VALANA Pty Ltd v Clipmaster Enterprises Pty Ltd - [2007] WADC 109

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: VALANA PTY LTD & ANOR -v- CLIPMASTER ENTERPRISES PTY LTD & ORS [2007] WADC 109

CORAM: SWEENEY DCJ

HEARD: 13 DECEMBER 2006

DELIVERED : 4 JULY 2007

FILE NO/S: CIV 2795 of 2005

BETWEEN: VALANA PTY LTD (071 766 973)
First Plaintiff
HIRE INTELLIGENCE PTY LTD (009 072 315)
Second Plaintiff
AND
CLIPMASTER ENTERPRISES PTY LTD (050 978 017)
First Defendant
LUIGI SALAMONE
Second Defendant
SERGIO COTELLESSA
Third Defendant
SERGIO DIVINCENZO
Fourth Defendant

Catchwords:

Discovery - Legal professional privilege - Application for injunction - Jurisdiction of District Court

Legislation:

District Court of Western Australia Act 1969 s 6, s 50(1)(a), s 52, s 53(1), s 55, s 57(2)
Supreme Court Act 1935 s 25

Result:

Application dismissed

Representation:

Counsel:

First Plaintiff                  :     Not applicable
Second Plaintiff             :     Mr R J L McCormack
First Defendant              :     Not applicable
Second Defendant         :     Not applicable
Third Defendant            :     Not applicable
Fourth Defendant           :     Ms P E Cahill

Solicitors:

First Plaintiff                  :     Not applicable
Second Plaintiff             :     Stables Scott
First Defendant              :     Not applicable
Second Defendant         :     Not applicable
Third Defendant            :     Not applicable
Fourth Defendant           :     Minter Ellison

Case(s) referred to in judgment(s):

De Vries v Smallridge [1928] 1 KB 482
Grassby v The Queen (1989) 168 CLR 1
Hamersley Iron Pty Ltd v Metal & Engineers Workers Union – Western Australia and Anors; unreported, SCt of WA, 21 September 1998, Library No 980546
Hondros & Tholet v Chesson [1981] WAR 146
Key International Drilling Company Limited and Ors v TNT Bulk Ships Operations Pty Ltd and Ors (1989) WAR 280
Matthews & Anor v Bayview Holiday Village Pty Ltd & Anor (1990) 2 WAR 167
Murcia & Associates (a Firm) v Grey & Ors (2001) 25 WAR 209
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435
R v Forbes; Ex parte Bevan (1972) 127 CLR 1

SWEENEY DCJ: This is an application on the part of the second plaintiff, Hire Intelligence Pty Ltd, for declaratory relief and an injunction against the fourth defendant, Mr Divincenzo, in respect of 23 documents said to be privileged, which were disclosed to the fourth defendant's then solicitors, Messrs Phillips Fox, on 17 June 2003. This is the second plaintiff's second attempt to achieve this result – by a chamber summons filed 7 March 2006 the second plaintiff sought an order "as to discovery pursuant to O 26 r 7" of the Rules of the Supreme Court 1971 seeking all copies of the 23 documents to be returned forthwith on the grounds that they were subject to legal professional privilege. On 1 May 2006 Deputy Registrar Harman dismissed the application, essentially on the grounds of delay on the part of the second plaintiff in making the application.
On 30 August 2006 Yeats DCJ dismissed an appeal from that decision on the grounds that the second plaintiff's application had in any event been misconceived and the order sought was not an order which could be made within O 26 r 7. The plaintiff now brings this application for injunctive and declaratory relief.
The issues for me to determine are, firstly, whether this Court has jurisdiction to grant relief of the kind sought in this matter and, if it does, whether the 23 documents were originally the subject of a claim for legal professional privilege, whether, if so, any privilege has been waived expressly or by implication and, if it has not, whether I should grant the relief sought, bearing in mind the delay in making the application and the use to which the documents have been put by the fourth defendant in the meantime.
In short, I have concluded that this Court does not have jurisdiction to grant the relief sought.

The orders sought by the second plaintiff

The first five orders sought by the second plaintiff (the remainder being consequential orders) are as follows:
"1.A declaration that the documents, as described in Items 1 to 23 inclusive of the Schedule annexed hereto and marked 'A' ('plaintiff's disputed documents'), are:
(a)confidential in nature and proprietary (sic) of, relevantly, the second plaintiff; and
(b)properly the subject of a claim by, relevantly, the second plaintiff to legal professional privilege in respect of each of same,
and this was the case as at, at least, 30 May 2003 when the plaintiffs' list of discoverable documents in the within proceedings was verified by the affidavit of Thomas Ronald Crage, as sworn in the said proceedings on 30 May 2003.
2. A declaration that the:
(a)provision of copies of the plaintiff's disputed documents by the second plaintiff's solicitors, Stables Scott, on or about 19 August 2003, to the fourth defendant's former solicitors, Phillips Fox;
(b)retention of the said documents in the possession of the fourth defendant's present solicitors, Minter Ellison; and
(c)provision of any of the said documents, or communication of the or any of the contents of same by Minter Ellison to the fourth defendant, the fourth defendant's insurer and/or any other third party,
was the result of mistake and such inadvertent disclosure did not then and does not constitute a waiver of legal professional privilege in respect thereof, or a loss of the confidential status of each of same.
3.An injunction restraining the fourth defendant by:
(a)himself;
(b)his servants or agents, including, in particular (but not limited to) the fourth defendant's solicitors on the record in the within proceedings, Minter Ellison; or
(c)otherwise howsoever,
from:
(i)using the plaintiff's disputed documents, or any part thereof; or
(ii)otherwise exploiting the said information or any part thereof as contained therein, including, in particular, from causing, procuring or inducing his said solicitors, or any other person, including (but not limited to), the fourth defendant's insurer, as referred to in paragraph 32 of the affidavit of Wendy Sara Meggison sworn in the within proceedings on 6 June 2006 and any other party to the within proceedings:
(A)to adduce into evidence or otherwise rely upon in any way the documents or said information by way of secondary evidence of the said documents, at any stage of or in the within proceedings; and
(B)to ask questions in cross‑examination which are based on the knowledge gained from inspection of the inadvertent disclosure of the plaintiff's disputed documents.
4.An order that the fourth defendant deliver up or cause the delivery up on oath to the second plaintiff's solicitors, Stables Scott, of all copies of the plaintiff's disputed documents, and any other document in his possession, custody or control, or that of his solicitors, Minter Ellison, in which the contents of the said documents or any part thereof has been recorded.
5.An injunction requiring the fourth defendant to instruct his solicitors, Minter Ellison, in writing that:
(a)Wendy Sara Meggison, and any other solicitor in the employ of Minter Ellison, who has read any of the plaintiff's disputed documents; or
(b)any independent counsel retained by Minter Ellison on behalf of the fourth defendant, who has read the or any of the said documents,
from providing advice or discussing the contents of any of the said documents with the fourth defendant or any other person.
It is apparent that the injunctions sought in proposed orders 3 ‑ 5, have been carefully drafted so as to expressly apply to the fourth defendant only, being a party to the action, but it is equally clear that the practical effect of those injunctions is to impact upon not only the fourth defendant but also his current solicitors Messrs Minter Ellison and individuals within the firm, including Ms Wendy Meggison, any independent counsel who has read any of the documents and any other person to whom the fourth defendant or Messrs Minter Ellison may have shown the documents which, on the information contained in the affidavit evidence before me, includes the fourth defendant's insurance company. The injunction may also impact upon Messrs Phillips Fox and employees or previous employees of that law firm by virtue of the injunction sought in proposed order 3 restraining the fourth defendant by "otherwise howsoever" using the documents.

Does the court have jurisdiction to grant the relief sought?

This Court was established by the District Court of Western Australia Act 1969 ("the District Court Act") as a court of record having the criminal and civil jurisdiction conferred on it by that Act (s 8(1)). Section 6 defined "jurisdiction" to include "all powers and authorities incidental to the exercise of jurisdiction".
Section 50(1)(a) provides:
"(1) Subject to section 51 the Court has the same jurisdiction to hear and determine and may exercise all the powers and authority that the Supreme Court has and may exercise from time to time, in relation to ‑
(a)all personal actions, other than those of the kind referred to in subsection (2), where the amount, value or damages sought to be recovered is not more than the jurisdictional limit, whether on the original claim or demand or a balance after allowing payment on account, or the amount of any set off admitted by the plaintiff; …"
Although the action in this matter was originally commenced in the Supreme Court, it was by consent remitted to this Court and it is not suggested that the subject matter of the action is not within the jurisdiction of this Court.
This Court, being a statutory creation, must find its jurisdiction within the terms of the District Court Act. Within the limits of its jurisdiction it has all the powers and authority of the Supreme Court, but it does not have inherent jurisdiction which pertains to courts of unlimited jurisdiction and is the power which a court has simply because it is a court of a particular description (see R v Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7). As was explained by Dawson J in Grassby v The Queen (1989) 168 CLR 1 at 16:
"… it is undoubtedly the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power. In the discharge of that responsibility it exercises the full plenitude of judicial power. It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers maybe defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise (ubi aliquid conceditur, conceditur et id sine quo res ipsa esse non potest). Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J points out, fundamental …
It would be unprofitable to attempt to generalise in speaking of the powers which an inferior court must possess by way of necessary implication. Recognition of the existence of such powers will be called for whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be 'derived by implication from statutory provisions conferring particular jurisdiction'."
These 'powers which an inferior court must possess by way of necessary implication' were described by Gaudron, Gummow and Callinan JJ in Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 452 as being a power to make orders 'which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement'. In that case, the District Court of New South Wales awarded judgment to a creditor for a liquidated amount against two debtors and ordered that they be restrained from selling or otherwise disposing of or encumbering their interest in a house, which was their only significant asset, until further order or payment of the debt. The majority in the High Court found that an asset preservation order for a fixed period might have been appropriate in order to give the judgment creditor an opportunity to move promptly to take out a writ of execution, however the injunction granted gave him additional security for payment of the debt with no time limit and was not an injunction 'in an action' for the purposes of the District Court Act of New South Wales.
In Hondros & Tholet v Chesson [1981] WAR 146 a plaintiff sued for damages for breach of contract, the amount of damages sought being within the jurisdiction of the District Court. The plaintiff also sought an injunction 'restraining the defendant from further breaches of the agreement' and, given that it was thought that the District Court would decline jurisdiction in the claim for an injunction, the plaintiff commenced his action in the Supreme Court. Burt CJ stated at 146 'If that was the reason it was wrong', citing s 55 and s 57(2) of the District Court Act as the source of the power when read together with s 25(9) of the Supreme Court Act 1935. Burt CJ cited with approval the words of Atkin LJ with reference to the jurisdiction of a county court under the County Courts Act 1988 in De Vries v Smallridge [1928] 1 KB 482 at 488: "If there is a money claim within the jurisdiction of the court, then no doubt the court can give ancillary relief by way of declaration or injunction, but if there is no money claim within the jurisdiction of the court, or if there is no money claim at all, then the court has no jurisdiction to give that relief."
In the action before me, there is a money claim within the jurisdiction of this Court. The claim is one for damages for alleged misleading or deceptive conduct within the meaning of s 52 of the Trade Practices Act or, in the alternative, damages for breach of s 10 of the Fair Trading Act.
In brief, the first defendant Clipmaster Enterprises Pty Ltd is both the owner of all rights and interests in the Clipmaster staple gun and associated products and the registered proprietor of all patents and patent applications for those products in this country and overseas. The second and third defendants are directors of the first defendant. The fourth defendant, the respondent to this application, is its company secretary.
In September 1994 the first defendant granted an exclusive worldwide manufacturing and distribution licence to Clipmaster 93, a company which is not a party to this action but in which the second and third defendants are also directors and the fourth defendant is again the company secretary.
In 1995, Messrs Crage and Hagen planned to form a company to acquire the exclusive worldwide rights to the Clipmaster products from Clipmaster 93. It is alleged that, during those negotiations, the first, second, third and fourth defendants represented that Clipmaster 93 was the registered proprietor of the patents and failed to disclose the existence of the 1994 licence agreement between the first defendant and Clipmaster 93. In ignorance of this relationship, it is said, Crage entered into an agreement with Hagen to loan him $200,000 for the purpose of forming a company to acquire the exclusive worldwide rights and then Crage, in October 1995, allegedly assigned his rights and obligations under that loan agreement to the second plaintiff, Hire Intelligence Pty Ltd.
The second plaintiff's claim is that, had it known that Clipmaster 93 was not the registered proprietor of the patents and had it known that Clipmaster 93's rights were governed by the 1994 licence agreement with the first defendant, it would never have loaned $200,000 to Hagen.
The claim for relief in this action does not seek an injunction of any kind. Were there a claim for ancillary relief by way of injunction or, for that matter, by way of interlocutory injunction, the decision in Hondros & Tholet v Chesson (supra) supports the proposition that this Court would have jurisdiction to grant such equitable relief. In Matthews & Anor v Bayview Holiday Village Pty Ltd & Anor (1990) 2 WAR 167 Master White (as he then was) endorsed what was described as "the prevailing view" to the effect "that s 55 of the Act vests in the court the power to grant equitable remedies where a plaintiff establishes a claim for primary relief. In other words, that an equitable remedy is available where it is in aid of or ancillary to an action for the recovery of money or property". In that case, plaintiffs in an action in the District Court alleged that the defendants had breached their lease agreement with the plaintiffs, which lease had therefore been validly terminated and the plaintiffs also sought possession of the premises from the various defendants. The defendants counterclaimed for a declaration that they were in lawful possession and sought equitable relief against forfeiture. Master White found that the District Court did have power to grant those equitable remedies to the defendants by virtue of the fact that the plaintiffs' action was within the jurisdiction of the District Court and that s 55(b) of the District Court Act gave the District Court power to give effect to the counterclaim.
Finally, in Murcia & Associates (a Firm) v Grey & Ors (2001) 25 WAR 209 a majority of the Full Court found that this Court did not have power to order that the appellant, a legal firm representing a party in the action, cease to be involved in that action due to an alleged conflict of interest. The action before the District Court was a claim for damages for breach of contract. The appellant firm was not a party to that action, its only involvement being to represent one of the parties. Due to an alleged conflict of interest, the respondents to the appeal asked the appellant law firm to withdraw and, upon its refusal, issued a chamber summons to that effect. This Court granted the order, injuncted the appellant firm from representing its client in the proceedings and ordered costs against it. The learned Judge relied upon the proposition that the court has a general jurisdiction to exercise authority over those who are officers of the court and has an inherent jurisdiction to discipline lawyers appearing before it. Steytler J (with whom Wallwork J agreed) found that the District Court did not have that supervisory or disciplinary jurisdiction which is inherent to the Supreme Court. His Honour stated at 214:
"The District Court does not have a like jurisdiction, although it does have incidental powers which are necessary for the exercise of such jurisdiction as is conferred upon it (see the definition of "jurisdiction" in s 6 of the District Court Act 1969 (WA) and Grassby v The Queen (1989) 168 CLR 1 at 16), and those powers are sufficient, at least, to enable it to correct irregularities in, and frauds upon, its own procedure and rules and to prevent abuses of its process …"
His Honour stated that there appeared to him to be only three possible sources of power for the making by the District Court of an order of the kind sought, those sources being s 55 of the District Court Act, s 57(2) of the District Court Act when read with s 25 of the Supreme Court Act 1935 and a combination of s 52 and s 53(1) of the District Court Act. Section 55 of the District Court Act provides:
"The Court or a District Court judge has, as regards any action or matter within its or his jurisdiction for the time being, power
(a)to grant, and shall grant, in the action or matter such relief, redress or remedy, or combination of remedies, either absolute or conditional; and
(b)to make any order that could be made in regard to any action or matter, and shall in each such action or matter give such and the like effect to every ground of defence or counterclaim equitable or legal,
in a full and ample manner as might and ought to be done in the like case by the Supreme Court or a judge thereof."

Of this section, Steytler J at 214 concluded that the power referred to in s 55 is an ancillary or auxiliary power to be exercised in the determination of claims otherwise within the jurisdiction of the court for the purpose of making more complete and more effective the jurisdiction which the court already enjoys, but does not increase the jurisdiction of the court to grant equitable relief where that relief is really the principal relief sought. Steytler J concluded at 214:
"Here the equitable relief which was sought against the appellant firm was, albeit no separate proceedings were commenced against it, in reality the principal relief sought. It was not in any relevant sense ancillary to the relief sought in the money claim between the first and second respondents. Nor could the mere fact that it was sought by way of a chamber summons taken out in the money claim proceedings make it so. The power was consequently not exercised in aid of any principal relief sought in a matter within jurisdiction and s 55 had, in my opinion, no application."
The same can be said of the chamber summons before me. The declarations and injunctions seek to achieve the return of documents said to be confidential and privileged. Those documents are relevant to the primary action in this case in that, in the broadest terms, they tend to evidence negotiations which took place, as a result of which the agreements the subject of the proceedings were entered into. The documents also, in broad terms, tend to evidence the state of mind of certain of the key players in the negotiation of the original agreements. They relate to the primary action then in an evidentiary sense. They bear no relation, however, to the final relief sought and nor do the injunctions sought amount to an interlocutory preservation of property or a state of things pending the final determination of this matter.
Should I grant the orders sought, the fourth defendant and other parties will in effect be injuncted once and for all from the use of this documentation. The orders sought are by way of final proceedings against the parties. The fact that these proceedings are instituted by way of chamber summons in the existing action does not alter the fundamental character of these proceedings. Nor does confining the terms of the orders sought to the fourth defendant. These injunctions seek to injunct not only the fourth defendant, who is a party to the main action, but also his legal advisors past and present, his insurers and anyone else to whom he has communicated the content of these documents in dispute.
I conclude that I am not being asked to grant an injunction in aid of the principal relief sought in this matter and accordingly s 55 does not empower me to make the orders.
In Murcia & Associates (a Firm) v Grey & Ors (supra) Steytler J then considered the provisions of s 57(2) of the District Court Act read together with s 25 of the Supreme Court Act 1935. Section 25 of the Supreme Court Act 1935 empowers the Supreme Court to grant declaratory judgment and to grant a mandamus or an injunction by an interlocutory order "in all cases in which it shall appear to the court or a Judge to be just or convenient that such order should be made". Section 57(2) of the District Court Act 1969 provides:
"Without affecting the generality of subsection (1), but subject to the express provisions of any other Act, in every action or matter commenced in the Court, law and equity shall be administered according to the provisions of section 25 of the Supreme Court Act 1935 as though that section were enacted in this Act and in terms made applicable to the Court."
Of the combined effect of these two provisions, Steytler J, having referred to Hondros v Chesson (supra) with approval, concluded that these provisions are still confined to those matters within which the District Court has jurisdiction and do not extend its jurisdiction. His Honour did not consider that the two provisions in combination empowered the District Court to grant what was in effect a final injunction by way of the primary relief being sought against the law firm and that, while there was a money claim within the jurisdiction of the court, the proceedings for the injunction were not ancillary to the claim and s 57(2) did not make them so.
Finally, Steytler J turned to the combined effect of s 52 and s 53(1) of the District Court Act. It is upon these two sections that the second plaintiff principally relies. Section 52 of the District Court Act provides:
"In all respects, except as expressly provided by or under this Act, the practice and procedure of the Court as a court of civil jurisdiction including the trial of certain cases with or without a jury, shall be the same as the practice and procedure of the Supreme Court in like matters."
Section 53(1) commences:
"Without affecting the generality of the foregoing provisions of this Act, in all actions, matters and causes within the jurisdiction of the Court, a District Court judge has for the purposes of this Act, in addition to the powers and authorities conferred upon him by this Act, all the powers and authorities of a judge of the Supreme Court; ... "
In considering these provisions Steytler J said at 215:
"However neither provision confers any additional jurisdiction upon a District Court Judge. Section 52 merely regulates that Court's practice and procedure in respect of matters falling within its civil jurisdiction. Section 53(1) supplements the powers and authorities of a District Court Judge in respect of actions, matters and causes already within her jurisdiction. Consequently, for the reasons already given, these provisions cannot, in my opinion, provide any basis for the grant of the injunctive relief ordered against the appellant in this case; cf Pelechowski (at 449)".
The second plaintiff submits that the declarations and injunctions sought are within the ancillary equitable jurisdiction, as well as incidental powers of this Court because the jurisdiction as conferred upon the District Court extends to such powers as are necessary or sufficient to enable it to deal with the issue of privilege as raised through the discovery process. The second plaintiff's submission then is that this Court has power to regulate its own practice and procedure to correct irregularities in its own procedure and rules and to prevent abuses of its process (see Murcia & Associates (a Firm) v Grey & Ors (supra) at (214).
I note that, by s 6 of the District Court Act "Practice and procedure" is defined to include matters relating to "the institution, conduct, trial or hearing and adjudication in any proceeding … and all the jurisdiction and powers conferred and the matters prescribed, provided for, or regulated by the rules of court".
It has previously been determined in this matter and in effect conceded by the second plaintiff that the Rules of the Supreme Court 1971 relating to discovery do not expressly empower the court to make orders of the kind sought in this application. In my view the orders sought by way of declaratory and injunctive belief go beyond the exercise of an ancillary or auxiliary power or an incidental power to correct an irregularity in a procedural matter. The court has power to make orders for discovery and has fairly broad powers by combination of O 26 r 6 and r 7 including the power to order that all or any of the parties give, or not give, discovery. The court also has power to make orders for inspection of documents and to produce documents to the court.
Specifically O 26 r 12 provides:
"(1) Where –
(a)on an application for production of a document for inspection or to the Court; or
(b)in any list of documents supplied on discovery,
a party claims privilege the party requiring production or discovery may traverse the claims to privilege by adducing evidence either that the claim to privilege is unfounded or mistaken, but in the absence of any evidence to that effect the claim to privilege shall be sustained.
(2)In determining any objection on the ground of privilege to the production or discovery of any document or class of document the Court may inspect the document."
Fundamentally, a claim on the ground of privilege is an objection to the discovery or the production of a document. Order 26 r 12 goes to the court's power to adjudicate that claim and, if necessary, receive evidence and inspect the documents for the purpose of adjudicating the claim of privilege. That, however, is not this case. The time has long since passed for the second plaintiff to object to the discovery and inspection of these documents, they having been voluntarily, though inadvertently, provided to the fourth defendant. It was for that reason that Yeats DCJ found the appeal against the decision of Deputy Registrar Harman to be misconceived, there being no power within O 26 to grant the declaration and injunction sought.
In the various authorities which have been provided to me in this area, it appears to have never been questioned that the Supreme Court has power to grant such declaratory and injunctive relief. It does not follow, however, that this Court has that same power. The Supreme Court is a superior court of general equitable jurisdiction having all the power and jurisdiction it had prior to the enactment of the Supreme Court Act 1880 and has all the inherent equitable powers which it had prior to the enactment of the Judicature Act subject to any later express enactment (see s 16, s 21, s 23 and s 24 Supreme Court Act 1935).
By way of example in Hamersley Iron Pty Ltd v Metal & Engineers Workers Union – Western Australia and Anors; unreported, SCt of WA, 21 September 1998, Library No 980546 Parker J ordered the defendant to return all copies of certain privileged documents in his possession or power, such documents having been inadvertently made available for inspection. Similarly, in Key International Drilling Company Limited and Ors v TNT Bulk Ships Operations Pty Ltd and Ors (1989) WAR 280 Kennedy J ordered the defendant to deliver up all copies in his possession of certain privileged documents and restrained him from making use of their content. Again, the basis of the court's power was not discussed in that case and nor does it appear to have been questioned.
The authorities make it clear that the basis of any court's power to protect confidential information from being used and to uphold a claim for privilege is in equity and it is therefore apparent that the Supreme Court has power to make the orders sought before me. I conclude, however, that I do not.
Given that conclusion and that the second plaintiff may chose to pursue a similar application in the Supreme Court, it would be inappropriate for me to make observations on the merits of the application aside from the question of jurisdiction.