John Moran v Eistream (Australia) Pty Limited [2006] NSWSC 79

New South Wales Supreme Court

CITATION : John Moran v Eistream (Australia) Pty Limited [2006] NSWSC 79 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 14/02/2006

JUDGMENT DATE : 14 February 2006

JUDGMENT OF : Bergin J

DECISION : See paragraph 34

CATCHWORDS : [DISCOVERY] - Conclusive nature of affidavit of discovery - Exceptions - Test to be applied when it is alleged there has been a misconception of the case

Attorney-General v Emerson (1882) 10 QBD 191 CASES CITED : British Association of Glass Bottle Manufacturers v Nettlefold [1912] 1 KB 369; [1912] AC 709 Mulley v Manifold (1959) 103 CLR 341

PARTIES : John Moran (Plaintiff) EiStream (Australia) Pty Limited ACN 095 854 372 (Defendant)

FILE NUMBER(S) : SC 50167/2004

COUNSEL : M Bevan (Plaintiff) T Saunders (Defendant)

SOLICITORS : Phillips Fox (Plaintiff) Allens Arthur Robinson (Defendant)

- 16 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST

BERGIN J

14 FEBRUARY 2006

50167/04 JOHN MORAN v EISTREAM (AUSTRALIA) PTY LIMITED JUDGMENT 1 The plaintiff, John Moran, was employed by the defendant, Eistream (Australia) Pty Limited, as Vice President/General Manager Asia Pacific Region from 2001. Prior to that, from 1978, he worked for Kodak Australasia Pty Limited in various positions under a contract of employment with Kodak's parent company, Eastman Kodak Inc. The plaintiff was employed as General Manager of Kodak's software business when it started up and from about April 1999 he was employed as the Vice President of the Eastman Software Business for the Greater Pacific Region. The plaintiff was a member of the defendant's Board from about 2001. 2 The defendant terminated the plaintiff's employment on 21 November 2002 without notice. The plaintiff sues the defendant for damages, inter alia, for breach of contract. He also seeks declaratory relief in relation to the terms of the contract and seeks rectification of some of the terms of the letter of appointment. The plaintiff claims that his termination was a direct result of and/or caused by the defendant's decision, together with that of its parent company, to restructure its operations and that in those circumstances he should have had the benefit of a redundancy package. There are also claims for damages for alleged breaches of the Trade Practices Act 1974 (Cth) and the Fair Trading Act 1987. 3 The defendant denies that the plaintiff is entitled to the relief sought and claims, in paragraph 43 of the defence, that by reason of matters that came to its knowledge post termination of the contract, it would have been justified to terminate the plaintiff's employment on the basis of alleged misconduct. One of the matters particularised is that the plaintiff, contrary to generally accepted accounting principles adopted by the defendant, declared as revenue the sale of software to an entity identified as Easy Solution Inc (in Korea) in full knowledge that it should not have been declared as revenue for accounting purposes (the justification claim). 4 The defendant's parent company is Global 360 Inc, formerly Eistream Inc. The senior Vice President of the parent company is Richard Allen McDaniel. Gary Allan Cook is the Vice President and Director of Sales of the defendant and has held those positions since the termination of the plaintiff's employment on 21 November 2002. These proceedings are listed for hearing on 1 May 2006 for six days.