mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Ferrier v Civil Aviation Authority (1994) 55 FCR 28
Outcome: cited
While I consider that the liquidator is entitled to recover costs from Scott and Fairbank, it would be too harsh to run the calculations from 14 November 2005. The more appropriate date from which to calculate costs is 13 December 2005, being the date upon which Finkelstein J made directions for the contested hearing of these two proceedings. Aside from the settlement agreement between the liquidator and the Commissioner, the liquidator would have been entitled to recover interest from the Commissioner in each proceeding pursuant to s 51A(1) of the Federal Court of Australia Act 1976 (Cth). In the ordinary course, interest would relate to the period from the date of demand by the liquidator for the repayment of the preferences until the date upon which such preferences were repaid: Ferrier v Civil Aviation Authority (1994) 55 FCR 28 at 92-93. In these proceedings, however, the liquidator did not advance any claim for the recovery of interest from the Commissioner, save and to the extent that the orders proposed in the first proceeding include an agreed amount of $16,865.33 in respect of interest and costs. The liquidator has not advanced any cause of action against Scott and Fairbank that would entitle him to recover interest directly from them. Furthermore, the Commissioner has not made any claim for the recovery of interest from Scott and Fairbank. The Commissioner's only entitlement against Scott and Fairbank is for an indemnity under s 588FGA and as the Commissioner is not exposed to any liability for interest in respect of the period after 14 November 2005, there is no basis for claiming interest against Scott and Fairbank in respect of that period. In my opinion, it is not appropriate to order that Scott and Fairbank make any payment of interest to the liquidator. 132 As for the order that Scott and Fairbank pay $46,126.15 to the Commissioner, the figure has two components. The first component represents that part of the total payments of $38,319.55 that reflects the payment of ITW liabilities, namely $29,260.82. The second component represents the sum agreed between the Commissioner and the liquidator for interest and costs of $16,865.33. In my opinion, the second component is excessive. As I have explained, it needs to be reduced to take account of the fact that ITW liabilities represented only 76.36 per cent of the total figure of $38,319.55. Applying this percentage produces a figure of $12,878.37 for interest and costs, which I consider to be the appropriate measure of the Commissioner's loss and damage in this respect. 133 It follows that the order referred to in sub-paragraph (3) above must be adjusted by substituting the amount of $42,139.19 for the sum of $46,126.15 proposed by the Commissioner.
Case: Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd [1973] HCA 40 ; (1973) 133 CLR 288
Outcome: referred to
In the circumstances, it is unnecessary to address a further argument put by Graphix Labels and Mr Atta against implying such a term and that was that such a term would amount to an unreasonable restraint of trade. I was referred to Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535; Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd [1973] HCA 40 ; (1973) 133 CLR 288. Of course, there have been a number of cases dealing with the common law doctrine of restraint of trade since those two cases (see, for example, the discussion in Seddon and Ellinghaus, Cheshire &amp; Fifoot's Law of Contract (8 th Australian ed, 2002) pages 860-863).
Case: Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37
Outcome: referred to
I do not think that Pioneer Concrete is of assistance on the present point. The issue there was an alleged breach of restraint of trade covenants and required the Court to consider the difference between acts preparatory to the carrying on of a business and carrying on a business. Independent Management is more helpful. The plaintiff in that case alleged that a former employee had misused confidential information obtained during her employment and had breached her duty of fidelity. The employee had successfully tendered for a contract previously held by the plaintiff. Marks J said that the skill and information gained by the defendant was outside the protected category. He referred to the following observations of Gowans J in Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 (at 40): In this field a distinction has to be maintained between information and knowledge acquired in confidence by an employee during his employment which he uses or discloses for his own advantage while he is still an employee, and information and knowledge so acquired which he uses for his own advantage after his employment is finished. A further distinction has to be drawn between information which forms part of the employee's stock of general knowledge, skill and experience, and that which should fairly be regarded as a separate part of the employee's stock of knowledge (whether it be identifiable as "particular" or "detailed" or "special") which a man of ordinary intelligence and honesty would regard as the property of the former employer.
Case: Blyth Chemicals v Bushnell [1933] HCA 8 ; (1933) 49 CLR 66
Outcome: referred to
An employee owes a duty of fidelity and good faith to his employer. That duty arises as a matter of an implied term of the contract of employment: Robb v Green [1895] 2 QB 315 at 317 per Lord Esher MR. As part of the duty of fidelity and good faith, an employee owes certain duties of confidentiality: Blyth Chemicals v Bushnell [1933] HCA 8 ; (1933) 49 CLR 66.
Case: BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266
Outcome: referred to
In the case of a formal contract a party alleging an implied term must show the following: 1. The term must be reasonable and equitable; 2. The term must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; 3. The term must be so obvious that "it goes without saying"; 4. The term must be capable of clear expression; and 5. The term must not contradict any express term of the contract. BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266; Codelfa Construction Pty Ltd v State Railway Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 346 per Mason J (as he then was); Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd (2005) IPR 497 (" Gold Peg "). 123 The differences between the test for a formal contract and the test for an informal contract are not easy to identify with precision. In addition to the matters identified in Hawkins v Clayton and Byrne v Australian Airlines Ltd it may be assumed that even in the case of an informal contract a term will be implied only if it is capable of clear expression and does not contradict an express term of the contract. The authors of Contract Law in Australia (5 th ed, 2007) JW Carter, E Peden and GJ Tolhurst at 223-224 [11-06] suggest that the matters identified in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (supra) are, in the case of an informal contract, "more in the nature of factors to be considered than essential requirements".
Case: Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410
Outcome: referred to
That passage was cited with approval by the majority (Brennan CJ, Dawson and Toohey JJ) in Byrne v Australian Airlines Ltd [1995] HCA 24 ; (1995) 185 CLR 410 at 422. In that case, their Honours went on to reject the alleged implied term on the ground that the contract was capable of operating reasonably and effectively in the absence of the term. 123 The differences between the test for a formal contract and the test for an informal contract are not easy to identify with precision. In addition to the matters identified in Hawkins v Clayton and Byrne v Australian Airlines Ltd it may be assumed that even in the case of an informal contract a term will be implied only if it is capable of clear expression and does not contradict an express term of the contract. The authors of Contract Law in Australia (5 th ed, 2007) JW Carter, E Peden and GJ Tolhurst at 223-224 [11-06] suggest that the matters identified in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (supra) are, in the case of an informal contract, "more in the nature of factors to be considered than essential requirements".
Case: Codelfa Construction Pty Ltd v State Railway Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337
Outcome: referred to
In the case of a formal contract a party alleging an implied term must show the following: 1. The term must be reasonable and equitable; 2. The term must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; 3. The term must be so obvious that "it goes without saying"; 4. The term must be capable of clear expression; and 5. The term must not contradict any express term of the contract. BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266; Codelfa Construction Pty Ltd v State Railway Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 346 per Mason J (as he then was); Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd (2005) IPR 497 (" Gold Peg ").
Case: Concut Pty Ltd v Worrell (2000) 176 ALR 693
Outcome: referred to
In addition to the duty of fidelity and good faith arising as a matter of contract, an employee may owe similar duties because the relationship is a fiduciary one or because the elements of ss 182 or 183 of the Corporations Act 2001 (Cth) are made out. The relationship between employee and employer is one of the accepted fiduciary relationships ( Concut Pty Ltd v Worrell (2000) 176 ALR 693) but not every obligation undertaken by an employee is fiduciary in character ( Nottingham University v Fishal [2000] ICR 1462). Within the fiduciary duties is a duty on an employee to act in his employer's interests and not in his own interests at the expense of his employer and also a duty not to misuse confidential information. The duties are not absolute however, and an employee is able to do certain things in preparation for his new employment.
Case: Corrs Pavey Whiting and Byrne v Collector of Customs (1987) 14 FCR 434
Outcome: referred to
As far as the confidentiality agreement is concerned, Mr Atta made the following submissions: 1. The confidentiality agreement is void for uncertainty because it contains only an inclusive and not an exclusive definition of confidential information. Reading down or severance is not possible. 2. The confidentiality agreement is a restraint on competition and void as against public policy because it purports to go beyond what may be lawfully protected. Mr Atta referred to the decision in Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317. Again, it is said that reading down or severance is not possible. 3. As I understood it, the submission was that even in the case of a confidentiality agreement which purports to define confidential information a party complaining of a breach of such an agreement must prove the information disclosed was in fact confidential. Reference was made to the requirements in equity for the protection of confidential information: Corrs Pavey Whiting and Byrne v Collector of Customs (1987) 14 FCR 434 at 443 per Gummow J. There is no evidence that the information was confidential and Mr Atta said that it was not confidential. 4. The information disclosed [to THQ and Cygnett] was disclosed after Mr Atta had left the company's employ. 5. There is no pleading of loss which could conceivably flow from a breach of the confidentiality agreement. There is a claim for damages for breach of the confidentiality agreement, but the only claim for loss and damage particularised in the statement of claim relates (so it is said) to the alleged breach of the implied term. 170 I do not think the submission in paragraph 3 is right. In the case referred to Gummow J identified the elements of an equitable action for breach of confidence. His Honour was not dealing with a claim for breach of contract by disclosing confidential information as defined in the agreement. There is nothing to suggest that subject to restraint of trade considerations the parties cannot define for themselves what is confidential. They are not bound to protect no more than is already protected in equity. 171 The submission in paragraph 4 cannot succeed because the confidentiality agreement specifically purports to apply to the period after Mr Atta has left the employ of Futuretronics. 172 The submission in paragraph 5 is essentially a pleading point which I would not allow Mr Atta to raise at this late stage or at least without giving Futuretronics the opportunity to apply to further amend.
Case: Forkserve Pty Ltd v Pachiaratta (2000 40 IPR 74
Outcome: referred to
In Forkserve Pty Ltd v Pachiaratta (2000) 40 IPR 74, Young J considered the obligations of a former employee in terms of general knowledge and skills acquired while he was an employee and confidential information acquired while he was an employee. Two propositions emerge from the case which I accept as correctly stating the law. First, Young J said, after referring to the Restraint of Trade Doctrine , JD Heydon (2 nd ed, 1999) at 80, that an employee can approach a customer or client whose name he can recall without a list or deliberate memorisation. Secondly, by reference to one of his own previous decisions Rosetex Company Pty Ltd v Licata (1994) 12 ACSR 779 his Honour said that the general coverage of the predecessors of ss 182 and 183 "are not to any major extent wider than the duties under the general rules of equity".
Case: Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317
Outcome: referred to
As far as the confidentiality agreement is concerned, Mr Atta made the following submissions: 1. The confidentiality agreement is void for uncertainty because it contains only an inclusive and not an exclusive definition of confidential information. Reading down or severance is not possible. 2. The confidentiality agreement is a restraint on competition and void as against public policy because it purports to go beyond what may be lawfully protected. Mr Atta referred to the decision in Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317. Again, it is said that reading down or severance is not possible. 3. As I understood it, the submission was that even in the case of a confidentiality agreement which purports to define confidential information a party complaining of a breach of such an agreement must prove the information disclosed was in fact confidential. Reference was made to the requirements in equity for the protection of confidential information: Corrs Pavey Whiting and Byrne v Collector of Customs (1987) 14 FCR 434 at 443 per Gummow J. There is no evidence that the information was confidential and Mr Atta said that it was not confidential. 4. The information disclosed [to THQ and Cygnett] was disclosed after Mr Atta had left the company's employ. 5. There is no pleading of loss which could conceivably flow from a breach of the confidentiality agreement. There is a claim for damages for breach of the confidentiality agreement, but the only claim for loss and damage particularised in the statement of claim relates (so it is said) to the alleged breach of the implied term.
Case: Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd (2005) IPR 497
Outcome: distinguished
In the case of a formal contract a party alleging an implied term must show the following: 1. The term must be reasonable and equitable; 2. The term must be necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it; 3. The term must be so obvious that "it goes without saying"; 4. The term must be capable of clear expression; and 5. The term must not contradict any express term of the contract. BP Refinery (Westernport) Pty Ltd v Shire of Hastings [1977] HCA 40 ; (1977) 180 CLR 266; Codelfa Construction Pty Ltd v State Railway Authority (NSW) [1982] HCA 24 ; (1982) 149 CLR 337 at 346 per Mason J (as he then was); Gold Peg International Pty Ltd v Kovan Engineering (Aust) Pty Ltd (2005) IPR 497 (" Gold Peg ").
Case: Hawkins v Clayton [1988] HCA 15 ; (1988) 164 CLR 539
Outcome: referred to
A formal contract is one which appears complete on its face. The test is not as stringent in the case of an informal contract. The contract or contracts in this case are informal contracts. In Hawkins v Clayton [1988] HCA 15 ; (1988) 164 CLR 539, Deane J said (at 573): The most that can be said consistently with the need for some degree of flexibility is that, in a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, a court should imply a term by reference to the imputed intention of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case. That general statement of principle is subject to the qualification that a term may be implied in a contract by established mercantile usage or professional practice or by a past course of dealing between the parties. 123 The differences between the test for a formal contract and the test for an informal contract are not easy to identify with precision. In addition to the matters identified in Hawkins v Clayton and Byrne v Australian Airlines Ltd it may be assumed that even in the case of an informal contract a term will be implied only if it is capable of clear expression and does not contradict an express term of the contract. The authors of Contract Law in Australia (5 th ed, 2007) JW Carter, E Peden and GJ Tolhurst at 223-224 [11-06] suggest that the matters identified in BP Refinery (Westernport) Pty Ltd v Shire of Hastings (supra) are, in the case of an informal contract, "more in the nature of factors to be considered than essential requirements".
Case: Independent Management Resources Pty Ltd v Brown [1987] VR 605
Outcome: referred to
In this context the respondents referred to Pioneer Concrete Services Ltd v Galli [1985] VR 675 (" Pioneer Concrete ") and Independent Management Resources Pty Ltd v Brown [1987] VR 605 (" Independent Management "). 154 I do not think that Pioneer Concrete is of assistance on the present point. The issue there was an alleged breach of restraint of trade covenants and required the Court to consider the difference between acts preparatory to the carrying on of a business and carrying on a business. Independent Management is more helpful. The plaintiff in that case alleged that a former employee had misused confidential information obtained during her employment and had breached her duty of fidelity. The employee had successfully tendered for a contract previously held by the plaintiff. Marks J said that the skill and information gained by the defendant was outside the protected category. He referred to the following observations of Gowans J in Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 (at 40): In this field a distinction has to be maintained between information and knowledge acquired in confidence by an employee during his employment which he uses or discloses for his own advantage while he is still an employee, and information and knowledge so acquired which he uses for his own advantage after his employment is finished. A further distinction has to be drawn between information which forms part of the employee's stock of general knowledge, skill and experience, and that which should fairly be regarded as a separate part of the employee's stock of knowledge (whether it be identifiable as "particular" or "detailed" or "special") which a man of ordinary intelligence and honesty would regard as the property of the former employer.
Case: Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535
Outcome: referred to
In the circumstances, it is unnecessary to address a further argument put by Graphix Labels and Mr Atta against implying such a term and that was that such a term would amount to an unreasonable restraint of trade. I was referred to Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535; Amoco Australia Pty Ltd v Rocca Bros Motor Engineering Co Pty Ltd [1973] HCA 40 ; (1973) 133 CLR 288. Of course, there have been a number of cases dealing with the common law doctrine of restraint of trade since those two cases (see, for example, the discussion in Seddon and Ellinghaus, Cheshire &amp; Fifoot's Law of Contract (8 th Australian ed, 2002) pages 860-863).
Case: Nottingham University v Fishal [2000] ICR 1462
Outcome: referred to
In addition to the duty of fidelity and good faith arising as a matter of contract, an employee may owe similar duties because the relationship is a fiduciary one or because the elements of ss 182 or 183 of the Corporations Act 2001 (Cth) are made out. The relationship between employee and employer is one of the accepted fiduciary relationships ( Concut Pty Ltd v Worrell (2000) 176 ALR 693) but not every obligation undertaken by an employee is fiduciary in character ( Nottingham University v Fishal [2000] ICR 1462). Within the fiduciary duties is a duty on an employee to act in his employer's interests and not in his own interests at the expense of his employer and also a duty not to misuse confidential information. The duties are not absolute however, and an employee is able to do certain things in preparation for his new employment.
Case: Pioneer Concrete Services Ltd v Galli [1985] VR 675
Outcome: distinguished
In this context the respondents referred to Pioneer Concrete Services Ltd v Galli [1985] VR 675 (" Pioneer Concrete ") and Independent Management Resources Pty Ltd v Brown [1987] VR 605 (" Independent Management "). 154 I do not think that Pioneer Concrete is of assistance on the present point. The issue there was an alleged breach of restraint of trade covenants and required the Court to consider the difference between acts preparatory to the carrying on of a business and carrying on a business. Independent Management is more helpful. The plaintiff in that case alleged that a former employee had misused confidential information obtained during her employment and had breached her duty of fidelity. The employee had successfully tendered for a contract previously held by the plaintiff. Marks J said that the skill and information gained by the defendant was outside the protected category. He referred to the following observations of Gowans J in Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 (at 40): In this field a distinction has to be maintained between information and knowledge acquired in confidence by an employee during his employment which he uses or discloses for his own advantage while he is still an employee, and information and knowledge so acquired which he uses for his own advantage after his employment is finished. A further distinction has to be drawn between information which forms part of the employee's stock of general knowledge, skill and experience, and that which should fairly be regarded as a separate part of the employee's stock of knowledge (whether it be identifiable as "particular" or "detailed" or "special") which a man of ordinary intelligence and honesty would regard as the property of the former employer.