The Change Group International PLC v City Exchange Mart Pty Ltd [2013] FCA 1048

FEDERAL COURT OF AUSTRALIA

The Change Group International PLC v City Exchange Mart Pty Ltd [2013] FCA 1048 Citation: The Change Group International PLC v City Exchange Mart Pty Ltd [2013] FCA 1048

Parties: THE CHANGE GROUP INTERNATIONAL PLC and THE CHANGE GROUP AUSTRALIA PTY LIMITED ACN 087 042 993 v CITY EXCHANGE MART PTY LTD ACN 113 024 203, RAO ARIF YASIN and INDRAVADAN SHAH

File numbers: NSD 618 of 2011

Judge: EDMONDS J

Date of judgment: 18 October 2013

Catchwords: TORTS – passing off – retail unit get-up – whether respondent's services were passed off as being the applicants' services or associated with the applicants' services – elements of passing off – relevance of intention in the cause of passing off – whether Jones v Dunkel inference can be drawn – whether applicant established sufficient reputation – difficulty of establishing reputation of foreign currency exchange services – reputation not established by applicant CONSUMER LAW – misleading or deceptive conduct – ss 52 and 75B of the Trade Practices Act – ss 18 and 75B of the Competition and Consumer Act – get-up of retail units – whether the respondents, by use of external signage, are likely to mislead or deceive persons familiar with the applicants' services – whether "a not insignificant number" of persons in the Australian community have been misled or are likely to be misled – no misleading or deceptive conduct CONTRACTS – breach of contract – whether respondents breached duty to "well and faithfully serve" or use "best endeavours to promote the interest and welfare" of applicants' business – whether causing a company to be incorporated while employed by applicant to carry on competing business after termination of employment constitutes breach – whether respondents breached duty not to use trade secrets and confidential information – strategy comprised of knowledge gleaned whilst working for applicants and from general observation – no breach of employment agreements EQUITY – breach of fiduciary duty of fidelity – whether regard can be had to the cumulative effect of steps taken by respondents to establish a future competitor during their employment with the applicant – whether respondents used any confidential information – no breach of fiduciary duty of fidelity