Plaintiff v First Defendant

Supreme Court of Victoria|2014-05-20|Before: ZAMMIT AsJ

1 By summons dated 31 January 2014 the defendants seek an order pursuant to s 63 of the Civil Procedure Act 2010 (Vic) ("the CPA"), that the proceeding be dismissed on the ground that it has no real chance of success.

2 The plaintiff, Just Group Limited ("Just Group") alleges that the first defendant, Joseph Van Dyk ("Mr Van Dyk"), a former senior employee of Just Group, procured Ms Susanne Albion ("Ms Albion") to resign from her employment with Just Group and to commence employment with the third defendant, Best & Less Pty Ltd ("Best & Less"). In doing so, Just Group alleges that Mr Van Dyk was in breach of a Deed of Separation entered into on 20 May 2013 ("the Deed"), with Just Group. In particular it is alleged that Mr Van Dyk was subject to post employment restraints as follows:

3 Just Group alleges that Mr Van Dyk misused confidential information and therefore breached, amongst other things, an agreed confidentiality obligation and improperly used that information to gain an advantage for himself, or the second and third defendants, in breach of s 183(1) of the Corporations Act 2001 (Cth) ("Corporations Act").

4 Just Group also alleges that the second defendant, Pepkor South East Asia Pty Limited ("Pepkor") and Best & Less were involved in the alleged contravention of s 183(1) of the Corporations Act and the breaches of the Restricted Activities and/or agreed confidentiality obligation.

6 The defendants rely on the affidavit of Zarven Mardirossian, sworn 28 March 2014.

(1) there is no factual basis for the allegation that Mr Van Dyk procured Ms Albion to resign from her employment with Just Group and commence employment with Best & Less;

(2) there is no factual basis for the allegation that Mr Van Dyk misused confidential information and therefore that he, Pepkor and Best & Less breached s 183(1) of the Corporations Act; and

(3) the case as currently pleaded by Just Group against the defendants fails to plead material facts and does not disclose a proper cause of action.

(1) there are deficiencies in the amended statement of claim, such as Just Group's reliance on a broad and unenforceable restraint clause; and

(2) that the issuing of this claim in the Supreme Court rather than the Magistrates' Court is inappropriate and in breach of the CPA given the nature of the claim.

10 The defendants submit that when the matters are looked at in their totality, taking into account there being no factual basis to the claims and no proper cause of action, that Just Group has no real chance of success and that the proceeding should be dismissed.

11 The Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[1] considered the test to be applied when determining whether to give summary judgment in a civil proceeding pursuant to s 63 of the CPA. After reviewing the authorities and extrinsic materials, the Court concluded as follows:

(a) the test of summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail' test essayed in General Steel;

(c) it should be understood, however, that the test is to some degree a more liberal test than the 'hopeless' or 'bound to fail' test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent's case is not hopeless or bound to fail, it does not have a real prospect of success;

(d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or the application is supported by evidence.

12 Section 64 of the CPA leaves to the Court a discretion to order that a civil proceeding go to trial if it is satisfied that, despite there being no real prospect of success, the civil proceeding should not be disposed of summarily because it is not in the interest of justice to do so, or the dispute is of such a nature that only a full hearing on the merits is appropriate.

13 Following the Court of Appeal's decision in Lysaght and having regard to cases that have considered the test to be applied in relation to s 63 of the CPA, I note in particular the following principles which I consider applicable to this application:[2]

(1) A Court may dismiss a claim when it determines that it has no real prospect of success in the sense that such prospects are fanciful rather than realistic. The new test does not direct an enquiry into whether a certain and concluded determination could be made that a proceeding, or a claim, would necessarily fail. What is required is a practical judgment by the Court as to whether a claim is more than a "fanciful" prospect of success;

(2) The less complex the issues in a case, the easier it is for a Court to take the view that such a proceeding is capable of being determined on summary judgment; and

(3) Whatever the test to be applied, the power to order summary dismissal of a claim must be exercised with care. This is particularly so where a case may involve issues of contested fact. Further, the exercise of the power to summarily dismiss must be attended with caution whether such disposition is sought on the basis that the pleadings failed to disclose a reasonable cause of action, or where summary judgment is sought in an application supported by evidence, such as in this case.

14 Both parties referred to the Full Federal Court decision of Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60 which considered the equivalent rule to s 63 of the CPA, s 31A of the Full Federal Court Act 1976 (Cth). Finkelstein J said:[3]

[20] Nonetheless, it is by no means easy to work out what Parliament had in mind by providing for summary judgment where a claim or defence has no "reasonable prospect" of success. For one thing, it is difficult to see how one can assess prospects of success without some attempt of predicting the outcome of the dispute. If the dispute is about factual issues, the task of prediction is fraught with all kinds of difficulties. First of all, in many cases the Court will not have before it all the material evidence. Second, if credit is involved it may be impossible to predict how that issue will be resolved. Many of the problems involved in predicting the outcome of an action were referred to by the High Court in Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 at 576 ... Even if the dispute only concerns a question of law, that issue may be difficult to resolve, or predict its resolution in the absence of detailed arguments such as only occurs at trial ...

[22] If the test under s 31A raises the hurdle for the opposing party, it may be necessary for that party at a minimum to provide an outline of evidence that will be relied upon. The outline must be sufficient to show that there is a genuine dispute about facts that are material to the outcome of the case. That will enable the judge to make some assessment of the merits. It would not, of course, be necessary in most cases, to require the parties to do more than provide an outline, because that would turn the summary judgment application into a trial.

[23] ... The judge is to decide whether the opposing party has evidence of sufficient quality and weight to be able to succeed at trial. There will be cases where the asserted facts appear to be so improbable that there is no point in allowing them to go to trial. ...

15 In Jefferson Ford's case, Gordon J referred to six principles which she considered were applicable to s 31A which can be summarised as follows:

Section 31A is a summary procedure which enables the Court to give judgment where a proceeding or part of a proceeding has "no reasonable prospect of success". The words of s 31A impose a less stringent test to that described in General Steel Industries Inc v Cmr for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129-130;
the way in which a claim or part of a claim will be assessed as having "no reasonable prospect of success" will vary on the nature of the cause of action pleaded; the identity of the parties; the pleaded facts; the evidence in support of the summary judgment application; and the evidence, if any, tendered in defence;
the moving party bears the onus of persuading the Court that the opponent has no reasonable prospect of success. Once a moving party has established a prima facie case, that the opponent has no reasonable prospect of success, "the opposing party must respond by pointing to specific factual or evidentiary disputes that make a trial necessary; general or nonparticularised denials will be insufficient to defeat the motion";

4, the trial Court's decision to grant summary judgment is to be made as a question of law and reviewed as such by the appellate Court;

where there is a real issue of fact relevant to a pleaded cause of action, it is unlikely that that part of the proceeding has no prospect of success; and
in determining whether a real issue of fact exists such as to preclude summary judgment, the Court must draw all reasonable inferences in favour of the non-moving party. The Court must not refuse summary judgment on the basis of a factual dispute said to arise from a plausible, as opposed to a reasonable, inference.[4]

(a) Best & Less does not compete with Just Group;

(b) Mr Van Dyk was employed by Just Group in the senior position of national sales manager from July 2011;

(c) Mr Van Dyk was not responsible for interviewing or selecting store managers whilst employed by Just Group, other than his involvement once in the recruitment of a store manager for a "top store";

(d) Mr Van Dyk met Ms Albion, who was at the time the store manager of the Mildura store at season launches;

(e) Mr Van Dyk did not have significant contact with Ms Albion at the season launches;

(f) Mr Van Dyk was informed by Cheril Hann, the regional manager for South Australia, that Ms Albion had resigned to go to Jeans West;

(g) Mr Van Dyk visited the Mildura store once in his role as national sales manager in June 2013, at which time Ms Albion was the store manager. During the visit, Mr Van Dyk talked to Ms Albion about how the Mildura store was set up and the general operations of the store;

(h) apart from the store visit in 2013, Mr Van Dyk had little contact with Ms Albion;

(i) on 19 March 2013, Mr Van Dyk tendered his resignation, giving Just Group six months' notice. Mr Van Dyk concluded his employment with them on 31 July 2013. Just Group asked Mr Van Dyk to sign the Deed;

(j) on 23 July 2013, Mr Van Dyk was given a letter on Arnold Bloch Leibler's (the plaintiff's solicitors) letterhead, setting out Just Group's position regarding his ongoing obligations, including his ongoing confidentiality obligations under the Deed, the Corporations Law and the general law and his obligations in relation to his post-employment restraints;

(k) Mr Van Dyke commenced employment at Best & Less on 6 August 2013;

(l) Mr Van Dyk categorically denies that he procured or induced Ms Albion to leave Just Group and that he was not involved in any way in Ms Albion's recruitment;

(m) in his role at Best & Less, Mr Van Dyk is not involved in the recruitment of store managers;

(n) in August 2013, Mr Van Dyk was informed by a Best & Less recruitment manager that Ms Albion had applied for the position of store manager at Best & Less in Mildura and that that position had been advertised;

(o) Mr Van Dyk spoke to a recruitment and development manager for Best & Less about Best & Less offering Ms Albion the position and was asked how he thought "Just Jeans" might react. Mr Van Dyk considered that there would be some sensitivities in relation to Ms Albion working for Best & Less given the sensitivities Just Group had regarding his moving to Best & Less and that the process needed to be handled properly because of the potential sensitivities; and

(p) "I did not procure or induce Susanne to leave her employment with Just Group. Further, I was not involved at all in the decision to advertise the position, the interviews, the recruitment process at all, or the decision to offer Susanne the position of store manager. The first I became aware that the offer of employment was being made to Susanne was when I was in Adelaide in September 2013 and I was informed of the fact by Tammy Lee, the regional manager"; and

(q) "As I stated above, I am very concerned about being a defendant to this proceeding, particularly in circumstances where:

(a) the Best & Less Mildura store manager position was advertised;

(b) Ms Albion apparently applied for the role;

(c) I had no contact with Ms Albion regarding the position;

(d) I had no involvement in the recruitment process;

(e) Just Group alleges that I have breached the Corporations Law, which I am very concerned about;

(f) there are no specific factual matters put forward in the statement of claim to support the serious allegations made against me; and

(g) the allegations are completely untrue."[5]

(a) she is employed by Best & Less as store manager for Mildura and commenced her employment with Best & Less on 30 September 2013;

(b) Ms Albion applied for the role at Best & Less because she was unhappy working at Just Jeans and after she saw the position advertised on SEEK;

(c) Ms Albion had no contact with Mr Van Dyk at all about moving to Best & Less and to her knowledge, Mr Van Dyk had nothing to do with her commencing employment at Best & Less;

(d) by early 2012, Ms Albion decided that she wanted to leave Just Group;

(e) in May 2012 Ms Albion applied through SEEK on-line recruitment website for a store manager position with Jeans West which she was successful in obtaining. Ms Albion did not accept the Jeans West job and remained employed at Just Jeans on the basis that she was paid a higher salary;

(f) by the start of 2013, Ms Albion decided to leave Just Jeans and was checking the SEEK recruitment website for new positions. She applied for the position of store manager at Cotton On in Mildura which was advertised on the SEEK website. She saw the advertisement for the position of store manager at Best & Less Mildura on 23 October 2013 on the SEEK website;

(g) on the same date, Ms Albion submitted an application for the position of store manager at Best & Less and was contacted on the same day by a recruitment and development manager for Best & Less. The recruitment manager asked Ms Albion if she knew Mr Van Dyk. Ms Albion said yes and explained that Mr Van Dyk was the national manager at Just Jeans and that she considered he would be valuable for Best & Less and that she had a lot of respect for him;

(h) Ms Albion was interviewed by Tammy Lee, regional manager for Best & Less, South Australia;

(i) on 30 August 2013, Ms Albion was informed that she was successful in obtaining the position;

(j) Ms Albion gave Just Group one month's notice and ended her employment with Just Group on 28 September 2013;

(k) Ms Albion did not have any contact with Mr Van Dyk at all during this process; and

(l) Ms Albion was asked by the national manager for Just Jeans, Ms Edwards, whether she had spoken with Mr Van Dyk about the job at Best & Less or had any contact with him about it and she informed Ms Edwards that she had not had contact with Mr Van Dyk and that he had not tried to poach her.

18 Mr Farrant's evidence relates to the exchange of correspondence between Just Group's solicitors and the defendant's solicitors.

19 The defendants rely on the affidavit of Zaven Mardirossian, a partner of Arnold Bloch Leibler. Mr Mardirossian deposes that he is informed by the chief executive officer of Just Group and believes that many of the matters in the affidavits filed on behalf of the defendants and in particular Mr Van Dyk's affidavit are disputed. These include but are not limited to:

(a) the extent to which Best & Less competes with Just Group;

(b) the extent of Mr Van Dyk's responsibility for the store managers and their recruitment in his role for Just Group and for Best & Less. Particularly, Mr Van Dyk's evidence that he was only involved in recruitment for Just Group where recruitment was for a "top store";

(c) the content and extent of Mr Van Dyk's communications with Ms Albion during Mr Van Dyk's employment with Just Group and after that employment ended;

(d) the content and extent of Mr Van Dyk's communications with staff from Pepkor and Best & Less regarding Ms Albion and her recruitment by Best & Less;

(e) the content and extent of Mr Van Dyk's communications with staff from Pepkor and Best & Less referred to by Mr Van Dyk in his affidavit who have not sworn affidavits, such as Jason Murray, Peter Marshall, Glenys Shearer, Theresa Gallow and Tammy Lee;

(f) the content and extent of Mr Van Dyk's communications with Mr McInnes;

(g) the apparent absence of appropriate measures by the defendants to quarantine Mr Van Dyk from employing and being party to and involved in the employment of Just Group staff.

20 Mr Mardirossian is informed and believes that the following people were employed by Just Group and now work for Best & Less: Jason Murray, Managing Director of Pepkor; Mr Van Dyk, Head of Retail Sales, Best & Less; Ms Albion, Store Manager, Best & Less Mildura; Glenys Shearer, Temporary Head of Retail Sales, Best & Less; and Tammy Lee, Regional Manager of Best & Less.

No factual basis for pleaded allegation that Mr Van Dyk procured Ms Albion to resign

21 The defendants submit that there is no factual basis for the pleaded allegation that Mr Van Dyk procured Ms Albion to resign. They submit that the allegation that Mr Van Dyk procured Ms Albion to cease her employment with Just Group is based on inferences and that the allegations are not supported positively by material facts or particulars.

22 The pleading, it is submitted, does no more than allege that Mr Van Dyk was in a senior position of Just Group; Ms Albion was employed by Just Group; Ms Albion and Mr Van Dyk had some contact while they were employed by Just Group; and Mr Van Dyk commenced employment with Best & Less in August 2013 and Ms Albion on 1 November 2013.

23 Just Group submits in summary that the pleadings raise a serious question as to Mr Van Dyk's role in Ms Albion's recruitment by Best & Less given the timing, opportunity and motive.

24 Just Group submits that the coincidence can be gleaned from the chronology of events pleaded. In relation to opportunity, it is submitted that given his role in Just Group, Mr Van Dyk had opportunity to learn about Ms Albion and had contact with her at conferences and at the Mildura store on at least 13 June 2013, shortly before they both resigned. In relation to motive, Mr Van Dyk resigned from Just Group in circumstances where he went to a competitor; knew of Ms Albion's good standing with Just Group; and was privy to confidential information. It is also alleged that Mr Van Dyk, in his new position with Best & Less, was responsible for employing retail store managers.

25 The defendants have put extensive affidavit material before the Court seeking to rebut the pleaded allegations in the amended statement of claim. Just Group has put minimal evidence by way of affidavit to support the pleaded case. Mr Mardirossian's affidavit does not go much further than mere assertion that the matters as pleaded in relation to the procurement of Ms Albion by Mr Van Dyk and the accessorial liability of Pepkor and Best & Less are in dispute.

26 At this early stage of the proceeding, I am not satisfied that the claim against Mr Van Dyk in relation to procuring Ms Albion to resign from Just Group and therefore his breach of the restricted activities has no prospect of success. As noted by McKerracher J in Austal Ships Pty Ltd v Incat Australia Pty Ltd:[6]

... In large measure the body of law drawing a distinction between an inference and conjecture is drawn from circumstances in which there has been a substantive hearing or trial. In such a circumstance, there is the opportunity to hear the entirety of the evidence through oral testimony, conventionally tested by cross-examination. At present, it is clear that Austal would have to establish more at trial in order that the inference it wishes the Court to draw may be properly drawn. But there are ways in which that may occur, for example by use of a far more restrained collection of Incat discovered documents than the collection sought, by answers to interrogatories or by evidence from third parties or by demonstrating the unreliability of Incat's evidence.

27 At this stage, I cannot be satisfied to the requisite degree on fundamental issues such as:

(a) whether Just Group and Pepkor/Best & Less are competitors. This requires a careful analysis of the businesses and may involve some independent expert evidence;

(b) what was Mr Van Dyk's role at Best & Less and was he in any way involved in employing or recruiting staff. This may not have been employing in the direct sense but perhaps indirectly;

(c) what was the extent of communications between Ms Albion and Mr Van Dyk when they were employed at Just Group and after their employment ended;

(d) Ms Albion and Mr Van Dyk's evidence has not been tested and cannot be properly tested until there has been discovery, perhaps interrogation or crossexamination.

28 In a case such as this, credit is critical and ultimately the defendants' credit and the plaintiff's witnesses' credit has not been properly tested. Other witnesses may be called or subpoenaed to give evidence which will provide the Court with a fuller picture of the evidence and will influence the Court as to what evidence is accepted. The Court does not have all the material evidence before it. It is not possible at this stage to predict how credit will be resolved.

29 In relation to the complaint that the pleadings do not disclose a proper cause of action, this is not a basis to summarily dismiss the claim. The criticism does not establish that the claim has no real prospect of success, rather that the pleadings are deficient and should be struck out. But that is not the application before the Court.

No basis for allegation that Mr Van Dyk misused confidential information

30 Just Group alleges that Mr Van Dyk misused confidential information in the course of Best & Less recruiting Ms Albion and in doing so, Mr Van Dyk breached the agreed confidential obligation and improperly used that information to gain an advantage for himself or Pepkor and Best & Less in breach of s 183(1) of the Corporations Act.[7]

31 The defendants submit that there is no factual basis for the allegations pleaded at paragraph 21 of the amended statement of claim. The defendants submit that there are no particulars concerning:

(a) the information which is alleged to be confidential;

(b) the manner in which Mr Van Dyk made use of the alleged confidential information;

(c) the persons to whom the information was allegedly disclosed; and

(d) how the information was used in the course of recruiting Ms Albion.

32 The defendants submit that in relation to the claim pursuant to s 183(1) of the Corporations Act, Just Group must plead:

(a) the information which has the necessary quality of confidence;

(b) the information imparted in circumstances importing an obligation of confidence; and

(c) unauthorised use of the information to the detriment of Just Group.

33 Just Group submits that it has pleaded the facts and circumstances that Mr Van Dyk had access and use of confidential information, including Ms Albion's remuneration details; that Ms Albion was an employee of good standing; and that Ms Albion was familiar with Just Group's sale and marketing plan. Just Group submits that these pleaded facts raise a case to answer that Mr Van Dyk has breached the agreed confidentiality obligation and/or s 183(1) of the Corporations Act.

34 I accept that the claims against Mr Van Dyk in relation to the misuse of confidential information are poorly pleaded. It is not clear, for example, what confidential information it is said was misused by Mr Van Dyk. At paragraph 22(b) of the amended statement of claim, there is a reference to the use of, or disclosure to other persons, information about a member of Just Group's staff. No particulars are provided.

35 The same criticisms apply to the claim pursuant to s 183(1) of the Corporations Act. For example, there are no particulars of the type of information and it having the necessary quality of confidence.

36 The difficulty for the defendants is that the deficiencies in the pleading do not necessarily give rise to the relief sought in this application. It is a very serious matter to make such allegations against an individual and/or corporation. The pleading in its current form is inadequate. However, I would not, at this early stage, give summary judgment in the absence of Just Group being afforded an opportunity to amend its pleading.

No basis for allegation of accessorial liability

37 The defendants make the same complaint about Just Group's pleading in relation to Pepkor and Best & Less' alleged contravention of the Corporations Act. They submit that the claim against Pepkor and Best & Less is made by "inference". Just Group has pleaded that Mr Murray, the managing director of Pepkor and chairman of Best & Less, would have been aware of Mr Van Dyk's contractual obligations with Just Group. That Mr Van Dyk would have been involved in the recruitment of retail staff employed by Just Group and that in the course of any such recruitment may consciously or otherwise make use of or disclose confidential information about Just Group's staff. The allegation is that Mr Murray knew and was reckless in that he did not otherwise direct Mr Van Dyk about such matters. In other words, Mr Murray knowingly or consciously allowed Mr Van Dyk to be involved in the recruitment and to use the alleged confidential information for the benefit of Pepkor and Best & Less.

38 The pleading is clearly inadequate. There is a failure to plead any specific knowledge or approval by Mr Murray. The pleading is embarrassing and does not properly plead the necessary material facts for a cause of action of accessorial liability pursuant to s 183(1) of the Corporations Act against Pepkor and/or Best & Less.

39 While I consider paragraphs 23, 24 and 25 of the amended statement of claim should be struck out, with a right to amend, I do not consider it is appropriate to give summary judgment at this stage.

Further fundamental deficiencies in the pleaded causes of action

40 As noted, the defendants submit that in addition to the deficiencies identified above, there are further deficiencies which reinforce the reason why the proceeding should be dismissed. These include the deficiencies in the restraint of trade clause in Mr Van Dyk's employment contract, which the defendants submit is too wide and that the definition of "Restricted Activities" in the amended statement of claim at subparagraph 5(g) is flawed and would not be upheld by a Court.

41 The analysis of the "Restricted Activities" clause involves a complex question of law. The defendants dedicate three pages of the written submissions to the issue. The construction of the clause is a matter which should be left to trial. It will be necessary for the Court in constructing the clause, and in particular the meaning of the expression "employ any person", to have regard to the context of the words around it and the surrounding circumstances at the time the Deed was entered into.

42 As noted by Gilmour J in Dandaven v Harbeth Holdings Pty Ltd,[8] summary judgment:

... ought not to be used to shut out proceedings where, on a proposition of law, there may be room for doubt. On questions of law, an enquiry as to the merits should not be for the purpose of resolving them and also not simply to determine whether the argument is hopeless, but in order to decide if it is sufficiently strong to warrant a trial ...

43 In order to properly consider the construction of the term "employed person" the Court will have to have regard to the purpose of the Restricted Activities, whether "employer" has a restricted meaning or a more generous meaning, which may include Mr Van Dyk assisting or providing information which leads to or contributes to the employment of an individual; and the circumstances surrounding the Deed and when it was entered into will be relevant. For example, matters such as Just Group's sensitivity to Mr Van Dyk resigning; the former staff members of Just Group who have left Just Group and have gone to Pepkor and Best & Less. In my opinion, the context, background or history of the Deed may arguably involve the consideration of Just Group's commercial need in protecting confidential information and business relationships.

Institution of proceeding inconsistent with the CPA

44 The defendants submit that Just Group's decision to institute this proceeding in the Supreme Court of Victoria is unsatisfactory in that it concerns "a minor subject matter", that is, a store manager in Mildura moving to employment with Best & Less.

45 I do not agree with this submission. The claim involves a very senior staff member and allegations about the possible breach of restricted activities, breach of confidential obligations and accessorial liability of the two corporate defendants. These matters can hardly be described as "minor".

46 As discussed, in a case such as this where evidence can give colour and content to allegations and where questions of fact and degree are important, the Court should be reluctant to dismiss the proceeding on the face of the pleading. True it is that Just Group has put minimal evidence before the Court to rebut the defendants' evidence. However, I am satisfied that the outline as provided by the defendants in Mr Mardirossian's affidavit is sufficient to show that there is a genuine dispute, to refuse summary judgment. Further, there should not be at this interlocutory stage a lengthy and elaborate analysis of each party's evidence resulting in an elaborate trial on an interlocutory basis. Even though the defendants' evidence can only be described at best as ambivalent, I considerate it to be sufficient to amount to a "reasonable prospect".

47 In addition, s 64 of the CPA gives the Court a discretion to allow a matter to proceed to trial even if the Court is satisfied that, despite there being no real prospect of success, the civil proceeding should not be disposed of summarily because:

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

48 Even if Just Group's claim has no reasonable prospect of success, I consider this to be a dispute of a nature that only a full hearing of the merits is appropriate. As discussed, this is a claim where credit will be important. The evidence of witnesses will give colour and content to the allegations. Full discovery, interrogation and the ability to crossexamine witnesses will be important in a case which will turn on what Mr Van Dyk did or did not do; what conversations were or were not had between Mr Van Dyk and Ms Albion, and conversations, emails and communication with other witnesses such as Mr Murray.

49 While I do not consider the proceeding should be summarily dismissed, I have serious concerns about Just Group's pleading and in particular the allegations relating to the misuse of confidential information by Mr Van Dyk and the accessorial liability of Pepkor and Best & Less. In such circumstances, I consider the Just Group's amended statement of claim should be struck out and that Just Group should be given leave to file and serve a further amended statement of claim.

50 Subject to hearing the parties on costs and the form of order, I make the following observations. Each party has had some degree of success. While the defendants' application for summary judgment has failed, I have found and agree with the defendants that there are serious deficiencies with the amended statement of claim. As such, it seems an appropriate costs order is that the costs of the defendants' summons for summary judgment be costs in the proceeding.

[2] JBS Southern Australia Pty Ltd and Anor v Westcity Group Holdings Pty Ltd and Ors [2011] VSC 476; Ottedin Investments Pty Ltd v Portbury Developments Co Pty Ltd [2011] VSC 222; Matthews v SPI Electricity Pty Ltd [2011] VSC 168.

[4] Jefferson Ford at [124]-[132].

[5] Affidavit of Joseph Van Dyk, sworn 31 January 2014 at [68] and [72].

[7] Paragraph 21 of the Amended Statement of Claim.

Full Federal Court Act 1976(Cth)

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