Lake Air Systems P/L v Lake Air Systems (Sydney) P/L

[1993] FCA 874

"Attention: Judgments Clerk"

m	Please find herewith copy	!
extempore reasons for judgment
of Coouer J. in the matter of	- - .-

Lake G= Systems v. Lake Air

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Systems (Sydney) and Ors No. QG

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I	55 of 1993. I cannot recall if
I have already forwarded a copy
of this judgment to you. If not ,
would you please note it is for
limited distribution. !

With thanks, 1

JUDGES' CHAMBERS	.d
FEDERAL COURT OF 119 NORTH QUAY BRISBANE 4000 AUSTRALIA

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879      9 3

JUDGMENT NO. ....,........ ,.,.. .b l l l l . l .lll

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IN THE FEDERAL COURT O F A U S T R A U

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION	No. OG55 of 1993	I	r
BETWEEN:	I-  1,

LAKE AIR SYSTEMS PTY LTD	I
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Applicant	i
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AND.	LAKE AIR SYSTEMS (SYDNEY) PTY LTD	! .	I
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First Resoondent , .

AND:

-	RICHARD KINGSLEY SHEEHAN	I
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Second Res~ondent l l

AND: - HENRY CHRISTOPHER STEWART-KOSTER i

Third Respondent	:
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AND:	COMPUTER REFERENCE PRODUCTS PTY LTD
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Fourth Respondent i ' I

CORAM:	Cooper J.
PLACE:	Brisbane
m:	27 April, 1993

MINUTES O F ORDER

THE COURT ORDERS :-

Upon the applicant giving the undertakings set out in the order,

ORDER as per draft initialled by me and placed with the papers.

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Note: Settlement and entry of orders 1s dealt with in Order 36 ot the Federal Court t

Rules.	i
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IN THE FEDERAL COURT O F AUSTRAI-IA

QUEENSLAND DISTRICT REG IS'L'RY

GENERAL DIVISION	No. QG55 of 1993
BETWEEN:

LAKE AIR SYSTEMS PTY LTD

Apolicant

AND:  LAKE AIR SYSTEMS (SYDNEY) PTY LTD

First Resnondent

AND:  RICI-IARD KINGSLEY SHEEHAN

Second Resnondent

AND:

- HENRY CHRlSTOPHER STEWART-KOSTER

Thrrd Respondent

&Q:  COMPUTER REFERENCE PRODIJCTS PTY LTD

Fourth Respondent

CORAM:	Cooper J.
PLACE:	Brisbane
DATE:	27 Apnl, 1993

EXTEMPORE REASONS IWR JXJDGMENT

This is an application for an Anton Plllar order. I am satisfied that tlie

applicant lias made out the necessary elements to support the grar~tlng of an order.

Those bases are the infringement of its petty patent, a breach of contract Insofar as

the first respondent was oblrged, upon termination of a franchise agreement, to

deliver up a manual and a further breach of an obligation to sell to the appl~cant

certain equipment used in the business of mechanical cleaning of air cond~tioning
ducts.

L.

The application was put on a wider basis involving an obligation to

deliver up information concerning clients and client lists in relation to a business

carried on by the first respondent as franchisee which business it was alleged the fourth respondent appropriated from the first respondent. Hav~ng carefully

considered the franchise agreement, I am not persuaded that there was any confidential inforn~ation provided by the applicant to the first respondent by way of the provision of client lists or of names of clients or the llke to support a claim for delivering up of this information. So far as 1 can see, the only obligation as to the

making available of clients and client lists was an obligation on the first respondent as part of the reporting provisions provided for under the agreement. The agreement is

silent with respect to what is to happen in relation to the ongoing business or client base of the first respondent at the trme of termination. In consequence, I have not

regarded the claim to client lists and client information as being sutfic~ent	to support
by itself an Anton Pillar order.

The financial documentation is relevant to the obligation under the

agreement for a financial accounting between the applicant and the first respondent

and the financial documentation of the fourth respondent are relevant to the question	to be undertaken upon the termination of the franchise agreement. The client lists
of the extent and circumstances of the infringement of the petty patent. They are also necessary evidence to establish the profits if any, made by the fourth respondent or indeed by the first respondent after the termination of the kranchise agreement. The
material is necessary to preserve any right of the applicant to seek an account of profits at the end of the action if it is successful in its claim for breach of the petty
patent.

The torrn of the order originally sought included a general claim as to

property of the applicant. The materlal makes clear that the only relevant property

claimed by the applicant as being held by the respondents or any of them is a confidential franchise owners manual. In my view the relief o y h t to be l~mited to that document.

Insofar as apparatus is concerned, the clam is as to all apparatus which

1s used or can reasonably be capable of being used in mechanical cleaning of air

conditioning ducts. In my view this is too w~de. The gravamen of the complaint is that the relevant machinery is marked with the words, "Lake Air" or "Lake Alr Duct Cleaning Specialists". It is the use of the equipmerrt so marked to show or possibly to

show a connection between the applicant and the buslness carr~ed on by the fourth

respondent which is complained of.

At this stage, I am not satisfied that the interests of the applicant

require the presence of one of the directors of the applicant at the tiine of search and
seizure. The applicants leg~timate	interests are protected if the documentation which,

on the material I find is in danger of being h~dden or destroyed, 1s bought lnto safe custody and preserved. The reasonable interests of the respondents to protect the confidentiality of them comnlercial information at this stage, wlieri they have not been given an opportunity to be heard, is protected by excluding the applicant from the

material and having the material kept in safe custody by the applicanl's solicitors until

4. .

further order. What I have done 1s draw a form of order which is narrower than that

orig~nally sought by the appl~cant The form of order covers thc legrt~nrate Interests of the applicant. I propose in the order that the matter come back on Friday at 2 15

pm, 30 April for further consideratlon.	The injunct~ons will stand till m~dnight on 30
April 1993 or until earher order.
THE COUR'I' ORDERS :-

Upon the applicant giving the undertak~ngs set out in the order,

ORDER as per draft initialled by me and placed wlth the papers.

I certify that this and the preceding three (3) pages are a true copy of the reasons for judgment herein of his Honour Mr. Justice Cooper.

Date: 1 October, 1993 & f i t W*%/. id& h.-.-

Associate

Counsel for the Applicant:	Mr. D. Savage
Solicitors for the Applicant:	Steindl Robertson McPherson
Date of Hearing:	27 April, 1993 at Brisbane