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Brags Electrics Ltd v Gregory

Brags Electrics Ltd v Gregory

Case [2010] NSWSC 1205 6 September 2010

Discovery & Disclosure

Abuse of Process

Anton Piller Orders

Stay of Proceedings

Civil Litigation & Procedure

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CITATION: Brags Electrics Pty Ltd trading as Inscope Building Technologies v Steven Mark Gregory [2010] NSWSC 1205

HEARING DATE(S): 6 September 2010

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 6 September 2010

DECISION: Decline to set aside Anton Piller order

CATCHWORDS: PROCEDURE – Discovery and interrogatories – Discovery and inspection of documents – Production and inspection – Generally – Anton Piller orders – whether Anton Piller order should be discharged – where application made after execution – when Anton Piller order may be discharged – grounds for discharge – procedure and evidence on application for discharge – evidence additional to that on ex parte application – evidence of “fruits of order”

CATEGORY: Procedural and other rulings

CASES CITED: Austress Freyssinet Pty Ltd v Joseph [2006] NSWSC 77
WEA Records Ltd v Visions Channel 4 Limited [1983] 2 All ER 589

PARTIES: Brags Electrics Pty Ltd (plaintiff)
Steven Mark Gregory (defendant)

FILE NUMBER(S): SC 10/142180

COUNSEL: Mr G Boyce (plaintiff)
Ms B Obradovic (defendant)

SOLICITORS: NECA Legal (plaintiff)
CA Williams Legal (defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Monday, 6 September 2010

2010/142180 Brags Electrics Pty Limited t/as Inscope Building Technologies v Steven Mark Gregory

JUDGMENT

1 HIS HONOUR: The plaintiff Brags Electrics Pty Limited carries on business under the name Inscope Building Technologies, specialising in the design, installation and maintenance of buildings automation and control systems and claiming to have extensive expertise and experience in control systems designed for heating, ventilation and air-conditioning, intelligent lighting control, fire services, hydraulic services, access control and security systems and computer room environmental monitoring systems. It provides these services through building management control systems (BMCS) installed by its clients, the owners of the various buildings which it services, and to which it obtains access via a user name and password. Relevantly, access is required both to the “platform” (which is essentially the hardware) and the “station” (which is essentially the software) that drives the relevant BCMS. Sites currently served by the plaintiff include Century Business Estate at Baulkham Hills, the Roads and Traffic Authority building in Argyle Street, Parramatta, and Dubbo Civic Centre.

2 The defendant Steven Gregory was employed by the plaintiff as a senior control technician and was part of its senior management team. His role entailed managing the BMCS division of the business. He was the plaintiff’s senior technical employee. He left the plaintiff in early 2010, after their relationship had begun to deteriorate; it deteriorated further consequent upon his departure.

3 Brags alleges that following Mr Gregory’s departure, it encountered an unprecedented level of difficulty in obtaining access to the BMCS at various sites, including at least the Baulkham Hills and Dubbo sites. It alleges that Mr Gregory has somehow accessed the relevant BMCS and altered the passwords so as to deny Brags access. Brags sues for declaratory, injunctive and compensatory relief in respect of the alleged misuse of its confidential information and intellectual property (essentially, its passwords), interference with…

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 Brags Electrics Ltd v Gregory

Details

AGLC: Brags Electrics Pty Ltd v Gregory [2010] NSWSC 1205
Case: [2010] NSWSC 1205
Decision Date: 6 September 2010

CaseChat Overview and Summary

In the Federal Court of Australia, Brags Electrics Ltd, a plaintiff, sought an order to discharge an Anton Piller order that had previously been made against Gregory, the defendant. The Anton Piller order had been issued to permit the plaintiff to search Gregory’s premises and seize certain documents believed to be evidence of copyright infringement. The plaintiff now sought to discharge the order on the basis that it had completed the inspection of the documents and that no further documents were required. Gregory opposed the application on the basis that there were still documents to be found and that the order had not been fully executed.

The court considered whether an Anton Piller order could be discharged after it had been executed and if so, what procedure should be followed and what evidence was required. The court noted that while an Anton Piller order was intended to be a one-off search, there may be circumstances in which it could be discharged early. The court held that in order to discharge an Anton Piller order after it had been executed, the applicant must show that the purpose of the order had been fulfilled and that there was no longer any need for the order to remain in place. The court also held that additional evidence may be required to support an application for discharge, beyond that which was necessary for the initial ex parte application.

The court found that the plaintiff had discharged the burden of showing that the purpose of the Anton Piller order had been fulfilled and that there was no longer any need for the order to remain in place. The court noted that the plaintiff had produced evidence of the documents that had been seized and inspected, and that there were no further documents required. The court also noted that the plaintiff had taken steps to ensure that any further documents that may be found would be dealt with appropriately. The court therefore discharged the Anton Piller order.

No further orders were made.

Orders