Elders Rural Services Australia Ltd & Anor v Gooden [2014] QDC 104

1 [2014] QDC 104 DISTRICT COURT OF QUEENSLAND CIVIL JURISDICTION JUDGE BAULCH SC No. 140 of 2014 ELDERS RURAL SERVICES AUSTRALIA LIMITED and ANOTHER Applicant and ANTONY JOHN GOODEN Respondent BRISBANE 9.34 AM, FRIDAY, 28 FEBRUARY 2014 JUDGMENT -- 1 of 5 -- __________________________________________________________________________________ 2 JUDGMENT HIS HONOUR: Now, this is the matter of Elders Rural Services Limited & another v Gooden. I note that the appearances are different, and I might just ask you to announce your appearances so that the record will be complete. Thank you. MR A.W. DUFFY: Thank you, your Honour. My name is Duffy, D-u-f-f-y, initials 5 A.W., counsel instructed by Herbert Smith Freehills for the applicants. HIS HONOUR: Thank you. Yes, Mr Grant. MR S.R. GRANT: Your Honour, my name is Grant, initials S.R. I’m instructed by 10 Hall & Wilcox, W-i-l-c-o-x, for the respondent. HIS HONOUR: Thank you. I indicated yesterday that I would, if I was able to reach a conclusion about the matter, announce that conclusion today although it will take a little time to deliver the reasons. 15 I have concluded that the restraints relied upon by the applicants in this case are void for uncertainty. They are also wider than is necessary to protect the applicants’ legitimate interests 20 and, in my opinion, that defect is unable to be remedied either by a reading down of the clauses or by severing parts of them to leave an enforceable remainder. It follows, in my opinion, that the applicants cannot succeed either in a claim for an injunction or in the claim for damages added by leave. Accordingly, it seems to me 25 appropriate to order that the originating application filed on the 16th of December 2013 and amended by leave be dismissed. I further order that the order made by Ryrie J on the 15th of January 2014 as varied by me be dissolved. For completeness and insofar as any restraint depended in 30 whole or in part upon an undertaking I order that any undertaking given by the respondent be released. I will hear the parties as to costs on a date to be fixed following the delivery of my detailed reasons. I’m hesitate to forecast when that will be, but I hope that the reasons will be delivered before the end of March. Is there any other order sought today. 35 MR DUFFY: Can I say this, please, your Honour: your Honour, when indicating the other night on Wednesday evening before he rose of your Honour’s proposed course, your Honour did say that your Honour’s intention was that a party’s appeal rights wouldn’t begin to run until reasons were published. 40 HIS HONOUR: Yes. MR DUFFY: Your Honour, the effect of the rules is that upon pronouncement of judgment appeal time in fact runs so that if your Honour was not intending to, in 45 effect, formally pronounce judgment today then the appeal time wouldn’t run, but if your Honour is, in fact, formally pronouncing judgment now, then appeal time runs from now. -- 2 of 5 -- __________________________________________________________________________________ 3 JUDGMENT HIS HONOUR: So what do you say the consequence of that is. Perhaps I shouldn’t dismiss the originating application today but make the other orders. MR DUFFY: Well, consistent with your Honour’s indication the other night - and I can give your Honour the transcript reference, if necessary - consistent with that your 5 Honour would, in effect, say that this was your intention but that you are not formally pronouncing judgment yet, then the appeal time wouldn’t run until you do. HIS HONOUR: Yes. And where would that leave Mr Gooden? 10 MR DUFFY: Well, the injunction would still be in place until judgment. HIS HONOUR: Well, the very purpose of me dealing with the matter in this way was to avoid that because - - - 15 MR DUFFY: I understand that. I understand what your Honour is - - - HIS HONOUR: - - - he’s been kept out of work for some time, now. To me it’s just unthinkable that the Court of Appeal wouldn’t extend the time if that should become necessary by reason of any delay by me in delivering the reasons. 20 MR DUFFY: Yes. HIS HONOUR: One couldn’t expect a notice of appeal to be filed when parties haven’t had an opportunity to read the detailed reasons. 25 MR DUFFY: The more immediate issue would be, your Honour, approaching the Court of Appeal for an interlocutory injunction pending appeal which would be difficult in those circumstances. 30 HIS HONOUR: Yes. MR DUFFY: That is the key difficulty that we face. The other possibility, your Honour, is this, if I may: rule 660 of the Uniform Civil Procedure Rules, subrule (3) says this, “However, the court may order that an order takes effect as of an earlier or 35 related date”. So your Honour, if your Honour is not minded to withhold pronouncing judgment in that formal sense, could I invite your Honour at least to make as part of your order that the order not take effect for, say, seven days to enable instructions to be obtained about the question of approaching the Court of Appeal which, of course, the applicants wouldn’t want to do unless – without proper 40 consideration. We won’t have your Honour’s reasons by that time but, at least, have the opportunity to take instructions. I can hand up my copy of the rules if that assists. HIS HONOUR: My associate is just going to print out the rule. Thank you. So 45 what you’re seeking is that I make a further order that the orders I’ve made today not take effect for a period of seven days. -- 3 of 5 -- __________________________________________________________________________________ 4 JUDGMENT MR DUFFY: Yes, your Honour. HIS HONOUR: All right. Mr Grant. MR GRANT: We would, of course, object to that course of action, your Honour. 5 As you have correctly pointed out now, the respondent has been out of work for two months. And they’ve had actually five months notice in relation to what has occurred and the fact that Mr Gooden was going to work for Ruralco. Under 748 it is quite clear that the Court of Appeal can give leave to extend time in relation to the filing of the notice of appeal, but this is a matter in any event where, as a result of the 10 District Court Act provisions, the applicants are going to need to seek leave to appeal to the Court of Appeal. HIS HONOUR: Yes. 15 MR GRANT: So that will have to be put in place. And you know, that can be dealt with by a single judge relatively quickly on the papers. The applicants have had the unreasonable benefit for the last two months of having Mr Gooden held out of the workforce, in our submission. And accordingly, the orders should operate from today. And if the applicants, you know, want to make an application for a stay and 20 leave to appeal, then they can do so, and I’m fairly sure that instructions will be given fairly quickly. HIS HONOUR: Yes. 25 MR GRANT: You know, your – sorry - I apologise for interrupting you. Your orders this morning have been comprehensive in relation to the reasons behind your decision in that you have been able to articulate not just one point; a number of points in relating to the reason why the respondent has been successful – wholly successful in this matter and, accordingly, you know, it can be safely taken your 30 Honour has turned your mind to it carefully that, you know, this is a matter which should be finalised as soon as possible. HIS HONOUR: Yes. It occurred to me that there might be some net cause of preserving the time question by not formally dismissing the originating application, 35 but that’s not really what the applicants wants me to do; they want me to leave the injunction in place. MR GRANT: Well, the interim injunction on the basis of, you know, you’ve clearly given your reasons if the applicants wish to seek an interim injunction pending 40 delivery formally the decision, but that won’t make a change in relation to time as your Honour has correctly pointed out. Under 748 the Court of Appeal can extend time. HIS HONOUR: Yes. 45 -- 4 of 5 -- __________________________________________________________________________________ 5 JUDGMENT MR GRANT: And given the way this matter has run it would be, you know, us doubting, to be honest, that they wouldn’t extend the time for the short period. HIS HONOUR: Yes. 5 MR GRANT: And it would be nigh on impossible to make an argument against any extension of time by either party. HIS HONOUR: Yes. Thank you. So I’m not disposed to postpone the operation of the orders that I’ve made, so it will take effect from today. And the applicants will 10 just have to take such steps as they may be advised. MR DUFFY: Thank you. HIS HONOUR: There’s no other order required today. 15 MR GRANT: I don’t believe so. No. HIS HONOUR: The only reason that I mentioned an undertaking was that I was in some doubt as to whether the continuance of the injunction until judgment depended 20 upon an undertaking. MR DUFFY: It didn’t depend upon an undertaking by the respondent. There was an undertaking originally from December until January, but that’s now spent because upon the order on the 15th of January the respondent’s undertaking, in effect, expired. 25 HIS HONOUR: Yes. Well, that part of the order may be surplus in that circumstance. MR DUFFY: Yes, your Honour. 30 HIS HONOUR: But I’ll leave it there in any case in case there’s any doubt about the matter. MR GRANT: Thank you, your Honour. 35 HIS HONOUR: There’s nothing else, then. MR GRANT: Nothing else, your Honour. 40 HIS HONOUR: Thank you. Would you adjourn the court. ______________________ 45 -- 5 of 5 --