Whelan v Cigarette and Gift Warehouse P/L - [2017] QSC 17

SUPREME COURT OF QUEENSLAND

CITATION:

Whelan v Cigarette & Gift Warehouse P/L [2017] QSC 17

PARTIES:

ANDREW WHELAN

(applicant)

v

CIGARETTE & GIFT WAREHOUSE PTY LTD

(respondent)

FILE NO/S:

BS12435 of 2016

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

27 February 2017

DELIVERED AT:

Brisbane

HEARING DATE:

1 February 2017

JUDGE:

Brown J

ORDERS:

1. The application is dismissed.

2. The applicant pay the respondent’s costs of the application proceedings on the standard basis.

CATCHWORDS:

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – TRANSFER OF PROCEEDINGS – FROM SUPREME COURT TO DISTRICT COURT – where the applicant applies for proceedings to be transferred from the District Court of Queensland to the Supreme Court of Queensland – where original proceedings were brought in the Supreme Court and an Anton Pillar order was made – where subsequently the proceedings were transferred to the District Court by consent order – where the applicant seeks to have the Anton Pillar order vacated – where the applicant contends that the order having been made by the Supreme Court, must be vacated by the Supreme Court – where the applicant further contends that, because only the Supreme Court has jurisdiction to vacate the order, to avoid overlap between the trial and the vacation application, the entire proceedings should be transferred to the Supreme Court – whether the proceedings should be transferred from the District Court of Queensland to the Supreme Court of Queensland

Civil Proceedings Act 2011 (Qld), s 25, s 31
District Court Act 1967 (Qld), s 69

Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455, cited

COUNSEL:

E White for the applicant

PJ Roney QC, with GW Dietz, for the respondent

SOLICITORS:

Adams Wilson for the applicant

Nyst Legal for the respondent

BROWN J: By an originating application filed 30 November 2016[1] the applicant, Andrew Whelan, sought an order to transfer proceedings number 3434 of 2016 from the District Court to the Supreme Court of Queensland pursuant to s 25 of the Civil Proceedings Act 2011 (Qld).
[1]CF1.

The present application was filed on 30 November 2016 but the matter was not set down for a hearing until 1 February 2017.

Background

The original proceedings were brought in the Supreme Court of Queensland by an originating application. An Anton Pillar order was applied for and made on 9 September 2015.[2]
[2]Exhibit 2.

After pleadings had been exchanged, the proceedings were transferred from the Supreme Court to the District Court on 25 August 2016 by consent order.

The applicant in the present proceeding is the defendant in the District Court proceedings and the respondent in this proceeding is the plaintiff in those proceedings.

The District Court proceedings relate to the alleged misuse of confidential information that the applicant obtained during his employment with the respondent. In the District Court proceedings the respondent seeks a permanent injunction to restrain the defendant making use of any of the plaintiff’s confidential information and for the defendant to deliver up such material…

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.

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Details

Case: [2017] QSC 17
Decision Date: 27 February 2017

CaseChat Overview and Summary

In the matter of Whelan v Cigarette and Gift Warehouse P/L, the applicant, Whelan, sought to have proceedings transferred from the District Court of Queensland to the Supreme Court of Queensland. The dispute originated in the Supreme Court, where an Anton Pillar order was issued. The proceedings were subsequently transferred to the District Court by consent order. Whelan sought to have the Anton Pillar order vacated and argued that, as the order was made by the Supreme Court, only that court had the jurisdiction to vacate it. Furthermore, to avoid any overlap between the trial and the vacation application, Whelan contended that the entire proceedings should be transferred to the Supreme Court.

The court was required to determine whether the proceedings should indeed be transferred from the District Court to the Supreme Court. This involved examining the jurisdictional implications of the Anton Pillar order and whether the Supreme Court had exclusive jurisdiction over its vacation. The court also needed to consider whether transferring the entire proceedings would prevent any potential overlap between the trial and the vacation application.

The court dismissed the application for transfer. It held that the Supreme Court did not have exclusive jurisdiction over the vacation of the Anton Pillar order and that the District Court had the necessary jurisdiction to vacate it. The court emphasised that the transfer of proceedings was not appropriate in this context and that there was no risk of overlap between the trial and the vacation application. Consequently, the applicant was ordered to pay the respondent’s costs of the application proceedings on the standard basis.

Orders

Orders of the court

1. The application is dismissed.

2. The applicant pay the respondent’s costs of the application proceedings on the standard basis.

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

Full text does not contain this section.

CITATION:	Whelan v Cigarette & Gift Warehouse P/L [2017] QSC 17
PARTIES:	ANDREW WHELAN (applicant) v CIGARETTE & GIFT WAREHOUSE PTY LTD (respondent)
FILE NO/S:	BS12435 of 2016
DIVISION:	Trial Division
PROCEEDING:	Application
DELIVERED ON:	27 February 2017
DELIVERED AT:	Brisbane
HEARING DATE:	1 February 2017
JUDGE:	Brown J
ORDERS:	1. The application is dismissed. 2. The applicant pay the respondent’s costs of the application proceedings on the standard basis.
CATCHWORDS:	PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – TRANSFER OF PROCEEDINGS – FROM SUPREME COURT TO DISTRICT COURT – where the applicant applies for proceedings to be transferred from the District Court of Queensland to the Supreme Court of Queensland – where original proceedings were brought in the Supreme Court and an Anton Pillar order was made – where subsequently the proceedings were transferred to the District Court by consent order – where the applicant seeks to have the Anton Pillar order vacated – where the applicant contends that the order having been made by the Supreme Court, must be vacated by the Supreme Court – where the applicant further contends that, because only the Supreme Court has jurisdiction to vacate the order, to avoid overlap between the trial and the vacation application, the entire proceedings should be transferred to the Supreme Court – whether the proceedings should be transferred from the District Court of Queensland to the Supreme Court of Queensland Civil Proceedings Act 2011 (Qld), s 25, s 31 District Court Act 1967 (Qld), s 69 Rigato Farms Pty Ltd v Ridolfi [2001] 2 Qd R 455, cited
COUNSEL:	E White for the applicant PJ Roney QC, with GW Dietz, for the respondent
SOLICITORS:	Adams Wilson for the applicant Nyst Legal for the respondent