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…
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- Case
- [2025] WASC 252
- Decision Date
CaseChat Overview and Summary
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
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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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].