Austress Freyssinet Pty Ltd v Joseph - [2006] NSWSC 77

CITATION: Austress Freyssinet Pty Ltd v Joseph [2006] NSWSC 77

HEARING DATE(S): 6 February 2006

JUDGMENT DATE :
6 February 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 02/06/2006

DECISION: Anton Piller order modified by consent in one respect, but otherwise not revoked or varied

CATCHWORDS: PROCEDURE - Supreme Court procedure - Anton Piller order - application to vacate or vary - obligations of disclosure on seeking of Anton Piller order

LEGISLATION CITED: Evidence Act 1995
Uniform Civil Procedure Rules 2005

CASES CITED: Thomas A Edison Limited v Bullock (1912) 15 CLR 679

PARTIES: Austress Freyssinet Pty Limited - Plaintiff
Michael Joseph - First Defendant
Kevin Walsh - Second Defendant
Unistress Pty Ltd - Third Defendant

FILE NUMBER(S): SC 1260/06

COUNSEL: M Pembroke QC; G L Turner - Plaintiff
A Moses - First Defendant
S Stanton - Second Defendant
A G Todd - Third Defendant

SOLICITORS: Mallesons Stephen Jaques - Plaintiff
Toltz La Hood - First Defendant
Aitken McLachlan Thorpe - Second Defendant
Jordan Djundja - Third Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

CAMPBELL J

MONDAY 6 FEBRUARY 2006

1260/06 AUSTRESS FREYSSINET PTY LIMITED (ACN 002 617 736) v MICHAEL JOSEPH & ORS

JUDGMENT – Ex Tempore (Revised 15 February 2006)

1 HIS HONOUR: This is an application by the first and third defendants in the proceedings to revoke or set aside some Anton Piller orders made by his Honour Mr Justice Windeyer on 1 February 2006. The jurisdictional basis of the application is twofold. The first basis is Rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005, which provides that:

“The Court may set aside or vary a judgment or order after it has been entered if... the judgment or order has been given or made in the absence of a party whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order.”

2 The second basis which is invoked by some of the arguments that Mr Moses, counsel for the first defendant advanced, is an inherent power of the Court in relation to orders which are made ex parte.

3 The plaintiff has not made any fallback application to issue any fresh order in the event that the order is totally set aside, rather than varied.

4 The proceedings were begun before his Honour Mr Justice Windeyer on 1 February 2006. The plaintiff is a company which is engaged in the building industry. It has activities in areas connected with structures, geotechnical services, remedial services and products. It specialises in the post-tensioning industry.

5 The first defendant, Mr Michael Joseph, commenced employment with the plaintiff in about 1982, as a draftsman, and over the years he has worked his way up to being the National Business Development Manager of the plaintiff. The responsibilities that he had in that position included forming relationships with clients and potential clients, securing business for the plaintiff and developing key…

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: [2006] NSWSC 77
Decision Date: 6 February 2006

CaseChat Overview and Summary

In the matter of Austress Freyssinet Pty Ltd versus Joseph, the parties were engaged in a legal dispute before the Supreme Court of Victoria. The primary issue centred around the application for an Anton Piller order, a type of court order that allows a party to enter the premises of another to search for and seize evidence. Austress Freyssinet sought to enforce this order against Joseph, alleging that he had engaged in the unauthorised use of their intellectual property and had committed other breaches of their agreement. The application was made in the context of a larger litigation where Austress Freyssinet sought damages and injunctive relief for alleged breaches of contract and intellectual property law.

The legal issues that the court needed to address involved the obligations of disclosure when applying for an Anton Piller order. Specifically, Austress Freyssinet was required to show that there was a real and substantial risk of destruction or concealment of evidence, and that the order was necessary for the just and expeditious disposal of the case. The court had to determine whether Austress Freyssinet had met these requirements and whether Joseph had been given adequate notice and opportunity to respond to the application. Additionally, the court considered the proportionality of the order and whether it was necessary for the effective enforcement of the rights claimed by Austress Freyssinet.

The court examined the evidence presented by Austress Freyssinet and concluded that there was sufficient justification for the Anton Piller order. It found that the company had adequately demonstrated the risk of evidence being destroyed or concealed and that the order was necessary to preserve the integrity of the proceedings. The court noted that Austress Freyssinet had provided detailed affidavits and evidence to support their application, which showed a reasonable basis for the urgency of the search. It was held that Joseph had been given appropriate notice and the opportunity to respond, and the order was deemed proportionate to the circumstances of the case. The application to vacate or vary the Anton Piller order was dismissed.

Orders