Brisbane Survey Group Pty Ltd v McBurnie & Ors [2019] QDC 121

DISTRICT COURT OF QUEENSLAND CITATION: Brisbane Survey Group Pty Ltd v McBurnie & Ors [2019] QDC 121 PARTIES: BRISBANE SURVEY GROUP PTY LTD CAN 060 643 430 ATF THE BRISBANE SURVEY GROUP UNIT TRUST (plaintiff) v LACHLAN ALEXANDER MCBURNIE (first defendant) and LACHLAN ALEXANDER MCBURNIE ATF LACHLAN ALEXANDER MCBURNIE TRUST ABN 16 709 184 516 (second defendant) and M3 SURVEYS PTY LTD ACN 166 952 674 (third defendant) and IAN JOHN GRAY (defendant added by counterclaim) FILE NO/S: 2127/18 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 23 July 2019 DELIVERED AT: Brisbane HEARING DATE: 8 July 2019 JUDGE: Sheridan DCJ ORDER: 1. The defendants file and serve a list of documents directly relevant to the issues in dispute between 15 April 2016 to 18 April 2018 on or before 6 August 2019; 2. Within 14 days of receipt of the list of documents referred to in paragraph 1, the plaintiff provide further and better particulars of the allegations in paragraphs 14(a), 14(b), 14A(a), 14A(b) and 15(b) of the Further Amended Statement of Claim, as detailed in the letter from the defendants’ solicitors dated 1 April 2019; -- 1 of 5 -- 2 3. The application of the plaintiff filed 25 June 2019 and the application of the defendants filed 24 June 2019 be otherwise adjourned to a dated to be fixed by either party on 7 days’ notice to the other party; 4. The costs of each application to date be each party’s costs in the cause. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – PARTICULARS – FURTHER AND BETTER – where defendants made application PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – GENERALLY – where plaintiff said discovery needed before further and better particulars could be given – where plaintiff filed application for further and better particulars after filing of application by defendants for further and better particulars COUNSEL: R Ivessa for the plaintiff J Marr for the defendants SOLICITORS: Brighthill Lawyers for the plaintiff Broadley Rees Hogan for the defendants [1] There are currently two applications before the court: an application by the defendants filed 26 June 2019 for further and better particulars of the further amended statement of claim and an application by the plaintiff filed 25 June 2019 for the defendants to provide disclosure by giving their list of documents. [2] The defendant’s position is that it is premature to order disclosure until after the plaintiff has complied with its pleading obligations. It is submitted that the plaintiff’s pleading is “so obtuse and vague that it fails to meet the basic requirement of procedural fairness of enabling the defendant of the opportunity to meet the case against them”. [3] The plaintiff’s position is that it has already given the best particulars it can and that it cannot give better particulars until disclosure is given by the defendant. Background [4] The plaintiff operated a surveying business, Lawson Surveys. The plaintiff employed the first defendant as a surveyor pursuant to a contract of employment. The commencement date pursuant to the contract of employment was 18 April 2016. The contract was terminated on 18 April 2018. -- 2 of 5 -- 3 [5] The first defendant had worked in the business for the previous owners since January 1995. The first defendant was the sole director of the third defendant, M3 Surveys Pty Ltd. The Claim [6] The plaintiff alleges that the first defendant breached his employment contract by trading in competition with the plaintiff during his employment and using its confidential information in competition with the plaintiff after cessation of his employment. [7] In the paragraphs of the further amended statement of claim, the subject of the request for further and better particulars, the allegations are that the first defendant since, at least 2016: (a) Performed surveying work for clients (including the plaintiff’s clients); and (b) Used the plaintiff’s property for the provision of that work. [8] The allegations in the further amended statement of claim do not draw a distinction between the period during the first defendant’s employment and the period pre- and post-employment, with the plaintiff. The current applications [9] The request for further and better particulars was contained in a letter from the defendant’s solicitors dated 1 April 2019. So far as relevant to the requests, the subject of the application, the defendant sought particulars as to the customers for whom work was quoted and performed, the dates when work was quoted and performed, the scope of the works and the date and locations of the persons or organisations for whom work was performed. [10] In respect of the property of the plaintiff used by the defendant, details were sought of the equipment used, dates of use, dates when intellectual property and confidential information was accessed and used. [11] In answer to the request for particulars as to the customers for whom work was quoted and performed, in the letter dated 15 May 2019, the solicitors for the plaintiff listed the first names, initial of surname and suburb of the 21 people who had posted comments on the website www.hipages.com.au with respect to work performed by the third defendant, and the approximate date as to when the work was performed during the period of 2016 to around April 2018; the period during which it is accepted the first defendant had a contract of employment with the plaintiff. At all relevant times, the first defendant was the sole director of the third defendant. [12] In answer to the request as to the use of the plaintiff’s property, in the letter of 23 April 2019, the solicitors for the plaintiff provided details of the property the plaintiff had access to during the period of employment. It was said that the plaintiff is presently unable to better particularise the allegation and will not be able to do so until after review of disclosure. [13] The plaintiff does not assert that the subject paragraphs in the further amended statement of claim are sufficiently particularised but rather that it will not be able to do so until after disclosure. -- 3 of 5 -- 4 [14] In its submissions, particular reference was made to not presently knowing the details of the particulars sought as to who the customers were, the dates when work was done, the details of the work done, the surveying equipment used and when the defendant used it. It is submitted they are matters solely within the knowledge of the defendant. [15] Reliance was placed on the decision of Ambrose J in Harvey v Commonwealth Scientific and Industrial Research Organisation.1 In considering an application for the provision of further and better particulars, his Honour commented: When facts upon which a plaintiff will ultimately seek to rely are solely within the knowledge of a defendant at the time when particulars are required, or are evidenced by documents in the possession of the defendant of which the plaintiff does not have copies, it is obviously impossible for a plaintiff to give particulars of those facts which will not be known until after discovery of documents has been effected or interrogatories answered. It has been common in such circumstances to postpone the obligation to give particulars until after discovery or interrogation of the other side has been completed so that the person required to provide particulars designed to limit the issues at the trial is aware of the documentary evidence in the possession of the other party or facts within the knowledge of that party upon which reliance will be placed to establish those facts. Once the plaintiff becomes aware of such facts then of course if they are to be relied upon at trial particulars should be given.2 [16] In that case his Honour commented that an enormous number of particulars had been provided but the position was that the plaintiff could not provide any more until after discovery had been effected by the defendant. [17] Here, the plaintiff, like in Harvey, has expressed a willingness to provide further and better particulars after disclosure. In the circumstances, that course is appropriate certainly so far as the disclosure of all records of the defendants, for the period during the term of the employment contract. [18] The position as regards the period post-employment to the date of commencement of the proceedings is more complicated. The plaintiff has not articulated a factual basis for this complaint. Different legal considerations may also arise. Absent some basis for complaint and some limiting factors, the pleading is so broad as to provide insufficient basis for an order for disclosure for that period at this stage of proceedings. Orders [19] On the basis of the above, the orders the court will make are: 1. The defendants file and serve a list of documents directly relevant to the issues in dispute between 15 April 2016 to 18 April 2018 on or before 6 August 2019; 2. Within 14 days of receipt of the list of documents referred to in paragraph 1, the plaintiff provide further and better particulars of the allegations in paragraphs 14(a), 14(b), 14A(a), 14A(b) and 15(b) of the 1 [2000] 2 Qd R 294 (Harvey). 2 Ibid, [23]. -- 4 of 5 -- 5 Further Amended Statement of Claim, as detailed in the letter from the defendants’ solicitors dated 1 April 2019; 3. The application of the plaintiff filed 25 June 2019 and the application of the defendants filed 24 June 2019 be otherwise adjourned to a dated to be fixed by either party on 7 days’ notice to the other party; 4. The costs of each application to date be each party’s costs in the cause. -- 5 of 5 --