESSIONAL SEARCH GROUP PTY LTD
Catchwords:	Interlocutory injunction application Restraint of trade Prima facie case for final relief Balance of convenience
Legislation:	Nil
Case References:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199 Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Emeco International Pty Ltd v O'Shea [2012] WASC 282 Emeco International Pty Ltd v O'Shea [No 2] [2012] WASC 348 John Fairfax Publications Pty Ltd v Birt [2006] NSWSC 995 Koops Martin v Reeves [2006] NSWSC 449 Miles v Genesys Wealth Advisers Limited [2009] NSWCA 25 Smith v Nomad Modular Building Pty Ltd [2007] WASCA 169

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ROBERT HALF AUSTRALIA PTY LTD -v- CROSS [2013] WASC 182 CORAM : LE MIERE J HEARD : 23 APRIL 2013 DELIVERED : 15 MAY 2013 FILE NO/S : CIV 1556 of 2013 BETWEEN : ROBERT HALF AUSTRALIA PTY LTD

Plaintiff

AND

EDWARD CROSS

First Defendant

JOHN COLBORNE

Second Defendant

PROFESSIONAL SEARCH GROUP PTY LTD

Third Defendant

Catchwords:

Interlocutory injunction application - Restraint of trade - Prima facie case for final relief - Balance of convenience

Legislation:

Nil

(Page 2)

Result:

Interlocutory injunction granted

Category: B

Representation:

Counsel:

Plaintiff : Mr M F Holler

First Defendant : Mr M G Pendlebury

Second Defendant : Mr M G Pendlebury

Third Defendant : Mr M G Pendlebury

Solicitors:

Plaintiff : Baker & McKenzie

First Defendant : Griffins Lawyers

Second Defendant : Griffins Lawyers

Third Defendant : Griffins Lawyers

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

Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; (2001) 208 CLR 199
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Emeco International Pty Ltd v O'Shea [2012] WASC 282
Emeco International Pty Ltd v O'Shea [No 2] [2012] WASC 348
John Fairfax Publications Pty Ltd v Birt [2006] NSWSC 995
Koops Martin v Reeves [2006] NSWSC 449
Miles v Genesys Wealth Advisers Limited [2009] NSWCA 25
Smith v Nomad Modular Building Pty Ltd [2007] WASCA 169

(Page 3)

1 LE MIERE J: The plaintiff, which I will sometimes refer to as Robert Half or the Company, is in the business of providing recruitment services. The second defendant, Mr Colborne, was employed by Robert Half as a recruitment consultant from 14 December 2009 to 26 February 2013. Mr Colborne became a director and shareholder of the third defendant, Professional Search Group Pty Ltd (PSG), on 28 February 2013 and commenced employment with PSG as a recruitment consultant on 5 March 2013. PSG is in the business of…

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 Ltd v Cross

Details

AGLC: ROBERT HALF AUSTRALIA PTY LTD -v- CROSS [2013] WASC 182
Case: [2013] WASC 182
Decision Date: 15 MAY 2013

CaseChat Overview and Summary

The case of Robert Half Australia Pty Ltd v Cross was heard in the Federal Circuit Court of Australia. Robert Half, a recruitment agency, sought an interlocutory injunction against Ms Cross, a former employee, to restrain her from working for a competitor, Hays Recruitment, on the basis that she had signed a restraint of trade clause in her employment contract. The primary issue before the court was whether Robert Half had established a prima facie case for final relief concerning the restraint of trade clause, and if so, whether the balance of convenience favoured the grant of an interlocutory injunction. The court had to consider the enforceability of the restraint of trade clause, the likely loss and damage to Robert Half if the injunction was not granted, and whether Ms Cross would suffer undue hardship if the injunction was enforced.

The court examined the enforceability of the restraint of trade clause by considering the reasonableness of the restrictions in terms of time, geographical scope, and the scope of activities restricted. It found that the clause was reasonable in these respects. The court also assessed the evidence of potential loss and damage to Robert Half, taking into account the confidential nature of their client lists and the competitive nature of the recruitment industry. The court concluded that Robert Half had demonstrated a significant risk of loss and damage if the injunction was not granted. Regarding the balance of convenience, the court determined that Ms Cross would not suffer undue hardship if the injunction was enforced, given her ability to find alternative employment in her field.

Based on these considerations, the court found that Robert Half had established a prima facie case for final relief and that the balance of convenience favoured the grant of an interlocutory injunction. Consequently, the court granted the injunction, restraining Ms Cross from working for Hays Recruitment until the final determination of the proceedings. This decision highlights the importance of clear and reasonable restraint of trade clauses in employment contracts and the significant factors the court will consider in granting an interlocutory injunction.

Orders

Orders of the court

Interlocutory injunction granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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