FEDERAL COURT OF AUSTRALIA
Toll Transport Pty Ltd v Fleiter (No 2) [2017] FCA 384
File number: QUD 948 of 2016 Judge: LOGAN J Date of judgment: 13 April 2017 Catchwords: PRACTICE AND PROCEDURE – preliminary discovery – alleged misuse or risk of misuse of confidential information by prospective respondents – r 7.23 of the Federal Court Rules 2011 (Cth) – form of order – costs in respect of unsuccessful opposition to application by prospective respondent – relevant considerations Legislation: Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 43, 59
Federal Court Rules 2011 (Cth) r 7.23, r 7.29
Common Law Procedure Act 1899 (NSW)
Civil Procedures Rules 1998 (Eng & W) r 48.1
Cases cited: C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864
HC Foods Pty Ltd v Carmichael [2016] FCA 1214
McLeod v Metayer (1901) 18 WN (NSW) 5
Mitchell & Ors v Hore & Ors (1927) 44 WN (NSW) 49
ObjectiVision Pty Ltd v Visionsearch Pty Ltd (No 3) [2015] FCA 304
Date of hearing: Heard on the papers Date of last submissions: 6 April 2017 (Prospective Applicant)
12 April 2017 (Prospective Respondent)Registry: Queensland Division: General Division National Practice Area: Employment & Industrial Relations Category: Catchwords Number of paragraphs: 21 Counsel for the Prospective Applicant: Ms B O’Brien Solicitor for the Prospective Applicant: Minter Ellison Counsel for the Prospective Respondent: Mr C Massy Solicitor for the Prospective Respondent: Maurice Blackburn ORDERS
QUD 948 of 2016 BETWEEN: TOLL TRANSPORT PTY LTD
Prospective Applicant
AND: STEPHEN FLEITER
Prospective Respondent
JUDGE:
LOGAN J
DATE OF ORDER:
13 APRIL 2017
THE COURT ORDERS THAT:
1.Pursuant to Rule 7.23 of the Federal Court Rules 2011 (Cth), within 17 days of the date of this order, the prospective respondent give discovery to the prospective applicant of the documents described in Schedule 1 to this order.
2.Pursuant to Rule 7.29(b) of the Federal Court Rules 2011 (Cth), the prospective applicant pay the prospective respondent’s reasonable costs and expenses of making discovery in accordance with paragraph 1 of this order, including any costs incurred by the prospective respondent in confirming the serial number or any other identifier of any external storage devices to assess whether those devices fall within the scope of Schedule 1 to this order.
3.As to the costs of the originating application filed on 23 December 2016:
(a)the prospective respondent pay the prospective applicant’s costs of and incidental to the preparation of its outline of submissions and of the appearance of counsel and solicitor at the hearing on 3 April 2017; and
(b)otherwise, there be no order as to costs in respect of the originating application.
Endorsement pursuant to Rule 41.06
To: The prospective respondent
You will be liable to imprisonment, sequestration of property or punishment for contempt if:
(a)for an order that requires you to do an act or thing – you neglect or refuse to do the act or thing within the time specified in…
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- Case
- [2017] FCA 384
- Decision Date
CaseChat Overview and Summary
The Court found that Toll Transport had made out a prima facie case for the disclosure of documents, given the nature and extent of the information at issue. It was determined that the potential for harm to Toll Transport, if confidential information were misused, was significant. The Court considered it necessary to balance the applicant's right to protect confidential information against the respondent's right to a fair trial. Additionally, the Court reviewed the proportionality and relevance of the requested discovery, ensuring it was narrowly tailored to the specific information necessary for the proceedings. The Court also considered the costs associated with making the discovery and the need for the prospective respondent to pay certain costs related to the preparation and hearing of the application.
In its orders, the Court mandated that the prospective respondent provide the specified documents within 17 days. The Court further directed that the applicant would cover the costs of making discovery, while the respondent was to bear the costs related to the preparation of the applicant’s submissions and the appearance of counsel and solicitor at the hearing. The endorsement clarified the potential consequences for non-compliance with the order. The Court's decision was focused on ensuring that the disclosure process was managed efficiently while safeguarding the interests of both parties.
Orders
Orders of the court
1. Pursuant to Rule 7.23 of the Federal Court Rules 2011 (Cth), within 17 days of the date of this order, the prospective respondent give discovery to the prospective applicant of the documents described in Schedule 1 to this order.
2. Pursuant to Rule 7.29(b) of the Federal Court Rules 2011 (Cth), the prospective applicant pay the prospective respondent’s reasonable costs and expenses of making discovery in accordance with paragraph 1 of this order, including any costs incurred by the prospective respondent in confirming the serial number or any other identifier of any external storage devices to assess whether those devices fall within the scope of Schedule 1 to this order.
3. As to the costs of the originating application filed on 23 December 2016:
(a) the prospective respondent pay the prospective applicant’s costs of and incidental to the preparation of its outline of submissions and of the appearance of counsel and solicitor at the hearing on 3 April 2017; and
(b) otherwise, there be no order as to costs in respect of the originating application.
Endorsement pursuant to Rule 41.06
To: The prospective respondent
You will be liable to imprisonment, sequestration of property or punishment for contempt if:
(a) for an order that requires you to do an act or thing – you neglect or refuse to do the act or thing within the time specified in the order; or
(b) for an order that requires you not to do an act or thing – you disobey the order.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
SCHEDULE 1
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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