Flocast Australia Pty Ltd v Purcell, James Desmond
[1997] FCA 976
•19 SEPTEMBER 1997
FEDERAL COURT OF AUSTRALIA
PRACTICE & PROCEDURE - Summary Judgment - question whether respondent has any defence to claim - general principles relating to rule - test required- whether test satisfied - O 20 r 1 Federal Court Rules (Cth) 1988
INTELLECTUAL PROPERTY - Copyright infringement - unauthorised copying of applicant’s documents and drawings of vertical continuous casting machines- whether any defence available to defendant.
Federal Court Rules (Cth) 1988 O 20 r 1(1)
Caterpillar Inc v Sun Forward Pty Ltd (1996) 36 IPR 411
Dey v Victorian Railway Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Computer Edge Pty Ltd v Apple Computer UK (1968) 161 CLR 171
FLOCAST AUSTRALIA PTY LTD -v- JAMES DESMOND PURCELL & ORS
NO VG 379 of 1994
HEEREY J
MELBOURNE
19 SEPTEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 379 of 1994 ) GENERAL DIVISION )
BETWEEN: FLOCAST AUSTRALIA PTY LTD
ApplicantAND: JAMES DESMOND PURCELL, JODIE MARC, TRACEY LEE HOOKE and TIGER BRONZE PTY LTD
Respondents
JUDGE: HEEREY J PLACE: MELBOURNE DATE: 19 SEPTEMBER 1997
MINUTES OF ORDER
THE COURT ORDERS THAT:
The applicant has leave to discontinue the proceedings, with no order as to costs, insofar as it makes claims not disposed of by these Orders.
Upon the applicant, by its counsel, undertaking to file a notice of discontinuance of the proceeding forthwith insofar as it makes claims not disposed of by these orders, the first and fourth respondents and each of them, whether by themselves, their servants or agents or any of them or otherwise howsoever be and are hereby restrained from:
(a)without the license of the applicant:
(i)reproducing in a material form
(ii)making or causing or permitting the making of an adaptation;
(iii)publishing;
(A)each of the drawings described in Annexure B to the further and better particulars dated 27 March 1997 to the applicant’s amended statement of claim being the annexure attached to this order and marked “A”;
(B)the applicant’s Workshop Procedures Manual described in par 7 of the applicant’s amended statement of claim.
(C)the applicant’s Quality Assurance Manual described in par 7 of the applicant’s amended statement of claim; and
(D)the list of the names, addresses, contact details, buying and credit histories of the applicant’s customers referred to in par 8 of the applicant’s amended statement of claim;
(b)using, publishing, communicating or in any way disclosing or causing, procuring, permitting or suffering the use, publication, communication or disclosure in any way to any person of information derived by them or either of them, either directly or indirectly, from the lists or records of the names, addresses, contact details, buying and credit histories of the applicant’s customers prepared by the applicant.
Paragraph 17 of the Order of Justice Heerey made herein on 28 October 1994 as extended by consent on 3 November 1994, 20 December 1994 and 25 January 1995 be discharged.
The applicant be released from the undertakings given by it to this Honourable Court on 28 October 1994 and 3 November 1994.
The first and fourth respondents pay the applicant’s costs of and incidental to this proceeding (including costs reserved).
Liberty to apply is reserved generally.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTORIA DISTRICT REGISTRY ) VG 379 of 1994 ) GENERAL DIVISION )
BETWEEN: FLOCAST AUSTRALIA PTY LTD
ApplicantAND: JAMES DESMOND PURCELL, JODIE MARC, TRACEY LEE HOOKE and TIGER BRONZE PTY LTD
Respondents
JUDGE: HEEREY J PLACE: MELBOURNE DATE: 19 SEPTEMBER 1997
REASONS FOR JUDGMENT
By a motion on notice dated 25 March 1997 the applicant sought summary judgment under O 20 r 1(1) of the Federal Court Rules against the first, third and fourth respondents. Accommodation has since been reached with the third respondent and the applicant is now proceeding only against the first respondent, Mr James Purcell, and the fourth respondent, Tiger Bronze Pty Ltd.
The rule in question provides:
(1) Where, in relation to the whole or any part of the applicant’s claim for relief, there is evidence of the facts on which the claim or part is based, and:
(a)there is evidence given by the applicant or by some responsible person that, in the belief of the person giving the evidence, the respondent has no defence to the claim or part; or,
(b)the respondent’s defence discloses no answer to the applicant’s claim or part
the applicant may move on notice for such judgment for the applicant on that claim or part and the Court may pronounce such judgment and make such orders as the nature of the case requires.
In my experience at least, O 20 r (1) is not often used in this Court. The present case is the more unusual because proceedings were commenced on 26 October 1994, almost three years ago. But O 20 r 1(1), in contrast with comparable summary judgment provisions in the rules of State courts, does not provide for application to be made within any fixed time after entry of appearance. I respectfully adopt what was sent by Drummond J in Caterpillar Inc v Sun Forward Pty Ltd (1996) 36 IPR 411 at 413:
Order 20, r 1 is in materially different terms from the traditional form of Supreme Court rule governing summary judgment, such as O 14, r 1 of the old Rules of the Victorian Supreme Court and O 18, r 1 the Rules of the Queensland Supreme Court, which are modelled on the original English O XIV, in that the Federal Court rule is not subject to any of the express (though qualified) limits contained in the traditional form of rules on the range of causes of action in which summary judgment can be given and on the time within which such relief can be sought. Of the Queensland rule, the High Court said, in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99, 48 ALR 1 at 10: “The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried.” The court referred, as authority for this proposition, to an early High Court case and two turn of the century English decisions on rules based on the original English O XIV.
In applying provisions of the Federal Court Rules roughly cognate with traditional procedural rules, it is necessary to keep in mind what was said by Wilcox and Gummow JJ in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 288 at 394-5; 98 ALR 200 at 206-7:
... this court has a system of case management which is different from the procedures adopted in any of the Divisions of the High Court Judicature ...
... From that circumstance we extract two propositions. First, the fundamental differences in procedure render inapplicable most, if not all, of the principles evolved by the English courts in relation to their own procedures. Secondly, the existence of a case management system within this court is the backdrop against which the relevant rules must be considered and applied.
Their Honours went on to observe that O 10 was the foundation of the court’s case management system. That order makes it clear that it is a central feature of the procedures of this court that the conduct of an action is not left to the parties, but is very much subject to the detailed control of the court. As part of this approach, reflected in provisions such as O 10, r 1(2)(h) and (i), the court will endeavour to identify and limit judicial determination to the real issues in dispute, with a view to ensuring the most expeditious and economical disposition of the case.
It follows that, from the existence within the procedures of this court of the case management system, that it is the text of O 20, r 1 which must govern the outcome of the present application: there is no justification for importing into the Federal Court rule all the detailed restrictions that the cases identify as applicable to the traditional summary judgment rules. But O 20 is not intended to provide an alternative to trial as the ordinary method of resolving litigation in the court: see Bell v Clare (1989) 23 FCR 274 at 280. Its function is limited to providing an expeditious means of resolving litigation where the applicant can clearly demonstrate that there is no real defence to particular claims made by it.
Consistently with the views expressed by Drummond J, I accept that the well known principles as to the standard of satisfaction on the merits required for summary judgment enunciated in Dey v Victorian Railway Commissioners (1949) 78 CLR 62 at 91 and General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129 are applicable to O 20 r 1(1). Moreover, the present case aptly illustrates the comment of Barwick CJ in the latter case that argument “perhaps even of an extensive kind” may sometimes be necessary to show that a claim (or defence) is “so clearly untenable that it cannot possibly succeed”.
History of the Applicant
The business currently conducted by the applicant was established in about 1962. The original proprietors were Mr John McCahey and Mr Lance White who had earlier owned an iron foundry in Newcastle. At first the business manufactured cast iron pipes, primarily for sewerage. In about 1968 Messrs McCahey, White and some others commenced experimenting with continuous casting of iron, which was a new casting technique recently developed in Europe. The McCahey interests brought out Mr White in 1981. After some corporate reorganisation the applicant commenced to carry on the business from 1990.
Continuous casting is a process which involves the manufacture of metal bar by drawing molten metal directly from a bath of metal and then down through a water cooled graphite dye which shapes the cross section of the metal bar. This process has a number of advantages including the elimination of sand, slag and other impurities and the fact that potentially unlimited lengths of metal bars and pipes can be manufactured.
In about 1985 Mr McCahey commenced the development of a new continuing casting machine which operated vertically rather than horizontally. The applicant now has four vertical continuous casting machines on its premises at Epping in Victoria.
Mr Purcell’s Employment and Departure
Mr Purcell was employed by the applicant as its Company Secretary Financial Controller from 21 May 1990 to 10 March 1994. His principal responsibility was the preparation, maintenance and presentation of the applicant’s financial records, as well as cash management. He had complete access to all books and records of the applicant including its computer system and data base.
In late February 1994 Mr Purcell informed the applicant’s managing director, Mr Neil Watt, that he proposed to leave the applicant’s employment on 10 March and was going to work “for a New Zealand bedding company in West Heidelberg”. Mr Watt subsequently learned that the name of the company was Postureslat Pty Ltd. An associated company was Sleepyhead Pty Ltd.
Within a few weeks the second respondent, Ms Jodie Marc, and the third respondent, Ms Tracey Lee Hooke, resigned from the applicant’s employment. Ms Marc had been employed since May 1988 as a receptionist. In that capacity she had dealings with a large number of the applicant’s customers and was familiar with preparing of shipping and packing documents and the use of the applicant’s integrated purchasing order system. She told Mr Watt that she was leaving because she had found a job selling electrical cable and did not want to do office work any more. Ms Hooke had been employed for three years as a senior accounts clerk. She was familiar with the applicant’s computer records and procedures. In March 1994 she was six months pregnant and said she was leaving work on medical advice. Neither Ms Marc or Ms Hooke gave any indication to Mr Watt that in truth they were planning to work with Mr Purcell.
In mid-June 1994 Mr Watt was told by the sales manager of one of the applicant’s suppliers that Mr Purcell was building a new continuous casting plant. Mr Watt also learned that Ms Marc and Ms Hooke were working with Mr Purcell. In mid-August another employee of the applicant, Mr Paul Ammoun, resigned. He said that he was going to work in his sister’s business. However he also joined Mr Purcell.
On 23 September 1994 Mr Watt learned that Mr Purcell had established a company, the fourth respondent Tiger Bronze Pty Ltd, at a site at 23A Beatrice Street, West Heidelberg. Later that month Mr Watt began to receive telephone calls and letters from foreign customers and agents of the applicant informing him that they had been approached by fax from Tiger Bronze offering to supply products at prices generally below those that had been charged by the applicant. Those faxes had been sent from the fax machine of Postureslat.
Anton Piller Order
The applicant had in its possession, both in hard copy format and on wordprocessing files, a Procedures Manual. This document was prepared by the applicant in the course of preparations for quality accreditation. The Procedures Manual described every detail of the operation of the applicant’s business, from handling raw materials through to operating the vertical continuous casting machines and dispatch of completed orders. It detailed the best and most efficient method of operating the applicant’s business. Excerpts from the Procedures Manual were provided to the supervisor of each relevant department or process. However the master copy which documented the applicant’s entire business was kept in the applicant’s office and not distributed to staff.
In October, after learning of the activities of Mr Purcell, Mr Watt checked to ensure the Procedures Manual was still located in its usual place. He found the hard copy still in the office but was not able to find the floppy disk.
Mr Watt retained an engineer, Mr Ian Hitchcock, who went to the Tiger Bronze property and found a vertical continuous casting machine which appeared to resemble closely the type used by the applicant. Staff at the premises prevented Mr Hitchcock from making any close examination.
Also in October Mr Watt learned from Mr George Mihailides, a computer consultant to the applicant, that he had been acting as a consultant to Mr Purcell at Postureslat. Mr Mihailides had discovered that a copy of the applicant’s MANPAK software was present on the Postureslat computers. Mr Mihailides subsequently downloaded a complete copy of those records from a computer at Postureslat. On 12 October 1994 Mr Watt, Mr Mihailides and Mr Shaun McVicar of the applicant’s solicitors, Freehill, Hollingdale & Page, looked at a number of the individual files listed in the file directory copied from the personal computer at Postureslat on screen. Mr McVicar deposed:
Each of the files that we looked at on screen was clearly a file which had been derived or copied from the Applicant’s records in that the screens either displayed the words “Flocast” at some point or “David McCahey” in respect of certain certificates, or other information which Watt and Mihailides said clearly identified the documents as being copies of the Applicant’s documents.
It appeared that the entire MANPAK system had been copied, making up thirteen floppy disks. The information on these disks included the applicant’s:
Price List;
Aged trial balance;
Item list (product list);
Customer list;
Yearly sales history.
All these were confidential customer and financial information of the applicant which would be extremely valuable to any competitor.
On the basis of the foregoing information I made an Anton Piller order on 26 October 1994 which authorised searches at a number of premises including Mr Purcell’s home and the premises of Tiger Bronze and Postureslat.
A great deal of information was taken, including hundreds of written documents and almost one hundred computer hard disks and floppy disks containing tens of thousands of pages of computer information. The information which was retrieved and printed comprised a complete reproduction of part of the applicant’s confidential information including customer lists, sales histories of the applicant’s customers and summaries of the applicant’s sales of particular products for particular years.
Following on the Anton Piller order there were various interlocutory procedures, including an unsuccessful application by the respondents to set aside that order. I do not think it is necessary to provide a detailed narrative. It was only last December that agreement was reached about the disclosure of some of the seized documents which enabled the applicant to give more detailed instructions to its experts. In any event, it does not appear that the time that has passed was in any significant degree due to default on the part of the applicant. As already mentioned, the passing of time, while no doubt relevant to the discretion conferred by O 20 r 1(1), does not deny jurisdiction if a case has been made out for the proper exercise of the power, as I think is the case here.
The Applicant’s Claims
The applicant limited its claims for relief under O 20 r 1 (1) to:
Infringement of copyright in its Workshop Procedures Manual,
Infringement of copyright in its Quality Assurance Manual,
Infringement of copyright and breach of confidence in certain business documents,
Infringement of copyright in certain drawings.
The applicant in all other respects wishes to discontinue its proceeding. Only injunctive relief and costs are sought. The claim for damages is not pursued.
(i)Workshop Procedures Manual
This document was written by Ms Erna Jessup who was retained by the applicant in mid-1993 specifically for that purpose. At that time there was virtually no documentation in existence which described the work performed by each member of the applicant’s staff. Ms Jessup spoke to many members of the staff and took notes of the procedures adopted and of such documents as were in existence. She was not technically qualified in the foundry business but was chosen by the applicant as an intelligent and observant lay person who would ask questions and establish the correct procedure rather than making assumptions based on pre-existing knowledge. The actual writing was done by Ms Jessup herself, subject only to some minor suggested amendments by Mr Robert McCahey and Mr David McCahey. Ms Jessup delivered the final copy of the Workshop Procedures Manual on hard copy and disk to Mr Purcell on 28 January 1994.
At one of the premises searched under the Anton Piller order the applicant’s solicitors found a hard disk which contained, amongst other things, two documents entitled “Workplace Procedures”. One bore the applicant’s name on the front cover and throughout the document, whereas the other bore the name of Tiger Bronze. The two documents, each several hundred pages in length, were identical.
Mr Purcell did not dispute that he had copied the Workshop Procedures Manual. In essence he denied the applicant’s copyright. He claimed that he was a co-author of various parts of the manual which was based on manuals of other companies, namely Amcor, Wormald, Simsmetal and Non-feral for whom Mr Purcell had previously worked.
I am satisfied that Mr Purcell and Tiger Bronze have no defence to this part of the applicant’s claim. To the extent that Mr Purcell did make any contribution to the writing of the Workshop Procedures Manual (which seems unlikely if what Ms Jessup swears is correct) the copyright would have vested in the applicant as his employer: Copyright Act 1968 (Cth) s 35(6) (the Act). Nor is it relevant that the workshop Procedures Manual may have included concepts and ideas previously well known, either to Mr Purcell’s former employees or to others. In Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171 at 182 Gibbs CJ, speaking of s 32 of the Act, said:
The expression “original” in that section does not mean that the work must be the expression of original or inventive thought. “The originality which is required relates to the expression of the thought. But the Act does not require that the expression must be in the original or novel form, but that the work must not be copied from another work - that it should originate from the author”: University of London Press Ltd v University Tutorial Press Ltd [1916] 2 Ch at 608-609 and see Sands & McDougall Pty Ltd v Robinson (1917) 23 CLR 49 and Victoria Park Racing and Recreation Ground Co Ltd v Taylor (1937) 58 CLR at 511. Originality is a matter of degree, depending on the amount of skill, judgment or labour that has been involved in making the work: see Ludbrook (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR at 277, 282, 285.
Mr Purcell also argued that the Procedures Manual was “specific to the applicant’s business and contains details of no benefit to other businesses”. This contention cannot be accepted. It is contrary to all the evidence and to common sense. The applicant’s business involves technical manufacturing processes and marketing in Australia and overseas. Details of the way in which the applicant manufactures and sells its product would be self-evidently of great value to a competitor.
(ii) Quality Assurance Manual
The applicant’s customers require very high standards of manufacturing because the applicant’s products are often used in equipment subject to extremely high stresses. Mechanical components must be machined to close tolerances and machined from forgings made to high standards with superior molecular structure. Mr Watt deposed that from about the early 1990s the applicant committed itself to a process of total quality management and continuous improvement with a view to meeting the highest Australian and international standards achieving external accreditation. A Total Quality Management Consultant was appointed and staff attended TQM Management courses.
In 1992 the applicant earned accreditation by the National Association of Testing Authorities. As part of this process the applicant produced a Quality Assurance Manual. This document set out the quality rules by which the applicant’s procedures were to be followed and also detailed which individuals were authorised to undertake specific tasks. Only two complete copies of the manual were held by the applicant; one other was in the possession of NATA. Mr Watt had one copy of the manual and the applicant’s Quality Assurance Manager had another. Each copy had a register attached to it by which employees might refer to the manual but had to sign a register at the time of doing so. The manual has never been published by the applicant.
The process of creating the Quality Assurance Manual was described by the applicant’s consultant Mr John Strain. Mr Strain provided Mr David McCahey with a draft which was then substantially altered in order to suit the applicant’s systems and procedures. The process of writing was substantially done by Mr David McCahey. The manual was laid out in such a way as to make it clear when reference is made to a document in a public domain or, on the other hand, confidential information. Insofar as the material in the manual had been derived in part from concepts embodied in the initial working draft, Mr Strain assigned his copyright to the applicant. In Mr Strain’s words, the information contained in the quality assurance manual “tells the reader how the applicant’s organisation works and what the people within that organisation do.”
A copy of the Quality Assurance Manual (amended up to p 15) was found at Mr Purcell’s home. A comparison of the document with the applicant’s document shows that the name “Sleepy Head” or in some cases “Postureslat“ has been substituted for “Flocast”. However from p 12 of the document onwards the word “Flocast” appears on the bottom left hand corner while the word “Postureslat” appears at the top of the page.
The case of copying is overwhelming and Mr Purcell did not challenge it. In an affidavit he deposed:
I now understand that to use material which was created while in the employ of previous employers is a breach of Copyright Law. However, using existing manuals as drafts for the creation of new manuals is a practice that is rife within the commercial world. I admit to using this practice to help create the applicant’s manuals (in full knowledge of and encouragement from Mr Watt). I further admit that, I would have used the same practice to create manuals for the bedding company (Sleepyhead Pty Ltd) and for the fourth respondent, (Tiger Bronze Pty Ltd).
As with the Workshop Procedures Manual, Mr Purcell’s claim to be a co-author to any significant extent of the Quality Assurance Manual is open to serious doubt. But in any event, this does not avail him because the copyright is owned by his then employer, the applicant. Nor is the Cosi Fan Tutte defence (everybody’s doing it) recognised by the law.
(iii) Business Documents
The recovery of these documents in the MANPAK Software at Postureslat has already been described.
Mr Purcell’s defence was a denial that this information, and in particular the applicant’s customer list, was confidential or exclusive. He said that it contains names of firms the applicant has never supplied, or has refused to supply, and also that the identity of these firms is common knowledge within the industry. He claims that they source supplies from other suppliers as well as the applicant.
None of this is to the point. It could not be disputed that a list of customers, whether actual or potential, with details of telephone and fax numbers, contact individuals and the like, would be an original literary work within the copyright law meaning already discussed.
(iv) Drawings
The applicant claims copyright in the drawings of the vertical continuous casting machines, being the drawings described in annexure “B” to the further and better particulars dated 27 March 1997 to the applicant’s amended statement of claim. The authors of the applicant’s drawings were Mr John McCahey, Mr Robert McCahey, Mr Dale Ible and Mr Graham McImmie. The Messrs McCahey were at all times directors of the applicant and Mr John McCahey was an employee up to 30 June 1984. The others were employees of the applicant. A consulting engineer, Mr Robert McPherson, examined drawings taken from the respondents’ premises and also a video and photographs of the Tiger Bronze vertical casting machine. Mr McPherson found a “marked similarity” between of the drawings and in the case of two of them (applicant’s drawing 6B and respondents’ 29), they were identical.
It is not necessary to recite all the detailed points of identification that Mr McPherson found. One striking example is that of the applicant’s drawing 37A and the respondents’ 146 and 237 (the latter two being identical). The respondents’ drawing bear notations which are handwritten vertically on the left hand side of each page in the following terms:
“This 0.0005” to 0.001 interface fit to die counterbore”
“This 0.0005 interface” fit to mandrel.”
The equivalent notations appearing on drawing 37A are in identical terms save that instead of the word “interface” there appears the word “interference”. Mr McPherson deposes that the correct technical term is “interference” which means that the mandrel does not fit into the ring without being pressed into place. In other words, the mandrel size is actually larger than the ring size. He says that “interface” in this context is a meaningless term which would not be used in this context by an experienced draftsman or engineer.
Mr Purcell’s defence was that the drawings were not the subject of copyright because the vertical continuous casting process was in the public domain and the subject of various patents and that the items covered by the relevant drawings are essential and common to all such machines.
I am satisfied this defence is not arguable. As already mentioned, copyright protects originality of expression, not idea.
Conclusion
I am satisfied the applicant has made out a case for summary judgment in respect to the above four claims. Those claims also need to be considered in the broader context of this litigation. The Court file consists of five large folders containing 187 documents, some of which contain 50 pages or more. The case has expanded exponentially in size, complexity and cost. Yet at base it is simple enough. Mr Purcell was determined to leave his employment and set up a business in competition with his employer. This of course he was quite entitled to do. But in doing so he has simply taken from his employer anything he could lay his hands on which might be useful for his new enterprise. In seeking a legal remedy for this serious wrong the applicant has already, I do not doubt, expended a vast amount of time and money which would have been much more usefully employed in developing its business for the benefit of proprietors and employees. In my opinion it is only just and fair that the applicant can bring this litigation to an end by summary judgment.
There will be orders as follows:
The applicant has leave to discontinue the proceedings, with no order as to costs, insofar as it makes claims not disposed of by these Orders.
Upon the applicant, by its counsel, undertaking to file a notice of discontinuance of the proceeding forthwith insofar as it makes claims not disposed of by these orders, the first and fourth respondents and each of them, whether by themselves, their servants or agents or any of them or otherwise howsoever be and are hereby restrained from:
(a)without the license of the applicant:
(i)reproducing in a material form
(ii)making or causing or permitting the making of an adaptation;
(iii)publishing;
(A)each of the drawings described in Annexure B to the further and better particulars dated 27 March 1997 to the applicant’s amended statement of claim being the annexure attached to this order and marked “A”;
(B)the applicant’s Workshop Procedures Manual described in par 7 of the applicant’s amended statement of claim.
(C)the applicant’s Quality Assurance Manual described in par 7 of the applicant’s amended statement of claim; and
(D)the list of the names, addresses, contact details, buying and credit histories of the applicant’s customers referred to in para 8 of the applicant’s amended statement of claim;
(b)using, publishing, communicating or in any way disclosing or causing, procuring, permitting or suffering the use, publication, communication or disclosure in any way to any person of information derived by them or either of them, either directly or indirectly, from the lists or records of the names, addresses, contact details, buying and credit histories of the applicant’s customers prepared by the applicant.
Paragraph 17 of the Order of Justice Heerey made herein on 28 October 1994 as extended by consent on 3 November 1994, 20 December 1994 and 25 January 1995 be discharged.
The applicant be released from the undertakings given by it to this Honourable Court on 28 October 1994 and 3 November 1994.
The first and fourth respondents pay the applicant’s costs of and incidental to this proceeding (including costs reserved).
Liberty to apply is reserved generally.
I certify that this and the preceding seventeen (17) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Heerey
Associate:
Dated:
Counsel for the Applicant: Mr David Shavin QC Solicitor for the Applicant: Freehill Hollingdale & Page Counsel for the Respondent: Mr James Purcell appeared in person Date of Hearing: 5-6 August 1997 Date of Judgment: 19 September 1997
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