Canview Pty Ltd v Gilmore

Case [2024] FCA 586

FEDERAL COURT OF AUSTRALIA

Canview Pty Ltd v Gilmore [2024] FCA 586  

Appeal from: Canview Pty Ltd v Gilmore [2024] FCA 551
File number: QUD 269 of 2024
Judgment of: LOGAN J
Date of judgment: 27 May 2024
Catchwords: PRACTICE AND PROCEDURE – where the applicant applies for leave to appeal from interlocutory orders made granting interlocutory injunctive relief and a related stay on the operation of those orders – where there are related proceedings in the Supreme Court of Queensland (QSC) – where the impugned orders relate to the use by the respondent of particular information for the purpose of legal advice in both the proceedings in the Federal Court of Australia (FCA) and the QSC – where there exists possibility for embarrassment between the FCA and QSC due to overlapping issues between proceedings – whether first instance proceedings in the FCA should be cross-vested to the QSC – application for leave to appeal and related stay dismissed by consent, first instance proceedings cross-vested   
Legislation:

Copyright Act 1968 (Cth) ss 131A, 131C

Judiciary Act 1903 (Cth) s 39

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 5

Federal Court Rules 2011 (Cth) r 36.08
Cases cited:

Bankinvest AG v Seabrook (1988) 14 NSWLR 711

BHP Billiton Ltd v Schultz (2004) 221 CLR 400

Canview Pty Ltd v Gilmore [2024] FCA 551
Division: General Division
Registry: Queensland
National Practice Area: Intellectual Property
Sub-area: Copyright and Industrial Designs
Number of paragraphs: 17
Date of hearing: 27 May 2024
Counsel for the Appellants: Mr A Crowe KC with Mr M Walker
Solicitor for the Appellants: Gilbert + Tobin
Counsel for the Respondent: Mr D De Jersey KC with Mr M Ziebell
Solicitor for the Respondent: CSM Lawyers

ORDERS

QUD 269 of 2024
BETWEEN:

CANVIEW PTY LTD (ACN 639 650 927)

First Appellant

VITURA HEALTH LTD (ACN 629 071 594)

Second Appellant

VITURA HEALTH OPERATIONS PTY LTD

Third Appellant
AND:

ADAM ZACHARY GILMORE

Respondent

ORDER MADE BY:

LOGAN J

DATE OF ORDER:

27 MAY 2024

Vitura System means the IT system described in paragraph 16 of the affidavit of Guy Headley sworn on 15 May 2024.

Copied Documents means any documents (or parts thereof) which have been copied, reproduced or downloaded from or via the Vitura System or any copies thereof.

Accessed Information means any information from the Copied Documents or any copies thereof.

Supreme Court Proceeding means Supreme Court of Queensland proceeding number 5036 of 2024.

UPON THE RESPONDENT, THROUGH HIS COUNSEL, GIVING AN UNDERTAKING IN THE FOLLOWING TERMS:

The Respondent will not access, use or disclose any documents (or parts thereof) which have been copied, reproduced or downloaded from or via the Vitura System or any copies thereof (Copied Documents) or any information from the Copied Documents or any copies thereof (Accessed Information), or instruct or permit any third party to do so, save for the purposes of:

(a)obtaining legal advice in respect of this proceeding; and

(b)if the Supreme Court makes orders that this proceeding be heard with or consolidated…

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AGLC
Canview Pty Ltd v Gilmore [2024] FCA 586
Case
[2024] FCA 586
Decision Date

CaseChat Overview and Summary

In the matter of Canview Pty Ltd and others v Gilmore, the applicants sought leave to appeal interlocutory orders that had been granted, which imposed injunctive relief and a stay on the operation of those orders. The application was dismissed by consent, and the proceedings were cross-vested to the Supreme Court of Queensland. The applicants, who are in the business of distributing medical cannabis products, alleged that the respondent, the director of Code4 Cannabis Pty Ltd, had accessed and downloaded confidential information and infringed their copyright through two incidents. The proceedings in the Federal Court were related to proceedings in the Supreme Court of Queensland, which had the potential to cause embarrassment due to overlapping issues.

The legal issues before the court were whether the application for leave to appeal and the related stay should be dismissed and whether the first instance proceedings should be cross-vested to the Supreme Court of Queensland. The court found that the first instance proceedings should be cross-vested to the Supreme Court of Queensland as the proceedings in the Federal Court and the Supreme Court of Queensland had the potential to cause embarrassment due to overlapping issues. The court also found that the application for leave to appeal and the related stay should be dismissed by consent.

The court's reasoning was that the proceedings in the Federal Court and the Supreme Court of Queensland had the potential to cause embarrassment due to overlapping issues. The court found that the first instance proceedings should be cross-vested to the Supreme Court of Queensland to avoid any potential embarrassment. The court also found that the application for leave to appeal and the related stay should be dismissed by consent as the parties had agreed to dismiss the application.

The final orders of the court were that the application for leave to appeal and the related stay were dismissed by consent, and the first instance proceedings were cross-vested to the Supreme Court of Queensland. The costs of the proceedings were reserved.

Orders

Orders of the court

1. By consent:

(a) paragraphs 5 and 6 of the orders made 22 May 2024 are vacated.

(b) the definitions of “Copied Documents” and “Accessed Information” contained in the definition section of these orders are inserted in the definitions section of the orders dated 22 May 2024.

2. Pursuant to section 5(4) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), proceeding QUD232 of 2024 is transferred to the Supreme Court of Queensland.

3. The application for a stay and leave to appeal in proceeding QUD269 of 2024 is dismissed with no order as to costs.

4. Save as otherwise provided by this order, costs reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Her Honour also offered, at [6] through to and including [15], a helpful summary of the background to the proceedings in this Court. That summary is as follows:FACTUAL BACKGROUND 6Vitura Health, the second applicant, is the holding company of the first applicant, Canview and the proposed third applicant, Vitura Operations. All employees are employed by the second applicant and the proposed third applicant.7 The applicants are in the business of distributing medical cannabis products.8The respondent is the director of a company by the name of Code4 Cannabis Pty Ltd (C4C). C4C is to provide software to the first applicant (Canview Software). 9Mr Headley, the Chief Commercial Officer and Executive Director of the second applicant deposes that the Canview Software is used to sell and distribute cannabis products by facilitating transactions and interactions between doctors, pharmacies and patients.10Pursuant to a software licence agreement between the first applicant and C4C (Services Agreement), the first applicant licences the Canview Software from C4C. Clause 6.3 of the Services Agreement provides: The Supplier agrees and acknowledges that the Customer may grant the Supplier access to its systems, records and internal information (including but not limited to computer files, records, statements and documents) and the Supplier warrants that it will only access those documents for the purpose of carrying out the Services.11The applicants allege that the respondent has acquired confidential information and infringed the applicants’ copyright through two incidents, which are referred to in the applicants’ submissions as the ‘Hacking Incident’ and the ‘Unauthorised Access and Download Incident’. The hacking incident occurred on 16 April 2024 and the Unauthorised Access and Download Incident occurred between mid-November 2023 and 13 May 2024. Through those incidents, the applicants allege that the respondent accessed and downloaded many documents and much information without the knowledge or authority of the applicants. Supreme Court Proceedings 12On 15 April 2024, C4C sent a letter to the applicant stating that it would be terminating the Services Agreement, giving 14 days’ notice. The termination was based on alleged breaches of clause 5.2 of the Services Agreement, which in part provides that the first applicant is not to ‘decompile, disassemble, reverse engineer or otherwise attempt to derive the source code of the Software’. 13On 22 April 2024, the first applicant filed proceedings against C4C in the Supreme Court of Queensland (Supreme Court Proceedings) seeking, inter alia, a declaration that the Notice of Termination dated 15 April 2024 issued by C4C was invalid and of no effect.14On 17 May 2024, C4C filed a defence denying that the Notice of Termination was invalid and bringing a counterclaim seeking declarations to the effect that it was a valid termination on the basis that the applicant had breached parts of the Services Agreement. 15In its defence, C4C referred to a number of Microsoft Word documents which were published on the first applicant’s Sharepoint. C4C claims that the documents contain information which evidences fundamental breaches of the Services Agreement. C4C also referred to dates and times from 4 December 2023 to 29 March 2024 upon which it claims that employees of the applicant had accessed Developer Tools. Developer Tools are used to access the source code of web applications.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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