Toll Transport Pty Ltd v Fleiter

FEDERAL COURT OF AUSTRALIA

Toll Transport Pty Ltd v Fleiter [2017] FCA 376

File number:

QUD 948 of 2016

Judge:

LOGAN J

Date of judgment:

3 April 2017

Catchwords:

PRACTICE AND PROCEDURE – preliminary discovery – alleged misuse or risk of misuse of confidential information by prospective respondents – r 7.23 of the Federal Court Rules 2011 (Cth) – requirements for order for preliminary discovery – whether prospective application holds reasonable belief prospective respondent has or had control of relevant documents – whether prospective applicant lacks sufficient information to decide as to whether to commence proceedings – whether documents “directly relevant” – whether reasonable inquiries undertaken by prospective applicant – discretion to refuse relief – relevance of delay to exercise of discretion in r 7.23(2)

Legislation:

Corporations Act 2001 (Cth) s 183

Federal Court Rules 2011 (Cth) r 7.23

Cases cited:

George v Rockett (1990) 170 CLR 104

St George Bank Limited v Rabo Australia Limited (2004) 211 ALR 147

Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266

Tillmann’s Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1979) 42 FLR 33

Date of hearing:

3 April 2017

Registry:

Queensland

Division:

General Division

National Practice Area:

Employment and Industrial Relations

Category:

Catchwords

Number of paragraphs:

44

Counsel for the Prospective Applicant:

Ms B O’Brien

Solicitor for the Prospective Applicant:

Minter Ellison

Counsel for the Prospective Respondent:

Mr C Massy

Solicitor for the Prospective Respondent:

Maurice Blackburn

ORDERS

QUD 948 of 2016

BETWEEN:

TOLL TRANSPORT PTY LTD

Prospective Applicant

AND:

STEPHEN FLEITER

Prospective Respondent

JUDGE:	LOGAN J
DATE OF ORDER:	3 APRIL 2017

THE COURT ORDERS THAT:

1.The parties are to confer and provide short minutes of orders and if in disagreement, short written submissions with proposed reasons by 4:00pm on 6 April 2017.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(Revised from Transcript)

LOGAN J

1. Toll Transport Pty Ltd (Toll Transport), is a member of a group of companies known as the Toll Group.  The holding company for the Toll Group is Toll Holdings Limited.  Another company within the Toll Group is Toll NQX.  Toll NQX provides freight forwarding and transport services in Australia. 

2. Mr Stephen Fleiter, commenced employment within the Toll Group in 1981.  He ceased employment within that group on 12 August 2016 upon his resignation.  At that time, he was employed by Toll Transport.  Toll Transport is the primary employer entity within the Toll Group.  From July 2008 until his resignation in August 2016, Mr Fleiter held the position of National Sales Manager for Toll NQX.  That was a senior position within the Toll Group. 

3. In that capacity, Mr Fleiter had particular and primary responsibility for setting rates to be charged to customers of the Toll Group and terms of trade, managing key client relationships and generating new business. For all of those reasons, he had access, in his capacity as National Sales Manager of Toll NQX, to commercially sensitive information. This…