Blackmagic Design Pty Ltd v Overliese - [2010] FCA 126

FEDERAL COURT OF AUSTRALIA
Blackmagic Design Pty Ltd v Overliese [2010] FCA 126

Citation: Blackmagic Design Pty Ltd v Overliese [2010] FCA 126

Parties: BLACKMAGIC DESIGN PTY LTD
(ACN 098 098 287) v IAN OVERLIESE, JEROMY YOUNG, ATOMOS AUDIO PTY LTD (ACN 127 008 431) and CLAIRE YOUNG

File number: VID 328 of 2008

Judge: JESSUP J

Date of judgment: 24 February 2010

Legislation: Corporations Act 2001 (Cth) s 1317E

Cases cited:
Black v Lipovac (1998) 217 ALR 386
Calderbank v Calderbank [1975] 3 All ER 333

CGU Insurance Limited v Corrections Corporation of Australia Staff Superannuation Pty Ltd [2008] FCAFC 173

One.Tel Ltd (in liq) v Rich (2005) 53 ACSR 623
Pascoe v Divisional Security Group Pty Ltd (2007) 209 FLR 197

Date of hearing: 5 February 2010

Date of last submissions: 5 February 2010

Place: Melbourne

Division: General Division

Category: No Catchwords

Number of paragraphs: 27

Counsel for the Applicant: Mr C Golvan SC and Mr M Wise

Solicitor for the Applicant: Middletons

Counsel for the Respondents: Mr M Rinaldi

Solicitor for the Respondents: Cooper Mills Lawyers

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 328 of 2008

BETWEEN:
BLACKMAGIC DESIGN PTY LTD (ACN 098 098 287)
Applicant

AND:
IAN OVERLIESE
First Respondent

JEROMY YOUNG
Second Respondent

ATOMOS AUDIO PTY LTD (ACN 127 008 431)
Third Respondent

CLAIRE YOUNG
Fourth Respondent

JUDGE:

JESSUP J

DATE OF ORDER:

24 FEBRUARY 2010

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The first, second and third respondents be restrained, whether by themselves, their directors, servants, agents, employees or any of them howsoever, from using or disclosing, anywhere in the world and in any way, the following information of the applicant:
(i)        parts usage figures;
(ii)       actual parts prices paid by the applicant;
(iii)      profit margins of the applicant;
contained in the Costs, Allcosts, SDI, Tweak or OC worksheets of any variant of the Excel spreadsheet file entitled “Ycalc”, of the Excel spreadsheet file entitled “TMP” or of the Excel spreadsheet file entitled “Cashflow” (referred to in this order as “the confidential information”).
2.Within the next 60 days, each party have liberty to apply on seven days’ written notice to every other party with respect to –
(a)the removal or deletion of the confidential information or any part thereof from any computer, disc, tape, key or other electronic medium; or
(b)the delivery up or destruction of any physical document or thing upon which the confidential information or any part thereof is recorded;

in the possession or power of the first, second or third respondents or any of them.

3. Save as aforesaid, the application be dismissed.
4.Subject to any order previously made for the payment of the costs of a party by any other party,
(a)the applicant pay 30% of the costs (including reserved costs) of the first respondent, to be taxed if not agreed;
(b)the applicant pay one half of the costs (including reserved costs) of the second respondent, to be taxed if not agreed;
(c)the applicant pay 30% of…

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.

Continue reading Blackmagic Design Pty Ltd v Overliese

Details

AGLC: Blackmagic Design Pty Ltd v Overliese [2010] FCA 126
Case: [2010] FCA 126
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Blackmagic Design Pty Ltd sought an injunction against Ian Overliese, Jeromy Young, Atomos Audio Pty Ltd, and Claire Young, among other relief, on the basis that the respondents had misused confidential information and intellectual property that was owned by the applicant. The primary judge had already delivered a judgment in the matter, and the questions remaining for determination related to the terms of the orders to be made, and to costs. The parties reached a consensus as to the terms of the permanent injunction to which Messrs Overliese and Young, and Atomos, would be bound. The applicant accepted that it did not have standing to apply for a declaration under s 1317E of the Corporations Act 2001 (Cth), and that the court could not make one. The applicant also submitted that it was not unreasonable to proceed against Ms Young, even though she was ultimately successful in the proceeding. The judge agreed with the applicant's submissions. The judge also found that the applicant should be regarded as having succeeded against Mr Young in respect of about 25% of its case, and against Mr Overliese in respect of about 35% of its case. The judge ordered that the applicant pay one half of Mr Young’s costs, and 30% of the costs of the other respondents, to be taxed if not agreed. The judge found that the settlement proposals put forward by the respondents were insufficient to form the basis for an indemnity costs claim.

Orders