Day, in the matter of A Bliss Clinic Pty Limited v Goodwin

1. The time for filing and service of the plaintiff's interlocutory application filed 10 June 2020 be abridged to allow it to be heard on 11 June 2020.
2. Service of the interlocutory application on the fourth and fifth defendants be deemed to have been effected by email to bridget.goodwin@gmail.com and chrisday12@gmail.com.
3. An injunction be granted requiring the first defendant to forthwith lodge with the Australian Securities and Investments Commission a further change to company details form for the fifth defendant recording the following details for the fifth defendant: (a) the registered office of the fifth defendant as 42 Cabana Boulevard, Benowa QLD 4217; (b) Christine Day as the shareholder of all issued shares in the fifth defendant; and (c) Christine Day as the sole director of the fifth defendant.
4. Save with the written consent of the plaintiff or until further or final order in the proceeding, the first defendant be restrained from lodging or causing the lodgement of any notification with the Australian Securities and Investments Commission concerning the fourth or fifth defendants or both. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

COLVIN J: 1 These proceedings concern the state of the ASIC register in respect of two companies: A Bliss Clinic Pty Ltd (Bliss) and Reinvent Yourself Pty Limited (Reinvent). Dr Christine Day claims that Dr Bridget Goodwin has lodged documents with ASIC altering the register in respect of the two companies when she had no authority to do so. Dr Day seeks final orders rectifying the ASIC register and injunctive relief which would have the effect of preventing Dr Goodwin from lodging any further documents in respect of the companies. 2 The Australian Securities and Investments Commission was a party to the proceedings but upon its formal indication that it would abide by any order of the Court, the proceedings against ASIC were dismissed. Bliss and Reinvent are joined as defendants, but the companies are not separately represented and have not taken any active part on the proceedings. 3 Dr Goodwin has a clinic in Sydney known as Norwest Laser Centre. 4 The affidavit evidence discloses a somewhat complex history of dealings between Dr Day (and her husband) and Dr Goodwin on the other. For present purposes it is sufficient to note that it appears that Dr Goodwin was, for a period of time, living at the home of Dr Day and her husband. Dr Goodwin claims that Dr Day was, for a time, her treating clinical psychologist. 5 It appears that Reinvent was registered in July 2019. It is the trustee of the Mermaid Holdings Trust (Trust). Dr Goodwin has deposed that at the time of incorporation she needed to put Reinvent and the Trust nominally in another name until after her divorce proceedings had concluded and that the appointment of Dr Day as a director of Reinvent and beneficiary of the Trust was a temporary arrangement and that Dr Goodwin would take over at the right time. 6 It appears that in August 2019 an opportunity was presented to Dr Goodwin to purchase the shareholding in Bliss which was a registered training organisation which taught certifications in laser, cosmetic tattoo, plasma and other skills. It is common ground that in due course arrangements were agreed for the purchase of the shareholding and Dr Day and her husband provided the $250,000 to purchase the shareholding in Bliss. Reinvent became the shareholder of Bliss. This appears to have occurred in about October 2019. 7 It also appears to be common ground that Dr Goodwin would work in the business. However, in dispute is a claim by Dr Goodwin that there was an agreed arrangement by which she would earn an interest in the business conducted by Bliss by way of 'sweat equity'. She claims that there was a nominal arrangement by which she was to be paid $150,000 per year, but on the understanding that her expansion of the business and an increase in value would be the way she would make a contribution equivalent to the $250,000 paid by Dr Day and her husband. 8 It appears also that Dr Goodwin has been conducting a website using the name Reinvent Yourself and claims that those activities are in respect of her own business activities which include the Norwest Laser Centre. 9 When the matter came on before me for case management on 19 May 2020, it was apparent that Dr Goodwin claimed that she had authority to lodge documents in relation to the ASIC register on the basis of her underlying claims as to arrangements that she had agreed with Dr Day. Dr Goodwin claimed to be entitled to relief based upon those claims and sought to advance those contentions in the proceedings. As Dr Goodwin appeared on her own behalf, it was explained that if those claims were to be made then it would be necessary for her to make her own claim and that it was possible for a cross-claim to be filed. It was further explained that if the cross-claim was not filed then the claim would proceed to hearing without any possibility of relief being granted to Dr Goodwin. 10 Both parties sought to have the matter dealt with urgently because the dispute between them concerned the ongoing operation of the business conducted by Bliss. In that context, Dr Goodwin explained that her position was that it was necessary for her to be involved in the business because she was the person with the expertise to conduct the business, particularly to maintain its status as a registered training organisation. She also maintained that, at an earlier hearing, Derrington J had explained the need to maintain the status quo. She maintained that she was the one who needed to have ongoing management of the business to maintain that status quo because of her expertise. This led to a further discussion at the case management hearing about status quo and the need for the position to be preserved until the claims could be determined by the Court. 11 Directions were made for Dr Goodwin to file and serve any related claim or any cross-claim by 5 June 2020, the application by Dr Day to be provisionally listed for hearing on 19 June 2020 and for the matter to come back for a further case management hearing on 11 June 2020. The matter was also referred for mediation which was unsuccessful. 12 On 9 June 2020, my associate received from Dr Goodwin a document described as a notice of cross-claim. Under the heading 'Relief Claimed' the document stated, relevantly for present purposes: That [Dr Goodwin] be acknowledged as the director of [Bliss]. That [Dr Day] pay damages to [Dr Goodwin] for Undue Influence, Breach of Contract, Defamation and Stealing to be decided by the Court. [T]ransfer to [Dr Goodwin of an identified mobile phone number] [R]emove [a specified website] [G]rant [Dr Goodwin] access to the Company's clinic at [an address in Southport] [M]ust refrain from making disparaging comments about [Dr Goodwin] to other persons That [Dr Day] cease and desist from any competitive activities aimed at undermining [Dr Goodwin's] management of [Bliss]. 13 Under the heading 'Pleading and Particulars' the document stated: [Dr Day] exerted Undue Influence over [Dr Goodwin] as her practising psychologist… [Dr Day] breached a contract between herself and [Dr Goodwin] acknowledging [Dr Goodwin] as the business partner, then acted to demean, defame, and harass [Dr Goodwin] for her own financial gain. [Dr Day] actively communicated information to third parties…intended to damage the professional reputation of [Dr Goodwin]. [Dr Day] stole furniture from [Dr Goodwin] despite giving undertakings to the court she would allow [Dr Goodwin] to legally collect her furniture… 14 Significantly, the document was not confined to a claim as to the basis upon which Dr Goodwin said she was entitled to an interest in or control over Bliss and Reinvent. Claims of that kind might be said to be related to the relief sought by Dr Day. Instead, the document sought to raise allegations of improper conduct by Dr Day in her practice as a psychologist, allegations of defamation and allegations concerning the stealing of furniture. I recite these allegations solely for the purpose of identifying the issues to be addressed in the management of how the claims should proceed. At this stage they are matters asserted by Dr Goodwin to which Dr Day has had no opportunity to respond. They are formulated in a manner which makes it difficult for the allegations to be addressed. In particular the precise nature of the claims made and their legal basis is not clear. I make this observation without seeking to be critical given that Dr Goodwin is acting on her own behalf. Nevertheless, the current state of the claims and their formulation is a significant matter to be considered in managing these proceedings. 15 The following day, on 10 June 2020, Dr Day brought an urgent application for interlocutory relief. In support of the application Dr Day deposed to the following matters: (1) On 10 June 2020, Dr Day's solicitor received an alert from ASIC that documents had been lodged in respect of Reinvent; (2) on inquiry there were two documents that had been lodged on 29 May 2020; (3) the first document was a change to company details said to have been lodged by Dr Day in which the registered office was said to have been changed to the address of Norwest Laser Centre, Dr Goodwin was said to have been appointed as a director of Reinvent and Dr Day was shown to have transferred the shareholding in the company to Dr Goodwin. All these events were said to have occurred on 21 February 2020; (4) the second document was a change to company details said to have been lodged by Dr Goodwin in which Dr Day was removed as a director. That was also said to have occurred on 21 February 2020; (5) Dr Day did not lodge the forms and she did not authorise Dr Goodwin to lodge the forms; and (6) at no time had Dr Day agreed to resign as a director of Reinvent or agree to transfer her shares in Reinvent. 16 The relief sought was for the two documents to be withdrawn and an injunction restraining Dr Goodwin from lodging or causing to be lodged any further documents on the ASIC register concerning Bliss or Reinvent. In the course of argument, counsel sought a further order that would correct the register on the basis that the withdrawal of the documents that had been lodged would not actually alter the ASIC register. 17 The application for injunctive relief and the issue of case management came before me on 11 June 2020. In the course of the hearing I indicated that I would grant the interlocutory relief sought and that I would make directions for the claim by Dr Day to be determined on the date that had provisionally been set aside for that purpose, namely 19 June 2020. I further indicated that I would at that time consider further directions in respect of the cross-claim that Dr Goodwin sought to advance, but that I was not persuaded that the claim by Dr Day should be deferred until the matters raised by the cross-claim were ready for hearing. I further indicated that I would provide my reasons for those decisions and make orders on the application for injunctive relief after receiving a minute of orders from the plaintiff. These are my reasons.