Kerry Ingredients Australia Pty Ltd v White

[2007] FCA 1435

FEDERAL COURT OF AUSTRALIA

Kerry Ingredients Australia Pty Ltd v White [2007] FCA 1435

KERRY INGREDIENTS AUSTRALIA PTY LIMITED v MICHAEL WHITE
NSD 1846 OF 2007

BUCHANAN J
11 SEPTEMBER 2007
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1846 OF 2007

BETWEEN:	KERRY INGREDIENTS AUSTRALIA PTY LIMITED Applicant
AND:	MICHAEL WHITE Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	11 SEPTEMBER 2007
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.Leave be granted to the applicant to file its notice of motion in court and that it be heard instanter.

2.        The notice of motion be heard ex parte.

3.The time for service of the application and affidavit here in be abridged until 8 pm on 12 September 2007.

4.The application for interlocutory relief be made returnable on 17 September 2007 at 10.15 am before the duty judge.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 1846 OF 2007

BETWEEN:	KERRY INGREDIENTS AUSTRALIA PTY LIMITED Applicant
AND:	MICHAEL WHITE Respondent

JUDGE:	BUCHANAN J
DATE:	11 SEPTEMBER 2007
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1. The matter before the court is a notice of motion which has come before me as duty judge.  The applicant, Kerry Ingredients Australia Pty Limited, seeks an abridgment of time for service of an application and other documents and a date to hear an application for interlocutory relief.  During the proceedings, I granted leave to file in court the notice of motion, the application naming Kerry Ingredients Australia Pty Limited as applicant and Michael White as respondent, an affidavit sworn by Keven Lionel Doyle on 10 September 2007; and a statement signed by Peter Chapman on 10 September 2007 attaching a report to which I shall refer again in a moment. 

2. The application seeks declarations and orders under the Copyright Act 1968 (Cth) and under the general law with respect to the copying by the respondent of information contained in the applicant’s computer records while the respondent was employed by the applicant. The application also seeks interlocutory relief restraining the respondent from infringing the applicant’s copyright, dealing in various ways with the copied material or approaching clients or customers of the applicant and also that the respondent should make, file and serve an affidavit setting out details of occasions upon which he copied the material and approached clients or customers of the applicant.

3. The notice of motion is supported by the affidavit of Keven Lionel Doyle and the statement of Peter Chapman.  For the purpose of the present notice of motion, I accept the contents of the affidavit and the statement.  They disclose that the respondent was until 13 July 2007 employed by the applicant as the National Sales Manager-Distribution of ‘Kerry Pinnacle’.  Kerry Pinnacle is one of the names under which the applicant trades.  The applicant’s principal business involves the research, development, manufacture, sale and distribution of food ingredients to customers within the food and beverage industry.  Those customers include major supermarkets, large franchise bakery chains, large plant bakeries, independent plant bakeries and independent hot bread and cake shops. 

4. Mr Doyle deposes that Mr White submitted his resignation on 6 June 2007 and left the employment of the applicant, pursuant to a negotiated arrangement to that effect, on 13 July 2007.  On about 21 August 2007 Mr Doyle, as a result of various conversations, became aware of the possibility that Mr White may have copied computer records which are the property of the applicant.  On 24 August 2007 Mr Doyle arranged for Mr White’s laptop computer to be provided to PriceWaterhouseCoopers forensic services to investigate if there was evidence of Mr White having copied or transferred data by email or computer storage device in the three months prior to his termination.  It is Mr Chapman’s report dated 10 September 2007 which deals with that investigation. 

5. As summarised by Mr Doyle, Mr Chapman concluded that data on Mr White’s laptop computer was most probably copied on various occasions between 24 June 2007 and 12 July 2007.  The nature of the files thought to be copied is described in some detail by Mr Doyle.  It is sufficient to say for the moment that he deposes to the fact that the material is confidential and that use of the material in the hands of the applicant’s competitors would be damaging.  It should be noted that Mr White is now in employment with such a competitor.

6. In those circumstances the applicant has moved the court for abridgment of the time for service of the application and the other documents and for an early hearing of its application for interlocutory relief.  It appears that the application for interlocutory relief could be heard by a duty judge early next week.  I am satisfied that it is appropriate to make the orders sought in the notice of motion.  I make the following orders. 

   (1)Leave be granted to the applicant to file its notice of motion in court and that it be heard instanter.

   (2)       The notice of motion be heard ex parte.

   (3)The time for service of the application and affidavit here in be abridged until 8 pm on 12 September 2007.

   (4)The application for interlocutory relief be made returnable on 17 September 2007 at 10.15 am before the duty judge.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Buchanan.

Associate:

Dated:        11 September 2007

Counsel for the Applicant:	Mr D Ryan SC with Dr B Kremer
Solicitor for the Applicant:	Horton Rhodes Lawyers
Date of Hearing:	11 September 2007
Date of Judgment:	11 September 2007