FEDERAL COURT OF AUSTRALIA
United Petroleum Pty Ltd v Barrie [2022] FCA 818
File number: VID 34 of 2022 Judgment of: SNADEN J Date of judgment: 21 March 2022 Date of publication of reasons: 15 July 2022 Catchwords: INDUSTRIAL LAW – employment – restraint of trade - application for interlocutory injunctive relief – enforceability of post-employment restraint - whether there is a prima facie case that favours injunctive relief – whether the balance of convenience favours injunctive relief – whether former employee should be restrained from employment – whether scope and duration of contractual term reasonable to protect legitimate interest – contractual term restraining “disclosure of confidential information” for advantage – contractual term restraining business activity – application for interlocutory relief dismissed Legislation: Corporations Act 2001 (Cth) s 183 Cases cited: Just Group Ltd v Peck (2016) 344 ALR 162
Liberty Financial Pty Ltd v Jugovic [2021] FCA 607
Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Industry Union [2019] FCA 1265
Division: Fair Work Division Registry: Victoria National Practice Area: Employment and Industrial Relations Number of paragraphs: 23 Date of hearing: 21 March 2022 Counsel for the Applicant: Mr R A Millar Solicitor for the Applicant: Gadens Counsel for the Respondent: Ms R Preston Solicitor for the Respondent: Corrs Chambers Westgarth ORDERS
VID 34 of 2022 BETWEEN: UNITED PETROLEUM PTY LTD
Applicant
AND: JUSTIN BARRIE
Respondent
ORDER MADE BY:
SNADEN J
DATE OF ORDER:
21 MARCH 2022
THE COURT ORDERS THAT:
1.The applicant’s application for interlocutory relief contained within the originating application of 21 January 2022 is dismissed.
2.The costs of and associated with the application be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
Ex tempore
(Revised from transcript)SNADEN J:
On 21 March 2022, at the conclusion of a contested interlocutory hearing, I gave ex tempore reasons for refusing the applicant’s application for interim injunctive relief against its former employee, the respondent. I indicated at the time that I would endeavour to supplement those reasons with more fulsome, written reasons for so deciding. In light of my ruling, orders were agreed and made, including as to costs (which were reserved).
Immediately after so ruling, counsel for the unsuccessful applicant indicated on behalf of his client that the ex tempore reasons that had been given were understood and that, so far as his client was concerned, it was not necessary to produce any written elaboration. Counsel for the respondent, however—despite her success—indicated that the respondent “…would like written reasons…to elaborate on exactly—and given that costs are reserved, also down the track, for where we go with this in due course, depending on how [the applicant] approaches”.
I thereafter indicated that written reasons would be provided, albeit not with the urgency that might otherwise attach to that endeavour. By these reasons, I discharge that undertaking.
The applicant operates a wholesale and retail fuel supply business. At the retail level, it consists of fuel…
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- Case
- [2022] FCA 818
- Decision Date
CaseChat Overview and Summary
Orders
Orders of the court
1. The applicant’s application for interlocutory relief contained within the originating application of 21 January 2022 is dismissed.
2. The costs of and associated with the application be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Prior to his resignation, the applicant employed the respondent pursuant to a written employment agreement. Its terms included one that purported to restrain the respondent from engaging in certain types of work after his engagement with the applicant was brought to an end. By its originating application—and by the application for interlocutory injunctive relief contained therein (which was heard and determined on 21 March 2022)—the applicant seeks (and sought), amongst other things, to enforce that term. It also seeks (and sought) to restrain the respondent from breaching duties that are said to be owed pursuant to the Corporations Act 2001 (Cth) (the “Corporations Act”). The application for interlocutory relief came before a duty judge in January 2022. For reasons that don’t require elaboration here, it was adjourned upon the respondent’s undertaking that he would not commence in his new role with IOR. That undertaking was honoured, as were consent orders regarding the filing and service of evidence and submissions concerning the application for interlocutory relief. That application ultimately came before me on Monday, 21 March 2022. The applicant relied upon two affidavits sworn by its Chief Executive Officer, Mr David Szymczak: one dated 21 January 2022 and the other dated 9 February 2022. Each was read subject to a handful of evidential objections that were resolved at the time (and that need not here be particularised). The respondent likewise read two affidavits that he affirmed: one on 2 February 2022 and the other on 17 March 2022. Additionally, the parties filed written submissions, by which the court was greatly assisted. There was no controversy between the parties concerning the principles that the court should apply in considering whether or not to grant the interlocutory relief for which the applicant moved. In Metro Trains Melbourne Pty Ltd v Australian Rail, Tram and Bus Industry Union [2019] FCA 1265, I summarised them as follows (at [38]-[41]):…[T]he principles that govern the court’s discretion to grant interlocutory injunctive relief are well-settled and not in dispute. In order to qualify for the relief that it seeks, Metro Trains must demonstrate that it has a prima facie case and that the balance of convenience favours the grant of an injunction: Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57, 81-84 (Gummow and Hayne JJ, with whom Gleeson CJ and Crennan J agreed).When considering the grant of an interlocutory injunction, the issue of whether an applicant has established a prima facie case and whether the balance of convenience favours injunctive relief are related inquiries. Whether there is a prima facie case is to be considered together with the balance of convenience: Samsung Electronics Co. Ltd v Apple Inc. (2011) 217 FCR 238, 261 [67] (Dowsett, Foster and Yates JJ).In Bullock v FFTSA (1985) 5 FCR 464, Woodward J (with whom Smithers and Sweeney JJ relevantly agreed) stated (at 472):…an apparently strong claim may lead a court more readily to grant an injunction when the balance of convenience is fairly even. A more doubtful claim (which nevertheless raises “a serious question to be tried”) may still attract interlocutory relief if there is a marked balance of convenience in favour of it.An applicant for interlocutory injunctive relief must, in showing that the balance of convenience favours that outcome, point to inconvenience for which an award of damages at trial would not be a sufficient remedy: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148, 153 (Mason ACJ); Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Blue Star Pacific Pty Ltd (2009) 184 IR 333, 339 (Greenwood J).