Aerison Pty Ltd v Innovent Engineering Group Pty Ltd - [2025] WASC 252

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   AERISON PTY LTD -v- INNOVENT ENGINEERING GROUP PTY LTD [2025] WASC 252
CORAM:   SEAWARD J
HEARD:   30 MAY 2025
DELIVERED          :   27 JUNE 2025
PUBLISHED           :   27 JUNE 2025
FILE NO/S:   CIV 2125 of 2024
BETWEEN:   AERISON PTY LTD
Plaintiff
AND
INNOVENT ENGINEERING GROUP PTY LTD
First Defendant
MICHAEL TIMOTHY O'CALLAGHAN
Second Defendant
DARREN JUSTIN LEHMANN
Third Defendant
BRIAN HOOKER
Fourth Defendant
LEE FORD
Fifth Defendant
SANDI LOUISE FRANICH
Sixth Defendant
MELISSA ROGERS
Seventh Defendant
CHRISTOPHER PEARSON
Eighth Defendant

Catchwords:

Practice and Procedure - Leave to issue subpoena before defence - Whether plaintiff has legitimate forensic purpose - Whether the plaintiff has exceptional circumstances for issue of subpoena before defence exist

Legislation:

Rules of the Supreme Court 1971 (WA) O 36B r 2

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M C Goldblatt
First Defendant	:	Mr M D Cuerden SC, Mr D J Pratt
Second Defendant	:	Mr M D Cuerden SC, Mr D J Pratt
Third Defendant	:	Mr M D Cuerden SC, Mr D J Pratt
Fourth Defendant	:	Mr M D Cuerden SC, Mr D J Pratt
Fifth Defendant	:	Mr M D Cuerden SC, Mr D J Pratt
Sixth Defendant	:	Mr M D Cuerden SC, Mr D J Pratt
Seventh Defendant	:	Mr M D Cuerden SC, Mr D J Pratt
Eighth Defendant	:	Mr M D Cuerden SC, Mr D J Pratt

Solicitors:

Plaintiff	:	Steedman Stagg Lawyers
First Defendant	:	Bennett
Second Defendant	:	Bennett
Third Defendant	:	Bennett
Fourth Defendant	:	Bennett
Fifth Defendant	:	Bennett
Sixth Defendant	:	Bennett
Seventh Defendant	:	Bennett
Eighth Defendant	:	Bennett

Case(s) referred to in decision(s):

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Buswell v Carles [2012] WASC 509
Coco v AN Clark (Engineers) Ltd [1969] RPC 41
Kenworthy-Groen (as Admins of Estate of Grove v Grove) [2022] WASCA 120
Mineral Resources Ltd v Destec Pty Ltd [No 5] [2024] WASC 449
QWM Investments Pty Ltd; Ex Parte Christina Hillier ATF Christina and Robert Hillier Family Trust [2021] WASC 288
Sandy v Yindjibarndi Aboriginal Corp RNTBC [2019] WASC 322
Song v Sought Beach Management Pty Ltd [2020] WASC 402
Song v Sought Beach Management Pty Ltd [No 3] [2021] WASC 282
Stanley v Layne Christensen Co [2004] WASCA 50
West Australian Newspapers Ltd v Bond [2009] WASCA 127; (2009) 40 WAR 164

SEAWARD J:

Introduction

The plaintiff, Aerison Pty Ltd (Aerison), applies for leave to issue a subpoena prior to the filing of a defence. That application is opposed by the defendants.
For the reasons set out below, I will grant Aerison leave to issue the subpoena.

The pleaded case

Aerison filed a statement of claim on 7 November 2024.
In broad terms, the statement of claim pleads a case that the second - eighth defendants have breached the terms of their respective contracts of employment with Aerison by using confidential information after they…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] WASC 252
Decision Date: 27 JUNE 2025

CaseChat Overview and Summary

Aerison Pty Ltd brought an action against Innovent Engineering Group Pty Ltd in the Supreme Court of Western Australia. The dispute centres on the alleged misappropriation of confidential information and trade secrets by Innovent, purportedly obtained from a former employee of Aerison, Mr O'Callaghan. Aerison claims that Mr O'Callaghan provided confidential information to Innovent, which has since been misused, and seeks various forms of relief, including an injunction and an account of profits. As part of its evidence gathering, Aerison sought leave to issue a subpoena to Data Management Services (DMS) to obtain emails and documents relevant to the case.

The primary legal issues before the court were whether Aerison had demonstrated a legitimate forensic purpose for issuing the subpoena and whether there were exceptional circumstances justifying the grant of leave. The court considered the relevant provisions of the Rules of the Supreme Court 1971 (WA) and previous case law, which established that the applicant must demonstrate a legitimate forensic purpose and the existence of exceptional circumstances. The court assessed whether Aerison had met these criteria based on the details provided in the amended application letter and the statement of claim.

In determining the application, the court found that Aerison had demonstrated a legitimate forensic purpose by showing a clear need for the documents and emails sought from DMS. The court also found that exceptional circumstances existed, as the information sought was critical to the case and not reasonably obtainable by other means. The court granted Aerison leave to issue the subpoena, allowing it to proceed with obtaining the necessary evidence to support its claims against Innovent.

The court's decision was based on the specific facts of the case, including the nature of the information sought and the stage of the proceedings. The final orders included granting Aerison leave to issue the subpoena to DMS to obtain the specified documents and emails.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The statement of claim also pleads a number of alternative claims against Mr O'Callaghan, including that Mr O'Callaghan owed Aerison an equitable obligation of confidence, and that he breached that equitable obligation of confidence; that Mr O'Callaghan breached s 183(1) of the Corporations Act 2001 (Cth) (Corporations Act); and that Mr O'Callaghan owed fiduciary duties to Aerison, and he breached those duties. In the case of each alternative, the pleaded particulars refer back to par [15.1] and [15.2] of the statement of claim outlined above.[10] [10] Statement of Claim [16] - [18]. As against Innovent, broadly speaking, the statement of claim pleads that Mr O'Callaghan (and others) provided Aerison's confidential information to Innovent; Mr O'Callaghan (and others) also disclosed and provided information to Innovent regarding Aerison's secret processes of manufacture and design and other information which bore such a high degree of confidentiality so as to amount to a trade secret; Innovent has misused, and continues to misuse, Aerison's confidential information; alternatively Innovent has breached s 183(2) of the Corporations Act.[11][11] Statement of Claim [58] - [63.2]. The statement of claim pleads that Aerison has suffered loss and damage by reason of Mr O'Callaghan and Innovent's actions,[12] and Aerison claims (amongst other relief) an injunction preventing Mr O'Callaghan and Innovent from continuing to use the confidential information; orders requiring Mr O'Callaghan and Innovent to deliver up the confidential information; an account of profits (or alternatively damages), plus interest and costs.[13][12] Statement of Claim [19] and [62.2].[13] Statement of Claim - prayer for relief. The scope of the subpoena is detailed in the amended application letter dated 7 March 2025. By way of overview, Aerison proposes to seek from DMS: (1)the entirety of the contents of the DMS Sales Folder, in its native format; and(2)for the period 2 October 2023 - date of issue of the subpoena, all emails sent to or from the DMS email address of any of the second - fifth defendants, which contain any of the words or terms specified. The terms include 'Aerison', 'estimating tool', 'pressure calculation template' and the names of what appear to be different tenders. Pursuant to O 36B r 2(2B)(b) of the Rules of the Supreme Court 1971 (WA) (RSC), Aerison requires leave to issue the subpoena, as a defence has not yet been filed. Order 36B r 2(2D) provides that the court must not give leave under r (2B)(b) unless satisfied there are exceptional circumstances. There are only a limited number of published cases that have considered an application for leave under O 36B r 2(2B)(b) of the RSC. However, those cases identified that the following matters are relevant to the exercise of the discretion:(a)has the applicant demonstrated a legitimate forensic purpose for the issue of the subpoena; and(b)are there exceptional circumstances justifying the grant of leave. See Song v South Beach Management Pty Ltd;[14] Song v South Beach Management Pty Ltd [No 3],[15] Sandy v Yindjibarndi Aboriginal Corp RNTBC.[16][14] Song v Sought Beach Management Pty Ltd [2020] WASC 402.[15] Song v Sought Beach Management Pty Ltd [No 3] [2021] WASC 282.[16] Sandy v Yindjibarndi Aboriginal Corp RNTBC [2019] WASC 322 [4].