Austress Freyssinet Pty Limited v Michael Joseph & 2 ors [2007] NSWSC 1513

New South Wales Supreme Court

CITATION : Austress Freyssinet Pty Limited v Michael Joseph & 2 ors [2007] NSWSC 1513

HEARING DATE(S) : 12 December 2007 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 12 December 2007

DECISION : Defendant to pay plaintiff's costs

CATCHWORDS : COSTS – where substantive proceedings compromised – where evidence permits conclusion that one party had extremely strong prima facie case and was almost certain to have succeeded

CASES CITED : Austress Freyssinet Pty Ltd v Joseph [2006] NSWSC 77 Minister for Immigration and Ethnic Affairs & Anor; ex parte Lai Qin (1997) 186 CLR 622

Austress Freyssinet Pty Limited (first plaintiff) PARTIES : Michael Joseph (first defendant) Kevin Walsh (second defendant) Unistress Pty Ltd (third defendant)

FILE NUMBER(S) : SC 1260/06

COUNSEL : G L Turner (plaintiff) L A Macinnes (solicitor) (first defendant)

Mallesons Stephen Jaques (plaintiff) SOLICITORS : Dibbs Abbott Stillman (first defendant) Aitken McLachlan Thorpe (second defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST

BRERETON J

Wednesday, 12 December 2007

1260/06 Austress Freyssinet Pty Limited v Michael Joseph & 2 ors JUDGMENT (ex tempore) 1 HIS HONOUR: The plaintiff Austress Freyssinet Pty Limited seeks an order that the first defendant Michael Joseph pay its costs. 2 The substantive proceedings were concluded by orders made by consent by the Registrar on 9 February 2007, the effect of which was to restrain Mr Joseph, a former senior employee of Austress, from breaching confidences of Austress, using Austress' copyright material and soliciting away other employees of Austress. 3 The proceedings were instituted by summons filed on 1 February 2006, upon which date Windeyer J was approached on a motion of the same date, ex parte for an Anton Piller order, which his Honour granted. Initially, that order was unable to be executed, because Mr Joseph made an application for its operation to be stayed, and for it to be set aside. That application was heard by Campbell J who, on 6 February 2006, refused it in substance, although making a minor variation to provide that employees of Austress not be present at the time of its execution. 4 In the course of Campbell J's judgment on 6 February 2006 [Austress Freyssinet Pty Ltd v Joseph [2006] NSWSC 77] his Honour said: 90 In the light of the evidence that there was before his Honour, it seems to me that it was well open to his Honour to take the view that there was an extremely strong prima facie case that confidential information was being misused during the period Mr Joseph was still employed by the plaintiff. If an employee with knowledge of the methods by which an entity such as the plaintiff prepares its tenders and its margins goes into opposition, it seems to me that the damage, potential or actual, from misuse of this information is shown to be very serious to the plaintiff.