Your Nurse Australia Pty Ltd v Carpenter [2022] NSWSC 1788

Supreme Court New South Wales

Medium Neutral Citation: Your Nurse Australia Pty Ltd v Carpenter [2022] NSWSC 1788 Hearing dates: 29 December 2022 Date of orders: 29 December 2022 Decision date: 29 December 2022 Jurisdiction: Equity Before: Cavanagh J Decision: See at [45] Catchwords: Restraint of trade — employee's contractual post-employment restriction — Enforcement and remedies — Interlocutory injunction Legislation Cited: Fair Work Act 2009 (Cth), s 325 Cases Cited: Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199; [2001] HCA 63 Australian Broadcasting Corporation v O'Neill (2006) 277 CLR 571; [2006] HCA 46 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148; [1986] HCA 58 Emeco International Pty Ltd v O'Shea [2012] WASC 282 Kazzi v Raptime Pty Ltd t/as Community First Real Estate [2006] NSWSC 1261 Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535 Smith v Nomad Modular Building Pty Ltd [2007] WASCA 169 Category: Procedural rulings Parties: Your Nurse Australia Pty Ltd (Plaintiff) Ryan Carpenter (First Defendant) Collar Group Pty Ltd (Second Defendant) Representation: Counsel: T Donaghey (Plaintiff)

Solicitors: PCC Employment Lawyers (Plaintiff) File Number(s): 2022/388052 Publication restriction: None

REVISED EX TEMPORE Judgment 1. This matter comes before me by way of an urgent application on behalf of the plaintiff, Your Nurse Australia Pty Ltd, for restraining orders against the first and second defendants, Ryan Carpenter and Collar Group Pty Ltd, based on a contractual restraint said to apply to the first defendant arising out of his former employment with the plaintiff. 2. On 23 December 2022, Hammerschlag CJ in Eq ordered that the summons filed on 23 December 2022 be returnable at 10.00am today, 29 December 2022. His Honour also ordered that service may be validly effected on the first defendant at his email address. 3. As set out in the summons, the plaintiff seeks both interlocutory and final relief. 4. The plaintiff seeks interlocutory orders: 1. restraining the first defendant from being involved in any competitive business with the plaintiff in accordance with cl 39 of the first defendant's contract of employment executed on 24 August 2022 (the Contract of Employment); 2. restraining the first defendant from canvassing, soliciting, inducing or encouraging any person who was an employer or contractor of the plaintiff to leave the plaintiff in accordance with cl 39 of the Contract of Employment; 3. restraining the first defendant from canvassing, soliciting, approaching or accepting any approach from any person who has at any time been an existing or prospective client or customer of the plaintiff or any person who refers business to the plaintiff on a regular or ongoing basis with a view to obtaining custom or any business introduction from that person in a competing business in accordance with cl 39 of the Contract of Employment; and 4. restraining the first defendant and second defendant from using the plaintiff's confidential information. 1. On the hearing of the application today Mr Donaghey of counsel appeared for the plaintiff. There was no appearance for the first and second defendants. 2. In support of the application the plaintiff relies on: 1. an affidavit of Edward Blackman dated 23 December 2022; 2. an affidavit of Caitlin Whealey dated 23 December 2022; and 3. an affidavit of Brian Adrian Powles, the solicitor for the plaintiff dated 29 December 2022. 1. Having regard to the affidavit of Mr Powles, I am satisfied that on 23 December 2022 the plaintiff served the defendants with the summons and other documents in accordance with the orders made on 23 December 2022. 2. Further, at least at some stage since this issue has arisen between the plaintiff and the defendants, both defendants have been legally represented. I do not know whether they are still legally represented, although it seems likely that the second defendant would continue to be legally represented. 3. In essence, the plaintiff seeks interlocutory injunctions restraining a former employee from working with a competitor and seeking to solicit the plaintiff's clients and customers for the benefit of the second defendant.