› where applicant sought to rely on Microsoft Word table and file notes containing hearsay representations
› whether Microsoft Word table and electronic diary notes were a “business record”
› whether representations obtained for the purpose of conducting, or for or in contemplation of or in connection with, an Australian or overseas proceeding
› Microsoft Word table rejected
› electronic diary notes admitted
Quick Take
1A 12-month cascading non-solicitation restraint protecting an employer's customer connection in the insurance broking industry is reasonable and enforceable under s 4 of the Restraint of Trade Act 1976 (NSW), particularly where the employee was the 'human face' of the business to clients and insurance policies renew annually.
2Where a respondent destroys mobile phones and deletes call logs and messages in circumstances suggesting deliberate frustration of evidence gathering, the court may draw adverse inferences that the destroyed evidence would have told against the respondent, and may more confidently draw circumstantial inferences of solicitation from the surrounding evidence.
3A Microsoft Word table recording hearsay representations from clients, prepared after litigation was contemplated and used in support of interlocutory relief, falls within the s 69(3)(a) exclusion from the business records exception to the hearsay rule; by contrast, electronic diary notes made in the ordinary course of responding to insurer notifications within confined timeframes may fall outside that exclusion and be admissible.
Case Details
Citation[2024] FCA 1110
CourtFCA
JurisdictionCommonwealth
Decision Date24 September 2024
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