A daily Bulletin listing our choice of Decisions of Superior Courts of Australia.


Thursday, 5 February 2015

Executive Summary (One Minute Read)
Coffey Information Pty Ltd v Cullen (FCA) - preliminary discovery on basis of alleged use of confidential information refused
Swindells v Victoria (VSC) - employment contract - misleading and deceptive conduct - no unlawful appointment and removal of mining warden - claim dismissed
Baldwin v Icon Energy Ltd (QSC) - pleadings - contract - claim for breach of memorandum of understanding struck out
Australia and New Zealand Banking Group Ltd v Manasseh (WASC) - bank’s claim for amount owing under guarantee dismissed 
Summaries With Link (Five Minute Read)
Coffey Information Pty Ltd v Cullen [2015] FCA 28
Federal Court of Australia
Farrell J
Preliminary discovery - prospective applicant sought order for discovery against prospective respondents on basis of alleged use of confidential information by departing employees - r7.23 Federal Court Rules 2011 (Cth) - reasonable belief of right to obtain relief - reasonableness of enquiries - conduct relied upon - sufficiency of information to start proceedings - held: necessary for Court to consider position of each individual respondent - applicant had used proceedings as an alternative to enquiries which were necessary to satisfy requirements of r7.23 - applicant did not satisfy requirements of r7.23 - application dismissed.
Coffey Information Pty Ltd
Swindells v Victoria [2015] VSC 19
Supreme Court of Victoria
Macaulay J
Employment contract - misleading and deceptive conduct - plaintiff alleged he was unlawfully appointed to and removed from office of mining warden by State and Minister - plaintiff claimed damages for loss of salary and entitlements under employment contract, loss of earning capacity, reputational harm and emotional distress - s13 Fair Trading Act 1999 (Vic) - held: State and Minister did not contravene s13 when appointing plaintiff - in removing plaintiff State and Minister did not repudiate or  breach any term of employment contract, deny him procedural fairness, act for an improper purpose or with apprehended bias - claim dismissed.
Baldwin v Icon Energy Ltd [2015] QSC 12
Supreme Court of Queensland
P McMurdo J
Pleadings - contract - parties entered memorandum of understanding (MOU) to the end of entering into gas supply agreement - no gas supply agreement concluded - plaintiff sued defendants, claiming they did not negotiate as they promised in MOU - defendants sought to strike out statement of claim on basis it disclosed no reasonable cause of action or was otherwise an abuse of process -  rr171(1)(a) & 171(1)(e) Uniform Civil Procedure Rules 1999 (Qld) - held:  promises within clauses of MOU were uncertain and unenforceable - promises within one clause taken alone were enforceable - open to plaintiff to make claim for damages for breach of terms in that clause but plaintiff had made no distinct claim - claim for loss and damage deficiently pleaded - statement of claim struck out.
Australia and New Zealand Banking Group Ltd v Manasseh [2015] WASC 34
Supreme Court of Western Australia
McKechnie J
Contract - guarantee - defendant’s husband borrowed money on behalf of company from bank - defendant provided guarantee secured by mortgage - bank contended guarantee continued for subsequent credit contracts offered or made to company - bank sued on one of the subsequent contracts (November 2009 credit contract) - defendant claimed liability came to an end on termination date of extension to guarantee to which she had agreed - defendant did not agree to guarantee November 2009 credit contract - held: no misleading or deceptive conduct by bank - defendant’s obligation could only end when company had performed all of its obligations to bank and discharged its liability in full - however November  2009 credit contract was in substance a replacement agreement which adversely affected defendant’s liability under guarantee - defendant would only become liable if she consented or entered into new guarantee - bank’s claims under guarantee and mortgage dismissed.
Australia and New Zealand Banking Group Ltd