JERZY CWINSKI v BOGDEN BARTOSCIEWICZ [1991] NSWCA 71

JERZY CWINSKI v BOGDEN BARTOSCIEWICZ SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER JA 17 June 1991

[1991] NSWCA 71

Meagher JA In this matter the claimant is a doctor who formerly employed the defendant at a medical practice which was being conducted at Bonnyrigg. That, it is fund by Young J at first instance, practice was subject to an agreement that for a period of two years after the termination of employment the present opponent would not carry on any form of medical practice within a radius of seven kilometres, apparently from Bonnyrigg. For various reasons his Honour dismissed the application and found for the present opponent.

Iam far from convinced that his Honour was wrong in so doing. I do think Mr Goodridge has established that there was an arguable point that his Honour was wrong, but I put it no higher than that.

However, the main problem at the moment is what to do in the light of the claimant's application for interlocutory relief pending the hearing of the appeal. The appeal will not be heard in the normal course of events until probably the end of next year, by which time the two year period contained in the restraint of trade will have expired. That means that if I grant the application sought by the claimant today, that would effectively deprive the opponent of all rights should the opponent eventually win the appeal. This is obviously unsatisfactory and ought to be avoided.

Tf, on the other hand, I decline the present application it does not mean that the decision becomes immutable as far as the claimant is concerned because the opponent, through its counsel Mr Heydon of senior counsel, has offered to make to the court undertakings in the form of undertakings offered to all parties in a letter of 13 June 1991 to Messrs Prescotts and Maddix to Messrs Robert A Harper and Co. That is annexed to the affidavit of Miss Peraud filed on 17 June 1991 and filed this morning in court.