Deloitte Consulting Pty Ltd v Blumberg

Case •

[2000] FCA 1222

•

15 AUGUST 2000

FEDERAL COURT OF AUSTRALIA

Deloitte Consulting Pty Ltd v Blumberg [2000] FCA 1222

INTELLECTUAL PROPERTY – copyright – confidential information – balance of convenience

O’Brien v Komasaroff (1982) 150 CLR 310 referred to
Carindale Country Club Estate Pty Ltd v Astill (1993) 115 ALR 112 referred to

DELOITTE CONSULTING PTY LTD v ANTHONY CHARLES BLUMBERG, CHRIS THOMAS HUGGINS, NEW CENTURY FINANCIAL SOLUTIONS PTY LTD, SHREWD DUDES PTY LTD
NO VG 530 OF 2000

HEEREY J
15 AUGUST 2000
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V530 of 2000

BETWEEN:

DELOITTE CONSULTING PTY LTD (ACN 079 179 078)
FIRST APPLICANT

DELOITTE CONSULTING/ICS PTY LTD (ACN 079 173 078)
SECOND APPLICANT

AND:

ANTHONY CHARLES BLUMBERG
FIRST RESPONDENT

CHRIS THOMAS HUGGINS
SECOND RESPONDENT

NEW CENTURY FINANCIAL SOLUTIONS PTY LTD
(ACN 092 619 648)
THIRD RESPONDENT

SHREWD DUDES PTY LTD (ACN 092 039 926)
FOURTH RESPONDENT

JUDGE:

HEEREY J

DATE OF ORDER:

15 AUGUST 2000

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The Applicants have leave to join Nicholas Koulbanis as the Fifth Respondent to this proceeding.

2.The Applicants have leave to amend the Application in the form submitted to the Court on 4 August 2000.

Upon the Applicants by their Counsel undertaking to the Court that the Applicants will submit:

(a)to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and

(b)       To pay the compensation referred to in (a) to the person there referred to.

3.        As against the First, Second and Fifth Respondents:

(a)Pending the hearing and determination of this proceeding or further order, the First, Second and Fifth Respondents, by themselves, their servants or agents or otherwise howsoever:-

(i)        be restrained from:-

(a)infringing the copyright of Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd in the iTraxx System contained in the CD-Rom which is the exhibit marked “KRM 2” to the Affidavit of Kenneth Roy McElhinney sworn 2 August 2000;

(b)disclosing, using, copying, reproducing, whether in whole or part any confidential information or trade secrets being the iTraxx System of Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd or their clients;

(c)soliciting the employment or services of any person who is an employee of Deloitte Consulting Pty Ltd or Deloitte Consulting/ICS Pty Ltd;

(ii)deliver up to the Applicants’ solicitors within 14 days of the date of this order all of the said copyright material and said confidential information or trade secrets (being the whole of or any part of material contained in the said CD-Rom), in documentary, computer disk or other form or format in their possession, custody or power;

4.The First, Second and Fifth Respondents each file and serve an affidavit within 14 days of the date of this order specifying:-

(a)the names and addresses of all clients or customers of Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd with whom they have spoken or communicated or from whom they have solicited, or purported to solicit business and providing details of the dates and times of such conversations, communications or solicitations;

(b)the name and address of every existing or former staff member of Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd who has been approached by them or their servants or agents for the purposes of soliciting the employment or services of that person;

(c)details of access gained by them or any person on their behalf or at their request to the computer systems used or operated by Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd since leaving the employment of the Applicant including the dates and times and the identity of the person who accessed the said system;

(d)the name and address of every person and/or entity to whom they have provided or supplied whether personally or in their capacity as a director or secretary of Shrewd Dudes Pty Ltd, New Century Financial Solutions Pty Ltd or Century Property Holdings Pty Ltd (stating in which capacity) copyright material, confidential information or trade secrets contained on the said CD-Rom of Deloitte Consulting Pty Ltd or Deloitte Consulting/ICS Pty Ltd or their clients;

(e)setting out any items of copyright material, confidential information, trade secrets or property of Deloitte Consulting Pty Ltd or Deloitte Consulting/ICS Pty Ltd or their clients which has been deleted from any computers or computer system which computer or computer system was at any time in their possession, custody or control.

5.Until 4:15pm on 11 August 2000, or further order, the First Respondent be restrained whether by himself, his servants or his agents from soliciting or dealing with in any capacity and whether directly or indirectly with any of the following clients of the Applicants:-

(i)        AMP Group of Companies;

(ii)       ANZ Bank;

(iii)      AXA Australia;

(iv)      Brokat;

(v)       CCI;

(vi)      Compaq Computers;

(vii)     Development Bank of Singapore;

(viii)     Hong Kong Telecom J B Were;

(ix)      Manualife;

(x)       Members Equity;

(xi)      Mercantile Mutual Group;

(xii)     National Australia Banking Group;

(xiii)     Telstra;

(ixv)     MultiEmedia.

6.Until 4:15pm on 11 August 2000, or further order, the Second Respondent be restrained whether by himself, his servants or his agents from soliciting or dealing with in any capacity and whether directly or indirectly with any of the following clients of the Applicants:-

(i)        Amcor;

(ii)       Brokat;

(iii)      CCI;

(iv)      Development Bank of Singapore;

(v)       National Australia Banking Group;

(vi)      Members Equity;

(vii)     Pacific Dunlop;

save that the Second Respondent may do all such things as are reasonably necessary to carry out his duties as a consultant to Members Equity.

7.Until 4:15pm on 11 August 2000, or further order, the Fifth Respondent be restrained, whether by himself, his servants or his agents from soliciting or dealing with in any capacity and whether directly or indirectly with any of the following clients of the Applicants:-

(i)        Compaq Computers;

(ii)       CCI;

(iii)      Department of Defence;

(iv)      Manualife;

(v)       Mercantile Mutual;

(vi)      Members Equity;

(vii)     National Australia Banking Group;

(viii)     NDC Group;

(ix)      Pacific Dunlop;

(x)       MultiEmedia.

8.Until the trial and determination of this proceeding or further order, each of the Respondents be restrained whether by themselves, their servants or agents from representing or holding out to any person or persons, that they themselves or any of them:

(a)are authorised by the Applicants or either of them to reproduce, sell, promote, market, distribute or deal with the iTraxx System as contained in the said CD-Rom;

(b)are employed by, are a subsidiary of, associated with or connected with the Applicants  or either of them or any enterprise or business conducted by the Applicants or either of them whether solely or jointly with any other person or entity.

9.Until the trial and determination of this proceeding or further order, the First Respondent, whether by his servants or agents or howsoever otherwise be restrained from representing to any person or persons that he or any entity he is associated with has any interest in, or is authorised to deal in any way with any of the equity in either of Indextrack.com.au Pty Ltd or Far-Away Investments Pty Ltd.

10.      (a)     Pending the hearing and determination of this proceeding or further order, the Third and Fourth Respondents, by themselves, their servants or agents or otherwise howsoever:

(i)        be restrained from:-

(a)infringing the copyright of Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd in the iTraxx System contained in the CD-Rom which is the exhibit marked “KRM 2” to the Affidavit of Kenneth Roy McElhinney sworn 2 August 2000;

(b)disclosing, using, copying, reproducing, whether in whole or part any confidential information or trade secrets being the iTraxx System contained of Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd or their clients;

(c)soliciting the employment or services of any person who is an employee of Deloitte Consulting Pty Ltd or Deloitte Consulting/ICS Pty Ltd;

(ii)deliver up to the Applicants’ solicitors within 14 days of the date of this order all of the said copyright material and said confidential information or trade secrets (being the whole of or any part of material contained in the said CD-Rom) in documentary, computer disk or other form or format in their possession, custody or power.

11.The Third and Fourth Respondents by their proper officer each file and serve an affidavit within 14 days of the date of this order specifying:-

(a)the names and addresses of all clients or customers of Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd with whom they have spoken or communicated or from whom they have solicited, or purported to solicit business and providing details of the dates and times of such conversations, communications or solicitations;

(b)the name and address of every existing or former staff member of Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd who has been approached by them or their servants or agents for the purposes of soliciting the employment or services of that person;

(c)details of access gained by them or any person on their behalf or at their request to the computer systems used or operated by Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd since leaving the employment of the Applicant including the dates and times and the identity of the person who accessed the said system;

(d)the name and address of every person and/or entity to whom they have provided or supplied whether personally or in their capacity as a director or secretary of Shrewd Dudes Pty Ltd, New Century Financial Solutions Pty Ltd or Century Property Holdings Pty Ltd (stating in which capacity) copyright material, confidential information or trade secrets contained on the said CD-Rom of Deloitte Consulting Pty Ltd or Deloitte Consulting/ICS Pty Ltd or their clients;

(e)setting out any items of copyright material, confidential information, trade secrets or property of Deloitte Consulting Pty Ltd or Deloitte Consulting/ICS Pty Ltd or their clients which has been deleted from any computers or computer system which computer or computer system was at any time in their possession, custody or control.

12.      Until 4:15pm on 11 August 2000 or further order against each of the Third and Fourth Respondents be restrained, whether by itself, its agents or its servants from soliciting or dealing with in any capacity and whether directly or indirectly with any of the following clients of the Applicants:

(a)       Amcor;

(b)       AMP Group of Companies;

(c)       ANZ Bank;

(d)       AXA Australia;

(f)        Brokat;

(g)       CCI;

(h)       Compaq Computers;

(i)        Department of Defence;

(j)        Development Bank of Singapore;

(k)       Hong Kong Telecom J B Were;

(l)        Manualife;

(m)      Members Equity;

(n)       Mercantile Mutual Group;

(o)       National Australia Banking Group;

(p)       NDC Group;

(q)       Pacific Dunlop;

(r)       Telstra;

(s)       MultiEmedia.

13.Until the trial and determination of this proceeding or further order, each of the Third and Fourth Respondents be restrained whether by itself, its agents or its servants from representing or holding out to any person or persons, that they or either of them:

(a)are authorised by the Applicants or either of them to reproduce, sell, promote, market, distribute or deal with the iTraxx System as contained in the said CD-Rom;

(b)are associated with, are a  subsidiary of, or connected with, the Applicants or either of them, or any enterprise or business conducted by the Applicants or either of them, whether solely or jointly with any other person or entity.

14.Until the trial and determination of this proceeding or further order, the Fourth Respondent, whether by its servants and agents or howsoever otherwise, be restrained from representing to any person or persons that it or any entity associated with it has any interest in or is authorised to deal in any way with any of the equity in Indextrack.com.au Pty Ltd.

15.The Applicants’ costs of the Application dated 21 July 2000 and returnable before the Court on 26 July 2000 and 4 August 2000, including the costs of the Applicants’ Notice of Motion dated 25 July 2000 and returnable on 26 July 2000 and 4 August 2000 be reserved.

16.The respondents be at liberty to file further written submissions in relation to the Applicants’ interlocutory relief sought in paragraph B(3) of the Amended Application dated 4 August 2000 on or before 4.00pm 7 August 2000.

17.The Applicants be at liberty to file written submissions by way of reply on or before 4.00pm 9 August 2000.


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

V530 OF 2000

BETWEEN:

DELOITTE CONSULTING PTY LTD (ACN 079 179 078)
FIRST APPLICANT

DELOITTE CONSULTING/ICS PTY LTD (ACN 079 173 078)
SECOND APPLICANT

AND:

ANTHONY CHARLES BLUMBERG
FIRST RESPONDENT

CHRIS THOMAS HUGGINS
SECOND RESPONDENT

NEW CENTURY FINANCIAL SOLUTIONS PTY LTD
(ACN 092 619 648)
THIRD RESPONDENT

SHREWD DUDES PTY LTD (ACN 092 039 926)
FOURTH RESPONDENT

JUDGE:

HEEREY J

DATE:

15 AUGUST 2000

PLACE:

MELBOURNE

REASONS FOR JUDGMENT

  1. As I mentioned in the course of argument, there is some very stark conflict on the affidavit evidence in this case.  Of course no ultimate findings can be made until trial when there has been cross‑examination and full production of documents.  So what I say about the evidence will necessarily be restrained given that this case is on my docket and I will in all probability be conducting the trial. 

  2. That said, it seems to me that there is a seriously arguable issue that the applicants are entitled to the copyright and confidential information in the automatic stock market index trading system known as the iTraxx system. 

  3. Although it is common ground that the initial idea might have come from Mr Blumberg, beyond that the evidence discloses that very substantial work was done by Mr Blumberg and other employees of the applicants totalling in all 1695 chargeable hours of which Mr Blumberg himself, notwithstanding his claim that he only worked on the system outside working hours at weekends, managed to charge for 136 hours.  I do not think that the authorities referred to by counsel for the respondents, that is, O’Brien v Komasaroff (1982) 150 CLR 310 or Carindale Country Club Estate Pty Ltd v Astill (1993) 115 ALR 112 really apply to the facts of this case. The iTraxx system is a complex computer-based system. In particular the evidence of Mr McElhinney shows that the design phase of the system is extremely important, valuable and confidential.

  4. Further confirmation for the value of the system is to be found in the evidence as to the clandestine way in which Mr Blumberg and the other employees of the applicants went about organising their competing company, the fourth respondent, Shrewd Dudes Pty Ltd, and the way in which employees of the applicants were solicited by means of confidential emails and the like.  It is reasonable to infer - again I emphasise only at this stage of the case for the purpose of determining whether there is a serious issue to be tried - that this was done with the purpose of gaining access to a valuable product, the iTraxx system, which realistically has to be considered as a whole.

  5. As to the question of the balance of convenience, there does not seem to be any positive case mounted on behalf of the respondents that they had plans to develop the system.  As I understand it, they simply argue that they should be at liberty to develop the idea as they see fit.  That being so, I think the balance of convenience favours the applicants, particularly in the light of the evidence as to the importance in the area of e-commerce of gaining a head-start with any new product.

  6. There was some mention made by counsel for the respondents of the role of MultiEmedia and its reference to it in press releases as the owner of the intellectual property.  I think at the moment all I need say is that the precise position of MultiEmedia, given the other evidence which taken at its face value clearly indicates that the applicants are the owner of copyright and confidential information in relation to the iTraxx system, remains to be considered.  It may be that MultiEmedia should be joined as a party, as indeed might also the company, Indextrack.com.au Pty Ltd, which is the owner of the domain name, Indextrack.com.au. 

  7. I should add another factor which has influenced me is the evidence as to the whole system being found on a server in the United States and on a Web site connected with the third respondent, New Century Financial Solutions Pty Ltd  I should also add that I have been influenced by the evidence of the alteration of the project development manuals by Mr Koulbanis which prima facie show a particularly blatant breach of copyright.  I have also had regard to the evidence of Mr Maisano in relation to the dealings of Mr Blumberg with Compaq.  I accept that there is some conflict in the evidence as to this, but if Mr Maisano is to be believed, and on the face of it he seems to be somebody with no axe to grind, there was a particularly deceptive course of conduct engaged in relation to Compaq by Mr Blumberg.

  8. So for those reasons, subject to the one matter in which counsel for the respondent wished to have the opportunity to put some further submissions, namely, the enforceability of the covenants referred to in paragraph B3 of the application, I will grant orders in the terms sought.

    THE COURT ORDERS

    1.The Applicants have leave to join Nicholas Koulbanis as the Fifth Respondent to this proceeding.

    2.The Applicants have leave to amend the Application in the form submitted to the Court on 4 August 2000.

    Upon the Applicants by their Counsel undertaking to the Court that the Applicants will submit:

    (a)to such order (if any) as the Court may consider to be just for the payment of compensation, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of the interlocutory order or undertaking or any continuation (with or without variation) thereof; and

    (b)       To pay the compensation referred to in (a) to the person there referred to.

    3.        As against the First, Second and Fifth Respondents:

    (a)Pending the hearing and determination of this proceeding or further order, the First, Second and Fifth Respondents, by themselves, their servants or agents or otherwise howsoever:-

    (i)        be restrained from:-

    (a)infringing the copyright of Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd in the iTraxx System contained in the CD-Rom which is the exhibit marked “KRM 2” to the Affidavit of Kenneth Roy McElhinney sworn 2 August 2000;

    (b)disclosing, using, copying, reproducing, whether in whole or part any confidential information or trade secrets being the iTraxx System of Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd or their clients;

    (c)soliciting the employment or services of any person who is an employee of Deloitte Consulting Pty Ltd or Deloitte Consulting/ICS Pty Ltd;

    (ii)deliver up to the Applicants’ solicitors within 14 days of the date of this order all of the said copyright material and said confidential information or trade secrets (being the whole of or any part of material contained in the said CD-Rom), in documentary, computer disk or other form or format in their possession, custody or power;

    4.The First, Second and Fifth Respondents each file and serve an affidavit within 14 days of the date of this order specifying:-

    (a)the names and addresses of all clients or customers of Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd with whom they have spoken or communicated or from whom they have solicited, or purported to solicit business and providing details of the dates and times of such conversations, communications or solicitations;

    (b)the name and address of every existing or former staff member of Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd who has been approached by them or their servants or agents for the purposes of soliciting the employment or services of that person;

    (c)details of access gained by them or any person on their behalf or at their request to the computer systems used or operated by Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd since leaving the employment of the Applicant including the dates and times and the identity of the person who accessed the said system;

    (d)the name and address of every person and/or entity to whom they have provided or supplied whether personally or in their capacity as a director or secretary of Shrewd Dudes Pty Ltd, New Century Financial Solutions Pty Ltd or Century Property Holdings Pty Ltd (stating in which capacity) copyright material, confidential information or trade secrets contained on the said CD-Rom of Deloitte Consulting Pty Ltd or Deloitte Consulting/ICS Pty Ltd or their clients;

    (e)setting out any items of copyright material, confidential information, trade secrets or property of Deloitte Consulting Pty Ltd or Deloitte Consulting/ICS Pty Ltd or their clients which has been deleted from any computers or computer system which computer or computer system was at any time in their possession, custody or control.

    5.Until 4:15pm on 11 August 2000, or further order, the First Respondent be restrained whether by himself, his servants or his agents from soliciting or dealing with in any capacity and whether directly or indirectly with any of the following clients of the Applicants:-

    (i)        AMP Group of Companies;

    (ii)       ANZ Bank;

    (iii)      AXA Australia;

    (iv)      Brokat;

    (v)       CCI;

    (vi)      Compaq Computers;

    (vii)     Development Bank of Singapore;

    (viii)     Hong Kong Telecom J B Were;

    (ix)      Manualife;

    (x)       Members Equity;

    (xi)      Mercantile Mutual Group;

    (xii)     National Australia Banking Group;

    (xiii)     Telstra;

    (ixv)     MultiEmedia.

    6.Until 4:15pm on 11 August 2000, or further order, the Second Respondent be restrained whether by himself, his servants or his agents from soliciting or dealing with in any capacity and whether directly or indirectly with any of the following clients of the Applicants:-

    (i)        Amcor;

    (ii)       Brokat;

    (iii)      CCI;

    (iv)      Development Bank of Singapore;

    (v)       National Australia Banking Group;

    (vi)      Members Equity;

    (vii)     Pacific Dunlop;

    save that the Second Respondent may do all such things as are reasonably necessary to carry out his duties as a consultant to Members Equity.

    7.Until 4:15pm on 11 August 2000, or further order, the Fifth Respondent be restrained, whether by himself, his servants or his agents from soliciting or dealing with in any capacity and whether directly or indirectly with any of the following clients of the Applicants:-

    (i)        Compaq Computers;

    (ii)       CCI;

    (iii)      Department of Defence;

    (iv)      Manualife;

    (v)       Mercantile Mutual;

    (vi)      Members Equity;

    (vii)     National Australia Banking Group;

    (viii)     NDC Group;

    (ix)      Pacific Dunlop;

    (x)       MultiEmedia.

    8.Until the trial and determination of this proceeding or further order, each of the Respondents be restrained whether by themselves, their servants or agents from representing or holding out to any person or persons, that they themselves or any of them:

    (a)are authorised by the Applicants or either of them to reproduce, sell, promote, market, distribute or deal with the iTraxx System as contained in the said CD-Rom;

    (b)are employed by, are a subsidiary of, associated with or connected with the Applicants  or either of them or any enterprise or business conducted by the Applicants or either of them whether solely or jointly with any other person or entity.

    9.Until the trial and determination of this proceeding or further order, the First Respondent, whether by his servants or agents or howsoever otherwise be restrained from representing to any person or persons that he or any entity he is associated with has any interest in, or is authorised to deal in any way with any of the equity in either of Indextrack.com.au Pty Ltd or Far-Away Investments Pty Ltd.

    10.      (a)     Pending the hearing and determination of this proceeding or further order, the Third and Fourth Respondents, by themselves, their servants or agents or otherwise howsoever:

    (i)        be restrained from:-

    (a)infringing the copyright of Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd in the iTraxx System contained in the CD-Rom which is the exhibit marked “KRM 2” to the Affidavit of Kenneth Roy McElhinney sworn 2 August 2000;

    (b)disclosing, using, copying, reproducing, whether in whole or part any confidential information or trade secrets being the iTraxx System contained of Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd or their clients;

    (c)soliciting the employment or services of any person who is an employee of Deloitte Consulting Pty Ltd or Deloitte Consulting/ICS Pty Ltd;

    (ii)deliver up to the Applicants’ solicitors within 14 days of the date of this order all of the said copyright material and said confidential information or trade secrets (being the whole of or any part of material contained in the said CD-Rom) in documentary, computer disk or other form or format in their possession, custody or power.

    11.The Third and Fourth Respondents by their proper officer each file and serve an affidavit within 14 days of the date of this order specifying:-

    (a)the names and addresses of all clients or customers of Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd with whom they have spoken or communicated or from whom they have solicited, or purported to solicit business and providing details of the dates and times of such conversations, communications or solicitations;

    (b)the name and address of every existing or former staff member of Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd who has been approached by them or their servants or agents for the purposes of soliciting the employment or services of that person;

    (c)details of access gained by them or any person on their behalf or at their request to the computer systems used or operated by Deloitte Consulting Pty Ltd and Deloitte Consulting/ICS Pty Ltd since leaving the employment of the Applicant including the dates and times and the identity of the person who accessed the said system;

    (d)the name and address of every person and/or entity to whom they have provided or supplied whether personally or in their capacity as a director or secretary of Shrewd Dudes Pty Ltd, New Century Financial Solutions Pty Ltd or Century Property Holdings Pty Ltd (stating in which capacity) copyright material, confidential information or trade secrets contained on the said CD-Rom of Deloitte Consulting Pty Ltd or Deloitte Consulting/ICS Pty Ltd or their clients;

    (e)setting out any items of copyright material, confidential information, trade secrets or property of Deloitte Consulting Pty Ltd or Deloitte Consulting/ICS Pty Ltd or their clients which has been deleted from any computers or computer system which computer or computer system was at any time in their possession, custody or control.

    12.      Until 4:15pm on 11 August 2000 or further order against each of the Third and Fourth Respondents be restrained, whether by itself, its agents or its servants from soliciting or dealing with in any capacity and whether directly or indirectly with any of the following clients of the Applicants:

    (a)       Amcor;

    (b)       AMP Group of Companies;

    (c)       ANZ Bank;

    (d)       AXA Australia;

    (f)        Brokat;

    (g)       CCI;

    (h)       Compaq Computers;

    (i)        Department of Defence;

    (j)        Development Bank of Singapore;

    (k)       Hong Kong Telecom J B Were;

    (l)        Manualife;

    (m)      Members Equity;

    (n)       Mercantile Mutual Group;

    (o)       National Australia Banking Group;

    (p)       NDC Group;

    (q)       Pacific Dunlop;

    (r)       Telstra;

    (s)       MultiEmedia.

    13.Until the trial and determination of this proceeding or further order, each of the Third and Fourth Respondents be restrained whether by itself, its agents or its servants from representing or holding out to any person or persons, that they or either of them:

    (a)are authorised by the Applicants or either of them to reproduce, sell, promote, market, distribute or deal with the iTraxx System as contained in the said CD-Rom;

    (b)are associated with, are a  subsidiary of, or connected with, the Applicants or either of them, or any enterprise or business conducted by the Applicants or either of them, whether solely or jointly with any other person or entity.

    14.Until the trial and determination of this proceeding or further order, the Fourth Respondent, whether by its servants and agents or howsoever otherwise, be restrained from representing to any person or persons that it or any entity associated with it has any interest in or is authorised to deal in any way with any of the equity in Indextrack.com.au Pty Ltd.

    15.The Applicants’ costs of the Application dated 21 July 2000 and returnable before the Court on 26 July 2000 and 4 August 2000, including the costs of the Applicants’ Notice of Motion dated 25 July 2000 and returnable on 26 July 2000 and 4 August 2000 be reserved.

    16.The respondents be at liberty to file further written submissions in relation to the Applicants’ interlocutory relief sought in paragraph B(3) of the Amended Application dated 4 August 2000 on or before 4.00pm 7 August 2000.

    17.The Applicants be at liberty to file written submissions by way of reply on or before 4.00pm 9 August 2000.



I certify that the preceding eight (8) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey.

Associate:

Dated:             28 August 2000

Counsel for the Applicant: Mr R Kendall & Mr A K Panna
Solicitor for the Applicant: Gadens Lawyers
Counsel for the Respondents: Mr M L Sifris
Solicitor for the Respondents: Rosendorff Lawyers
Date of Hearing: 15 August 2000
Date of Judgment: 15 August 2000
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Cases Citing This Decision

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Cases Cited

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O'Brien v Komesaroff [1982] HCA 33
Naczek & Dowler [2011] FamCAFC 179
O'Brien v Komesaroff [1982] HCA 33