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 ceased their employment with Aerison. Other causes of action are also pleaded.
The statement of claim pleads that Aerison was formerly a wholly owned subsidiary of Aerison Holdings Pty Ltd which in turn was, until 5 October 2023, a wholly owned subsidiary of the Aerison Group Limited.[1] Aerison operated at all material times a business that involved:[2]
(1)environmental services, including emission mitigation performance studies, compliance testing and custom design and build solutions to reduce environmental impacts of operates across Australia in the minerals and mining, oil and gas, non‑process infrastructure and utilities markets;
(2)designing, fabricating and supplying modular switch rooms and battery energy storage solutions; and
(3)providing multi-disciplinary sustaining capital, maintenance and shutdown services to support process and non-process infrastructure including minor capital works and shutdown services for plant maintenance and safety improvement.
[1] Statement of Claim [1.1] - [1.2].
[2] Statement of Claim [1.3].
The statement of claim pleads that between March and October 2023 Aerison Group Limited experienced a liquidity crisis, the ultimate result of which was the execution of a binding deed of company arrangement on 26 September 2023, by which Aerison Group Limited's shares in Aerison were transferred to a creditor, being Applied Pollution Control Pty Ltd.[3]
[3] Statement of Claim [2].
On 5 October 2023, Hasmukh Wadia and Dylan Wadia became directors of Aerison and Keeshan Wadia became the company secretary.
Each of the second - eighth defendants were formally employed by Aerison (or related companies) in various roles, and each ceased to be employed by Aerison in the period October 2023 - February 2024.[4]
[4] Statement of Claim [5] - [11].
The first defendant, Innovent Engineering Group Pty Ltd, was incorporated on 30 October 2023. The statement of claim pleads that since in or about December 2023 or January 2024, Innovent has provided engineering, electrical, air pollution control and structural mechanical piping services to the mining and minerals, infrastructure, manufacturing, energy and processing industries in competition with Aerison.[5] The second, third and sixth defendants are directors of Innovent, whilst the fourth, fifth, seventh and eighth defendants have each gone on to be employed by Innovent.[6]
[5] Statement of Claim [4].
[6] Statement of Claim [5] - [11].
Aerison applies for leave to issue a subpoena to the proper officer of Dust Management Services Pty Ltd (DMS). DMS is a corporation which conducts the business of designing, manufacturing and installing dust extraction, dust collection and dust suppression systems for many industries, in competition with Aerison.[7] The statement of claim pleads that each of the second - fourth defendants worked at the premises of DMS on specified dates from or about October 2023 and used the DMS computer systems.
[7] Statement of Claim [5.12].
The statement of claim goes on to plead various terms of the employment contracts for each of the second - eighth defendants. For the purposes of this application, it is sufficient to use the pleadings as they relate to the second defendant, being Mr O'Callaghan, as a representative example of the pleadings.[8] The statement of claim pleads that Mr O'Callaghan's contract of employment conveyed a benefit on Aerison that Mr O'Callaghan would, amongst other pleaded matters:[9]
(a)promote the interests of Aerison;
(b)not use or disclose any confidential information of Aerison in circumstances in which it could be expected, on reasonable grounds, to harm Aerison's interests;
(c)abide by, and be bound by, the terms of the confidentiality agreement contained in schedule 1 to his employment contract; and
(d)after ceasing to be employed by Aerison Group Limited, would not, either directly or indirectly, for a period of three months in Western Australia:
(i)canvass or solicit orders for goods or services supplied by Aerison, or business the same as or similar to the business of Aerison, in the 12 months prior to the termination of his employment, from any person who was, or had been, in that 12 months a client or customer of Aerison; and
(ii)engage or be concerned or interested in any business the same as or similar to the business of Aerison or a material part of the business of Aerison.
[8] Whilst the precise pleadings for each of the remaining defendants do vary having regard to the different capacities in which each were employed, and the pleaded steps alleged to have been taken by each defendant, the pleadings in relation to the second defendant represent the plaintiff's case at its highest.
[9] Statement of Claim [13].
The key pleading relevant to the present application is the pleading alleging that Mr O'Callaghan breached his contract of employment by making use of confidential information. Given its significance to the present application, I have set out aspects of that pleading in full:
15.In breach of his contract of employment, Mr O'Callaghan:
15.1 in relation to the terms pleaded in [13.2] to [13.7] above, during the currency of his employment contract, made copies of the confidential information of Aerison for use by him and a third party after his employment ended;
Particulars
(a)On Saturday, 6 May 2023, Mr O'Callaghan used a laptop computer (O'Callaghan's Laptop) provided to him by Aerison, with serial number ER-5CG1260M68, to copy 13,000 files that contain confidential information and trade secrets from Aerison's network drive into a folder named 'New Folder' on O'Callaghan's Laptop that was accessible from other devices, using the OneDrive account provided to Mr O'Callaghan by Aerison.
(b)On 8 May 2023, Mr O'Callaghan used O'Callaghan's Laptop to copy 26,232 files that contain confidential information and trade secrets from Aerison's network drive into a folder named 'New Folder' on O'Callaghan's Laptop that was accessible from other devices, using the OneDrive account provided to Mr O'Callaghan by Aerison.
(c)On 8 June 2023, 7 August 2023 and 30 September 2023, Mr O'Callaghan used O'Callaghan's Laptop to copy 5 files that contain confidential information and trade secrets from Aerison's network drive into a folder named 'Desktop' on O'Callaghan's Laptop that was accessible from other devices, using the OneDrive account provided to Mr O'Callaghan by Aerison.
(d)The names of the files in particulars (a), (b) and (c) above, together with the dates they were copied to the folders ('Created' column) and the full file paths, are listed in Part A of the confidential particulars contained in Confidential Schedule).
(e)Mr O'Callaghan last logged into his OneDrive account on Sunday, 1 October 2023.
(f)From particulars (a), (b), (c) and (e) above, and the matters pleaded in [2.1]-[2.26] and [3] above, it should be inferred that, in the period from 6 May 2023 to 1 October 2023, Mr O'Callaghan copied the files in particulars (a), (b) and (c) above, and accessed them from another device or devices, for use by him or a third party after his employment ended.
15.2in relation to the terms pleaded in [13.2] to [13.7] above, after the termination of his contract of employment on 5 October 2023, used and disclosed to DMS and Innovent, for use by them, which they did, Aerison's confidential information, of which he had made copies during the currency of his employment contract, or one or more of Messrs Lehmann, Hooker, Ford and Ms Rogers had made copies during the currency of their respective contracts of employment with Aerison;
Particulars
(a)While working at the premises, and in the business, of DMS, Mr O'Callaghan used Aerison's confidential information contained in files with the following names:
(i)Bid-3861-Alimak Panels_231025.docx.
(ii)Bid-3984-Bid_Estimate_Template_rev02.xlsm (which appears to relate to the project in paragraph (b) below).
(iii)Bid-3984-Bid_Estimate_Template_rev02-MTO.xlsm (which appears to relate to the project in paragraph (b) below).
(iv)Bid-3989-Bid_Estimate_Template_rev02.xlsm.
(v)Bid-3960-Bid_Estimate_Template_rev02.xlsm.
(vi)Bid-3944-Bid_Estimate_Template_rev02.xlsm (which appears to relate to the project in paragraph (c) below).
(b)In or around December 2023 or January 2024, Innovent was awarded a contract with Tronox for a dust systems option study (project number 56136-906), which contract had previously been awarded to Aerison, but the contract with Aerison was cancelled by Tronox on 22 December 2023.
(c)In or around the first quarter of 2024, Innovent was awarded a contract with Fortescue Metals Group for a dust management review in relation to Iron Bridge, Western Australia, on which Mr O'Callaghan and Mr Hooker had worked for Aerison prior to the termination of their contracts of employment.
(d)In or around the second quarter of 2024, Innovent was awarded a contract with Fluor for the design, manufacture and supply, construction and commissioning of ventilation fans and dust collectors in and ancillary related scope in relation to the Port Debottlenecking Project 2 at BHP's facilities in Port Headland, Western Australia, in respect of which Aerison also submitted a bid.
(e)Since 5 October 2023, Innovent has performed maintenance audits and inspections for Talison, which work had previously been performed by Aerison.
(f)From the similarity of the work in paragraphs (b) to (e) above to work performed by Aerison prior to Mr O'Callaghan ceasing to work at Aerison, and the particulars subjoined to [15.1] above, it should be inferred that Mr O'Callaghan used Aerison's confidential information for DMS and Innovent to obtain and perform the work.
(g)Further particulars will be provided after discovery and the issue of subpoenas.
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 proposed subpoena

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.

Legal principles

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].
Once the above criteria are met, I also consider that it is relevant to have regard to the principles of case management contained in O 1 r 4A ‑ 4B of the RSC.[17]
[17] See also in this respect Buswell v Carles [2012] WASC 509.
A legitimate forensic purpose will be established if the document/s sought give rise to a line of enquiry which is relevant to the issues before the trier of fact.[18]
[18] Kenworthy-Groen (as Admins of Estate of Grove v Grove) [2022] WASCA 120 [51]. See Stanley v Layne Christensen Co [2004] WASCA 50 [9].
In Sandy v Yindjibarndi Aboriginal Corp RNTBC, Le Miere J considered the meaning of the words 'exceptional circumstances' and held:[19]
The words 'exceptional circumstances' have their ordinary meaning. 'Exceptional' means 'out of the ordinary' or 'unusual', rather than 'unique'. The party requesting the issue of a subpoena should be able to demonstrate the precise issues in respect of which the documents are required.

[19] Sandy v Yindjibarndi Aboriginal Corp RNTBC [2019] WASC 322 [4]

See also in this respect Song v South Beach Management Pty Ltd.[20]
[20] Song v Sought Beach Management Pty Ltd [2020] WASC 402 [19]. See also Sandy v Yindjibarndi Aboriginal Corporation RNTBC [2019] WASC 322 [4]; QWM Investments Pty Ltd; Ex Parte Christina Hillier ATF Christina and Robert Hillier Family Trust [2021] WASC 288 [23].

Aerison's case

Evidence

Aerison has filed the following affidavits in support of its application:
(a)Affidavit of Dylan Wadia, sworn 20 March 2025;
(b)Affidavit of Isabella Jackson, affirmed 20 March 2025;
(c)Affidavit of Benjamin Hsi, sworn 19 March 2025;
(d)Supplementary affidavit of Dylan Wadia, sworn 16 April 2025; and
(e)Further supplementary affidavit of Dylan Wadia, sworn 29 May 2025.
Mr Wadia is one of the current directors of Aerison. Mr Hsi is a current employee of Aerison, but was formally employed by DMS. Ms Jackson is one of Aerison's solicitors.
The affidavits filed by Aerison go into extensive detail as to aspects of Aerison's case regarding the actions of the second - eighth defendants. Aerison relies on this information to establish both a legitimate forensic for the documents the subject of the subpoena and also the existence of exceptional circumstances. It is not necessary to summarise all of Aerison's affidavits in detail. Rather, it is sufficient to note the following key aspects of the evidence before the court:
(a)Whilst employed at Aerison, the second - eighth defendants had access to Aerison's Network Drive, on which Aerison stored all its electronic files, including for past and present projects. All Aerison employees could access the Network Drive, including remotely, by logging in on their Aerison supplied laptops.
(b)Aerison employees were also given an Aerison OneDrive account, on which electronic files could be stored. However, Mr Wadia deposes that there was no business reason to use the OneDrive account to store those electronic files, as they could all be access remotely.
(c)In the period 1 May 2023 to 4 October 2023, when Aerison was experiencing financial difficulties, Mr O'Callaghan, Mr Lehmann and Mr Ford (the second, third and fifth defendants) copied a substantial number of Aerison electronic files to their respective Aerison OneDrive accounts. A total of 135,307 electronic files are listed in the relevant schedule to the statement of claim. Further, Mr Hooker (the fourth defendant) copied a substantial number of Aerison electronic files onto a USB storage device. A total of 562 files are listed in the relevant schedule to the statement of claim.
(d)After Mr O'Callaghan, Mr Lehmann and Mr Hooker ceased working at Aerison on 4 October 2023, they commenced working out of DMS's offices. Other of the defendants also commenced working at DMS's offices at various points, including Mr Ford.
(e)Mr O'Callaghan, Mr Lehmann and Mr Hooker were working out of DMS's offices because they were considering purchasing DMS or were considering starting a similar business of their own together. Mr O'Callaghan, Mr Lehmann and Mr Hooker told Mr Hsi that they would bring work from Aerison. All three also brought their own laptops to work at DMS.
(f)Whilst working out of DMS's offices, Mr O'Callaghan, Mr Lehmann and Mr Hooker assisted DMS to prepare responses to tenders. DMS gave Mr O'Callaghan, Mr Lehmann and Mr Hooker access to a segregated part of DMS's server, being a folder named 'Sales'. The Sales folder has 136,918 files on it. Mr O'Callaghan, Mr Lehmann and Mr Hooker still have access to this folder.
(g)Mr Hsi also had access to the Sales folder. Mr Hsi deposes that several of the tenders which Mr O'Callaghan, Mr Lehmann and Mr Hooker were working on for DMS were uploaded to the segregated folder, and that work had already been performed to respond to some of the tenders. Mr Hsi deposes that for some of these tenders, DMS was not an approved supplier or DMS had not, to date, responded to other tenders from the relevant entity.
(h)Whilst still working for DMS, Mr Hsi copied 117 of the electronic files from the Sales folder to an external hard drive to enable him to work remotely.
(i)Aerison now has a copy of that external hard drive and has access to the files from the Sales folder saved by Mr Hsi. A review of the files to which Aerison has access has, according to the affidavit evidence filed by Aerison, identified a number of Aerison documents, including copies of its estimating tools.
(j)Aerison's estimating tools consist of excel spreadsheets that have been prepared by Aerison over many years. They are tools which enable Aerison to quickly prepare an estimate of equipment selection, materials and labour as part of responding to a tender. Estimating tools enable what would otherwise involve numerous time consuming manual calculations to be performed at a much faster speed, to enable Aerison to respond to tenders within the two to three week response timeframe, and also to respond to multiple tenders at or around the same time, thus maximising business. All companies undertaking work in Aerison's field use estimating tools. Estimating tools take time and expertise to develop, as they require the building of libraries of factors (referred to as norms) which are then used by the supplier to develop estimates quickly and accurately. Whilst estimating tools can be purchased off the shelf, most companies build their own bespoke estimating tools to ensure accuracy. Mr Wadia deposes that one of his motivations for acquiring Aerison was that its estimating tools were well-known in the industry as the benchmark due to their accuracy, and were therefore valuable.
(k)Aerison does not know which of the defendants uploaded the Aerison documents to the DMS Sales folder.
(l)Whilst working at the offices of DMS, DMS also provided each of the second - eighth defendants with a DMS email address, and each of the defendants still have access to that email address.

For the avoidance of doubt, in summarising the affidavit evidence above, I am not making factual findings in this application, but rather I am setting out the facts before the court that are relevant to the application. It is neither possible nor appropriate to make any final findings of fact in the context of this interlocutory application.

Legitimate forensic purpose

Aerison submits that the documents sought by the subpoena go to facts in issue in relation to its claim for use of Aerison's confidential information by the defendants and breach of contract.
Aerison submits that the defendants have raised issues regarding aspects of the statement of claim in this regard, and have indicated that they may apply to strike out parts of the statement of claim. Aerison submits there has been conferral, and it wishes to further particularise its pleadings in the following three respects:
(1)to identify precisely what is said to be the information which has the necessary quality of confidentiality, as the pleadings presently only particularise this by reference to the documents downloaded or uploaded;
(2)to specify the grounds upon which it is alleged that the respective defendants 'stole' Aerison's confidential information; and
(3)to specify the actual or threatened misuse of the confidential information.
In relation to item (1) above, Aerison accepts that this is not a matter peculiarly within the defendants' knowledge. That is, Aerison accepts that the identification of precisely what information contained in the various documents downloaded by each of the defendants onto their Aerison OneDrive accounts is confidential is something that is within Aerison's knowledge, and which Aerison can particularise. However, Aerison submits that this is a very large and time consuming task, owing to the very large number of documents downloaded. Aerison also accepts that it can narrow down the scope of that task by particularising the documents which it knows have been used by the defendants, in that it can particularise the confidential information contained in those documents it knows are contained on the DMS Sales folder. However, Aerison submits that it only knows some of these documents, as Mr Hsi only downloaded some of the documents on the Sales folder, and not all. Aerison submits the subpoena will serve a legitimate forensic purpose by providing Aerison with the entire contents of the DMS Sales folder so that it can, in one amendment, accurately particularise all the confidential information by reference to all of the Aerison documents uploaded to the DMS Sales folder.
In relation to the matters in items (2) and (3) of [29] above, Aerison submits that the subpoena serves a legitimate forensic purpose in that it seeks to obtain all documents on the DMS Sales folder, as well as the emails falling within the scope of this subpoena, as this may give rise to a line of enquiry in relation to exactly how Aerison's documents came to be uploaded onto the DMS Sales folder. This information may be relevant to establish which of the defendants has uploaded the information to the DMS Sales folder and to provide further particulars of the extent of the misuse, in terms of which tender responses utilised the confidential information.
Aerison does not presently know who uploaded the documents to the DMS Sales folder and submits that this is a matter peculiarly within the defendants' knowledge. Whilst Aerison does know some of the tender responses for that used the confidential information (based on the documents downloaded by Mr Hsi) - it submits that the full and precise use which has been made of the confidential information is a matter peculiarly within the defendants' knowledge.
Aerison submits that if leave to issue the subpoena is granted, and the documents are ultimately produced, it is looking to further particularise par [15.2] of the statement of claim, and its cognates (including pars [22], [29.2], and [36.2]).

Exceptional circumstances

In terms of exceptional circumstances, Aerison relies on the following matters which it says means that there are exceptional circumstances sufficient to justify the grant of leave:
(a)the defendants have requested particulars of facts peculiarly within their knowledge, including as to how it is alleged that the defendants' 'stole' Aerison's confidential information;
(b)the total scale of the Aerison documents downloaded by the relevant defendants is significant, and the size of the DMS Sales folder is also much larger than the number of files downloaded by Mr Hsi;
(c)the application for leave is consistent with the principles of case management in that it:
(i)may avoid an application to strike out the statement of claim;
(ii)will enable full particulars to be provided in one amendment at this stage of the proceedings; and
(iii)will avoid expenses and time by parties as well as court resources because the subpoena will need to be issued to DMS at some stage in the proceedings, and by doing so now, the statement of claim can be amended to limit the case to the key documents.
Aerison refers to and relies on the decision of Buswell v Carles[21] as an example of when case management principles have been applied in an application for leave to issue a subpoena.
[21] Buswell v Carles [2012] WASC 509.
Aerison also draws an analogy with the situation where particulars are not required to be provided until after discovery, in circumstances where the particulars sought are matters peculiarly within the knowledge of the other party and relies in this respect on the decisions of Mineral Resources Ltd v Destec Pty Ltd [No 5].[22]
[22] Mineral Resources Ltd v Destec Pty Ltd [No 5] [2024] WASC 449 [32] ‑ [33] and the authorities cited therin.

The defendants' case

The defendants rely on two affidavits sworn by Mr O'Callaghan on 7 April 2025 and 26 May 2025. The affidavit evidence of the defendants expressly does not address the majority of the matters referred to in Aerison's affidavits. However, the defendants are not required to respond to each of those matters.
The defendants oppose the application for leave for the following reasons.
First, the defendants submit that there is no legitimate forensic purpose. Whilst the defendants accept that the documents may ultimately assist Aerison's case, they submit the information sought to further particularise the case is either:
(a)information already within Aerison's knowledge (being the nature of the confidential information); or
(b)is reflective of the Aerison's lack of knowledge of its claim and is therefore a fishing expedition.
The defendants submit that Aerison has accepted the statement of claim is inadequate in its current form and is simply seeking documents to assist it to re-plead. The defendants refer to the directions hearing held on 17 December 2024 in this regard where counsel for Aerison confirmed that there had been conferral between the parties and several pleadings matters had been raised by the defendants. Counsel for the defendants outlined that the main pleading matter raised was the lack of sufficient particularisation of the confidential information and trade secrets in (by way of example) par [15.1] of the statement of claim.
Senior counsel for the defendants accepts that the court does not (appropriately) have copies of that conferral, and does not cavil with the proposition that the defendants have raised matters other than simply with the identification of the confidential information and trade secrets in (by way of example) par [15.1] of the statement of claim. However, senior counsel submits that at its heart this is a case where Aerison can plead particulars as to the nature of the confidential information and trade secrets for par [15.1], but instead of doing so is seeking the subpoena to issue now to address a non‑compliant statement of claim.
Secondly, the defendants submit that the matters relied upon by Aerison to demonstrate exceptional circumstances do not meet the test. The defendants submit that:
(a)to the extent Aerison submits that the matters identified are being peculiarly within the defendants' knowledge, this is simply to say that Aerison does not have a proper factual basis to plead what are very serious allegations;
(b)the fact that it is pleaded that a large number of Aerison documents were downloaded, or that the DMS Sales folder is significantly larger than what Mr Hsi downloaded, are not exceptional circumstances. These are simply the underlying circumstances of the claim; and
(c)the fact that the subpoena may avoid a strike out application is not a sustainable reason to grant leave. The defendants submit that the existing statement of claim is deficient and liable to be struck out, and Aerison accepted this at the directions hearing held in December 2024.
Thirdly, the defendants accept that case management principles are relevant to the exercise of the discretion to grant leave, but submit that these only arise for consideration if a legitimate forensic purpose and exceptional circumstances exist. The defendants rely on the following additional matters which they submit weigh against the exercise of the discretion in this case:
(a)the allegation that the defendants have 'stolen' information is a serious allegation to which the principles in Briginshaw v Briginshaw[23] apply. Accordingly, the defendants are entitled to require Aerison to properly and clearly plead its case in this respect and it is entirely unsatisfactory that the Aerison has not properly particularised the relevant alleged confidential information and trade secrets;
(b)contrary to Aerison's submissions, it is not the case that the issuing of the subpoena is likely to result in amendments or particularisation to par [15.2] taking place on only one occasion and therefore a saving in time or costs. This is because the wording of par [15.2] is Mr O'Callaghan:
after the termination of his contract of employment on 5 October 2023, used and disclosed to DMS and Innovent, for use by them, which they did, Aerison's confidential information
That is, the pleading is not limited to use and disclosure to DMS up to the period when Innovent commenced operations (January 2024), and further particularisation will presumably need to occur in relation to use and disclosure to Innovent, which is something this subpoena does not address. That will presumably need to take place after discovery;
(c)there has been no explanation from Aerison as to why it has not filed an amended statement of claim, or why this application was not made until 27 February 2025, being the day before the amended statement of claim was ordered to be filed;
(d)there has now been considerable delay in the matter. It has been approximately six months since the statement of claim was filed and the matter is not progressing. The defendants submit that there is no explanation for this delay and Aerison should be particularising its statement of claim. The defendants submit that if leave to issue the subpoena is granted, there will be further delays in issuing the subpoena, dealing with any objections by DMS and then the particularisation by Aerison; and
(e)the defendants rely on the affidavit evidence of Mr O'Callaghan, to which he attaches copies of letters sent by Aerison to various third party entities advising them of the legal action commenced by Aerison. The affidavit deposes that the legal action has also been the subject of media reporting. The defendants submit that Aerison is attempting to use the media reporting to its commercial advantage and to the detriment of the first defendant. The defendants submit that if Aerison is able to make statements to third parties and the media, it should be able to file a compliant statement of claim.
[23] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

Disposition

In all the circumstances, I am satisfied that it is appropriate to grant Aerison leave to issue the subpoena.
I am satisfied that there is a legitimate forensic purpose for the subpoena.
The elements of a cause of action in equity for a breach of confidence are that:[24]
(a)the information sought to be protected is confidential;
(b)the information was imparted in circumstances which import an obligation of confidence; and
(c)there has been unauthorised use of the confidential information to the detriment of the party who communicated it.
[24] Coco v AN Clark (Engineers) Ltd [1969] RPC 41, 46 - 47; West Australian Newspapers Ltd v Bond [2009] WASCA 127; (2009) 40 WAR 164 [41] - [44].
These matters are also relevant to the pleaded breach of contract claim. Aerison's pleaded case is that the relevant defendants made copies of Aerison's confidential information by downloading various files (par [15.1]), and then used or disclosed that confidential information to DMS and Innovent for use by them, which they did use to obtain various tenders (par [15.2]).
I am satisfied that the DMS Sales folder, and the emails sought, may give rise to a line of enquiry which is relevant to the issues of the precise documents (and accordingly also the precise confidential information) that were used or disclosed by the defendants; which of the defendants used or disclosed the documents (and therefore the confidential information); and the detriment suffered by Aerison.
I do not consider the subpoena is merely fishing. There is sufficient affidavit evidence before me to conclude that this is not a case where Aerison does not have any evidence to support its pleaded case and is merely fishing for evidence to support what is pleaded or to expand what is pleaded.
The defendants submit that the statement of claim is inadequate in its current form and that Aerison has accepted this, including at the directions hearing in December 2024. The defendants rely on this to submit that the subpoena is merely fishing for facts to support its case.
This is not a strike out application and therefore it is not possible or appropriate for me to express a view as to whether one would be successful. I do not accept that Aerison has accepted that the statement of claim is inadequate in its current form in the manner submitted by the defendants. At the directions hearing, counsel for Aerison indicated that they had received correspondence from the defendants regarding the pleadings and stated that it concerned:
Mostly particulars of the confidential information, because at the moment it's described more generally, probably, than it should be.
Counsel for Aerison indicated that they were considering the matters raised and looking at further particulars, but also looking at identifying just some of the key confidential information, so as to make the pleading and subsequent conduct of the case more manageable. Whilst it may be a matter of language, that is slightly different to accepting that the statement of claim is inadequate such that a strike out application would be successful.
In terms of exceptional circumstances, I consider that it is inherent in the wording of O 36B r 2(2B)(b) and O 36B r 2(2D) of the RSC that I am required to consider whether there is something 'out of the ordinary' or 'unusual' such as to warrant the grant of leave prior to a defence being filed. It is not possible to define what will constitute something out of the ordinary or unusual, as it will depend on the facts of each case. I accept that it may include (amongst other matters) something out of the ordinary or unusual about the underlying circumstances of the cause of action or claim alleged. However, there must still be something out of the ordinary or unusual about the underlying circumstances which is sufficient to warrant the grant of leave prior to the defence being filed.
In the present case, I am satisfied that exceptional circumstances exist by virtue of the combination of the following factors:
(a)the defendants have sought particulars and/or Aerison is wishing to provide particulars of some matters which are entirely within the defendants' own knowledge - being the exact number of Aerison documents located in the DMS Sales folder; which of the defendants used or disclosed the confidential information by uploading it to the DMS Sales folder/using it whilst at DMS; and
(b)the subpoena may also assist in identifying precisely which of the numerous documents downloaded onto the respective Aerison OneDrive accounts were used or disclosed, and therefore assist in the task of particularising the precise confidential information involved. The nature of the confidential information is not said by Aerison to be a matter entirely within the defendant's knowledge. However, whilst Aerison is able to particularise the confidential information contained in the files downloaded to the OneDrive accounts, given the number of files involved, this is a large and time‑consuming task. The subpoena is likely to assist to narrow that task down to the precise documents - and therefore confidential information - involved in the claimed breaches, resulting in a more tailored and manageable statement of claim.
I am also satisfied that it is appropriate to exercise my discretion to grant leave. I consider that granting leave to issue the subpoena at this stage of the proceedings is consistent with the principles of case management as it may result in a more fulsome amendment to the statement of claim being made at this point in the proceedings, which may have the effect of reducing the need for, or extent of, interlocutory disputes regarding the pleadings, or additional amendments at a later time. It will also serve the purpose of allowing the defendants to understand more fully the case they are required to meet. Granting leave is also consistent with the principles of case management in that it has the potential to narrow the issues, in particular the identification of the relevant confidential information.
In relation to the issue of future amendments, the defendants submit that the subpoena will not result in the particulars being provided in one amendment and will avoid the need for any future amendments, because the subpoena can only address the question of the use or disclosure to DMS, and not the use or disclosure to Innovent for the period January 2024 onwards. This is a relevant consideration.
Counsel for Aerison submits that these are one in the same, because the individual defendants still have access to the DMS Sales folder and their DMS email addresses.[25] Therefore, in obtaining a copy of the DMS Sales folder, Aerison will be able to particularise the use and disclosure to both DMS and Innovent.[26] However, counsel for Aerison accepts that it may also be the case that all or some of the files have been downloaded onto the Innovent computer server or systems.[27] In those circumstances, I accept that it may be that further amendments are required after discovery has been provided. However, I consider that the potential case management benefits outlined above are sufficient factors to warrant the grant of leave and that the grant of leave (and the production of the associated documents) will likely reduce the need for future amendments to the statement of claim, especially in so far as the use or disclosure concerns the use or disclosure to DMS.
[25] Whilst this not pleaded, it is contained in the affidavit of Ms Jackson affirmed on 20 March 2025 at [8(h)].
[26] ts 30/05/2025, 86 - 87 and 89 - 90.
[27] ts 30/05/2025, 87 and 90.
I accept that the lack of affidavit evidence explaining why the application for leave to issue the subpoena was not made until 27 February 2025 is a relevant factor for me to weigh in the exercise of the discretion. However, ultimately, I do not consider that this failure is sufficient either on its own, or in consideration with other factors relevant to the exercise of the discretion, to justify a refusal to issue the subpoena.

In terms of the issue of delay, whilst there has been a delay in the conduct of these proceedings, the statement of claim was filed in November 2024 and the application made by letter on 27 February 2025. Taking into account the Christmas and New Year period, that delay is not significant. The remainder of the delay between 27 February 2025 to the date of hearing his application is in a different category. That time has consisted of the parties filing affidavits and submissions and the matter being listed on a date suitable to the parties and the court. To the extent this period of time can be described as 'delay', it cannot be attributed solely to Aerison.
Finally, the defendants submit that Aerison has caused delay by not particularising as best it could in February 2025, and allowing the matter to take its usual course, including discovery and subpoenas at a later point and subsequent amendments. This was an option for Aerison. However, it is not possible now to compare the length of delay between what has actually occurred and that possible course of action. As the matter is in my Commercial and Managed Cases list, it can be subject to closer case management moving forward.
I do not consider that the correspondence or media reporting annexed to Mr O'Callaghan's affidavits constitutes a reason not to exercise the discretion. The letters appear to be in the form of what is often known as 'document hold' letters. Given the nature of the pleaded case, it may be that further subpoenas to other third parties may be issued in the future. For example, to obtain copies of the tender responses received. The letters serve a legitimate purpose of attempting to protect any documents that may be subpoenaed from destruction.

Conclusion

For the above reasons, I will grant Aerison's application for leave to issue the subpoena to DMS. I will hear further from the parties as to the appropriate orders, including as to programming orders to file an amended statement of claim.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MA
Associate to the Honourable Justice Seaward
27 JUNE 2025