Tyco (Australia) Pty Ltd T/As ADT Security v Signature Security Group Pty Ltd (No 5)
[2010] FCA 1266
•1 November 2010
FEDERAL COURT OF AUSTRALIA
Tyco (Australia) Pty Ltd T/AS ADT Security v Signature Security Group Pty Ltd (No 5) [2010] FCA 1266
Citation: Tyco (Australia) Pty Ltd T/AS ADT Security v Signature Security Group Pty Ltd (No 5) [2010] FCA 1266 Parties: TYCO (AUSTRALIA) PTY LTD TRADING AS ADT SECURITY v SIGNATURE SECURITY GROUP PTY LTD, SIMECORP PTY LTD, MARTIN SALAZAR, AUSTRALIAN SECURITY AND FIRE PTY LTD and GREGORY THOMAS; SIGNATURE SECURITY GROUP PTY LTD; SECURITY SELECT PTY LTD and MICHAEL PETER VINCENZO-CALIFANO File number(s): NSD 779 of 2009 Judge: PERRAM J Date of judgment: 1 November 2010 Legislation: Federal Court Rules O 15 r 10 Date of hearing: 1 November 2010 Date of last submissions: 1 November 2010 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 7 Counsel for the Applicant: Ms K Rees Solicitor for the Applicant: DLA Phillips Fox Counsel for the First Respondent: Mr E Hyde Solicitor for the First Respondent: Norton Rose Australia
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 779 of 2009
BETWEEN: TYCO (AUSTRALIA) PTY LTD TRADING AS ADT SECURITY
ApplicantSIGNATURE SECURITY GROUP PTY LTD
Cross-ClaimantAND: SIGNATURE SECURITY GROUP PTY LTD
First RespondentSIMECORP PTY LTD
Second RespondentMARTIN SALAZAR
Third RespondentAUSTRALIAN SECURITY AND FIRE PTY LTD
Fourth RespondentGREGORY THOMAS
Fifth RespondentSECURITY SELECT PTY LTD
First Cross-RespondentMICHAEL PETER VINCENZO-CALIFANO
Second Cross-Respondent
JUDGE:
PERRAM J
DATE OF ORDER:
1 NOVEMBER 2010
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The first respondent’s motion filed on 30 September 2010
1.The applicant give discovery with verification within 42 days of the documents sought at paragraph 1(a) of the notice of motion filed on behalf of the first respondent on 30 September 2010.
The first respondent’s motion filed on 11 October 2010
2.Susanna Ruth Lindsay Taylor and each of the legal representatives and the expert witness(es) retained by the first respondent who have provided confidentiality undertakings in these proceedings be released from paragraph 5 of that undertaking so as to allow those persons to make copies of any document which is subject to the confidentiality undertaking or the confidentiality regime in place in these proceedings, provided that such copies are made only for the purpose of the provision of the copies to other persons who have provided a confidentiality undertaking.
3. Any breach of the confidentiality undertaking by Susanna Ruth Lindsay Taylor, or any of the legal representatives who have provided confidentiality undertakings, in providing confidential information material to the expert witness(es) retained by the first respondent who have provided a confidentiality undertaking be excused by the Court.
4.The first respondent be permitted to disclose information in which the applicant claims confidentiality to its expert witness and employees of that witness who have given a confidential undertaking in the proceedings.
Applicant’s motion filed on 19 October 2010
5.The confidentiality regime ordered by the Court on 19 August 2010 (other than paragraph 5 of the confidentiality undertaking attached to those orders) be extended to the following affidavits filed by the applicant in these proceedings:
5.1Affidavit of Garry Keith Whelan sworn on 20 September 2010 and exhibit GW1;
5.2Affidavit of Melinda Bloye sworn on 20 September 2010 and exhibit MEB1; and
5.3Affidavit of Melinda Bloye sworn on 20 September 2010 and exhibit MEB2.
6.The applicant provide to the first respondent within 7 days copies of the affidavit of Terence Michael Potter sworn 24 September 2010 and exhibit TMP1 with any confidential financial information or customer details redacted, such redacted versions of these affidavits not to be subject to the confidentiality regime.
7.The first respondent file and serve an affidavit in relation to confidentiality by 11 am on Thursday, 4 November 2010.
8.The applicant’s notice of motion of 19 October 2010 be stood over to 9.30 am on Friday, 5 November 2010.
9.The applicant pay the first respondent’s costs of paragraph 1(a) of the first respondent’s notice of motion filed on 30 September 2010.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 779 of 2009
BETWEEN: TYCO (AUSTRALIA) PTY LTD TRADING AS ADT SECURITY
ApplicantSIGNATURE SECURITY GROUP PTY LTD
Cross-ClaimantAND: SIGNATURE SECURITY GROUP PTY LTD
First RespondentSIMECORP PTY LTD
Second RespondentMARTIN SALAZAR
Third RespondentAUSTRALIAN SECURITY AND FIRE PTY LTD
Fourth RespondentGREGORY THOMAS
Fifth RespondentSECURITY SELECT PTY LTD
First Cross-RespondentMICHAEL PETER VINCENZO-CALIFANO
Second Cross-Respondent
JUDGE:
PERRAM J
DATE:
1 NOVEMBER 2010
PLACE:
SYDNEY
REASONS FOR JUDGMENT
The first respondent applied by notice of motion dated 30 September 2010 for an order that the applicant give discovery within 14 days of a range of documents set out below:
All further agreements between the Applicant and any customer of the Applicant which were terminated by that customer in the period from 1 January 2007 to August 2009 inclusive in respect of which there was a breach allegedly induced by a dealer of the First Respondent being those identified as a result of the matching exercise referred to at paragraph 14 of the Affidavit of Claire Tait sworn on 9 July 2010.
The basis upon which this is resisted is that the documents, which are customer contracts held by the applicant, have either had, in a summary way, the important terms of them already disclosed en masse to the first respondent, or otherwise are in forms which are identical to forms which have already been provided, pursuant to the process of discovery, by the applicant.
The affidavit evidence discloses that to provide further discovery of these materials is likely to take in the vicinity of 60 working days, which I take to be around 500 hours. The likely expense involved in hiring people, as the evidence discloses will be necessary to carry out that process, is likely to be no more than $20,000. The gravamen of the applicant’s position is that little utility is to be gained by either side from requiring the disgorging of such a significant and onerous volume of documentation.
Ms Rees for the applicant points to, in particular, the apparently unstated purpose for which the first respondent seeks the provision of this information. On the other hand, Mr Hyde, who appears for the first respondent, tendered an undertaking proffered by the applicant to the Australian Competition and Consumer Commission which referred in passing to a number of matters touching upon the organisation and adequacy of the keeping of contracts by the applicant. That undertaking, in part, referred to the fact that there were – putting it compendiously – certain matters of inconsistency in the records. In particular, paragraph 9 of the undertaking suggested that, at least in Queensland, a number of authorised dealers had changed the terms of the standard form contracts.
Mr Hyde therefore submitted that one should be, perhaps, a little sceptical as to the bland assertion that no prejudice would be derived by the first respondent by reason of being required to rely upon those documents which had been discovered and the summary of the data fields. This was particularly so when that aspect of the matter was weighed against – in the context of this case – the relatively modest expense involved given the nature of this litigation. Ms Rees submitted that be that as it may, the first respondent had not really descended into any detail as to what the difficulties were or why it was it desired to undertake this process of analysis. I do not think that the first respondent is obliged to inform the applicant of each aspect of its preparation of the case in relation to these matters. Mr Hyde has pointed to the difficulties that exist in the documentary record.
I should add that in any event, it would have been permissible for the first respondent to have issued a notice to produce under O 15 r 10(1), at which point the burden would have switched to the applicant to move to set aside the notice to produce. Although that is not strictly relevant to the question under examination, it does underscore that the documents in question are documents which are referred to in the applicant’s pleadings. In those circumstances, it is appropriate in my opinion that the applicant be required to give discovery, albeit not within the period of 14 days which is sought by the first respondent, but rather within 42 days as the time estimated by the applicant as necessary in order to comply.
I make the following orders:
1.Orders 1 to 6 in the short minutes of order.
2.The first respondent file and serve an affidavit in relation to confidentiality by 11 am on Thursday, 4 November 2010.
3.The applicant’s notice of motion of 19 October 2010 be stood over to 9.30 am on Friday, 5 November 2010.
4.The applicant pay the first respondent’s costs of paragraph 1(a) of the first respondent’s notice of motion filed on 30 September 2010.
I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate:
Dated: 18 November 2010
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