WILSON v TETLEY [2003] NSWCA 98

New South Wales Court of Appeal

CITATION : WILSON v TETLEY [2003] NSWCA 98 HEARING DATE(S) : 2 April 2003 JUDGMENT DATE : 2 April 2003

JUDGMENT OF : Mason P at 1; Handley JA at 29; Ipp JA at 30 DECISION : Application for interlocutory injunction refused - see also pars 26, 27 & 28

CATCHWORDS : Application for interlocutory injunction pending application for leave to appeal - employee refuses to provide information necessary for proper record-keeping - whether damages an adequate remedy - whether interlocutory relief appropriate in circumstances (ND) PARTIES : Dennis Paul WILSON v Jason TETLEY as Trustee for Tetley Cattle Co Trust FILE NUMBER(S) : CA 40244/2003 COUNSEL : Appellant: J S Wheelhouse Respondent: No appearance SOLICITORS : Appellant: Susan Hill Respondent: No appearance (Max Walsh & Co, Goulburn)

LOWER COURT Supreme Court - Equity Division JURISDICTION : LOWER COURT ED 1955/03 FILE NUMBER(S) : LOWER COURT Gzell J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40244/2003 ED 1955/2003

MASON P HANDLEY JA IPP JA

Wednesday 2 April 2003 Dennis Paul WILSON v Jason TETLEY JUDGMENT

1 MASON P: The claimant conducts a business of breeding Murray Grey cattle. The opponent, Mr Tetley, was engaged by the claimant to perform various services including assistance with an embryo flush programme connected with the artificial insemination of two cows belonging to the claimant. The cows are, on the evidence, very valuable Murray Greys and one of them has the pedigree name AV72N. 2 The defendant worked part time for the claimant for remuneration at an hourly rate. It is not necessary to determine whether he was an employee or an independent contractor. 3 His job included selecting cows for artificial breeding, preparing them for the embryo flush to be administered by a third person, choosing the bulls and recording the identity of the bulls whose semen had been used to artificially inseminate the selected cow. 4 A breeder involved in this business who seeks to sell the embryos needs to be in a position to certify, in accordance with apparently a standard practice, the details of the donor bull. 5 There has been a serious falling out between the claimant and the opponent. Although the opponent participated in the insemination of the two cows, it would appear on the evidence that he has taken any records that would enable the certificate to be given and he has to date declined to provide information or evidence that would enable the claimant properly to be able to certify the identity of the donor. 6 Frozen embryos, fifteen in number, from cow AV72N have been advertised for sale at the annual Murray Grey Exhibition which is to take place tomorrow at Wodonga. The auction, we were told, is scheduled for 7pm. 7 The claimant commenced proceedings on 19 March in the Equity Division. He sought three orders in the alternative requiring the defendant to answer interrogatories, or to attend and be orally examined in Court, or to produce documents, all designed to provide the requisite evidence that would enable the claimant to give the appropriate certificate. They were orders 1, 2 and 3 in the summons. Order 4 as sought, was a claim for damages. Order 5 was a claim for such further or other orders as the Court sees appropriate. 8 The proceedings came on for hearing after time had been abridged. They were heard yesterday by Gzell J. 9 The opponent was present at Court. He had filed an affidavit, but in the circumstances did not come to have it read. He was not called upon to address the court. 10 Gzell J, having considered the affidavit evidence of the claimant and heard from the claimant's counsel, gave an extempore judgment dismissing paragraphs one, two and three of the summons. His Honour reserved the costs of the application before him. 11 The reasons given by his Honour make it tolerably plain that he intended to deal finally with those prayers for relief and to leave the balance of the proceedings on foot. 12 His Honour was persuaded that the plaintiff had a cause of action for damages for breach of contract. The unchallenged evidence in the proceedings which, as I have indicated, were treated as final as regards those first three prayers for relief, established a serious breach of contractual duty on the part of the opponent. It also would indicate that the opponent acted knowingly and with intent to harm the claimant's interest, although there is no finding to that effect and that is a provisional attitude based on the material that I have seen. 13 Despite reaching, properly in my view, the conclusion that there had been a breach of duty giving rise to a cause of action for damages, his Honour nevertheless refused the claim for specific relief which was really the claim of choice by the claimant. His Honour was not satisfied that the embryos were so unique that specific relief was called for in order to protect the claimant's interest. 14 It is clear that his Honour recognised that this would mean that the embryos from cow AV72N could not be sold at tomorrow's show. 15 His Honour recognised that there would be some difficulty in determining the level of damages but was nevertheless not persuaded that damages were not an appropriate remedy. 16 It seems to me that what his Honour had in mind was that the claimant's interests were adequately protected because of the principle in Armory v Delamiri (1722) 1 Stra 505; 93 ER 664 which would indicate that a wrongdoer who by his or her own misconduct clouds the waters in determining the level of damages can expect to have a liberal assessment of damages made, otherwise the defendant is taking advantage of his or her own wrong. 17 The claimant determined to appeal and approach the Registrar yesterday. The Registrar gave leave to serve short notice of the summons returnable at 2.15 today. The claimant has made significant endeavours to notify the opponent. It is very likely the opponent knows of the proceedings, but it is clear that he has not been served. The solicitor who has been served does not on the evidence have a retainer to accept service and there was no order made for substituted service. 18 In these circumstances it is not in my view open to this Court, certainly not appropriate for this Court, to deal with the appellate proceedings before it on a final basis. 19 After some discussion, the claimant indicated that what he seeks is to have the appeal continue if only to determine his client's rights with respect to the other cow BJR708. He does seek however, interlocutory relief in the form of an ex-parte interlocutory injunction from this Court, the effect of which would be to require the opponent to provide the verifying information in time for the certificate to be completed to enable the auction to go ahead tomorrow evening. 20 If it were merely a question of determining whether there was an arguable prospect of success in the appeal I would have no hesitation in granting the interim injunction. On the information which we have seen today it is my present view that his Honour should have granted the form of relief that was sought in the proceedings before him. That of course is a view that is provisional and based upon not having heard from the opponent or any representative of the opponent, but I mention it to say that that is not the reason why I would decline the interim relief that is being sought. 21 The real problem seems to me is the combined effect of the significant risk that any order the Court gave would lack utility, combined with the lack of persuasion that the interests of justice require interim relief to be given lest the claimant's rights be wholly destroyed. 22 What I mean by the first proposition is that the difficulties that have been experienced to date in contacting and serving the opponent, as evidenced by the affidavit of Ms Hill, do not give one a great deal of confidence that an interim injunction could be prepared and served upon the opponent in time to deliver the claimant the relief that he is seeking in time for the show tomorrow. 23 I have expressed in very general terms and I have melded together the two factors which in my view indicate to me that a case has not been made out for the exercise of the available, but nevertheless extraordinary jurisdiction of the Court to grant injunctive relief in aid of appellate proceedings. 24 There is another issue that has been debated as to whether the relief as sought could be given in light of the fact that it is in substance the final relief in the summons. That proposition does not trouble me but it is an issue that would need to be overcome before interim relief could be granted. 25 I therefore propose that the application for an interlocutory injunction be refused. 26 Secondly I propose that the claimant have leave to amend the summons for leave to make it returnable on 16 May 2003 at 10.15 am, that being according to the Registrar the next date of which the Court sits to hear leave applications. 27 Thirdly I propose that the amended summons, the claimant's summary of argument and any other documents required to be inserted in the white book, the affidavit of Susan Hill of 2 April 2003, plus a letter indicating that the claimant will be seeking to have the matter proceed as a concurrent hearing, be served on the opponent not less than five days before the hearing date in accordance with Pt 5 r4A(3). 28 Fourth, liberty to apply including liberty to apply for an order for substituted service if grounds are shown. 29 HANDLEY JA: I agree. 30 IPP JA: I agree. 31 MASON P: Those orders are made. The Court will adjourn to reconstitute. **********