Triangle Cables (Aust) Pty Ltd v Czuchwicki

REASONS FOR JUDGMENT 1 This proceeding was commenced on 25 March 2011 by the filing of an application and a statement of claim. In the application, the applicant sought equitable compensation or damages for loss and damage alleged to be sustained by the applicant by reason of alleged breach by the respondent of terms of a contract of employment between the applicant and the respondent, of the respondent's fiduciary duties, and of the respondent's duties under the Corporations Act 2001 (Cth). In addition, the applicant sought an order enjoining the respondent from disclosing to other persons confidential information alleged to have been acquired by the respondent during his employment with the applicant. 2 When the proceeding came on for its first directions hearing on 4 May 2011, the respondent appeared by telephone. On that occasion, I made orders referring the proceeding to a registrar for mediation, adjourning the directions hearing to 27 July 2011, and reserving the costs of that day. The Court record discloses that the respondent attended a mediation session on 24 June 2011 by telephone. The proceeding was not resolved by mediation. When the proceeding returned for further directions on 27 July 2011, there was no appearance for the respondent. On that day, I ordered that, on or before 3 August 2011, the respondent file and serve a notice of appearance and, on or before 17 August 2011, the respondent file and serve a defence. I made further orders for: discovery of documents; inspection of discovered documents; and the filing by each party of lists of witnesses and summaries of the evidence they propose to lead from each witness. I directed that the proceeding be listed for trial on a date to be fixed after 28 September 2011. I also reserved liberty to apply, and reserved the costs of that day. 3 The respondent did not comply with either of the orders to file and serve a notice of appearance, or to file and serve a defence. Two documents, dated respectively 15 September 2011 and 16 September 2011, were forwarded to the Court by electronic means, but the respondent did not have an active electronic filing account, so the documents were not processed for filing. The first of them purported to be a notice of address for service. It made reference to a GPO Box in Bundall, Queensland, 4217, but instead of a box number, the letter "x" was inserted three times. An email address, , was included. The document included the following statement: As public threats have been made against me by the Applicant and its employees, on more than one occasion, I will only provide a Post Office Box as an address for service. My wife and daughter's [sic] fear for their safety as a result of these threats and I must place their safety foremost. A Post Office box number will be provided. I am obtaining one at the moment, and will provide the number as soon as possible. No post-office box number has been provided to the Court. The document dated 16 September 2011 was headed "Defence", but contained only three paragraphs. They read as follows: I hereby lodge my defense [sic] and response to the Statement of claim lodged by the applicant. I also lodge a response to all allegations and particulars contained in the Statement of claim lodged by the applicant. Details are contained forthwith. 4 On 16 September 2011, the respondent communicated with the solicitors for the applicant in two separate emails. To one of them was attached the purported notice of address for service, and to the other, the document entitled "Defence". The emails indicated that the documents had also been sent by email to the Victoria District Registry of this Court. The respondent stated in the first that he was awaiting confirmation of electronic lodgement, and in the second, that he had registered for electronic lodgement, but his account was not yet set up. 5 On the same day, the solicitors for the applicant sent an email to the respondent requesting the other details referred to in paras 2 and 3 of the defence. The respondent replied on 19 September 2011 saying: Looks like error in creating pdf. Will send this afternoon when i [sic] have access to the computer, 6 On the same day, an officer of the Victoria District Registry of the Court informed the respondent by email that the documents he had submitted had not been accepted for filing, and requested they be submitted in person or by facsimile or by post until such time as his eLodgment account was activated. No further document was received, and no further document has been forwarded to the applicant. Accordingly, the applicant has requested that the proceeding be listed today, so that it could proceed to judgment against the respondent, to the extent to which it is able to do so. 7 I am satisfied from an affidavit of Davina Calandra, sworn on 8 December 2011, that her earlier affidavit and its exhibits, setting out the history of the proceeding and containing the allegations of default on the part of the respondent, have been served by sending them attached to emails addressed to the respondent at the email address given in his purported notice of address for service. 8 Rule 5.22 of the Federal Court Rules 2011 provides that a party is in default if the party fails to comply with an order of the Court or attend a hearing in the proceeding or prosecute or defend the proceeding with due diligence. Rule 5.23(2) makes provision for orders that can be made if a respondent is in default. Among those orders in para (d) are an order giving judgment against the respondent for damages to be assessed, or any other order. 9 I am satisfied that the respondent is in default in complying with an order of the Court, in attending a hearing of the proceeding of which he has been notified, and in defending the proceeding with due diligence. The documents he purported to file by way of notice of address for service, and by way of defence, were very late. Manifestly, neither is a proper document. The notice of address for service does not give sufficient information about where the respondent may be served. The defence does not respond with any specificity at all to the allegations made in the statement of claim. I am also satisfied that the respondent has failed to reply to communications sent to him by email by the applicant's solicitors. Accordingly, I am prepared to grant the orders that the applicant seeks today that involve entry of judgment to the extent to which that is possible. 10 So far as the first of the applicant's claims is concerned, it will be necessary to enter judgment for damages or equitable compensation to be assessed, and to make procedural orders to facilitate the assessment of any damages or equitable compensation. That assessment will be done appropriately by evidence on affidavit. It is necessary to afford procedural fairness to the respondent, so the timetable I propose to make provides for him to file any affidavit on which he may wish to rely in relation to that assessment. Because it appears that emails addressed to the respondent at the email address he gave in his purported notice of address for service are not being returned, I am prepared to make an order deeming service to be effective if documents are attached to emails addressed to him at that address. Such documents will include this order. 11 As to the second of the applicant's claims for injunctive relief, the form in which the claim appears in the application is inadequate. It would be wrong to grant an injunction restraining a respondent from doing things that requires the respondent to refer to another document, namely the statement of claim, to ascertain what the content of the obligations in the injunction might be. Accordingly, I have heard counsel for the applicant as to the form of an appropriate injunction. This involves the deletion of some categories of material that appear in para 3(e) of the statement of claim that are acknowledged by counsel for the applicant to be expressed in terms that are too wide. 12 I also propose to give judgment for the applicant against the respondent for the costs of the proceeding to date. Obviously the proceeding will remain alive until the assessment is listed for hearing, which will be on a date to be fixed, and further costs will be incurred in relation to that. There is no reason why the applicant should not have judgment for the costs to date, at this stage. 13 Accordingly, the orders I propose to make are: