Central Innovation Pty Limited v Garner

[2017] FCA 873

FEDERAL COURT OF AUSTRALIA

Central Innovation Pty Limited v Garner [2017] FCA 873

File number:	NSD 2221 of 2016
Judge:	DOWSETT J
Date of judgment:	12 January 2017
Date of hearing:	12 January 2017
Registry:	New South Wales
Division:	General Division
National Practice Area:	Employment & Industrial Relations
Category:	No Catchwords
Number of paragraphs:	5
Counsel for the Applicant:	Mr G Boyce
Solicitor for the Applicant:	FD Commercial Lawyers
Counsel for the First Respondent:	Mr A Sandbach
Solicitor for the First Respondent:	AJH Lawyers
Counsel for the Second Respondent:	Mr C Twidale
Solicitor for the Second Respondent:	Vernon da Gama and Associates

ORDERS

NSD 2221 of 2016

BETWEEN:

CENTRAL INNOVATION PTY LIMITED

Applicant

AND:

GARY GARNER

First Respondent

NC CADCAM SYSTEMS PTY LTD

Second Respondent

JUDGE:	DOWSETT J
DATE OF ORDER:	12 JANUARY 2017

THE COURT ORDERS THAT:

1.upon the undertaking of the second respondent's counsel given this day (as noted below), order 7 made by the Honourable Justice Dowsett on 10 January 2017 in Sydney be vacated; and

2.the costs of and incidental to the hearing on this day be reserved.

THE COURT NOTES:

A.The usual undertakings as to damages given by the applicant by its counsel.

B.The undertaking given by the second respondent by its counsel, upon the basis of the usual undertaking as to damages that is provided by the applicant, in the following terms:

The second respondent will preserve its computer systems, until further order to ensure that the applicant can undertake inspection of those computer systems should the Court grant the relief sought by the applicant following the hearing on 6 February 2017.

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

REASONS FOR JUDGMENT

DOWSETT J:

1. These proceedings have been brought in the belief that certain commercially sensitive information has been transferred by the first respondent to the second respondent. 

2. The applicant has, as I indicated on Tuesday, demonstrated a case, although not a very strong case, upon which it seeks relief.  The conduct of the case by, in particular, the first respondent, has led to a perception, at least in my mind, that a relevant computer remained in the possession of the first respondent’s employer, the second respondent. 

3. After the hearing on 10 January, the second respondent indicated that, in fact, the computer had been in the possession of the first respondent since 23 December.  In those circumstances and given the importance of the content of the computer to the applicant’s claim, it is in my view understandable that the applicant should have brought on these proceedings today, in order to sort out questions concerning possession as between the first and second respondents, at least, in a preliminary way, and so that the adequacy of the interlocutory relief already granted could be assessed.

4. I conclude that it was entirely reasonable for the applicant to bring such proceedings.  It may be that they have been brought quickly.  It may be that, had there been any matter in dispute between the parties as to the relief, it would have been necessary to allow the respondents more time in which to respond.  However the parties have reached an agreement.  They are to be congratulated upon that. 

5. In those circumstances, I do not think that I should, today, dispose of the costs of the application.  In my view, costs should either be reserved or costs in the cause.  Given that there may be some special consideration to be argued with respect to the costs of today, I shall reserve those costs.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Dowsett.

Associate:  

Dated:       11 September 2017