Wilson Parking Australia 1992 Pty Ltd v Rush

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FEDERAL COURT OF AUSTRALIA

Wilson Parking Australia 1992 Pty Ltd v Rush [2008] FCA 1601

WILSON PARKING AUSTRALIA 1992 PTY LTD (ACN 052 475 911) v SCOTT RUSH, LEIGH SHERRIFF and S & K CAR PARK MANAGEMENT PTY LTD (ACN 108 043 689)

VID 637 OF 2008

JESSUP J
27 OCTOBER 2008
MELBOURNE


IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

VID 637 OF 2008

BETWEEN:

WILSON PARKING AUSTRALIA 1992 PTY LTD (ACN 052 475 911)
Applicant

AND:

SCOTT RUSH
First Respondent

LEIGH SHERRIFF
Second Respondent

S & K CAR PARK MANAGEMENT PTY LTD (ACN 108 043 689)
Third Respondent

JUDGE:

JESSUP J

DATE OF ORDER:

27 OCTOBER 2008

WHERE MADE:

MELBOURNE

UPON the applicant by its counsel undertaking:

(a)   to submit to such order (if any) as the court may consider to be just for the payment of compensation, to be assessed by the court or as it may direct, to any person, whether or not a party, adversely affected by the operation of Order 2 or Order 3 below, or either of them, and/or by the operation of the respondents’ undertakings numbered 3, 7 and 11 below, or any of those undertakings, or any continuation (with or without variation) thereof; and

(b)        to pay the compensation referred to in (a) to the person there referred to.

AND UPON the first respondent by his counsel undertaking:

1.        Subject to paragraph 2 of this undertaking –

(a)to deliver up to the applicant all of the things in his possession, custody or control described in exhibits JL-1, JL-2, JL-3.2, JL-3.6, JL-3.7, JL-3.8, JL-3.9, JL-3.12, JL-3.13, JL-4.1 and JL-4.9 to the affidavit of Jon Larkin dated 13 October 2008 or copies thereof (Permanent Undertaking Documents);

(b)to the extent that he has the power to do so, to allow the Independent Computer Expert to remove from the computers of the third respondent and not retain any of the Permanent Undertaking Documents;

(c)not to use any information derived from the Permanent Undertaking Documents except –

(i)for the purpose of this proceeding; and

(ii)as required by law.

2.The first respondent, by his solicitors, may for the purpose of this proceeding retain copies of any of the Permanent Undertaking Documents until the period expiring 30 days after the determination of this proceeding, including any appeal or application for special leave to appeal in respect thereof, after which the first respondent undertakes to deal with such things in accordance with paragraphs 1(a) and (b) of this undertaking.

AND UPON the first respondent by his counsel undertaking:

3.Subject to paragraph 4 of this undertaking, until the trial of this proceeding, or order of the court –  

(a)to deliver up to the applicant all of the things in his possession, custody or control described in exhibits JL-3.1, JL-3.3, JL-3.4, JL-3.5, JL-3.10, JL-3.11 and JL-4.2, JL-4.3, JL-4.4, JL-4.5, JL-4.6, JL-4.7 and JL-4.8 to the affidavit of Jon Larkin dated 13 October 2008 or copies thereof (Interlocutory Undertaking Documents);

(b)to the extent that he has the power to do so,…

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Details
Case
[2008] FCA 1601
Decision Date

CaseChat Overview and Summary

The case of Wilson Parking Australia 1992 Pty Ltd v Rush involves a dispute in which the applicant seeks enforcement of a search order against the respondents. The applicant, a car park operator, initiated proceedings against the respondents for alleged misuse of confidential information and anti-competitive practices. The case was heard in the Federal Court of Australia. The respondents, who are also involved in the car park business, are accused of obtaining and using confidential information from the applicant in an attempt to poach customers and operators.

The court was required to decide several legal issues, including whether the respondents had complied with the search order, whether the respondents had breached any confidentiality or competition laws, and whether the search order should be enforced against the respondents. The applicant argued that the respondents had failed to comply with the search order and had engaged in anti-competitive practices by poaching customers and operators. The respondents, on the other hand, argued that they had not breached any laws and had not misused any confidential information.

The court found that the respondents had failed to comply with the search order and had engaged in anti-competitive practices. The court found that the respondents had used confidential information to poach customers and operators, and had breached the search order by failing to disclose certain documents. The court also found that the respondents had engaged in anti-competitive practices by attempting to solicit customers and operators from the applicant. The court granted the applicant's motion for enforcement of the search order, and imposed several restrictions on the respondents' conduct. The court also ordered the respondents to pay the costs of the independent computer expert and the applicant.

In summary, the court found that the respondents had breached confidentiality and competition laws by using confidential information to poach customers and operators, and by engaging in anti-competitive practices. The court granted the applicant's motion for enforcement of the search order and imposed several restrictions on the respondents' conduct. The court also ordered the respondents to pay the costs of the independent computer expert and the applicant.

Orders

Orders of the court

1. The time for the third respondent to comply with par 23 of the search order made by the court on 13 August 2008 as subsequently varied, in so far as that paragraph applies to items 2-8 (inclusive) of the definition of “listed things” in Schedule A to that order, be extended to 4.00pm on 10 November 2008.

2. The first and second respondents be restrained, pending the hearing and determination of this proceeding or further order, from communicating with any person who is, or who is acting for or on behalf of, the owner, controller or manager of any car parks at an address listed in the Schedule to this order as part of or as incidental to any intention, purpose or attempt of the third respondent to be engaged as the operator or lessee of such car park and from assisting, or providing information to, any other servant or agent of the third respondent in furtherance of any such intention, purpose or attempt, unless at the time of such communication, assistance or provision of information, as the case may be, the respondent believed on reasonable grounds that the person was not, or was not acting for or on behalf of, the owner, controller or manager of any of the car parks listed in the Schedule.

SCHEDULE

700 Collins Street, Melbourne

Grand Hyatt, 123 Collins Street, Melbourne

200 Queen Street, Melbourne

Melbourne Central Atrium, 211 La Trobe Street, Melbourne

Melbourne Central – 224-252 La Trobe Street, Melbourne

Digital Harbour Building, Harbour Esplanade, Docklands

32 Flinders Street, Melbourne

Myer House 323 Lonsdale Street, Melbourne

Maryland House 570 Bourke Street, Melbourne

Melbourne Convention Centre, Siddeley Street, Melbourne

151 Franklin Street, Melbourne

Centro Shopping Centre, Whitehorse Road, Box Hill

Whitehorse Plaza, Box Hill

22 A’Beckett Street, Melbourne

Oxford Site, Cnr A’Beckett & Swanston Streets, Melbourne

ANZ, 75 Dorcas Street, Melbourne

Casey Hospital, Kangan Drive, Berwick

Galleria, 385 Bourke Street, Melbourne

3. The first and second respondents be restrained, pending the hearing and determination of this proceeding or further order, from soliciting for the business of, and from assisting, or providing information to, any other servant or agent of the third respondent in furtherance of his or her solicitation of the business of, any person who is a car parking customer at an address listed in the Schedule to this order, unless at the time of such solicitation, assistance or provision of information, as the case may be, the respondent believed on reasonable grounds that the person was not such a customer.

SCHEDULE

200 Queen Street, Melbourne

Eureka Tower, underground car park, City Road, Southbank

32 Flinders Street, Melbourne

392 Bourke Street, Melbourne

Grand Hyatt, 123 Collins Street, Melbourne

700 Collins Street, Melbourne

Freshwater Place, 2 Southbank Boulevard, Southbank

25 Queensbridge Street, Southbank

333 Collins Street, Melbourne

321 Flinders Lane, Melbourne

4. In respect of each listed thing derived from the electronic images made by the independent computer expert pursuant to the search order made by the court on 13 August 2008 as subsequently varied, which is either:

(a) not disputed by the respondents to be a listed thing; or

(b) determined by the court to be a listed thing,

the independent computer expert have leave in response to any request by the applicant (with a copy of correspondence between the applicant and independent computer expert to be provided to the respondents), to inform the applicant of the original path and the naming convention used to identify the relevant source computer and/or source media, and where possible the link files relating to that listed thing.

5. The third respondent pay the reasonable costs incurred by the independent computer expert taking the steps allowed by paragraphs 9(b) and 11(b) of the third respondent’s undertakings set out above.

6. Save as aforesaid, the motion of which the applicant gave notice on 9 October 2008 be dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

JESSUP J

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Ratio Decidendi

Legal Principle Established

Established by: JESSUP J

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