JUDGMENT No. KZ donul dabedate IN THE FEDERAL COURT OF AUSTRALIA ) NEW SOUTH WALES DISTRICT REGISTRY ) No. NG 696 of 1995 GENERAL DIVISION ) Between: GLOBAL CONSULTING GROUP P/L Applicant FEDERAL COURT OF AUSTRALIA And: JOHN KALABRIC 28 JAN 2003 Respondent LIBRARY ~ REASONS FOR JUDGMENT EINFELD J SYDNEY 8 SEPTEMBER 1995 I propose to make an order, though not at the moment, which will give the applicant either precisely what it seeks or the opportunity to have the things that it seeks whilst allowing the respondent also to have access to them. I have not decided which approach is appropriate because I do not understand, and there is no evidence, whether that is even possible, and I do not want to impose it as an order without hearing the parties. The matter will stand down until 2.30 p.m. at which time I will want to hear the parties on the undertakings each is prepared to give. They should be in writing. On a prima facie basis and at an interlocutory urgent stage, and on that basis alone, I make the finding that the applicant is entitled to the items which it seeks. I shall give some further reasons for this later on if necessary but it will suffice to say for the moment that I accept the -2- argument of the respondent that if he is also using these items of intellectual property for his own business, he should be given the opportunity to seek to secure continuing access to them so that the applicant does not have exclusive access. That is not something as yet that the respondent has applied for in any formal sense but it certainly is implied in the affidavit. In the shortness of time involved I would not hold the respondent at fault because the affidavit is fairly brief and there has been no opportunity to consider alternative approaches to the matter. At the same time, for the purposes of argument at least, I also accept the applicant's position that if the respondent continues to have access to these items of property, there should be a limit on the use that he can make of them pending the hearing, so that there should be undertakings, similar to those offered by the applicant, that whatever use is made of them is accountable and can be brought to account at the hearing. I also agree that this hearing should be brought on at the earliest possible time. The parties should therefore give consideration to a timetable for the preparation of the matter that will be discussed when the matter resumes this afternoon with a view to my fixing the matter for hearing at the earliest possible date. The only other observation I make for now is that, at the end of the day, this is a commercial matter and not a personal bun fight. It will cost the parties considerable moneys to conduct a full-fledged piece of litigation. They should give consideration to putting those moneys to the early -3- final resolution of this dispute. It is quite obvious to me that the Court could not make a final decision without expert evidence, and if the parties do not offer expert evidence, the Court will have to bring in its own experts because it is not something which a judge in the ordinary course of events would entirely understand. Because this will be expensive, I think that in the time between now and the resumption of the case, it is desirable that at least the lawyers should commence a discussion designed to direct the funds of the parties away from the legal process and towards a commercial settlement. The majority of cases that come before the Court are settled. That does not indicate that people make concessions or give up or are overborne by the other side, but because they make the commercial judgment that it is better to spend their moneys on themselves and their own futures, perhaps their family's futures, than it is to spend it on the families or futures of lawyers. I therefore recommend that before the matter gets too enmeshed in the hands of the legal process, the parties take a step back from the heat of the battle and see if it is not possible, with the assistance of the lawyers, to find a resolution of the matter. The matter will resume at 2.30 pm.