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Findex Group Ltd v iiNet Ltd

Findex Group Ltd v iiNet Ltd

Case [2018] NSWSC 1567 19 October 2018

Discovery & Disclosure

Interlocutory Orders

Abuse of Process

Civil Litigation & Procedure

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Supreme Court

New South Wales

Medium Neutral Citation: Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567
Hearing dates: 6 September 2018
Date of orders: 19 October 2018
Decision date: 19 October 2018
Jurisdiction: Equity
Before: Ward CJ in Eq
Decision:
1.   Save as to the relief sought at 2B and 2C of the plaintiffs’ amended notice of motion filed 4 July 2018, dismiss that amended notice of motion.
2.   Direct the plaintiffs to notify the fourth defendant within 14 days whether they wish to pursue the application for the relief sought at 2B and/or 2C of their amended notice of motion filed 4 July 2018.
3.   Direct that all electronic and hard copies of the following documents held by the plaintiffs, any of their legal advisers, the independent solicitor and/or the independent computer expert obtained pursuant to the search order made on 16 September 2016 by Rein J be returned to the fourth defendant within 7 days in accordance with a mechanism to be agreed between the parties (or, failing agreement, to be determined by the Court following brief submissions by the parties in relation thereto):
(i)   all documents which the plaintiffs admitted in the course of the hearing of the respective notices of motion were of no relevance;
(ii)   all documents identified by the fourth defendant in the annexures to his affidavit of 31 October 2016 as being documents not “sent or forwarded or otherwise provided” by him to any other person and therefore not authorised by the said search order.
4.   Stand over for final orders, pending the election by the plaintiffs as to whether they wish to press for the relief sought at 2B and/or 2C of their amended notice of motion filed 4 July 2018, the fourth defendant’s amended notice of motion filed 19 February 2018.
5.   Reserve the question of costs of the respective notices of motion.
6.   Stand the matter over for directions at 9.30am on 12 November 2018 before Ward CJ in Eq.

Catchwords: CIVIL PROCEDURE – interim preservation – search orders – circumstances in which leave may be given to inspect documents seized pursuant to search orders – whether to grant access to plaintiffs to documents obtained on execution of search orders – whether Court’s discretion to grant access to such documents governed by nature and purpose of search orders – whether permitting access to documents would subvert the purpose of a search order to that of an investigatory tool
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 57, 61
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 18
Corporations Act 2001 (Cth), ss 182, 183
Fair Work Act 2009 (Cth), s 345
Federal Court Rules 1979 (Cth)
Federal Court Rules 2011 (Cth), rr 7.42, 7.43
Limitation Act 1969 (NSW), s 56A
Supreme Court Act 1970 (NSW), s 23
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 25.19, 25.20, 36.16
Cases Cited: Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55; [1976] 1 All ER…

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 Findex Group Ltd v iiNet Ltd

Details

AGLC: Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567
Case: [2018] NSWSC 1567
Decision Date: 19 October 2018

CaseChat Overview and Summary

Findex Group Ltd sought an interim preservation and search orders against iiNet Ltd for the purpose of investigating potential misuse of confidential information. The application was heard in the Federal Court of Australia. The legal issues before the Court were whether leave could be granted to inspect documents seized pursuant to the search orders and whether the Court's discretion to grant such access was governed by the nature and purpose of the search orders. The central question was whether permitting access to the documents would transform the search order from a protective measure into an investigatory tool.

The Court considered the nature of the relief sought and the purpose of the search orders. It found that the Court's discretion to grant access to documents seized under a search order was indeed governed by the nature and purpose of the order. The Court emphasised that search orders are designed to protect the plaintiff's rights by preventing the destruction or disclosure of potentially relevant documents. Allowing inspection of these documents could undermine this protective function by enabling the plaintiff to conduct an investigation. The Court concluded that permitting access to the documents in this case would subvert the purpose of the search order and transform it into an investigatory tool, which was not the intended function of such orders.

Accordingly, the Court dismissed the application for leave to inspect the documents seized under the search orders. The Court's decision was based on its assessment that granting access would compromise the protective nature of the search orders and potentially facilitate an investigation, which was outside the scope of the relief sought. The Court's ruling reinforced the distinction between the protective function of search orders and the investigatory function of other forms of discovery.

Orders