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CJ Turner & Associates Pty Ltd v Wellington QDC 85
DISTRICT COURT OF QUEENSLAND
CJ Turner & Associates Pty Ltd v Wellington  QDC 85
CJ TURNER & ASSOCIATES PTY LTD (ACN 124 291 210) T/AS ALLIED CONNECT
30 May 2019
22 May 2019 and 24 May 2019
Williamson QC DCJ
CIVIL PRACTICE & PROCEDURE – QUEENSLAND CIVIL PROCEDURE – INJUNCTIONS – INTERIM INJUNCTIONS – application for interim injunction restraining the defendant from certain employment – whether there is a prima facie case to grant the injunction.
Mr L Reidy for the Plaintiff /applicant
Mr B McEniery for the Defendant/respondent
Aitken Legal for the Plaintiff /applicant
MJT Law for the Defendant/respondent
- The applicant seeks an interlocutory injunction to restrain the respondent, a former employee, from engaging in conduct that it contends is in breach of a negative covenant in her contract of employment. The application is opposed by the respondent.
- The respondent is employed as a physiotherapist by Bolton Clarke (BC), who is an aged care provider. She commenced employment with BC on 8 April 2019 at an aged care facility known as ‘Rowes Bay’, which is located in Townsville (Rowes Bay). The respondent’s contract of employment with BC is for a period of 12 months. The contract is intended to fill a gap in the number of professional staff employed by BC at Rowes Bay, which was created by a physiotherapist who has taken maternity leave.
- Prior to 8 April 2019, the respondent was employed by the applicant as a physiotherapist. She terminated her contract of employment on 12 March 2019. The applicant alleges the respondent, in taking up employment at Rowes Bay, is in breach of clause 16.3 of her contract of employment, which states:
“In consideration of your employment and to protect our goodwill and confidential information you agree that you will not in any capacity, directly or indirectly:
(a) within the following areas:
(i) 100 Kilometres from your permanent workplace;
(ii) 50 Kilometres from your permanent workplace;
(iii) 10 Kilometres from your permanent workplace;
(b) for the period of employment and for the following periods after termination of employment:
(i) nine months;
(ii) six months;
(iii) three months;
(c) do, or counsel or procure others to do, any of the following:
(iv) become an employee of any client customer or employee of ours, with whom:
(A) we had performed work for in the 12 months preceding termination of this agreement; or alternatively
(B) you have had work related contact in the 12 months preceding the expiry or termination (sic) this document,
in order to perform work which we might reasonably expect to otherwise perform.”
- Paragraph 8 of the applicant’s Statement of claim alleges that the respondent commenced employment at Rowes Bay as a physiotherapist on a date unknown between 26 March 2019 and 10 April 2019. This is the alleged breach of clause 16.3. Particulars of the breach are provided in the applicant’s Statement of claim. In simple terms, the particulars allege that:
- (a)BC is a client/customer of the applicant;
- (b)the respondent had work related contact with BC during the time of her employment with the applicant, and that contact occurred up to the date of termination;
- (c)the respondent commenced employment as a physiotherapist with BC within 9 months of the date of termination and within 10 kilometres from the location where she last had work related contact with BC, namely an aged care facility in Townsville known as Glendale (Glendale); and
- (d)the applicant reasonably expected to perform the physiotherapy work that the respondent was employed to provide at Rowes Bay.
- For the purposes of this application, the respondent did not take issue with the matters set out in subparagraphs (a) to (c) above. Rather, the primary opposition to the application is directed towards subparagraph (d), which arises on the last sentence of clause 16.3(c)(iv) of the contract of employment. It is submitted on her behalf that the ‘reasonable expectation’ that would engage the negative covenant contemplated by the clause is not established on the evidence (as it presently stands) before the court. To examine what may, or may not be a reasonable expectation in the circumstances, it is necessary to deal with some background relevant to the applicant, and its business relationship with BC.
- The applicant carries on a business that is a specialist allied health service provider. It employs a range of allied health professionals to treat residents of aged care facilities. The professionals employed include physiotherapists.
- As an aged care provider, BC is one of the applicant’s major clients. In late September 2016, they entered into an ‘Allied health agreement’ (the AHA) about the supply of services. Clause 2.2 of the AHA requires the applicant to provide ‘services’ to BC, which are defined in a Schedule to the agreement and include ‘Physiotherapy…services contemplated by a Request that has been accepted in accordance with clause 2.2’. The services provided by the applicant under clause 2.2 are for identified ‘Service Locations’. These locations are defined as, inter alia, ‘a Facility’. The facilities that apply to the AHA are identified in the Schedule to the agreement. Rowes Bay is not listed in the Schedule as a Facility to which the AHA applies.
- Clause 3.2(b) of the AHA provides an opportunity for BC to add a new facility to the AHA. This occurred in November 2017. The facility added to the agreement was Glendale. Under her employment contract, the respondent’s workplace was defined to include this facility, where she was the primary physiotherapist. It is not contended by the applicant, nor is it established on the evidence, that BC communicated an intention to the applicant to add Rowes Bay as a ‘new facility’ (under clause 3.2(b)) to the AHA.
- The written submissions prepared on behalf of both parties proceed on the footing that the fate of the application turns on the answer to these questions: (1) Has the applicant made out a prima facie case in the sense that if the evidence remains as it is, there is a probability that at a trial of the substantive proceeding the applicant will be entitled to the relief it seeks? and (2) Does the balance of convenience and justice favour the grant of the injunction? I accept these are the correct questions to be determined in this application.
- In the context of the first of these questions, both parties submitted the applicant must show a sufficient likelihood of success to justify the preservation of the status quo, pending trial. I accept this submission.
- The respondent resists the application for an interim injunction on two bases. She contends that:
- (a)a prima facie case has not been made out by the applicant because:
- (i)clause 16.3 of the employment contract is void for uncertainty; and
- (ii)clause 16.3(c)(iv) was not enlivened as it was not reasonable for the applicant to expect to perform the work the she has been employed to perform by BC;
- (b)further or in the alternative, the balance of convenience favours her because the consequences of granting the relief are profound.
- I will deal with each of the above contentions in turn.
Is clause 16.3 void for uncertainty?
- Counsel for the respondent submitted that clause 16.3 of the contract of employment is void for uncertainty because it does not clearly delineate the territory where the negative covenant is intended to operate. This is said to arise because the contract does not identify a single point from which the cascading radii in subclause 16.3(a) can be drawn.
- I do not accept that clause 16.3 of the contract of employment is void for uncertainty. The territory to which the negative covenant applies is determined by applying the specified radii in clause 16.3(a) to the applicant’s ‘permanent workplace’. This phrase is not defined in the contract of employment, but its meaning can be ascertained by reading the contract of employment as a whole, and in the way a reasonable business person would have understood the phrase.
- To read the contract of employment as a whole, in this instance, requires the phrase ‘permanent workplace’ to be read with clause 3 and Schedule 1. It takes its meaning, in this case, from clause 3.1, which states that ‘Your Workplace is set out in Schedule 1’. The Schedule contains an entry that reads ‘Workplace (clause 3)’. The corresponding entry in the Schedule identifies three locations, including ‘Bolton Clarke Glendale – 431-459 Dalrymple Road, Mount Louisa’. The applicant’s ‘permanent workplace’ is the combination of each location identified in Schedule 1. Her workplace included Glendale. It did not include Rowes Bay.
- It may not always be the case that the Workplace identified in the Schedule is the ‘permanent workplace’. This is reflected in clause 3.3 of the employment contract. This clause anticipates that a Workplace may be ‘permanently’ altered during the life of the contract to include a new, or different workplace. This is anticipated by the phrase ‘permanent workplace’ in clause 16.3. This provision attaches to the permanent workplace, which may not necessarily be reflected in Schedule 1. The Schedule may be overtaken by events, as is anticipated by clause 3.3. This circumstance does not arise on the evidence here. There was no change to the respondent’s workplace for the purposes of the contract of employment. Her permanent workplace is that identified in the Schedule to the contract of employment.
- Against this background, the cascading radii and the territory to which clause 16.3 applies can, in my view, be identified with certainty. A defined territory can be measured for each of the locations identified as a ‘Workplace’ in Schedule 1. This is done by applying the cascading radii to each location. To the extent the three resulting areas do not neatly coincide, this is dealt with by clause 16.4. This clause of the contract of employment provides that the negative covenant applies to the combination of all territories created by application of clause 16.3(a). This does not give rise to any uncertainty.
- It has not been established by the respondent that clause 16.3 is void for uncertainty.
Is clause 16(3)(c)(iv) engaged?
- Paragraph 8 of the applicant’s Statement of claim alleges that the respondent is in breach of clause 16(3)(c)(iv) of her employment contract because she is performing physiotherapy work at Rowes Bay. She denies there has been any breach of the contract. It was submitted on her behalf that: (1) clause 16.3(c)(iv) will only be enlivened upon her becoming an employee of BC in order to perform work that the applicant might reasonably expect to perform; and (2) it is not reasonable for the applicant to expect to perform the work she has been employed to perform because it had no contractual appointment to provide physiotherapy services at Rowes Bay.
- The submission made on behalf of the respondent in this respect is compelling for two reasons.
- First, the submission proceeds on the footing that the applicant’s expectation under clause 16.3(c)(iv), and its reasonability, is to be informed by the AHA. I agree. The underlying reason for this is clear enough. The express terms of clause 16.3(c)(iv) require the applicant to acknowledge that the negative covenant is not cast in absolute terms. It does not prohibit the respondent from becoming an employee of BC in any circumstance. Rather, the clause admits of the prospect that the respondent may be employed by BC, but in limited circumstances, namely where the applicant does reasonably expect to perform the same work. Given the existence of the AHA and its substance, it weighs heavily in determining what work, if any, the applicant can expect to perform for BC.
- Second, the submission is supported by the evidence as it presently stands. The evidence establishes that Rowes Bay is not, and never has been, a nominated facility to which the AHA applies. It follows from this, in my view, that the AHA does not confer an expectation on the applicant that it would perform the work the respondent was employed to perform at Rowes Bay.
- It may be said that the applicant’s expectation could have arisen under the AHA if BC had notified the applicant of an intention to add Rowes Bay as a new facility under clause 3.2. As a general proposition this can be accepted, but the applicant did not contend that BC (either formally or informally) expressed such an intention. There is no evidence to establish the existence of such an intention let alone evidence to establish an outward expression of the intention by BC.
- As a consequence of the above, I am not satisfied the applicant has established on the evidence as it presently stands that it held the reasonable expectation required by clause 16.3(c)(iv) of the employment contract. It follows from this that the applicant has failed to demonstrate a prima facie case of the kind referred to in paragraphs  and  above.
- In the face of the above, the applicant contends that the evidence does prove it held the reasonable expectation required for the purposes of clause 16.3(c)(iv). It was submitted on its behalf that this is established by a number of contextual matters taken in combination. The contextual matters relied upon are pleaded as particulars to paragraph 8 of the Statement of claim. They also include an additional matter raised by counsel for the applicant in oral submissions.
- A threshold issue arose in relation to the contextual matters and the role, if any, they play in the identification of the applicant’s expectations. It was contended by counsel for the applicant that the contextual matters to be taken into account for the purposes of clause 16.3(c)(iv) are those in existence at the time the respondent terminated her employment with the applicant. That is to say, the ‘reasonable expectation’ for the purposes of clause 16.3(c)(iv) is to be ascertained at the time of termination, and no later. The respondent did not accept this was correct having regard to the proper interpretation of clause 16.3(c)(iv) of the employment contract.
- I am not satisfied that the submission advanced on behalf of the applicant in this respect, which represents an important premise for its case, ought be accepted as being correct. The submission has two underlying difficulties: (1) it does not confront the structure of clause 16.3(c), where the ‘reasonable expectation’ is to be considered in a context where the respondent ‘becomes an employee’ rather than has terminated the contract of employment; and (2) the submission requires words to be read into subsection (c) to make it operate in the retrospective way contended by the applicant. It was not established on the evidence, as it presently stands, why the clause should be construed by reference to words that do not appear in the provision itself.
- Mr Reidy conceded that the applicant had the onus of demonstrating a prima facie case. Its prima facie case assumes the construction of clause 16.3(c)(iv) as discussed in paragraph  above is established as being correct. I am not satisfied that this has been made out to establish a prima facie case of the kind referred to in paragraphs  and  above.
- I also note that the construction advanced by the applicant in this context is not, in any event, reflected in its Statement of claim. In paragraph 8, the applicant alleges:
“Despite the terms of the contract and the matter (sic) pleaded in paragraphs 5 to 7 of the Statement of Claim herein, the Defendant commenced employment at Bolton Clarke Rowes Bay as a physiotherapist on a date unknown to the Plaintiff after 26 March 2019 and before 10 April 2019 in breach of her obligations under the Clause 16.3 of the contract.”
- Paragraph 8 is followed by a statement of ‘Particulars of breach’. Subparagraph (c) of the particulars is directed to the issue of ‘reasonable expectations’ under clause 16.3(c)(iv) and states:
“(c) The Plaintiff reasonably expected to perform the work at Rowes Bay because:
(i) The Plaintiff is a Tier 1 provider for other Bolton Clarke facilities which status gave it the opportunity to provide services when Bolton Clarke allied health staff at other facilities took leave;
(ii) The Plaintiff is a Tier 2 provider to Bolton Clarke in the north region where Rowes Bay is located and as a result was in a strong position to provide the services because of its demonstrated prior performance, its stable local staff presence in Townsville, and its local staff who were familiar with Bolton Clarke;
(iii) The Plaintiff’s competitors were unlikely to have the resources to supply staff to carry out the work;
(iv) There is a shortage of appropriately qualified allied health staff in the area;
(v) The Plaintiff’s director Mr Christopher Turner had a good working relationship with the facility manager at Rowes Bay;
(vi) The Plaintiff had the capacity and expertise to provide the services.”
- Neither paragraph 8 nor the supporting particulars, purport to fix the applicant’s ‘reasonable expectation’ to any specific point in time, let alone the date the applicant terminated her employment on 12 March 2019. On its face, there is a disconnect between the applicant’s pleading and its submissions with respect to the prima facie case it contends has been demonstrated. This disconnect was also evident having regard to the affidavits relied upon by the applicant in support of its application for an interim injunction.
- The principal evidence relied upon by the applicant to establish a prima facie case is contained in two affidavits of Mr Turner, who is the sole director of the applicant. At paragraph 82 of his first affidavit, Mr Turner explained why the applicant holds the expectation that it would have performed the work the respondent was employed to perform at Rowes Bay. The explanation provided is not fixed to an expectation that was said to be held at the date of the respondent’s termination, being 12 March 2019. The evidence states why the expectation was held. It does not state: (1) when the expectation was formed; and (2) the facts known to, and relied upon by the applicant at the time the expectation was formed. This undermines the weight that can be given to the applicant’s evidence in support of its prima facie case.
- The applicant’s position is not improved if three assumptions are made in its favour, namely it is assumed that: (1) its interpretation of clause 16.3(c)(iv) as to the time the relevant expectation is formed is correct; (2) paragraph 8 of the Statement of claim and accompanying particulars allege that the relevant, and reasonable expectation, was that formed by the applicant as at 12 March 2019; and (3) the evidence relied upon does not suffer from the difficulty I mentioned above, that is, the evidence can be assumed to refer to the applicant’s expectation at the time the respondent terminated her employment contract, and relies only on facts that were known to exist at that time.
- Save for particular (c)(vi), I am not satisfied that the evidence, as it presently stands, establishes a prima facie case founded on the above three assumptions. An examination of the evidence as against the balance of the particulars cited in paragraph  reveals this to be so.
- With respect to particular (c)(i), it is alleged that the expectation was formed on the premise that the applicant was a Tier 1 provider for other BC facilities, which had the effect of conferring a ‘status’ upon it, along with an ‘opportunity’ to provide the services for which the respondent was employed. It is implicit in the particular that the applicant had been appointed a Tier 1 provider prior to 12 March 2019. It is not pleaded when and in what way this appointment was obtained. This does little to assist the applicant’s prima facie case.
- If this gap in the applicant’s pleading is ignored and it is assumed the AHA appointed the applicant as a Tier 1 provider, this begs the question: what status or opportunity, if any, does the AHA confer on the applicant as a Tier 1 provider? I was not referred to any provision of the AHA by counsel for the applicant that was said to confer the status or opportunity alleged in particular (c)(i). I was unable to independently identify a provision of the AHA that found the basis for the contention. The only clause of the AHA that might be said to found the basis for the contention is clause 3.2, which I dealt with above. This clause provides an opportunity for BC to add new facilities to the AHA. There is no evidence BC had an intention to add Rowes Bay to the AHA. Clause 3.2 is of no assistance to the applicant.
- Perhaps in recognition of the above, counsel for the applicant relied upon paragraph 82 of Mr Turner’s first affidavit to support, inter alia, particular (c)(i). At paragraph 82 of that affidavit Mr Turner said:
“Allied Connect expected that it would provide the backfill services during the period of maternity leave at Rowes Bay if Lisa Welljngton (sic) had not been employed. I expected that Allied Connect would have secured the locum/backfilling engagement based on the Agreement and the scope of works which gives Tier 1 providers an advantaged position for backfilling at facilities not listed in the Agreement…”
- The reference to Allied Connect above is a reference to the trading name for the applicant. Mr Turner, in his capacity as the sole director of the applicant, states why there was an expectation it would ‘backfill’ the role for which the respondent was employed. The evidence reveals that the expectation was said to be based on two things: (1) the ‘Agreement’, being the AHA; and (2) the ‘scope of works’, which the applicant contends gives Tier 1 providers an advantage.
- For the reasons given above, I do not accept that the AHA founds a basis for the expectation to which Mr Turner deposed in paragraph 82 of his first affidavit. The AHA provides no advantage or opportunity for the ‘backfilling’ of services at facilities other than those which are identified in the Schedule to the agreement, or those facilities that are added to the agreement under clause 3.2. As the evidence establishes, and is common ground, Rowes Bay does not form part of the AHA. It is not the subject of any notice under clause 3.2 of the AHA. The first of the two bases relied upon by Mr Turner to found the expectation is not established on the evidence as it presently stands.
- The reference to the ‘scope of works’ in the second of the two bases advanced by Mr Turner is an annexure to a document in the evidence described as ‘RSL CARE – SCOPE OF WORKS – ALLIED HEALTH’. The document is relevant to BC, who was formerly known as RSL Care. I was referred to a limited part of the annexure by counsel for the applicant. The parts to which I was referred state:
As such suppliers have been allocated Tier 1 status for specific disciplines at each site.
1) Primary supplier (Tier 1) identified for each discipline (Physiotherapy split by region – north and south).
2) Primary supplier is to receive first option of service requirements for all nominated sites.
3) Secondary or tertiary supplier will be invited to provide services if the primary supplier is unavailable or if there is a particular Residential Manager/Supplier misalignment (via feedback to Procurement.)…”
“RSL CARE APPROACH TO EMPLOYED ALLIED HEALTH PRACTITIONERS:
1) We would anticipate that Tier 1 Allied Health providers will be allocated the opportunity to back fill annual and emergent leave at sites using employed allied health services…”
- Subject to one matter, the parts of the scope of works document to which I was referred appear to support the contention that Tier 1 status confers an opportunity of the kind that is pleaded in particular (c)(i). The strength of the support this provides for the applicant’s prima facie case is diluted upon closer examination of the document. The document in its terms provides that the opportunity to backfill services arises where a Tier 1 supplier is ‘allocated the opportunity’ to back fill ‘annual leave’ and ‘emergent leave’ at sites using employed BC staff. The evidence does not establish that the reason for the so-called opportunity here was due to annual leave, or emergent leave. Those terms, as they appear in the extract of the annexure above are plainly understood. They would not, in my view, ordinarily encompass an extended period of maternity leave in the order of 12 months. Leave of this nature is not annual leave, nor could it be described as emergent leave. The evidence does not establish that the maternity leave taken by the BC employee was ‘annual leave’ or ‘emergent leave’ in the sense contemplated by the scope of works document to which I was referred.
- This is not however the real difficulty faced by the applicant in its effort to demonstrate a prima facie case by reference to the scope of works document. It has not been established on the evidence, as it presently stands, why it was reasonable to draw an expectation, if any, from the scope of works document. The document is undated. On Mr Turner’s evidence, it appears to have come into existence in November 2015, being a date prior to the execution of the AHA. It does not form part of the AHA and I was not referred to any provision of the AHA that was said to embody what is set out in the scope of works document. This is a matter of import in this case. The AHA was executed in late September 2016 after the scope of works document was apparently promulgated and does not appear to refer to the scope of works document. Further, the scope of works document does not form part of AHA by express incorporation. This is in circumstances where the AHA contains the following clause:
“23.8 Entire agreement
This agreement supersedes all previous agreements about its subject matter and any agreements collateral to those agreements. This agreement embodies the entire agreement between the parties.”
- Given the above, I am not satisfied that the applicant has established, on the evidence as it stands, the allegation in particular (c)(i).
- The same can also be said for particular(c)(ii). It, like particular (c)(i), asserts a corporate advantage because of a so-called supplier status. The status referred to is a Tier 2 provider for the ‘north region’. I was not taken to any provision of the AHA that provides the factual foundation for the allegation in particular (c)(ii). This is because there is no provision of the AHA that provides such a foundation.
- Further, I do not accept that the allegation contained in particular (c)(ii) is established having regard to the scope of works document referred to above because:
- (a)the status, if any, of that document has not been established; and
- (b)even if it is assumed the applicant’s expectation can be formed having regard to the document, it envisages that BC will ‘invite’ suppliers to provide services in specific circumstances - there is no evidence that BC extended, or intimated that such an invitation would be forthcoming in this case.
- The absence of an invitation of the kind referred to in subparagraph (b) above cannot be understated given the significant geographical area to which the particular is said to apply. The reference in particular (c)(ii) to the ‘north region’ (and in Mr Turner’s affidavit to which I will later refer) is a reference to an area of Queensland that lies north of the Pine River. It is, on any objective view of the evidence, an extensive geographical area. It is an area which the AHA does not appear to suggest has any particular significance, status or priority for the applicant. This feature of the case undermined the objectivity and weight which could be afforded to Mr Turner’s evidence.
- One may be forgiven for reading Mr Turner’s evidence as conveying an impression that the applicant, through him, held and continues to hold an expectation that it will ‘backfill’ physiotherapy services required by BC in its aged care facilities north of the Pine River. This is not an expectation informed by the AHA. Nor is it, in my view, a reasonable expectation based on the evidence as it presently stands.
- The evidence dresses up a commercial ‘hope’ as an expectation. The two are not the same thing. The commercial hope deposed to is not founded in any document which has a contractual status with BC. It is a hope that is, in my view, overstated. It is infected by the applicant’s misplaced and overinflated sense of market dominance.
- With respect to particular (c)(iii), the applicant alleges that its expectations were founded on an assumption that its competitors were unlikely to have the resources to supply staff to perform the duties for which the respondent was employed. The evidence relied upon to establish this allegation was the first affidavit of Mr Turner. At paragraph 82 he said:
“From my knowledge about Allied Connect’s competitors, Bolton Clarke’s Tier 1 provider in the north region, Mobile Rehab, was unlikely to be able to resource the engagement as they have a very small team in Townsville.”
- Counsel for the respondent submitted that no weight can be given to paragraph 82 of Mr Turner’s affidavit. I accept this submission in so far as it applies to the above extract. This is so for two reasons: (1) the basis for the evidence is not disclosed in the affidavit, and amounts to a mere assertion; and (2) the evidence reflects a misunderstanding on Mr Turner’s part. The evidence of Ms Bloor, an employee of BC, confirmed that Mobile Rehab did not provide services at Rowes Bay. The entity providing services at Rowes Bay is a company known as ‘Vivir’. No mention was made of Vivir in the context of paragraph 82. Mr Turner’s assessment of his competition (and their capabilities) proceeded on a misapprehension. An attempt was made to cure this defect in a later affidavit of Mr Turner. That attempt was unconvincing.
- With respect to particular (c)(iv), the applicant asserts that its reasonable expectation was founded on an assumption there ‘is a shortage of appropriately qualified health staff in the area’. The evidence relied upon to support the allegation is summarised at paragraph 82 of Mr Turner’s affidavit. He said:
“There is also a lack of other suitable alternatives to Allied Connect as evidenced by the difficulty for all organisations to recruit suitably qualified Occupational Therapists and Physiotherapists in Townsville for the aged and community care industry”
- The above evidence is a statement of opinion. It purports to express an opinion beyond the applicant’s organisational knowledge. It speaks in general terms, referring to a ‘difficulty for all organisations to recruit’. The basis for doing so is not disclosed in the evidence. In the circumstances, the evidence is entitled to little, if any weight. It does not establish the particular alleged in subparagraph (c)(iv) to the standard required in an application for an interim injunction.
- If, contrary to the above, this aspect of the evidence was to be given weight in the exercise of the discretion, it is limited and falls well short of proving particular (c)(iv). Mr Turner’s first affidavit establishes the basis for a general submission that the applicant has a substantial business offering and has knowledge of its competitors, including their capabilities and the state of the employment market generally in which it operates. The evidence does not however go beyond this general proposition. The evidence does not establish (to the requisite standard) the applicant’s knowledge about its competitors, and the state of the employment market as at 12 March 2019, which are the factors that are relied upon to influence the applicant’s expectation under clause 16.3(c)(iv).
- With respect to particular (c)(v), the applicant alleges that its expectation was formed on the footing that it enjoyed a good working relationship with the manager of Rowes Bay. This was the subject of evidence in Mr Turner’s first affidavit. At paragraph 82 he said he had a good working relationship with Ms Esther Andrews. On his evidence, she was the manager of Rowes Bay at the time the applicant’s expectation was formed.
- Whilst Mr Turner may have had a strong working relationship with the manager of Rowes Bay, the evidence establishes that Ms Andrews is no longer employed by BC. It was not established when her employment ceased with BC. Mr Turner was not aware of this fact until it was drawn to his attention in an affidavit of Ms Bloor served the day prior to the hearing. The absence of this knowledge on the part of Mr Turner paints a different picture of the relationship between BC and the applicant to that which the court is invited to accept. If the relationship was as strong as was suggested by the applicant, how was this fact not known to it? No credible answer that would assist the applicant’s case was offered. This feature of the evidence, while minor in its own right, was an example where the applicant’s perception of its business relationship with BC, and the perceived benefits said to be conferred by that relationship were overstated when considered against the background of objective evidence.
- In oral submissions, it was submitted on behalf of the applicant that the combination of elements relied upon to establish the applicant’s reasonable expectation as at 12 March 2019 included a matter not referred to in the particulars dealt with above. The additional factor involved two elements: (1) the duration and strength of the business relationship built between the applicant and BC; and (2) reference to examples where BC had retained the applicant to ‘backfill’ services in facilities not included in the AHA. There were two such examples, namely at facilities known as Centuar and Inverpine.
- I have already dealt with the first of these two elements in the context of the particulars. Given the matters traversed in paragraphs  and  above, the evidence, in my view, overstates the objective strength of the business relationship between the applicant and BC. It was not such that an exclusive arrangement had been reached to provide ‘backfilling’ services north of the Pine River.
- An expectation of the kind advanced on behalf of the applicant, as the evidence presently stands, was a commercial hope. A hope is not an expectation. I am not satisfied that a commercial hope is a reasonable expectation for the purposes of clause 16.3(c)(iv).
- As to the second element, the applicant points to two examples where it has provided ‘backfilling’ services to a BC facility that was not part of the AHA. One example occurred in 2016 (at Murrumba Downs). The other occurred in March 2019 (at Caloundra). In isolation, a submission that invites the court to accept these examples as founding the applicant’s expectation has some superficial attraction. However, the submission loses its attraction once this evidence is understood in its proper context.
- The relevant context includes the following matters:
- (a)the number of examples offered by the applicant is small in number given the size of BC’s business, and the length of time the AHA has been in effect – the applicant has provided services to BC under the AHA for 2 ½ years in circumstances where BC has 25 aged care facilities;
- (b)the applicant was invited by BC to provide the additional ‘backfilling services’ to facilities falling outside of the AHA – counsel for the applicant readily conceded that no such invitation had been extended to his client for Rowes Bay, be it a general or specific invitation to perform the works the respondent was employed to perform; and
- (c)the applicant does not have an exclusive arrangement with BC to provide physiotherapy services in Townsville. The evidence establishes that the applicant was at least one of two companies providing Tier 1 physiotherapy services to BC in Townsville at the time the respondent terminated her employment.
- The above context, in my view, again paints a different picture to the one sought to be painted by the applicant in its submissions and evidence. Given Rowes Bay was not a facility to which the AHA applied, and given the applicant was not invited to provide the so-called ‘backfilling’ service for which the respondent was employed, and given the existence of another Tier 1 competitor in Townsville, any expectation the applicant had to perform the relevant works here is not, on the evidence as it presently stands, a reasonable one for the purposes of clause 16.3(c)(iv). The expectation is, as I have already said, akin to a commercial hope rather than expectation, which are not the same.
- I would add to the above that the applicant would not have established a prima facie case even if it were assumed that the reasonable expectation under clause 16.3(c)(iv) was to be formed at the time the respondent became an employee of BC. This occurred on 8 April 2019. By this time, the applicant was aware that BC had elected to publicly advertise the position filled by the respondent. The position was advertised on an internet site known as ‘Seek’. The advertisement was published on 18 February 2019, nearly one month before the respondent terminated her employment contract with the applicant.
- Mr Turner stated in his first affidavit that he became aware of the Seek advertisement on 15 March 2019. This was some three weeks prior to the applicant commencing her employment with BC at Rowes Bay. The advertisement, in my view, was relevant to the applicant’s reasonable expectations under clause 16.3(c)(iv), assuming the expectation was examined at the time the applicant became an employee of BC.
- The advertisement is an indicator that the so-called opportunity or advantage said to be enjoyed by the applicant did not apply in this instance. It suggested BC had elected to fill its service requirement in a manner that did not involve the AHA, and in a manner different to what had occurred at the two examples offered by the applicant for the BC facilities at Caloundra and Murrumba Downs.
- Neither the Statement of claim, nor Mr Turner’s evidence comes to grips with the impact of the advertisement on the applicant’s reasonable expectations under clause 16.3(c)(iv) of the employment contract. This is in circumstances where an application was made on behalf of the applicant during the hearing to lead evidence in response to this point, but after standing the matter down for a short period, the application was not pressed. The reality is that the evidence, as a consequence, is silent on this point. The evidence, as it presently stands, does not explain how the applicant’s expectation remained reasonable after 15 March 2019, being the time when the applicant had knowledge of the job advertisement.
- This is a further reason why I was not satisfied, on the evidence as it presently stands, that a prima facie case had been established by the applicant for the purposes of an application for an interim injunction.
Balance of convenience
- Given the applicant has not established a prima facie case that is sufficient to support the interim relief it seeks, it is unnecessary for me to deal with the second issue, namely the balance of convenience.
The orders sought
- The interim injunction seeks to restrain the respondent from working as a physiotherapist at two aged care facilities, namely Rowes Bay and Glendale. The argument before me focused primarily on the former facility, rather than the latter. For the reasons set out above, I am not persuaded that an interim injunction should be granted with respect to the Rowes Bay facility.
- With respect to Glendale, it is not the subject of an allegation of breach in the applicant’s Statement of claim. The breach alleged by the applicant is limited to the work the respondent performs at Rowes Bay.
- Whilst it is correct to say that the respondent worked at the Glendale facility when she was employed by the applicant, the Statement of claim seeks no relief in relation to this facility. I am, as a consequence, unpersuaded that an interim injunction should be granted in relation to Glendale. This is further supported by the unchallenged evidence of the respondent. In her affidavit the applicant said: (1) she does not work at Glendale; and (2) she has not been advised by BC that she will be asked to work at Glendale during the course of her contract. In my view, the evidence fell short of establishing anything other than a suspicion that the respondent may work at Glendale. The risk, if any, appears remote, which does not found a proper basis to enjoin the respondent in relation to Glendale.
- The application is dismissed.
- The written submissions provided for each party proceeded on the footing that costs should follow the event. No oral submissions were made to the contrary by either party. I agree. The applicant is to pay the respondent’s costs of the application on the standard basis.
- Published Case Name:
CJ Turner & Associates Pty Ltd t/as Allied Connect v Lisa Wellington
- Shortened Case Name:
CJ Turner & Associates Pty Ltd v Wellington
 QDC 85
30 May 2019