Whitco Pty Ltd v Weavis, Nicolas & Ors [1994] FCA 1098

IN THE FEDERAL COURT OF AUSTRALIA ) No. QG 90 of 1994 QUEENSLAND DISTRICT REGISTRY ) GENERAL DIVISION )

BETWEEN: WHITCO PTY. LTD. (A.C.N. 009 667 207)

Applicant AND: NICOLAS WEAVIS First Respondent

AND:MARKETMAKERS (AUST.) PTY. LTD. (A.C.N. 052 290 721)

Second Respondent

AND:HARRY DESMOND PHIPPS

Third Respondent Coram: Drummond J Date: 28 September, 1994 Place: Brisbane REASONS FOR JUDGMENT

These proceedings have previously been before me in circumstances in which it was asserted on behalf of the first respondent that the case sought to be made against him was vaguely pleaded and such as to give rise to concern that it was a fishing case, at least in some respects. Directions were given for the refining of the applicant's case against the first respondent and other respondents, and also for formulating the case it wished to run against the proposed fourth respondent, an associate of the first respondent, and the proposed fifth

respondent, a company in which the first and proposed fourth respondents are involved, so that

the Court would be in a position better to decide whether or not the joinder of the proposed

fourth and fifth respondents should be made.

The way the case against the proposed fourth and fifth respondents is pleaded appears from paragraphs 13 and 14 of the document which I have described as the proposed new statement of claim. The allegation essentially is that these respondents have been involved in the misuse of confidential information belonging to the applicant. There is before me an affidavit from Mr. Lipinski, who appears still to be an employee of the applicant, although he too was

associated with the first respondent and the proposed fourth and fifth respondents.

It is on the basis of Mr. Lipinski's evidence that the joinder is justified and it is sought to answer the claims made today that the case intended to be made against the proposed fourth and fifth respondents is so vaguely pleaded that I should infer that it is a speculative or fishing case and refuse to join them. In essence, Mr. Lipinski creates a picture of himself, the proposed fourth respondent and the first respondent, while all were executives of the applicant and while the first respondent and proposed fourth respondent were marketing executives involved in, among other things, the development of export markets for the applicant, having a