Berg Engineering Pty Ltd v Tivity Solutions Pty Ltd

Berg Engineering Pty Ltd brought an ex parte application for a search order to be made pursuant to section 26 of the Supreme Court Act 1998 (Qld) in respect of documents held by Tivity Solutions Pty Ltd. Berg Engineering applied for the search order on the basis that it suspected the defendants of disclosing or intending to disclose confidential information or trade secrets of the plaintiff. Tivity Solutions applied to discharge the search order on the basis of material non-disclosure. The key legal issue was whether the search order should be discharged because of the plaintiff's material non-disclosure. The court considered the circumstances in which the search order was made and whether the plaintiff had made full and frank disclosure to the court. The court held that the plaintiff had failed to make full and frank disclosure to the court and that the search order should be discharged on that basis. The court found that the plaintiff had not disclosed that it had already obtained the documents from a third party and that the plaintiff had failed to disclose that the defendants had already disclosed the information to the public. The court held that the plaintiff's failure to disclose these facts amounted to material non-disclosure and that the search order should be discharged. The court also found that the documents produced from the execution of the search order were not a sufficient reason to refuse the application to set aside the search order on the ground of material non-disclosure. The court held that the defendants were entitled to have the search order discharged and that the things and documents seized that were in the custody of the independent solicitor were to be returned to the defendants’ solicitors. The court further held that the independent solicitor and any computer forensic expert he had retained were discharged and that the independent expert was permitted to keep the relevant copy or copies of the data used by him to produce the reports provided to the independent solicitor, on condition that those copies were not used by him or further disclosed to the plaintiff or plaintiff’s solicitors, and he was not to make further reports in the proceeding without an order of the court authorising the same.