Amalgamated Mining Services Pty Ltd v Warman International Ltd
[1991] FCA 759
•26 Nov 1991
JUDGMENT No. ...,." NOT SUITABLE FOR DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA ) 1
NEW SOU TH WALES DISTRICT REGISTRY ) NG 1069 of 1988 )
GENERAL DIVISION )
| ,o | BETWEEN: &IMITED | AMALGAMATED MINING SERVICES PTY |
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PECLI. . - Applicant 0 4 DEC 1991
FEDERAL COURT OF AND : WARMAN INTERNATIONAL LIMITED
| ,. | AUSTRALIA | |
| Y | PRINCIPAL | |
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...$ -r -? Crr CORAM: Burchett J.
PLACE: Sydney
DATE : 26 November 1991EX TEMPORE REASONS FOR JUDGMENT
BURCHETT J.:
In this matter, an undertaking was given upon the making of an Anton Piller order. The undertaking given was not without the leave of the court to use any goods or other documents or information, obtained as a result of the execution of the orders, except for the purpose of these proceedings.
Subsequently, proceedings, the ultimate genesis of which is the same alleged action of misappropriation of drawings of the applicant in the motion, have been commenced in California against parties alleged to be ultimate purchasers of (inter
evidence has been put on, on behalf of the opposing party or
alia) those same drawings. In the proceedings in California,
an opposing party, referring in some detail to documents obtained as a result of the execution of the Anton Piller order. And the application now made is for variation of the undertaking, or release of the undertaking and the substitution of a substituted undertaking, in order to enable that evidence to be answered, and in order to enable evidence to be put on in the California proceedings dealing broadly with the ultimate question to which I have already referred.
In seems to me that what is sought is really analogous to what would be sought if there were some technical reason why the proceedings, in aid of which the Anton Piller order was granted, could not be maintained; but substituted proceedings, raising the same questions, could be maintained in this court, or alternatively, in the Supreme Court of New South Wales. In either of those cases, I would have thought the court would quite readily permit the undertaking to be, in effect, varied for that purpose. Now, as it happens, in this case, I have been informed that both the proceedings in this court and the
Californian proceedings are, as the applicant sees the matter, required to be maintained, each in support of a different interest of the applicant, which could not be maintained in the other jurisdiction. But both lots of proceedings do arise out of the alleged activity by which certain drawings are said to have left the custody of the applicant improperly. In those circumstances, it seems to me appropriate to make an order as sought.
Upon your giving, M r Nicholas, the fresh undertaking on behalf of your clients, I release them from the undertaking numbered 3 in the document headed Undertakings, dated 11 July 1991, which is annexed to the orders made by the Court on that same date. I make order 3 also of the orders sought in the notice of motion. I reserve any question of the costs of this motion for consideration, either at the conclusion of this proceeding, or alternatively, at any time upon evidence as to the event in the Californian proceedings.
I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.
Associate: ?*be J Date: 26 November 1991
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