Allied Mills Pty Limited v Miners [2013] NSWSC 1117

Supreme Court New South Wales

Medium Neutral Citation: Allied Mills Pty Limited v Miners [2013] NSWSC 1117 Hearing dates: 13 August 2013 Decision date: 16 August 2013 Before: Pembroke J Decision: Summons dismissed Catchwords: CONTRACT - post employment restraints - no factual basis to support a finding of actual or threatened breach of restraints Category: Principal judgment Parties: Allied Mills Pty Limited - plaintiff Cameron Miners - defendant Representation: Counsel: B Cross - for the plaintiff J Darams - for the defendant Solicitors: Fisher Cartwright Berriman Pty Ltd - for the plaintiff Eakin McCaffery Cox Lawyers - for the defendant File Number(s): 2013/112960

Judgment

Introduction 1These unfortunate proceedings are brought by the defendant's former employer in an attempt to enforce certain post employment restraints in his employment contract dated 10 March 2010. The defendant's employment with the plaintiff ceased on 27 June 2013. He now resides in Auckland, New Zealand and works, for the time being, for George Weston Foods (NZ) Limited. The restraint period is six months from the date of cessation of employment. 2The relevant clause of the defendant's employment contract with the plaintiff is Clause 17.1. It restrains the defendant, without the plaintiff's prior written consent, from engaging in specified competitive activities. The restraint is limited to the defendant's conduct, whether direct or indirect, 'within the Specified Area'. It prevents him being employed in any Restricted Business in the Specified Area during the Restricted Period. The Specified Area is defined to mean the state or territory in which the defendant's 'employment is based'. That means, in my view, the place where he performed his duties, where he was located for the purpose of carrying out his role and where he undertook his responsibilities. The place where the defendant's employment was based was New South Wales, even though the plaintiff's business may have operated more generally throughout Australia and elsewhere. 3The fact that the Clause 17.1 restraint is limited to conduct, direct or indirect, within the Specified Area, and only prevents the defendant being employed in a Restricted Business in the Specified Area, may explain why the plaintiff does not seek to restrain the defendant from continuing to engage in his employment with George Weston Foods (NZ) Limited. It seeks other more opaque orders and declarations. In fact, one of the unsatisfactory features of this case is the lack of clarity about what relief the plaintiff really does seek, and what utility will be served by making any of the orders or declarations set out in the summons.