Tyco Australia Pty Ltd v Tabart

[1999] FCA 1220

FEDERAL COURT OF AUSTRALIA

Tyco Australia Pty Ltd v Tabart [1999] FCA 1220

TYCO AUSTRALIA PTY LTD v GAVIN TABART & ORS

V 254 of 1999

GOLDBERG J
MELBOURNE
18 AUGUST 1999

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 254 of 1999

BETWEEN:

TYCO AUSTRALIA PTY LTD
Applicant

AND:

GAVIN TABART
Respondent

JOHN SPANGARO
Second Respondent

FIRE SYSTEMS MONITORING PTY LTD
Third Respondent

JUDGE:

GOLDBERG J

DATE OF ORDER:

18 AUGUST 1999

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.In this order the expression “Confidential Documents” shall mean:

(1)All documents, all computer disks, records, files or extracts therefrom, all storage devices, all photographs taken and all copies of the contents of computer disks and storage devices made by or on the instructions of the Applicant’s solicitors pursuant to the orders of this Court made on 19 May and 25 May 1999.

(2)All exhibits marked “Special Confidential” referred to in affidavits filed in this proceeding by any party.

2.Each of the Confidential Documents (save for the exhibits referred to in par 4 hereof) and all information derived from them shall be kept confidential and:

(a)shall only be disclosed to:

(i)counsel and solicitors for the parties;

(ii)the respondents only in the presence of counsel or a solicitor for any of the respondents in this proceeding;

(iii)the applicant only in the presence of counsel or a solicitor for the applicant in this proceeding; and

(iv)any independent expert nominated by any of the parties under par 3 of this order,

each of whom shall be bound by this order, and shall not be open to public inspection whilst filed or used in this proceeding; and

(b)shall be used only for the purposes of this proceeding.

3.None of the Confidential Documents or information derived therefrom shall be disclosed to or inspected by any independent expert nominated by any party unless that party at least three days earlier supplied the other parties with

(a)the name, qualifications and affiliations of the independent expert; and

(b)a copy of an undertaking duly executed by the independent expert in the form of the Undertaking set out in the Schedule hereto,

and the original of that Undertaking has been filed in the Court.

4.The exhibits PCP‑13 Special confidential (FAM Contract dated May 1996), PCP‑14 Special Confidential (Intergraph Agreement dated 30 May 1996), and PCP‑15 Special Confidential (MFESB/Tyco Fire Monitoring Agreement dated 3 June 1999) to the affidavit of Peter Charles Parsons affirmed 28 June 1999 herein, shall not be copied by the respondents’ counsel and solicitors, shall be kept confidential and shall only be disclosed to counsel and solicitors for the respondents and shall not be disclosed to any of the respondents until further order.

5.(a)       Two copies of each of the applicant’s exhibits referred to in affidavits filed on behalf of the applicant as “Special Confidential” exhibits shall be provided by the applicant’s solicitors to each of the solicitors for the respondents.

(b)Subject to par 4 no more than six copies of the applicant’s “Special Confidential” exhibits shall be made by the respondents’ solicitors in addition to the two copies already provided by the applicant’s solicitors under par 5(a) hereof.

6.None of the Confidential Documents or information derived therefrom shall be disclosed or quoted in any affidavit in this proceeding except in exhibits marked “Special Confidential”.

7.(a)       Within 28 days of the final determination of this proceeding (including any appeal and determination of any issue as to costs) and after the expiration of any applicable appeal period, the solicitors for the parties shall take all necessary steps to retrieve from the respective parties, their counsel and independent experts all Confidential Documents and all documents or computer files containing information derived therefrom and shall destroy the same or delete the information from them so that no part of the information in the Confidential Documents is capable of being retrieved or can be derived therefrom;

(b)within 10 days of such destruction, the solicitors for the parties shall provide to the solicitors for the other parties an affidavit identifying the documents destroyed and the manner and the date of their destruction.

8.Liberty to apply be reserved generally.

9.        Costs reserved.

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

SCHEDULE

Undertaking

I, [name] of [address], [qualifications] DO HEREBY ACKNOWLEDGE THAT I have read the Order dated [insert date of the Order to which this undertaking is scheduled] 1999 (“the Order”), made in respect of Confidential Documents, in the action V 254 of 1999 before the Federal Court of Australia (“this proceeding”) and I HEREBY UNDERTAKE to the Court with respect to the Confidential Documents, that:

(i)I have provided the solicitors acting for the applicant [or the respondents as the case may be] with a true and complete statement in writing of my qualifications as an expert and my affiliations both past and present, and I have no affiliation and no other connection with:

(a)       any party to this proceeding,

(b)any person or company involved in the provision of fire alarm monitoring services,

(c)       any of the solicitors for the Applicant or any of the Respondents,
other than as stated in my statement.

(ii)I have received none of the Confidential Documents, prior to my execution of this Undertaking.

(iii)As to each of the Confidential Documents, as come into my possession, the same shall be used by me only for the purposes of this proceeding, shall be kept confidential by me at all times, and shall not be used by me or disclosed by me to the respondents [or applicant as the case may be] or representatives of the respondents [or applicant as the case may be] except as provided under the following paragraph.

(iv)As to each of the Confidential Documents, as come into my possession, the same shall be used, handled, kept and stored by me in such manner as will keep the same at all times safe from use or disclosure except as may be required for me to advise counsel, solicitors and other independent experts acting for the respondents [or applicant as the case may be] herein or as may be required in my giving evidence in this proceeding, subject to any order for protection of the confidentiality of the same.

(v)Within seven days of receiving notice of the final determination of this proceeding, I shall deliver up to the solicitors acting for the respondent [or the applicant as the case may be] on whose behalf I am engaged in this proceeding all of the Confidential Documents in my possession, custody or control and shall delete from the hard drive of any computer owned or used by me any part of such Confidential Documents so that no part of the information contained in the Confidential Documents is capable of being retrieved or can be derived therefrom.

[End of Schedule]

Dated:

………………………………………….
(for) the District Registrar

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 254 of 1999

BETWEEN:

TYCO AUSTRALIA PTY LTD
Applicant

AND:

GAVIN TABART
First Respondent

JOHN SPANGARO
Second Respondent

FIRE SYSTEMS MONITORING PTY LTD
Third Respondent

JUDGE:	GOLDBERG J
DATE:	18 AUGUST 1999
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

His Honour:

1. I propose to give brief reasons for the forms of orders proposed and then hand out minutes and speak to them.

2. There is an issue between the parties as to the extent to which confidentiality restrictions should be imposed on the parties.  An order was made by consent by Heerey J on 6 July 1999, some of the terms of which the respondents now wish to vary.  Notwithstanding the respondents’ consent to a rather rigorous confidentiality regime in the short term, I am now concerned with putting in place a regime which will apply throughout the preparation for trial and indeed up to the end of the trial.

3. The applicant’s case is that a highly confidential customer list and customer details recorded in the applicant’s computer system has been found on the first respondent’s computer and the third respondent’s computer network.  The applicant says therefore that it is justified in seeking stringent confidentiality requirements.

4. The respondents are concerned to ensure that they are able to prepare adequately their cases for trial and that they are not subjected to any unnecessary or unreasonable restraints.  I consider that the order to be made should be adequate to protect the applicant’s interests but be clear and succinct as to the obligations imposed.

5. Each party is represented by competent and experienced solicitors and counsel who are well aware of the obligations imposed on them by virtue of confidentiality orders and also imposed on their clients.  I have therefore given weight to that fact in framing the orders I propose and in rejecting in part some of the orders proposed by the applicant.

6. As the custody and use of the material claimed by the applicant to be confidential will continue to be under the supervision and control of the respondents’ legal advisers, I do not consider it necessary to implement the regime proposed by the applicant.  However, at the present time I consider it appropriate to restrict the respondents’ access to the three agreements entered into by the applicant in respect of which the applicant claims special confidentiality and to limit the number of copies to be made of other confidential exhibits.

7. The access to those agreements and the issue of any copies of them can be made the subject of further application for variation if the respondents’ legal advisers consider they, or the respondents, are at a disadvantage in relation to those documents.  I propose to make an order for destruction of confidential documents used in the proceeding but as this will only come into operation at the end of the proceeding, that order can be reviewed in the light of subsequent circumstances and events as they emerge.

8. Subject to what counsel may say, I do not consider it appropriate to vacate the order of Heerey J on 6 July 1999.  As I understand it, events have occurred under the regime set out in that order and it is therefore necessary for that order to remain operative.  The order I propose making will in effect take over from that order and will operate prospectively.

9. I will ask my associate to hand out to you now copies of the minute of the order I propose.  In par 1 of the order I have adopted the definition proposed by Dr Emmerson QC which, it seems to me, covers the situation as to confidentiality.  Paragraph 2 restricts the persons to whom disclosure shall be made.  Having regard to the fact that disclosure can be made to the respondents only in the presence of counsel, I thought it appropriate at the top of page 2 to provide for the applicant, and not just Mr Parsons, to have access on the basis that there should be equality and that the positions be the same in relation to each party in respect of the other’s confidential exhibits.

10. Paragraph 3 deals with the undertaking of the expert and I believe I have modified that in a way which covers experts appointed by either applicant or respondents, but I would be grateful if any typographical errors there could be picked up.  In par 4, I have provided for the three agreements to remain specially confidential and only to be disclosed to solicitor and counsel for the respondents until further order.  I had understood from what Dr Emmerson said that he had not finally determined his position in relation to those agreements.  I have had the opportunity to look at them.  It seems to me that they are in a particular category of confidentiality, and that position can be reviewed.

11. I have recited in par 5 a repetition of the order that was in Heerey J’s order because it was not clear to me whether those copies had in fact been passed over.  In par 5(b) I have limited for the time being the number of copies of those exhibits to six, but I have not put in place the regime for initialling and counting pages etcetera that was referred to in Mr Collinson’s proposed draft, having regard to my reasons. 

12. Paragraph 6 I do not think is controversial.  Paragraph 7 provides for destruction in such a way that no part of the information in the confidential documents is capable of being retrieved or can be derived therefrom.  I have provided for there to be a record by the exchange of affidavits verifying what documents have been destroyed.  In the circumstances, having regard to the form of order I propose in par 7(a), I do not consider it appropriate at this stage for experts to deliver up the hard disks of the computers they use.

13. I will give counsel the opportunity for one or two minutes just to glance through in case there is some glaring inconsistency.  I believe there is not, having regard to the regime I propose.  I propose to make as a separate order the order for directions, which I will ask the court officer to hand out now.

I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Goldberg.

Associate:

Dated:             3 September 1999

Counsel for the Applicant:	Mr P Collinson
Solicitor for the Applicant:	Arthur Robinson & Hedderwicks
Counsel for the First Respondent:	Mr J Guthrie
Solicitor for the First Respondent:	In person
Counsel for the Second and Third Respondents:	Dr J Emmerson QC with Mr AK Panna
Solicitor for the Second and Third Respondents:	Jerrard & Stuk
Date of Hearing:	18 August 1999
Date of Judgment:	18 August 1999