ETS Nominees Ltd, ETS Engineering Consultants Ltd & Anor v Webb & Ors [1994] QSC 108

TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION THOMAS J No 1277 of 1990 ETS NOMINEES LTD and ETS ENGINEERING CONSULTANTS LTD and ETS ARCHITECTS PTY LTD and IAN WEBB and LINDSAY FAWDRY and URBAN ENGINEERING PTY LTD and REID GEORGE ARCHIBALD and ,··t:VlSEo coP:Es 1·J~UED • State RJporttn~ Bureau ! Date I I First Plaintiff Second Plaintiff Third Plaintiff First Defendant Second Defendant Third Defendant Fourth Defendant 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 227 4360. Facsimile: (07) 227 5532 - - . --- - - -- 1 of 8 -- ROSS BRIAN TAYLOR Fifth Defendant and KENNETH ROBERT WILLIAM NEILSON Sixth Defendant BRISBANE .. DATE 21 /03/94 10 JUDGMENT 20 30 ( I 40 50 60 2 -- 2 of 8 -- '- 210394 HIS HONOUR: This is an application for further answers to interrogatories delivered by plaintiffs for interrogation of defendants. The parties agree that the rulings which I shall give in relation to the interrogation of the first defendant, Mr Webb, will give sufficient indication to allow orders to be 10 made in relation to the interrogatories delivered for interrogation of the other defendants also. The action is concerned with allegations by the former employers of the first two defendants who are alleged to have 20 breached their duties in relation to confidential information obtained during their employment and to have given the benefit thereof to the third defendant, Eraland Pty Ltd. There are allegations of procurement of the plaintiff's customers by the first two defendants in favour of the third defendant. The essence of the allegations is to be found in paragraphs 13(b), (c) and (e} of the statement of claim. One of the most important of the allegations is that the defendants "made use of confidential information to solicit customers of the plaintiff". There are further allegations of procurement in various paragraphs of the statement of claim and these matters are put in issue by the defence. The statement of claim designates six particular customers who are alleged to have been procured. Against that brief resume, I approach the interrogatories that are in issue. I will make a general observation. One of the principal submissions of Mr Morris QC on behalf of the respondent is to 3 JUDGMENT 30 40 50 60 _j -- 3 of 8 -- 210394 the effect that the use of confidential information is at the heart of the claim and that the interrogatories are not directed to that issue. He submitted that questions which are directed to solicitation or procurement alone could not surmount the barrier of relevancy. I should indicate that I do not accept that submission. It seems to me that having regard to the degree of relevancy required of interrogatories, the plaintiff would not be 10 precluded from asking about solicitation per se in the context 20 of an allegation in the statement of claim that the defendants made use of confidential information to solicit customers of the plaintiff. Not every interrogatory has to contain all the elements of a mixed proposition. I shall now consider the interrogatories in specie. 1. INTERROGATORIES NOS 5 - 12. 30 It seems to me that all the interrogatories in this batch are in~ one way or another directed to the same theme and are generally relevant as part of a legitimate chain of inquiry in a case such as this. However, it seems to me that whilst interrogatories five and seven have some relevance, they are too wide and probably may be described as fishing so interrogatories. I do not regard them as necessary for the fair trial of the action. Therefore, whilst conceding potential relevance, I would not 60 4 JUDGMENT -- 4 of 8 -- --;:----:;--._ .. -~~---~----·--------- ~~- .... _ .......... ~-- .... ~~-.... ~---·------ 210394 be prepared to order that numbers five and seven be answered. However, I regard numbers 6 and 8, which are a little more specific and are more directly relevant to the issues as being interrogatories that should be answered. Numbers 9 to 1 2 canvass the defendant Webb' s intention to commence his own engineering consultancy and may be regarded as more specific examples of the subject matter of interrogatories numbers 5 to 8. I think they are sufficiently relevant to require answering. INTERROGATORY NO 13 are not specifically 10 20 This inquires about surveyors who mentioned in the statement of claim. relation to this matter, but I think I have hesitated in 30 that it does have a fishing odour about it and that it is not sufficiently related to the issues in the statement of claim to require answers. I decline to order answer of interrogatory 13. INTERROGATORIES NO 18 There are two interrogatories numbered 18. Each of these is, in my view, obviously relevant. Indeed, it is quite close to proof of a central issue. However, these interrogatories suffer from being too broadly drawn in the sense that they ask about procurement of consultancy work in respect of subdivisional projects ''from any of the following persons or companies or persons or companies associated with them". 5 JUDGMENT 40 50 60 -- 5 of 8 -- 210394 The reference to further companies or persons associated with the six persons or companies designated in that interrogatory in my opinion makes the interrogatory too wide and it should not be ordered to be answered in its present form. I would, however, on the application of the applicants grant leave to re-deliver interrogatories on the subject matter of interrogatories number 18 deleting unduly wide coverage of the kind I have indicated. That should only be granted on appropriate terms as to costs that have been thrown away and 10 possible additional costs that may be incurred. 20 INTERROGATORY NO 17. I have noted the respondent's submission that neither Mr Nelson nor Urban Engineering was a customer of the plaintiff. 30 It may be, as Mr Morris submits, that the defendant Webb was merely trying to set up a position for himself after leaving the plaintiff. However, it seems to me that the subject matter of the letter is not too remote to be the subject of a fair inquiry in relation to steps taken whilst still employed 40 with the plaintiff that might lead to his obtaining for his own benefit customers of the plaintiff. Accordingly, the interrogatory should be answered. INTERROGATORY NO 22 I regard this as too wide, embarrassing and not necessary for the proper conduct of the proceedings and propose to say no more about it. 6 JUDGMENT 50 60 -- 6 of 8 -- ~~-----~~-~- ---- --- ------·--- ·------~------~-~-· _____ __j 210394 INTERROGATORY NO 23 This asks certain things that Mr Webb is said to have agreed to do in relation to projects that are mentioned in the statement of claim and which are said to have been lost. It seems to me to be relevant and that this interrogatory should be answered. INTERROGATORY NO 24 The same remarks as those concerning interrogatory 23 apply to this interrogatory. It should be answered. HIS HONOUR: I think perhaps I might ask you to return after lunch with drafts in all matters. Do you want to make your submissions on costs now? HIS HONOUR: I grant leave to amend interrogatories number 18 by deleting the words 11 all persons or companies associated with them 11 • HIS HONOUR: For a combination of reasons, I do not see this as a case in which I should make a peremptory order for costs 7 JUDGMENT 10 20 30 40 50 60 -- 7 of 8 -- ----- -------------;;c~_c----- 210394 against the respondent. It seems to me to be an appropriate case for the costs being made the plaintiff 1 s costs in the cause. HIS HONOUR: What I really had in mind, and perhaps I have not explained it clearly, was to notionally set off the advantage that the respondent is entitled to for the taxation of costs 10 on 18 and so on. I shall make no order for costs at all in 20 · favour of the respondent on those issues and give the plaintiff less than he might normally get, by making the plaintiff 1 s costs of today costs in the cause. The applicant 1 s costs of the summons will be applicant 1 s costs in the cause. No other order for costs. 30 40 50 60 8 JUDGMENT -- 8 of 8 --