In deciding whether to grant injunctions, one of the factors that a Court must consider is the “balance of convenience”.
This consideration requires an examination of the adequacy of an award of damages, and the question of the sufficiency of the usual undertaking, as part of the totality of the balance of convenience question.
In Stryker Australia Pty Ltd v Short [2026] QSC 174, the Plaintiff failed in obtaining an injunction to restrain a previous employee from taking up employment with a competitor.
Facts
The Plaintiff was a medical technology business selling a variety of medical devices to hospitals and medical practitioners
The defendant resigned her employment and took employment with a competitor.
The court considered the role and duties of the defendant as she was in employment with the plaintiff and the role she was to take up with the competitor, the exact terms of the restraints imposed on her, and other protections afforded, and the extent of overlap in those roles and duties. The court found the extent of overlap was “modest”.
On the issue of balance of convenience, the following factors were considered:
- No specific confidential information was identified
- The defendant was not in a managerial role-but rather a sales role
- There was no significant overlap in the roles
- The damage to the defendant was likely to be significant as the sole breadwinner for her family-she would be deprived of her income for some time.
- Damages would be difficult to quantify as she earnt principally from commissions
Considerations
Freeburn J said:
“The considerations brought to bear on the balance of convenience requirement were the subject of discussion in Australian Broadcasting Corporation v O’Neill and Bowen Central Coal Pty Ltd v Aquila Coal Pty Ltd, the latter case clarifying that the adequacy of an award of damages, and the question of the sufficiency of the usual undertaking, were to be considered as part of the totality of the balance of convenience question.
The progression of the two main inquiries is not a mechanical exercise. Whether the relief sought is prohibitory or mandatory, the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been “wrong” in the sense of granting an injunction to a party who fails to establish his right at an ultimate trial, or in failing to grant an injunction to party who succeeds at trial. In making that decision, the court should weigh in the balance all relevant factors, including matters pertaining to the strength of the case to be tried and the balance of convenience.
Where the effect of an injunction would be to alter the status quo and effectively finally to determine a respondent’s legal rights against the respondent in advance of a trial, it would be appropriate to require an applicant to establish its case that the respondent should not be afforded those legal rights with a high degree of assurance.”
Enforcing restraints of trade against former employees is a complex litigation and care needs to be exercised and legal advice taken before attempting to do so.
The right of a business to protect its legitimate business interests is always balanced against the rights of the individual to earn their livelihood, and the balance of convenience may sometimes weigh against the granting of an injunction..
Please contact Rostron Carlyle Lawyers for any advice and guidance on restraining orders in employment.
Disclaimer: This publication is intended to provide general information only and does not constitute legal advice. Specific legal advice should be obtained based on your individual circumstances.
