Business Boost Pty Ltd v Passions Pty Ltd & Anor [1998] FCA 1369

Business Boost Pty Ltd v Passions Pty Ltd & Anor [1998] FCA 1369

Although the content of the applicant's advertisement was in the public domain once broadcast, there was a serious question to be tried that Ms Milosevic used non-public information acquired during her employment about the applicant's collective experience and judgment as to successful telemarketing advertising elements to create the respondents' advertisement, thereby potentially breaching s 232(5) of the Corporations Law. The balance of convenience favoured the applicant because damages from diverted sales or loss of goodwill would be almost impossible to quantify, while the respondents were protected by the applicant's undertaking as to damages.

Jurisdiction
Australia
Judgment Date
20 October 1998
Procedural Posture
Application for an Interlocutory Injunction / Interlocutory Application
Outcome
Interlocutory injunction granted.
Legal Topics
['improper Use of Information Acquired as an Employee' 'misleading or Deceptive Conduct' 'television Advertising' 'serious Question to Be Tried' 'balance of Convenience' 'undertaking as to Damages']
['corporations Law' 'trade Practices' 'injunctions'] ['improper Use of Information Acquired as an Employee' 'misleading or Deceptive Conduct' 'television Advertising' 'serious Question to Be Tried' 'balance of Convenience' 'undertaking as to Damages']

Case Brief

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Procedural Posture

Application for an Interlocutory Injunction / Interlocutory Application

Legal Issues

  1. 1 ["Whether the respondents should be restrained from publishing a television advertisement similar to the applicant's advertisement." 'Whether there was a serious question to be tried that the second respondent made improper use of information acquired by virtue of her employment with the applicant contrary to s 232(5) of the Corporations Law.' "Whether the respondents' advertisement constituted misleading or deceptive conduct within the meaning of s 52 of the Trade Practices Act 1974." 'Whether the balance of convenience favoured granting an interlocutory injunction.']

Ratio Decidendi

Although the content of the applicant's advertisement was in the public domain once broadcast, there was a serious question to be tried that Ms Milosevic used non-public information acquired during her employment about the applicant's collective experience and judgment as to successful telemarketing advertising elements to create the respondents' advertisement, thereby potentially breaching s 232(5) of the Corporations Law. The balance of convenience favoured the applicant because damages from diverted sales or loss of goodwill would be almost impossible to quantify, while the respondents were protected by the applicant's undertaking as to damages.

Court Disposition

Interlocutory injunction granted.

Orders

  • ['The Court noted the undertaking given by the applicant to pay, to such persons as the Court may require, such compensation as may be assessed by the Court in respect of any damage sustained by reason of the orders.' "Pending further order of the Court, the respondents and each of them, their servants and agents,...