Provimi Australia Pty Ltd v Hoey Holdings Pty Ltd & Ors

[2008] NSWSC 863

CITATION:	Provimi Australia Pty Ltd v Hoey Holdings Pty Ltd & Ors [2008] NSWSC 863
HEARING DATE(S):	19 August 2008
JUDGMENT DATE :	19 August 2008
JURISDICTION:	Equity Division
JUDGMENT OF:	Palmer J
EX TEMPORE JUDGMENT DATE:	19 August 2008
DECISION:	Injunction refused.
CATCHWORDS:	PRACTICE AND PROCEDURE – INJUNCTIONS – Not granted unless real threat of breach of plaintiff’s rights.
CATEGORY:	Consequential orders
PARTIES:	Provimi Australia Pty Ltd (Plaintiff/Cross Defendant) Hoey Holdings Pty Ltd (First Defendant/First Cross Claimant) Antony Hoey (Second Defendant/Second Cross Claimant) Kerry Ann Ruge (Third Defendant) FarmCare GB Limited (Intervenor)
FILE NUMBER(S):	SC 5733/07
COUNSEL:	G.R. Waugh (Plaintiff) A.L. Hill (Intervenor
SOLICITORS:	HWL Ebsworth Lawyers (Plaintiff) Palmers Solicitors & Attorneys (Intervenor)

5733/07 Provimi Australia Pty Ltd v Hoey Holdings Pty Ltd & Ors

JUDGMENT – Ex tempore
19 August, 2008

1    Before the Court is a Notice of Motion filed on behalf of FarmCare GB Limited (“FarmCare”). FarmCare is not a party to these proceedings. The proceedings are between Provimi Australia Pty Limited and Hoey Holdings Pty Limited and others. Provimi alleged that Hoey was in possession of information confidential to Provimi, regarding its products and its processes.

2    Provimi obtained an Anton Piller order authorising Provimi's legal advisors to take certain computers into their possession and to analyse the information stored on those computers. Of course Provimi's legal advisors, in fulfilling that order and undertaking that task, were bound by obligations of confidentiality imposed by the law (and, I think, imposed also by the terms of the order itself) not to divulge the confidential information found on the computers of Hoey to their clients.

3    In the course of carrying out the exercise, Provimi's legal advisors found that, amongst the information stored on Hoey's computers, was confidential information belonging to FarmCare. FarmCare is a competitor of Provimi. FarmCare learnt that the legal advisors of Provimi had acquired confidential information by reason of the inspection of Hoey's computers. It became concerned that the information might be divulged by Provimi’s legal advisers to Provimi itself. It therefore brings this Notice of Motion for an order restraining the legal advisors from publishing or disclosing to any person the confidential information of FarmCare.

4    Provimi’s legal advisers have offered, in correspondence passing between the solicitors, to agree not to pass on to the Plaintiff the documents which are the subject of the Notice of Motion filed by FarmCare. This agreement, or undertaking, is not sufficient for FarmCare's purposes. FarmCare wishes to have the protection of an injunction restraining not only the publishing of the documents containing the confidential information to the Plaintiff, but also the oral disclosure of any information contained in those documents. It seems that the terms of the agreement offered by Provimi’s legal advisers in this regard have not allayed the anxieties of FarmCare.

5    As I have explained in the course of discussion with Counsel, I do not think that any ground has been made out warranting the making of the order which FarmCare seeks. There has been no suggestion that the legal advisors of Provimi actually intend to breach the obligations of confidence imposed upon them by the law and by the terms of the Anton Piller order by disclosing the confidential information of FarmCare, whether in written form or orally to any person.

6    The law imposes an obligation of confidentiality on legal advisors, indeed, on any parties to litigation who come into possession of confidential information by the compulsory processes of the Court for the purpose of the proceedings. In this case however, the duty of the confidence imposed by the legal advisors is even higher.

7    As I have said, there is no evidence to suggest that the legal advisors will knowingly and deliberately breach not only their expressly assumed duty of confidence, but the duty of confidence imposed by the law, as well as their professional duties as lawyers, by divulging information.

8    The Court only grants an injunction when there is a real threat of a breach of covenant or breach of the law. Injunctions are not granted so that they may be dangled, like the sword of Damocles, over the head of a party “just in case” it is thinking of infringing the plaintiff’s rights. In these circumstances, therefore, I propose to dismiss the Notice of Motion.

9    The Plaintiff, Provimi, seeks its costs of the Notice of Motion. FarmCare submits that each party should pay it owns costs on the basis that it was necessary for FarmCare to bring its Notice of Motion in order to have the assurance of the judgment which I have delivered.

10    I do not think that the Notice of Motion was necessary for the reasons which I have given. FarmCare will pay Provimi's costs of the Notice of Motion.

– oOo –