Matters › McKenzie › Research

JPS Medical Recruitment Pty Ltd v McKenzie & Anor

Defence + CC Ver 26 Strong Position Filing Imminent

DC 598/26 — Case Overview

Restraint of trade, breach of confidence and copyright proceedings against a former Recruitment Consultant who started a competing medical recruitment business — with a substantial counterclaim for unpaid commission and unauthorised deductions.
Plaintiff
JPS Medical Recruitment Pty Ltd
Defendants
A. McKenzie + Arthur Albert Medical Recruitment Pty Ltd
Causes of Action
Restraint, breach of confidence, copyright, fiduciary duty, ss 182/183 CA
Phase
Defence + Counterclaim ver 27 finalised
Pleaded Loss (JPS)
Not quantified — alleged "lost opportunities"
Counterclaim (Us)
$71,084.34+ + FW penalties + Dr Atua TBC
Plaintiff Solicitors
Thomson Geer
Acting For
Defendants — M. Harley, Boss Lawyers
Defence Merit
8.5/10
Restraint void in QLD without cascading tiers (Maglis). JPS's own conduct destroys confidentiality claim.
Counterclaim Strength
8/10
Payslips prove the unauthorised deductions. 5 years of consistent commission payments establishes the term.
Bottom line: JPS is overreaching. The single-tier restraint is almost certainly void in Queensland (no statutory reading down). The "confidential information" was sourced from the AHPRA register and hospital websites, and JPS treated none of it as confidential. The breach of fiduciary duty claim is pleaded against a salaried recruitment consultant — well outside Hospital Products. Meanwhile, JPS owes Allisha $57K in commission and unlawfully deducted $13.9K from her wages. The counterclaim puts us on the front foot — JPS is spending more in legal fees than its claim is worth.

02 JPS's Claim Strength

Plaintiff's best case — element-by-element scoring of each component, the facts they can lead, and where they are vulnerable to attack.
Plaintiff's POV
1. Employment contract existed
9/10 🟢
Their Facts
Written employment contract signed 1 July 2019. Clear schedule of terms and conditions.
Authority
Contract on its face. Schedule names parties.
Our Response
Admitted — but the contracting party is uncertain. Two ABNs appear: JPS Medical Recruitment and JPS Executive Search & Selection. Standing problem for JPS.
2. Restraint clause exists
9/10 🟢
Their Facts
Clause 20 — 12 months, all of Australia, all medical recruitment. Express clause in signed contract.
Authority
Clause 20 of the employment contract.
Our Response
Existence admitted — enforceability denied. Single tier, no cascading provisions. Stand or fall as a whole. Will be struck down on the pleadings.
3. Confidential information existed
5/10 🟡
Their Facts
Exelare candidate database, candidate / client lists, internal placement notes and communications.
Authority
Faccenda Chicken v Fowler [1987] Ch 117.
Our Response
The vast majority of this is in the public domain — AHPRA register, hospital vacancy ads, LinkedIn. JPS implemented no confidentiality measures. Personal devices were used for work. Faccenda category 2 at best.
4. Allisha took information
6/10 🟡
Their Facts
Allisha exported Exelare data to a spreadsheet. Folder of documents on her personal computer.
Authority
Forensic data extraction — likely to be supported by IT records.
Our Response
Export function is available to all staff in the ordinary course of business. JPS required staff to use personal laptops. There was no exit process, no return of materials, no offboarding. JPS's own conduct invited this.
5. Allisha breached the restraint
7/10 🟡
Their Facts
Allisha incorporated Arthur Albert Medical Recruitment within 12 months of leaving JPS, in the same industry.
Authority
ASIC records, ABN register, evidence of placements.
Our Response
Even if competition is established, the restraint is void. Single tier, no cascading, unreasonable breadth (all Australia, all medical recruitment, 12 months) for a recruitment consultant on $70–80K. Maglis [2025] QSC 71 — no reading down in QLD.
6. Allisha breached confidence
4/10 🔴
Their Facts
Allisha is competing in the same industry using "knowledge" gained at JPS.
Authority
Generic equitable doctrine of confidence.
Our Response
Industry know-how is not a trade secret post-employment (Faccenda). The information is in the public domain. JPS implemented no confidentiality measures whatsoever — no marking, no access controls, no training, no induction, no exit process. JPS cannot claim what it never treated as confidential.
7. Allisha owed a fiduciary duty
3/10 🔴
Their Facts
Allisha was an employee with access to company information.
Authority
Hospital Products v USSC (1984) 156 CLR 41 — but applied incorrectly.
Our Response
Allisha was a Recruitment Consultant — the most junior revenue role. No managerial authority. Subject to direction. One of several doing equivalent work. Ordinary employment alone does not give rise to fiduciary obligations. This claim is a makeweight.
8. Copyright infringement
3/10 🔴
Their Facts
Exelare database is alleged to be a copyright work. Allisha exported its contents.
Authority
s 35(6) Copyright Act 1968.
Our Response
Factual data harvested from public sources — AHPRA, hospital sites — has only thin copyright protection (IceTV v Nine). JPS hasn't identified any specific work in which copyright subsists. Two-ABN problem also goes to ownership. Database is shared across two entities.
9. Second Defendant liable
4/10 🔴
Their Facts
Arthur Albert Medical Recruitment is a corporate vehicle for the alleged breaches.
Authority
Accessorial liability principles.
Our Response
Arthur Albert didn't commence operating until 25 August 2025. Only one medical placement (Dr Moradi, sourced from a Seek advertisement, no Exelare data used). No signed terms of business in medical recruitment. Allisha is concurrently employed at HarperLloyd in legal recruitment.
10. Loss and damage
3/10 🔴
Their Facts
Alleged loss of opportunities, lost revenue, value of confidential information.
Authority
None pleaded with particularity.
Our Response
Not quantified at all. No causal connection established. No specific lost contracts identified. No springboard advantage materialised — Arthur Albert has done one medical placement. JPS will fail at the damages stage even if liability is somehow made out.
11. Equity / sympathy
4/10 🔴
Their Facts
Employer suing former employee for competing — the orthodox restraint narrative.
Authority
Public interest in protecting business interests.
Our Response
JPS owes $71K+ in unpaid commission and unlawful deductions. JPS published Allisha's personal mobile on advertisements. JPS required personal devices and had no offboarding process. JPS has not pursued 6 other former employees who left to compete. Selective enforcement. Court will not look kindly on a plaintiff with this conduct.

03 Our Defence Strength

Defence-by-defence assessment — applicable law and how it applies to the facts. The restraint and the confidentiality claim each have multiple independent grounds for dismissal.
Defendants' POV
D1. Restraint void — single tier, unreasonable
9/10 🟢
The Law
Queensland has no statutory reading down (cf NSW s 4 Restraints of Trade Act 1976). Restraint must stand or fall as drafted. Perpetual v Maglis [2025] QSC 71.
Authority
Maglis; Lindner v Murdock's Garage (1950) 83 CLR 628; JQAT v Storm [2003] 2 Qd R 579.
Application
Single clause — 12 months, all of Australia, all medical recruitment. No cascading tiers. Patently unreasonable for a $70–80K recruitment consultant. JPS gave no consideration to confining the clause to legitimate interests.
D2. Two-ABN / standing problem
7/10 🟡
The Law
A plaintiff must have standing to sue. Identity of the contracting party must be pleaded with particularity.
Authority
Schedule to the employment contract; ASIC records.
Application
The Schedule names both JPS Medical Recruitment Pty Ltd and JPS Executive Search & Selection. Two distinct ABNs. Identity of "the Employer" is uncertain on the face of the contract. JPS may not be the correct plaintiff. Particulars demanded.
D3. Information was in the public domain
8/10 🟢
The Law
Faccenda Chicken v Fowler [1987] Ch 117 — three categories: trade secrets / know-how / trivial. Only trade secrets are protected post-employment.
Authority
Faccenda; Wright v Gasweld (1991) 22 NSWLR 317.
Application
Doctor names and qualifications are on the public AHPRA register. Hospital vacancies are publicly advertised. Contact details are discoverable on websites and LinkedIn. The "confidential information" is the public domain compiled into a spreadsheet — not a trade secret.
D4. JPS implemented no confidentiality measures
9/10 🟢
The Law
An employer cannot claim equitable protection of confidential information unless it actually treated the information as confidential.
Authority
Wright v Gasweld (1991) 22 NSWLR 317; Cactus Imaging v Peters [2006] NSWSC.
Application
No access controls. No marking of documents as confidential. No staff training or induction on confidentiality. No exit process. Personal devices required by JPS. Mass email accidents (whole-of-company sends with sensitive content). Export function available to all staff. JPS's own conduct destroys the claim.
D5. Not a fiduciary
8/10 🟢
The Law
Hospital Products v USSC (1984) 156 CLR 41 — fiduciary duty arises where one party is in a position of trust and confidence beyond ordinary employment. Mere employment is insufficient.
Authority
Hospital Products; Concut Pty Ltd v Worrell (2000) 176 ALR 693.
Application
Recruitment Consultant is the most junior revenue-generating role. No managerial authority. Subject to direction by the directors. One of several recruiters doing equivalent work. ss 182/183 Corporations Act don't help — Allisha was not a director or officer.
D6. No springboard advantage
8/10 🟢
The Law
Springboard relief requires the defendant to have used confidential information to gain an unfair head start. Sun Valley Foods v Vincent [2000]; Vestergaard Frandsen v Bestnet [2013].
Authority
Sun Valley Foods; Vestergaard Frandsen.
Application
No springboard has materialised. Arthur Albert did one medical placement (Dr Moradi — sourced from Seek). No material revenue from medical recruitment. Allisha is concurrently employed at HarperLloyd in legal recruitment. The data was not used.
D7. Selective enforcement
7/10 🟡
The Law
Selective enforcement is relevant to the reasonableness assessment of a restraint and to the equitable discretion to grant injunctive relief.
Authority
General equitable principles — clean hands; Dawnay Day v De Braconier d'Alphen [1997] IRLR 442 dicta.
Application
6 named former JPS employees started competing businesses or joined competitors during the same period. JPS has commenced no proceedings against any of them. Pattern shows JPS does not in fact need the restraint to protect any legitimate interest.
D8. Repudiation releases the restraint
7/10 🟡
The Law
Where the employer repudiates the contract, the employee is released from executory obligations including post-employment restraints. Koompahtoo v Sanpine (2007) 233 CLR 115; Shevill v Builders Licensing Board (1982) 149 CLR 620.
Authority
Koompahtoo; Shevill; General Billposting v Atkinson [1909] AC 118.
Application
JPS failed to pay $57K+ in commission and made $13.9K of unauthorised deductions from wages. Fundamental breach of essential terms. Repudiation is accepted by the filing of the counterclaim. Even if the restraint were valid, it is unenforceable.
D9. Copyright defence — IceTV
8/10 🟢
The Law
IceTV v Nine (2009) 239 CLR 458 — factual data compilations have only thin copyright protection. Substantial part requires more than reproduction of facts.
Authority
IceTV; Telstra v Phone Directories (2010) 194 FCR 142.
Application
Exelare data is largely sourced from public-domain materials (AHPRA, hospital websites). Shared system across two entities — ownership uncertain. No specific work identified by JPS. Reproduction of a database of facts is not infringement of any "substantial part" of an original work.

04 Counterclaim Strength

JPS owes Allisha unpaid commission and made unauthorised wage deductions. Strong primary claim with two solid alternatives. Fair Work Act statutory penalties stack on top.
Defendants' POV

Total Counterclaim

$71,084.34 + Dr Atua TBC + FW penalties
$57,178.63 unpaid commission · $13,905.71 Kandavelu deduction · Dr Atua deduction TBC · Fair Work Act civil penalties (s 323 / s 324)
C1. Unpaid commission — breach of contract
8/10 🟢
Amount
$57,178.63 — 40% of billings ($201,746.68) above desk cost ($58,800).
Basis
Item 7 of the Schedule to the employment contract. Written in Item 7 of Schedule from commencement. Applied consistently for ~6 years.
Strength
Term of the contract or implied through course of dealing. Payslips show consistent commission payments throughout employment. JPS cannot deny the scheme exists when it has paid under it for years.
C2. Unauthorised deduction — Kandavelu
9/10 🟢
Amount
$13,905.71 — deducted from wages without consent.
Basis
s 324 Fair Work Act 2009 — written authorisation required for any deduction from wages.
Strength
Deducted without Allisha's knowledge or consent. No written authorisation exists. Payslip proves the deduction. Straightforward statutory contravention. JPS has no defence.
C3. Unauthorised deduction — Dr Atua
8/10 🟢
Amount
TBC — to be confirmed with Allisha and through disclosure.
Basis
"Less overpayment" entry on April 2025 payslip. s 324 Fair Work Act.
Strength
No consent given. No written authorisation. Payslip proves the deduction was made. Same statutory contravention as Kandavelu deduction. Quantum to be established through disclosure.
C4. Fair Work Act ss 323 / 324 penalties
9/10 🟢
Amount
Civil penalties + compensation. Penalty units stack per contravention.
Basis
s 323 (full payment of amounts owed) and s 324 (deductions only with written authorisation). FWO v Foot & Thai Massage (No 4) [2021] FCA.
Strength
Statutory contravention proven on the face of the payslips. No written authorisation = automatic s 324 contravention. Penalty units payable to the State + compensation to Allisha. Significant deterrent for JPS.
C5. Implied term (alternative)
7/10 🟡
Amount
$57,178.63 (alternative basis for primary claim).
Basis
Quinn v Jack Chia [1992] 1 VR 567; Pennytel v Engelke [2025] FCAFC.
Strength
If commission discretion exists, it must be exercised honestly and not capriciously. Withholding $57K after 5 years of consistent payment is capricious. Pennytel recently endorsed Quinn.
C6. Estoppel (alternative)
7/10 🟡
Amount
$57,178.63 (alternative basis).
Basis
Waltons Stores v Maher (1988) 164 CLR 387.
Strength
5 years of consistent application of the commission scheme. Reliance — Allisha continued to perform expecting commission. Detriment — billings generated for which no commission paid. Unconscionable to resile.
C7. Quantum meruit (alternative)
6/10 🟡
Amount
$57,178.63 (restitutionary alternative).
Basis
Pavey & Matthews v Paul (1987) 162 CLR 221; Mann v Paterson Constructions [2019] HCA 32.
Strength
Work performed; benefit received by JPS (billings of $201K+); unconscionable to retain without paying the agreed rate. Mann v Paterson confirms quantum meruit available where contract is repudiated.
C8. Repudiation releases restraint (defensive)
7/10 🟡
Amount
N/A — defensive doctrine.
Basis
Koompahtoo v Sanpine; Shevill v Builders Licensing Board.
Strength
Even if the restraint were enforceable, JPS's fundamental breach (failure to pay commission + unauthorised deductions) releases Allisha from executory obligations. Repudiation accepted by counterclaim. Belt and braces with D8.

05 Element-by-Element — JPS's Causes of Action

Each cause of action JPS pleads, broken down to its elements, the evidence they will lead, and our response.
Pleading map
① Breach of Restraint of Trade Restraint of Trade Strength: 4/10
ElementTheir EvidenceOur Response
Valid restraint clause Contract clause 20 — 12 months, all of Australia, all medical recruitment. Void — single tier, unreasonable breadth, no cascading. QLD has no statutory reading down (Maglis). Stand or fall as a whole.
Breach by competing Arthur Albert Medical Recruitment incorporated in same field within 12 months. Even if clause valid, repudiation by JPS releases Allisha from the executory obligation (Koompahtoo; General Billposting).
Loss caused by breach Alleged "loss of opportunities" — not particularised. Not quantified. No causal connection. No specific lost contracts. One placement (Dr Moradi) from Seek advert. No springboard.
② Breach of Confidence (equitable) Confidence Strength: 3/10
ElementTheir EvidenceOur Response
Information was confidential Exelare data, candidate / client lists, internal placement notes. Public domain — AHPRA register, hospital websites, LinkedIn. No confidentiality measures. Mass-email accidents. Faccenda category 2 at best.
Imparted in confidence Employment relationship. No marking, no training, no induction, no exit process. Personal devices required. Mere employment is insufficient (Wright v Gasweld).
Unauthorised use to detriment Competing in medical recruitment. Know-how, not trade secrets — not protected post-employment (Faccenda). Data not actually used. One placement only.
Detriment Alleged lost opportunities. Not quantified. No causal connection. Springboard not materialised.
③ Copyright Infringement Copyright Act 1968 Strength: 3/10
ElementTheir EvidenceOur Response
Work in which copyright subsists The Exelare database (compilation). Factual data compilation — thin copyright (IceTV v Nine; Telstra v Phone Directories). Specific work not identified.
JPS owns the copyright s 35(6) Copyright Act 1968 — work made by employee. Two-ABN problem — which JPS entity? Database is shared across both. Authorship and ownership unclear.
Reproduction Spreadsheet exported from Exelare. Export function used by all staff in the ordinary course of business. No copying with intent to infringe.
Substantial part Not particularised. Not identified. JPS has not pleaded what the "work" is, nor what portion was reproduced.
④ Breach of Fiduciary Duty Equity Strength: 3/10
ElementTheir EvidenceOur Response
Fiduciary relationship Employment with access to information. Recruitment Consultant — junior revenue role. No managerial authority. Mere employment ≠ fiduciary (Hospital Products).
Breach of duty Competing post-employment. No fiduciary duty exists. Even if it did, the post-employment competition is not a breach absent a continuing duty (and Allisha was not a director).
⑤ ss 182 / 183 Corporations Act 2001 Statute Strength: 3/10
ElementTheir EvidenceOur Response
"Officer or employee" of JPS Allisha was an employee. Admitted (in part — depending which JPS entity). She was an employee, not a director or officer.
Improper use of position / information Use of company information after departure. Information was not "of the corporation" in the s 183 sense — public-domain factual data. No improper use established.
To gain advantage / cause detriment Competing business; alleged lost opportunities. No advantage gained — one placement, no material revenue. No causal link to any detriment to JPS.

06 The Battleground

Four critical issues. Each can effectively decide a major part of the case. Resolution determines the entire shape of the proceeding.
4 critical issues
1
Is the restraint enforceable? ⭐
The threshold question for JPS's entire case.
If NO
JPS's restraint claim collapses entirely. The restraint is the foundation of the proceeding — without it, breach of confidence and copyright become marginal makeweights.
If YES
JPS still has to prove breach caused loss. Damages are not particularised. We then fall back on D8 (repudiation) as second line of defence.
What we need: Court accepts Maglis applies — single tier, no reading down in QLD. Restraint stands or falls as drafted. Confined to a $70–80K Recruitment Consultant, the breadth (12 months, all Australia, all medical recruitment) is unreasonable on its face.
Key authorities: Perpetual v Maglis [2025] QSC 71; Lindner v Murdock's Garage (1950) 83 CLR 628; JQAT v Storm [2003] 2 Qd R 579.
2
Was the information confidential?
Goes to breach of confidence and copyright (overlapping).
If NO
Breach of confidence claim fails entirely. Copyright claim severely weakened (no proprietary data left to claim).
If YES
Even then, post-employment protection is limited to trade secrets only (Faccenda). Most of what JPS pleads is know-how at best.
What we need: Court considers JPS's own conduct. No marking, no access controls, no induction, no exit process, personal devices required, mass email accidents, export function open to all. JPS cannot claim what it never treated as confidential.
Key authorities: Faccenda Chicken v Fowler [1987] Ch 117; Wright v Gasweld (1991) 22 NSWLR 317.
3
Is Allisha owed commission?
The counterclaim's primary head — and a crucial lever on the restraint via repudiation.
If YES
Counterclaim succeeds — $57K+. Repudiation argument strengthened. JPS faces a net liability rather than a recovery.
If NO
Counterclaim's main head fails. Restraint is harder to attack via repudiation (D8 weakens). But the deductions claim (C2/C3) is independent and survives.
What we need: Item 7 of the Schedule + 5 years of consistent application of the commission scheme + payslips proving the pattern. If express term unclear, we have Quinn v Jack Chia implied term, Waltons Stores estoppel, and Pavey & Matthews quantum meruit as alternatives.
Key authorities: Quinn v Jack Chia [1992] 1 VR 567; Pennytel v Engelke [2025] FCAFC; Waltons Stores v Maher (1988) 164 CLR 387.
4
Were the deductions authorised?
A near-certain win — straightforward statutory contravention.
Almost certainly NO
s 324 Fair Work Act requires written authorisation. None exists. Payslips prove the deductions. C2, C3 and C4 of the counterclaim succeed.
If YES
Vanishingly unlikely. Would require written authorisation to materialise on disclosure (none exists).
What we need: Payslips (already in our possession) + the absence of written authorisation. JPS bears the practical onus to produce any written authority — and there is none. FWO v Foot & Thai Massage (No 4) directly on point.
Key authorities: ss 323, 324 Fair Work Act 2009; FWO v Foot & Thai Massage (No 4) [2021] FCA.

07 Settlement Analysis

Range of outcomes. Our position is unusually strong — JPS has more to lose than to gain by continuing.
Leverage: Defendants
BEST For Us
JPS pays $71K+ counterclaim
Restraint declared void. Confidence and copyright dismissed. JPS pays the counterclaim in full ($71K+), Fair Work penalties to the State, and indemnity costs from any Calderbank.
LIKELY Settlement
JPS pays $40–60K, mutual walkaway
JPS drops the restraint claim (recognising it cannot stand). Pays $40–60K representing commission compromise. Mutual releases. No admissions. Costs each party. JPS preserves face; we secure most of the counterclaim value.
CALDERBANK Recommendation
$60K + walkaway
Issue Calderbank after defence + counterclaim filed. Demand: $60K to Allisha (representing ~85% of the counterclaim), discontinuance of all claims by JPS, mutual releases, costs each party. If JPS rejects and we recover more or equivalent at trial, indemnity costs from offer date.
WORST Trial Loss
Restraint enforced + costs
Court reads down or upholds the restraint (very unlikely in QLD post-Maglis). 12-month restraint enforced. Damages still likely modest because no springboard materialised. JPS recovers party-party costs.
Best Likely Worst

⚖ Strategic Recommendation

The commercial reality is that JPS is spending more on legal fees than its claim is worth. The single-tier restraint is almost certainly void in Queensland post-Maglis; the confidence claim is destroyed by JPS's own conduct; the copyright claim has no identified work; and the fiduciary / Corporations Act claims are makeweights against a salaried recruitment consultant. Meanwhile we have a $71K+ counterclaim with strong primary and alternative bases. Issue Calderbank shortly after filing — leverage is at its peak when JPS first sees the strength of the defence and counterclaim. Likely outcome: JPS quietly drops the restraint and pays a substantial portion of the commission to walk away.

08 Key Authorities

Hover any case name for the principle. Filter by topic below.
17 cases
Restraint of Trade
CaseCitationPrincipleStance
Perpetual Nominees Ltd v MaglisPrinciple: Queensland has no equivalent to the NSW Restraints of Trade Act 1976 (s 4 reading-down power). A restraint must stand or fall as drafted. A single-tier restraint that is unreasonable on its face cannot be cut down by the court — it is void in its entirety. [2025] QSC 71 No reading down of restraint in QLD. Single tier stands or falls as drafted. FOR — directly applicable
City Fertility Centre v ReimsPrinciple: Restraint enforced against a senior fertility specialist. Distinguishable from our case — the restrained party was a highly specialised clinician with a genuine protectable interest in patient relationships, the restraint was geographically narrow, and the consideration was substantial. None of those features are present for a $70–80K recruitment consultant subject to a national, all-medical-recruitment 12-month restraint. [2025] QSC 210 Restraint enforced — but heavily distinguishable on facts (narrower restraint, senior clinician). AGAINST — but distinguishable
Nordenfelt v Maxim Nordenfelt Guns and Ammunition CoPrinciple: A restraint of trade is prima facie void as contrary to public policy. It is enforceable only if reasonable in the interests of the parties AND in the interests of the public. The party seeking to enforce bears the onus of proving reasonableness. [1894] AC 535 Restraint must be reasonable in the interests of the parties and the public. FOR — foundational principle
Lindner v Murdock's GaragePrinciple: A restraint that is unreasonably broad in geography, duration or scope is void. The court will not rewrite the parties' bargain. High Court — applied widely in Australia. (1950) 83 CLR 628 Unreasonable breadth renders a restraint void; the court will not rewrite it. FOR — directly supports breadth attack
Stenhouse Australia Ltd v PhillipsPrinciple: An employer must show a legitimate protectable interest — typically goodwill, customer connections or genuine trade secrets. Mere protection from competition is not a legitimate interest. Privy Council on appeal from NSW. [1974] AC 391 Employer must show legitimate protectable interest — not mere protection from competition. FOR — JPS has no legitimate interest beyond competition
JQAT Pty Ltd v StormPrinciple: Queensland Court of Appeal — restatement of the QLD position on restraints. The court applies the common law strictly. Reading down the type permitted under NSW legislation is not available in QLD. [2003] 2 Qd R 579 Queensland position on restraints — common law applied strictly, no statutory reading down. FOR
Confidentiality
CaseCitationPrincipleStance
Faccenda Chicken Ltd v FowlerPrinciple: Information acquired during employment falls into three categories: (1) trivial information / public knowledge — no protection; (2) information that is confidential during employment but becomes part of the employee's general skill and knowledge — only protected during employment; (3) genuine trade secrets — protected post-employment. Most "confidential" information falls into category 2. [1987] Ch 117 Three categories. Only trade secrets protected post-employment. FOR — JPS information at best category 2
Wright v Gasweld Pty LtdPrinciple: An employer must actually treat information as confidential — through marking, access controls, training, induction and consistent behaviour — for equity to protect it. Mere assertion of confidentiality after the fact is insufficient. NSW Court of Appeal. (1991) 22 NSWLR 317 Employer must actually treat information as confidential to claim equitable protection. FOR — JPS did none of the things required
Cactus Imaging Pty Ltd v PetersPrinciple: Recruitment industry case examining confidentiality of candidate / client information. The court closely scrutinises whether information was actually confidential or merely industry know-how. Lists of contacts available from public sources are not confidential. [2006] NSWSC 717 Recruitment context — confidentiality assessed strictly; public-domain contact information not protected. FOR — directly analogous industry context
Sun Valley Foods Australasia Pty Ltd v VincentPrinciple: Springboard relief is available only where the defendant has actually used confidential information to gain an unfair head start. If the information has not been used, or has been independently developed, no springboard exists and no relief follows. [2000] FCA 1681 Springboard requires actual use of the information to gain an unfair head start. FOR — no use, no springboard
Vestergaard Frandsen A/S v Bestnet Europe LtdPrinciple: UK Supreme Court — a defendant who has not used and does not know of any confidential information cannot be liable for misuse. Liability requires knowing use of the information. [2013] UKSC 31 Liability for misuse requires knowing use of confidential information. FOR
Commission / Contract
CaseCitationPrincipleStance
Quinn v Jack Chia (Australia) LtdPrinciple: Where an employment contract provides for commission at the discretion of the employer, the discretion must be exercised honestly and not capriciously. The court will imply a term to that effect. Victorian Supreme Court. [1992] 1 VR 567 Commission discretion must be exercised honestly and not capriciously. FOR — supports implied term claim (C5)
Pennytel Pty Ltd v EngelkePrinciple: Recent Full Federal Court decision applying Quinn v Jack Chia in a commission dispute. Confirms that commission discretion (where applicable) cannot be exercised capriciously, especially where consistent prior practice has established expectations. [2025] FCAFC Recent application of Quinn v Jack Chia — capricious denial of commission breaches implied term. FOR — recent and directly on point
Waltons Stores (Interstate) Ltd v MaherPrinciple: Equitable estoppel by conduct. A representation by conduct, reliance by the other party, and detriment will give rise to an estoppel preventing the representor from departing from the assumption. High Court. (1988) 164 CLR 387 Estoppel by conduct: representation, reliance, detriment. FOR — supports estoppel claim (C6)
Pavey & Matthews Pty Ltd v PaulPrinciple: Quantum meruit available where work has been performed and a benefit conferred but the contract is void or unenforceable. The court awards a reasonable sum for the value of the work. High Court. (1987) 162 CLR 221 Quantum meruit: reasonable sum for work performed where contract void/unenforceable. FOR — supports quantum meruit (C7)
Mann v Paterson Constructions Pty LtdPrinciple: Quantum meruit is available where a contract is terminated for repudiation, but the recovery cannot exceed the contract price for completed stages. Confirms restitutionary claim survives even where there is a contract. [2019] HCA 32 Quantum meruit available on repudiation — but capped by contract. FOR — recent High Court endorsement
Fair Work Act
CaseCitationPrincipleStance
FWO v Foot & Thai Massage Pty Ltd (No 4)Principle: A deduction from wages without written authorisation from the employee is a contravention of s 324 of the Fair Work Act 2009. Civil penalties apply per contravention. Employer cannot rely on oral consent or course of conduct to authorise deductions — written authorisation is mandatory. [2021] FCA 1242 No written authorisation = automatic s 324 contravention. Civil penalties stack per deduction. FOR — directly on point for C2/C3/C4
Repudiation
CaseCitationPrincipleStance
Koompahtoo Local Aboriginal Land Council v Sanpine Pty LtdPrinciple: A breach of an essential term, or a sufficiently serious breach of a non-essential term, will amount to repudiation entitling the innocent party to terminate. Repudiation includes conduct evincing an unwillingness or inability to perform substantial obligations. High Court. (2007) 233 CLR 115 Fundamental breach amounts to repudiation entitling termination. FOR — failure to pay $57K + unlawful deductions = fundamental breach
Shevill v Builders Licensing BoardPrinciple: Repudiation by conduct — an inability or unwillingness to perform essential obligations of the contract. The innocent party may accept the repudiation and treat the contract as discharged. High Court. (1982) 149 CLR 620 Repudiation may be inferred from conduct evincing inability or unwillingness to perform. FOR
General Billposting Co Ltd v AtkinsonPrinciple: Where the employer wrongfully terminates or repudiates the contract of employment, the employee is released from post-employment restrictive covenants. The restraint is a contractual obligation that depends on the contract's continued enforceability against the employee. House of Lords. [1909] AC 118 Repudiation by employer releases employee from post-employment restraint covenants. FOR — direct authority for D8
Copyright
CaseCitationPrincipleStance
IceTV Pty Ltd v Nine Network Australia Pty LtdPrinciple: Compilations of factual data have only thin copyright protection. Originality requires independent intellectual effort directed at the particular form of expression. Reproducing factual content does not necessarily reproduce a "substantial part" of any original work. High Court. (2009) 239 CLR 458 Factual data compilations have only thin copyright. Originality requires independent intellectual effort. FOR — directly defeats Exelare-as-database claim
Telstra Corporation Ltd v Phone Directories Co Pty LtdPrinciple: Following IceTV — directories and databases compiled by automated processes lack the necessary human authorship and intellectual effort to attract copyright. Full Federal Court. (2010) 194 FCR 142 Automated database compilations lack human authorship for copyright purposes. FOR — supports thin copyright argument
Fiduciary Duty
CaseCitationPrincipleStance
Hospital Products Ltd v United States Surgical CorpPrinciple: A fiduciary relationship exists where one party has undertaken to act for or on behalf of another in a particular matter in circumstances giving rise to a relationship of trust and confidence. The categories are not closed but ordinary employment, of itself, does not create a fiduciary relationship. Mason J's classic formulation. (1984) 156 CLR 41 Fiduciary relationship requires undertaking + trust and confidence beyond ordinary commercial dealing. FOR — Allisha was salaried staff, not a fiduciary
Concut Pty Ltd v WorrellPrinciple: An employee may owe fiduciary duties only where the role involves a particular position of trust beyond ordinary employment — typically managerial or directorial roles with control over the affairs of the employer. Junior employees performing standard duties do not owe fiduciary obligations. High Court. (2000) 176 ALR 693 Fiduciary duties only where role involves particular position of trust beyond ordinary employment. FOR — Recruitment Consultant is not a fiduciary role

09 Action Plan

Immediate, short-term, and medium-term tasks. Click the checkbox to mark complete — state persists in localStorage.
Filing imminent
🟢 DONE
  • Defence and Counterclaim — version 26 finalised
    Final pleading drafted, settled and ready for execution. Form 17 Defence + Counterclaim. Solicitor's certificate (r 246) included. r 150 matters specifically pleaded. No general traverses, no strict-proof language.
    Owner: M. Harley / BossLawyerAI
    100%
🔴 CRITICAL — File ASAP
  • 1. Confirm Dr Atua deduction amount with Allisha
    "Less overpayment" entry on April 2025 payslip. Need exact dollar figure to particularise C3 of the counterclaim. Cross-check against earlier payslips and any internal correspondence about "overpayment". Once confirmed, finalise particulars before filing.
    Owner: M. Harley → Allisha McKenzie
    0%
  • 2. Filing fee — $2,015 from Allisha
    District Court of Queensland filing fee for counterclaim. Trust account credit required before lodging. Confirm receipt with accounts team. Provide tax invoice / receipt to client on payment.
    Owner: M. Harley → Allisha McKenzie
    0%
  • 3. File NOI + Defence with Counterclaim — UCPR r 139(1)(b)
    NOI must have the Defence attached (r 139(1)(b)). Both filed together within 28 days of service. Use eCourts portal. Serve Thomson Geer same day. Confirm sealed copies received and update file. Diarise next deadlines (reply, disclosure timetable).
    Owner: M. Harley
    0%
🟡 IMPORTANT — Post-filing
  • 4. Compile authorities list for submissions
    17 cases identified across 7 topics. Compile bundle ready for any interlocutory application. Prioritise: Maglis, Lindner, Faccenda, Wright v Gasweld, Quinn v Jack Chia, FWO v Foot & Thai Massage, Koompahtoo, IceTV, Hospital Products. Headnote summaries + pinpoint cites.
    Owner: BossLawyerAI / M. Harley
    0%
  • 5. Calderbank letter to JPS
    Time after Defence + Counterclaim filed and served. Demand: $60K to Allisha (~85% of counterclaim), discontinuance of all JPS claims, mutual releases, costs each party. Mark "without prejudice save as to costs". Set 21-day response window. Cite Calderbank v Calderbank and UCPR r 361. Calibrate against Court's likely view of restraint and counterclaim merits.
    Owner: M. Harley
    0%
  • 6. Particulars demand — JPS pleading
    JPS pleading is loose: copyright "work" not identified, "confidential information" not particularised with sufficient specificity, "loss" not quantified, two-ABN issue not addressed. Issue r 161 request for further and better particulars. Forces JPS to commit before disclosure.
    Owner: M. Harley
    0%
  • 7. Consider strike-out / summary judgment application
    Restraint claim is a candidate for strike-out (UCPR r 171) on the basis that it discloses no reasonable cause of action — single tier, void on its face under Maglis. Cost-benefit: $30–50K of work vs. early collapse of JPS's anchor claim. Assess after particulars response.
    Owner: Counsel + M. Harley
    0%
🟢 MEDIUM TERM — Pre-Disclosure
  • 8. Evidence collection — JPS confidentiality conduct
    Compile: examples of mass-email accidents, screenshots showing no document marking, evidence of Allisha's personal mobile being published on JPS ads, evidence personal devices were required. Statement from Allisha covering induction (none), exit process (none), training (none).
    Owner: M. Harley + Allisha
    0%
  • 9. Investigate the "6 named former employees"
    Selective enforcement defence. Identify each of the 6 former employees who left to compete or join competitors. Confirm timing, business / role each moved into, and that JPS commenced no proceedings against them. Statement from Allisha. Possible witness statements from former employees if accessible.
    Owner: M. Harley + Allisha
    0%
  • 10. Commission scheme — historical billing analysis
    Compile 5-year history of billings + commission paid. Demonstrates consistent application of the 40%-above-desk-cost scheme. Foundation for express term, implied term, estoppel and quantum meruit alternatives. Spreadsheet + corresponding payslips bundle.
    Owner: M. Harley + Allisha
    0%
  • 11. Mediation / settlement preparation
    This matter is highly likely to settle once JPS digests the defence and counterclaim. Build position paper, settlement matrix, alternative scenarios (commission compromise vs. mutual walk-away vs. licensed continuation). Consider notifying FWO if statutory contraventions become protracted.
    Owner: M. Harley
    0%
Confidential and privileged · Prepared for the purpose of providing legal advice · Subject to legal professional privilege
Generated by BossLawyerAI · Dashboard for matter DC 598/26 — JPS v McKenzie