Embertec Pty Limited v Energy Efficient Technologies Pty Limited

[2012] FCA 1208

FEDERAL COURT OF AUSTRALIA

Embertec Pty Limited v Energy Efficient Technologies Pty Limited

[2012] FCA 1208

Citation:		Embertec Pty Limited v Energy Efficient Technologies Pty Limited [2012] FCA 1208
Parties:		EMBERTEC PTY LIMITED (ACN 110 367 809) v ENERGY EFFICIENT TECHNOLOGIES PTY LIMITED (ACN 123 181 439) and STAVROS PAPPAS; ENERGY EFFICIENT TECHNOLOGIES PTY LIMITED (ACN 123 181 439) v EMBERTEC PTY LIMITED (ACN 110 367 809)
File number:		NSD 1167 of 2012
Judge:		FOSTER J
Date of judgment:		31 October 2012
Date of hearing:	31 October 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	11
Counsel for the Applicant:	Mr AC Harding
Solicitor for the Applicant:	DibbsBarker
Counsel for the Respondents:	Mr CS Ward
Solicitor for the Respondents:	Fox Tucker Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1167 of 2012

BETWEEN:

EMBERTEC PTY LIMITED (ACN 110 367 809)
Applicant

AND:

ENERGY EFFICIENT TECHNOLOGIES PTY LIMITED (ACN 123 181 439)
First Respondent

STAVROS PAPPAS
Second Respondent

AND BETWEEN:

ENERGY EFFICIENT TECHNOLOGIES PTY LIMITED (ACN 123 181 439)
Cross-Claimant

AND:

EMBERTEC PTY LIMITED (ACN 110 367 809)
Cross-Respondent

JUDGE:	FOSTER J
DATE OF ORDER:	31 OCTOBER 2012
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.In relation to the Notice to Produce dated 17 October 2012 issued by the applicant to the first respondent:

(a)Paragraph 11(c) and par 11(e) be set aside;

(b)Paragraphs 11(a), (b) and (d) be answered by the first respondent as soon as practicable by the production of documents to the solicitors for the applicant; and

(c)Liberty be granted to the applicant to apply on short notice.

2.In relation to the Notices to Produce dated 23 October 2012 issued by the applicant to the first and second respondents:

(a)The words “The process and/or method used or adopted in” be deleted from par 1.2 so that that paragraph now reads:

The development of the technology, specifications, features and/or design embodied in the EETECH SMART PowerBoard AV.

(b)Paragraph 1.2 as amended in Order 2(a) above be answered by the respondents as soon as practicable by the production of documents to the solicitors for the applicant; and

(c)Liberty be granted to the applicant to apply on short notice.

THE COURT DIRECTS THAT:

3.The parties confer in relation to the terms of confidentiality orders in respect of the documents now to be produced, and to be produced in the future, and submit a Consent Order in respect of documents produced today and to be produced in answer to the two Notices to Produce referred to in Order 1 and Order 2 above, such Consent Order to be submitted to the Associate to Foster J by 5.00 pm on Friday 2 November 2012.  

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

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 1167 of 2012

BETWEEN:

EMBERTEC PTY LIMITED (ACN 110 367 809)
Applicant

AND:

ENERGY EFFICIENT TECHNOLOGIES PTY LIMITED (ACN 123 181 439)
First Respondent

STAVROS PAPPAS
Second Respondent

AND BETWEEN:

ENERGY EFFICIENT TECHNOLOGIES PTY LIMITED (ACN 123 181 439)
Cross-Claimant

AND:

EMBERTEC PTY LIMITED (ACN 110 367 809)
Cross-Respondent

JUDGE:	FOSTER J
DATE:	31 OCTOBER 2012
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1. The applicant has issued three Notices to Produce to the respondents requiring the production of various documents to the Court.  The first Notice is dated 17 October 2012 and is directed to the first respondent alone.  The second and third Notices are both dated 23 October 2012.  They are identical in form, save that one is directed to the first respondent and the other is directed to the second respondent.  

2. The first Notice to Produce, dated 17 October 2012, comprises 12 paragraphs.  I have been informed that the applicant does not call upon pars 1 to 8 of that Notice to Produce.  Paragraphs 9 and 12(a) are answered by the observation that all documents called for by the Notice have been annexed to one or more of the affidavits filed and served on behalf of the respondents.  Paragraph 12(b) is to be answered now; and par 10 will be answered during the course of today. 

3. That leaves par 11.  There is a dispute about whether par 11 should be permitted to stand.  Paragraph 11 is in the following terms:

   All documents created during the period from 1 July 2011 to date that record or refer to any future, projected or anticipated:

   a.installations in Victoria of EETECH Products by or on behalf of EETECH or any other entity;

   b.sales and/or supplies of EETECH Products for the purposes of installation in Victoria;

   c.importation into Australia of EETECH Products;

   d.creation, transfer, acquisition or sale of VEECs in respect of the installation of products in the Standby Power Controller (SPC) category of the VEET Scheme; and

   e.earnings, revenues and/or profits derived by EETECH as a result of the sale, supply and/or installation of EETECH products.

4. Counsel for the respondents submits that par 11 is too wide and is oppressive.  He argues that it calls for documents which are not truly required for the upcoming hearing which is an application for interlocutory injunctive relief by the applicant against the respondents. 

5. Counsel for the applicant submits that the documents called for by par 11 are relevant to the Court’s consideration of the question of the balance of convenience and justice raised by his client’s interlocutory application.  He made three points: 

   (1)The documents address the issue of whether the market for devices of the kind supplied by the applicant has already become saturated or will soon become saturated and, if so, when; 

   (2)There is considerable apprehension on the part of the applicant as to the continued presence of the respondents in the market and the damage being caused to the business of the applicant; and

   (3)In the circumstances, notwithstanding that the respondents rely upon an allegation of oppression, there is no evidence to support that allegation.

6. It seems to me that the documents called for by subpars (a), (b) and (d) of par 11 arguably go to the issues identified by Counsel for the applicant and that those issues do arise for consideration by the Court on the upcoming interlocutory application.  The question of the likely state of the market between the date of the interlocutory hearing and the succeeding months is likely to be of considerable importance on the question of balance of convenience and justice. 

7. As far as subpars (c) and (e) of par 11 are concerned, I think that they are too wide and are not likely to produce documents which will bear upon, to any great degree, the issues before the Court at the upcoming interlocutory hearing.  I therefore propose to set aside par 11(c) and par 11(e) but otherwise leave subpars 11(a), (b) and (d).  I will make an order that those paragraphs be answered as soon as practicable by the production of documents in the first instance to the solicitors for the applicant and, in the event that there is any difficulty, I will grant to the applicant liberty to apply on short notice.

8. The other Notices to Produce, that is to say, those dated 23 October 2012, comprise three paragraphs.  These are pars 1.1, 1.2 and 1.3.  Counsel for the respondents answers par 1.1 and par 1.3 by informing the lawyers for the applicant and the Court that there are no documents to be produced in addition to those already annexed to affidavits filed on behalf of the respondents. 

9. As far as par 1.2 is concerned, there is an objection to production in answer to par 1.2 upon the basis that the paragraph is unintelligible.  It seems to me that the paragraph, as drafted, does have some difficulties.  However, the subject matter to which it is obviously aimed does have some relevance to the upcoming hearing.  I propose to delete from par 1.2 the following introductory words “The process and/or method used or adopted in …” but otherwise to allow the paragraph to stand.  It will therefore read as follows:

   The development of the technology, specifications, features and/or design embodied in the EETECH SMART PowerBoard AV.

10. I will make the same orders for production that I indicated in respect of par 11 of the Notice to Produce dated 17 October 2012.

11. I have been informed that there will be a need for confidentiality orders in respect of at least some of the documents now to be produced and to be produced in the future in answer to the outstanding Notices to Produce.  I will direct that the parties confer in respect of the terms of such orders and to submit a Consent Order in respect of documents produced today and to be produced in answer to the three Notices to Produce with which I have dealt, such Consent Order to be submitted to my Associate by no later than Friday this week.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster.

Associate:

Dated:       6 November 2012