Wellness Pty Ltd v Hamilton-Bond - [2002] NSWSC 1259

CITATION: Wellness Pty Ltd v Hamilton-Bond & Ors [2002] NSWSC 1259

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 4569/02

HEARING DATE(S): 18 December 2002

JUDGMENT DATE: 18 December 2002

PARTIES :

Wellness Pty Limited (Plaintiff)
Ian Hamilton-Bond (First Defendant)
Cassandra Bond (Second Defendant)
Ion Life Pty Limited (Third Defendant)

JUDGMENT OF: Campbell J

COUNSEL : D Perrignon (Plaintiff)
In Person (First Defendant - and on behalf of Second and Third Defendants)

SOLICITORS: Makinson & d'Apice (Plaintiff)
Hertzberg Heydon (Defendants)

CATCHWORDS: PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - application for variation of implied undertaking concerning use to which subpoenaed documents can be put - use for defending applicant against charge brought against it by ACCC - use for making complaint to ACCC - use for publication to the public generally

LEGISLATION CITED: Trade Practices Act 1974 (Cth)

CASES CITED: Ampolex Limited v Perpetual Trustee Company (Canberra) Limited (1985) 18 ACSR 218
Capital Television Group Limited v Northern Rivers Television Pty Limited (Bainton J, 4 September 1995, unreported)
Crest Homes PLC v Marks [1987] 1 AC 829
Holpitt v Varimu Pty Limited [1991] 103 ALR 685
Sweetman v Australian Thoroughbred Pre-finance Pty Limited (Lockhart J, unreported, 23 July 1992)
Woolworths Limited v Lawson [2002] NSWSC 985

DECISION: Use for defence against allegation made by ACCC permitted; use for making of complaint to ACCC, and publication to public at large, refused

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

WEDNESDAY 18 DECEMBER 2002

4569/02 WELLNESS PTY LIMITED v IAN HAMILTON-BOND & 2 ORS

JUDGMENT

1 HIS HONOUR: The plaintiff in this matter manufactures water filters. The defendants are also involved in the production of water filters, but of a different type. There were proceedings in this Court which resulted in a settlement whereby the defendants were restrained from publishing an advertisement that was similar to an advertisement which had appeared in the Byron Bay Echo on 20 August 2002, publishing material in similar terms to an information sheet that the defendants had published, using a trademark “Living Water” or any similar mark, and publishing a particular comparative table which was then on the website of the defendants, or any similar table making similar claims about the properties of the Wellness filters.

2 The information sheet that was the subject of the injunction set out, broadly, claims about the efficacy of the Wellness filter in removing certain substances from water.

3 In the course of those proceedings Wellness issued a subpoena to Richmond Water Laboratories. Pursuant to that subpoena there were two particular documents produced, which were analyses of the contents of filtered water which Richmond Water Laboratories had produced. That water had been filtered using a Wellness filter.

4 The application before the Court today is for an order granting leave to the plaintiff to make use of those documents produced on subpoena by Richmond Water Laboratories for three purposes. The first purpose is for submission to the Australian Competition and Consumer Commission for use in connection with an…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWSC 1259
Decision Date: 18 December 2002

CaseChat Overview and Summary

Wellness Pty Ltd brought an application against Hamilton-Bond seeking variation of an undertaking that had been implied by the Federal Court in relation to documents subpoenaed from Hamilton-Bond. Wellness sought to use the documents to defend a charge brought against it by the Australian Competition and Consumer Commission, to make a complaint to the ACCC and to publish the documents to the public. The legal issues before the court were whether the proposed uses of the documents were within the scope of the implied undertaking and whether the court should vary the undertaking to allow for these uses.
The court held that the use of the documents to defend the charge brought by the ACCC and to make a complaint to the ACCC were within the scope of the implied undertaking. However, the court held that publication of the documents to the public was not within the scope of the implied undertaking. The court found that the implied undertaking did not cover any use of the documents that would be in breach of the confidentiality obligations that existed between the parties. The court also found that the proposed publication of the documents would be in breach of those confidentiality obligations. Accordingly, the court refused to vary the implied undertaking to allow for publication of the documents to the public.

Orders