WorkPac Healthcare Pty Ltd v Rovic (No 2)
[2017] QDC 82
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- Unreported Judgment
- WorkPac Healthcare Pty Ltd v Rovic (No 2)[2017] QDC 82
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WorkPac Healthcare Pty Ltd v Rovic (No 2)[2017] QDC 82
WorkPac Healthcare Pty Ltd v Rovic (No 2)[2017] QDC 82
DISTRICT COURT OF QUEENSLAND
CITATION: | WorkPac Healthcare Pty Ltd v Rovic & Ors (No 2) [2017] QDC 82 |
PARTIES: | WORKPAC HEALTHCARE PTY LTD v BRANKA ROVIC and SUPREME NURSING PTY LTD (ACN 616 337 136) and PRINCIPISSA BELLATRICUS PTY LTD (ACN 616 324 451) and ELITE DUCE PTY LTD (ACN 616 234 015) |
FILE NO/S: | B5047/2016 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court at Brisbane |
DELIVERED ON: | 11 April 2017 |
DELIVERED AT: | Brisbane |
HEARING DATE: | On the papers Plaintiff’s submissions dated 7 March 2017 Defendant’s submissions dated 25 March 2017 |
JUDGE: | Smith DCJA |
ORDER: |
|
CATCHWORDS: | COSTS – Whether unsuccessful defendants should pay costs of application for interlocutory injunction Uniform Civil Procedure Rules 1999 (Q) r 681 Devereaux Holdings Pty Ltd v Pelsart Resources NL (No 2), Supreme Court of New South Wales, unreported 24 July 1985 Metropolitan Petar, Diocesan Bishop at the Macedonian Orthodox Church of Australia and New Zealand & Anor v the Macedonian Orthodox Community Church St Petka Inc & Anor (No 2) [2007] NSWCA 142 WorkPac Healthcare Pty Ltd v Rovic & Ors [2017] QDC 22 |
COUNSEL: | Mr G Handran for the plaintiff Mr J Lavercombe for the defendants |
SOLICITORS: | Davidson Ryan Lawyers for the plaintiff Lillas & Loel Lawyers for the defendants |
Introduction
- [1]This is the costs decision consequent on the decision given in WorkPac Healthcare Pty Ltd v Rovic & Ors.[1]
Plaintiff’s submissions
- [2]The plaintiff submits that on 18 December 2016 the defendants were asked to give suitable undertakings but refused to provide these which put the plaintiff to considerable legal effort and expense. On 22 January 2017 at the second return date, a detailed outline of argument was delivered by the plaintiff and by then the defendants had been served with substantial affidavit material.
- [3]On 25 January 2017, after Ms Rovic obtained two adjournments, the defendants belatedly received brief affidavits. It is submitted they did not challenge either the enforcement of the restraints of trade or the depositions upon which the plaintiff relied on. They relied on a so called “release” contention and considerations directed at the balance of convenience.
- [4]It is submitted that costs should follow the event here.[2]It is submitted there is no definitive governing rule concerning costs in such proceedings. If there is a usual practice it is submitted that the plaintiff raised a strong and, save for the “release” contention, an uncontested prima facie case. By 25 January 2017, the defendants should have offered satisfactory undertakings. The defendants strongly resisted the application which was unreasonable, he submitted. It is submitted that damages were never an adequate remedy and there was never any chance of success on the “release” contention. In the circumstances, it is submitted that costs should follow the event or, at the very least, even if the plaintiff fails at trial, it should be entitled to recover its costs. Accordingly, the orders sought is that the defendants pay the plaintiff’s costs of the application filed 21 December 2016 and 23 January 2017, save for the costs ordered on 22 January 2017, or alternatively that the defendants pay the plaintiff’s costs of the applications filed 21 December 2016 and 22 January 2017, save for the costs ordered on 22 January 2017 in any event.
Defendants’ submissions
- [5]The defendant submits that costs should be costs from the cause. It is submitted that leave was sought by the plaintiff to join the three corporate defendants which orders were not opposed. It was also submitted that the order for a speedy trial was not granted. There were associated directions.
- [6]As to the injunctive relief, no final determination has been made in relation to the dispute between the parties. It is submitted that the plaintiff’s submissions are inconsistent with Petar v Macedonian Orthodox Community Church St Petka Inc (No 2).[3]It is submitted the final determination of the dispute is critical to the determination of the costs in such proceedings. It is submitted that the affidavits by Mr Prasad and Mr Douglas were only served on the morning of the hearing on 25 January 2017. The defendants did not take an unreasonable position, not suggesting there was no serious question to be tried. It is also submitted that comprehensive undertakings were provided. It was also submitted[4]that insufficient notice was provided by the plaintiff before commencing the proceedings. Evidence relied on by the plaintiff was “opaque” and that the undertakings provided were sufficient.
Relevant principles
- [7]The starting point in assessing a costs order is UCPR r 681. This provides that “costs of a proceeding, including an application in a proceeding, are in the discretion of the court but follow the event, unless the court orders otherwise.”
- [8]
“(a) If the material before the primary judge on the interlocutory hearing discloses that there is an arguable or prima facie case and it is more or less conceded in argument that such is the case so that an interlocutory injunction is granted, then the costs of the interlocutory injunction of costs in the cause, though sometimes they may be made plaintiff’s cost for the cause
- (b)If in the situation set out in (a) the defendant does not concede the inevitability of an interlocutory injunction being granted, then the proper order is that the plaintiff’s costs be his cost to the cause, or even that the defendant pay the plaintiff’s costs in any event…”
- [9]At [27]:
“Applications for interlocutory injunctions are commonplace. If there is nothing to distinguish an application from the typical case that comes before the court, then the underlying jurisprudence relating to the exercise of the discretion may warrant the making of what is referred to in the legal vernacular as the “usual order”, whether that be costs in the cause or the plaintiff’s costs in the cause. The making of such an order does not displace the exercise of the court’s discretion. Rather, it is a shorthand form of giving effect to the principles that govern the court’s discretion in circumstances where there are no countervailing or different circumstances to warrant the exercise of the discretion in a different manner.”
- [10]Indeed in “Injunctions, A Practical Handbook”,[7]it was observed that an order to pay costs is more likely where the interlocutory injunction was strongly contested and was determined the other way.
Discussion
- [11]In my view, the plaintiff’s case here was strong. The defendant failed to offer suitable undertakings, hence the order made by the court. The version put forward by the defendants was found to be improbable. Paragraphs 49, 56 and 57 of the primary judgment are relevant to the exercise of the discretion. I set out [56]-[58]:
“[56] In those circumstances, I do not consider Ms Rovic’s evidence as to the release from the restraints terribly convincing and find Mr Prasad’s and Mr Douglas’ versions more probable.
[57] Also, based on the material I find as follows:
- (a)Ms Rovic swiftly commenced a compete with the plaintiff for work at the prisons shortly after the termination of her employment;
- (b)it may readily be inferred that she has used and is using the relationships and knowledge she gained solely by reason of her employment with the plaintiff;
- (c)she has solicited and attempted to solicit candidates and employees from the plaintiff;
- (d)the plaintiff has demonstrated a strong case that Ms Rovic has breached and continues to breach her employment agreement including by soliciting work from the plaintiff’s clients, approaching its candidates and taking confidential information from the plaintiff by download (whether it be by herself or agents);
- (e)she has used and may continue to use confidential information of the plaintiff; and
- (f)she has acted in consultation with others, namely Mr Chand and to date has failed to disclose the nature, extent and use of the confidential information taken from the plaintiff during her secure login.
[58] I find it telling that Ms Rovic has declined to descend into detail in her affidavits to respond to the allegations raised by the plaintiff in its material.”
- [12]The plaintiff’s had good grounds upon which to bring the application. Suitable undertakings should have been offered. The application was unsuccessfully contested by the defendants.
- [13]For these reasons, in the exercise of the court’s discretion I have determined that the defendants should pay the costs of the applications but I have determined to defer this until the conclusion of trial.
Order
- [14]Accordingly, I order the defendants pay the plaintiff’s costs of the applications filed 21 December 2016 and 23 January 2017, save for the costs ordered on 22 January 2017 as agreed or assessed on the standard basis, in any event.
- [15]I give liberty to apply.