Pacific Equity Partners Pty Ltd v Kerwick [2017] NSWSC 1302

Pacific Equity Partners Pty Ltd v Kerwick [2017] NSWSC 1302

PEP failed to show, beyond a bare possibility, a sufficiently plausible potential claim that the defendants breached cl 12.1 by disclosing confidential information: the AFR disclosures were accepted to be public, there was no evidence of any release of confidential PEP information attributable to the defendants, and Adamantem could have raised funds using public information and the defendants' personal reputations. PEP did show an arguable potential claim for breach of cl 12.2 based on communications with the AFR, but the discovery sought was directed to fundraising materials and potential investors rather than media communications, so the documents sought did not relate to that claim....

Jurisdiction
Australia
Judgment Date
28 September 2017
Procedural Posture
Civil Procedure; Preliminary Discovery / Application by Summons for Preliminary Discovery Under Uniform Civil Procedure Rules 2005 (nsw), R 5.3(1)
Outcome
Summons dismissed.
Legal Topics
['preliminary Discovery' 'prospective Defendant Discovery' 'breach of Employment Contract' 'confidential Information' 'disclosure to Media' 'private Equity Fund Marketing' 'public Domain Information' 'discretion to Refuse Discovery']
['civil Procedure' 'equity' 'commercial Law' 'employment Contract' 'confidential Information'] ['preliminary Discovery' 'prospective Defendant Discovery' 'breach of Employment Contract' 'confidential Information' 'disclosure to Media' 'private Equity Fund Marketing' 'public Domain Information' 'discretion to Refuse Discovery']

Case Brief

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Procedural Posture

Civil Procedure; Preliminary Discovery / Application by Summons for Preliminary Discovery Under Uniform Civil Procedure Rules 2005 (nsw), R 5.3(1)

Legal Issues

  1. 1 ["Whether PEP may have a sufficiently plausible claim for breach of cl 12.1 of the defendants' employment agreements concerning disclosure of Confidential Information." "Whether information about PEP's track record allegedly used in Adamantem fundraising was confidential and not in the public domain." 'Whether PEP may have a sufficiently plausible claim for breach of cl 12.2 of the employment agreements concerning communications with media.' 'Whether the documents sought related to the potential claim for breach of cl 12.2.' "Whether discretionary reasons, including PEP's letter of demand and alleged decision to sue, justified refusing preliminary discovery."]

Ratio Decidendi

PEP failed to show, beyond a bare possibility, a sufficiently plausible potential claim that the defendants breached cl 12.1 by disclosing confidential information: the AFR disclosures were accepted to be public, there was no evidence of any release of confidential PEP information attributable to the defendants, and Adamantem could have raised funds using public information and the defendants' personal reputations. PEP did show an arguable potential claim for breach of cl 12.2 based on communications with the AFR, but the discovery sought was directed to fundraising materials and potential investors rather than media communications, so the documents sought did not relate to that claim....

Court Disposition

Summons dismissed.

Orders

  • ['Order that the Summons be dismissed.' "Order that the plaintiff pay the defendants' costs of the proceedings." "Grant liberty to the parties to apply with respect to costs, such liberty to be exercised within 14 days of today's date."]