Amalgamated Mining Services Pty Ltd v Warman International Ltd Summary

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 )

BETWEEN: &IMITED

AMALGAMATED MINING SERVICES PTY

C \ \ IF0

PECLI. . - Applicant
0 4 DEC 1991

FEDERAL COURT OF AND : WARMAN INTERNATIONAL LIMITED

AUSTRALIA

PRINCIPAL

REGSTRY

Respondent

...$ -r -? Crr
CORAM: Burchett J.
PLACE: Sydney
DATE : 26 November 1991
EX 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

Amalgamated Mining Services Pty Ltd sought to vary an undertaking given in relation to an Anton Piller order, which was made to prevent the misappropriation of their drawings. Warman International Ltd opposed the application. The Federal Court of Australia, presided over by Burchett J, was tasked with deciding whether the undertaking should be varied to allow the applicant to use the seized evidence in a related proceeding in California. The central issue was whether the circumstances warranted a variation of the undertaking to enable the applicant to defend and present evidence in the Californian proceeding.

Burchett J held that the application was analogous to situations where proceedings in aid of which the Anton Piller order was granted could not be maintained, but substituted proceedings could. The judge noted that both the Australian and Californian proceedings arose from the same alleged improper activity concerning the applicant's drawings. Therefore, Burchett J concluded that it was appropriate to make an order as sought by the applicant. The judge released the respondents from the original undertaking and made the new order sought by the applicant, reserving the question of costs for later consideration.

The court's decision allowed Amalgamated Mining Services Pty Ltd to use the seized evidence in the Californian proceeding, thereby enabling them to effectively defend and present their case in both jurisdictions. The judge's ruling recognised the necessity of the variation in the undertaking given the unique circumstances of the case, where separate proceedings were required to protect the applicant's interests in different jurisdictions.

Amalgamated Mining Services Pty Ltd v Warman International Ltd

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

...$ -r -?	*Crr*
CORAM: Burchett J. PLACE: Sydney DATE : 26 November 1991