Riverstone Computer Services Pty Limited (ACN 002 311 462) v IBM Global Financing Australia Limited (ACN 002 955 571) [2002] FCA 1608

FEDERAL COURT OF AUSTRALIA

Riverstone Computer Services Pty Limited (ACN 002 311 462) v IBM Global Financing Australia Limited (ACN 002 955 571) [2002] FCA 1608 RIVERSTONE COMPUTER SERVICES PTY LIMITED (ACN 002 311 462) v IBM GLOBAL FINANCING AUSTRALIA LIMITED (ACN 002 955 571) N1247 OF 2002 HILL J 20 DECEMBER 2002 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1247 OF 2002

BETWEEN: RIVERSTONE COMPUTER SERVICES PTY LTD (ACN 002 311 462)

APPLICANT

AND: IBM GLOBAL FINANCING AUSTRALIA LIMITED (ACN 002 955 571)

RESPONDENT

JUDGE: HILL J

DATE OF ORDER: 19 DECEMBER 2002

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. by 29 January 2002, the respondent make discovery to the applicant of all documents, in whatever form, in the power, possession or custody of the respondent which relate to all dealings between the applicant and the respondent, or any company which is a 'Related Body Corporate' of the respondent within the meaning of the Corporations Act 2001 ('Potential Respondents'), for the period 1 January 1997 to date, including but not limited to: (a) all documents relating to or concerning: (i) Agreement number RMKTGS01 and Agreement number RMKTGP01 and their related schedules; (ii) the sale from the respondent to the applicant of an IBM 9672-R35 Mainframe computer (serial number 0046889) in January 1999; and (iii) the sale from the respondent to the applicant of an IBM 9672-R12 Mainframe computer and an IBM 9672-R22 Mainframe computer (serial numbers 0066540 and 0241869) in November 2000. (b) All documents relating to or concerning any policy, directive or requirement to restrict the sale or supply of second-hand IBM Mainframe computers to particular parties and areas. (c) All documents relating to or concerning any policy, directive or requirement by the respondent or any Potential Respondent to destroy second-hand Mainframe computers. (d) All documents relating to or concerning the policy of 'Destruction Under Supervision' and the destruction in November 1998 of two Hitachi Mainframe computers previously used by the Australia and New Zealand Banking Group Limited. (e) All documents relating to or concerning any investigation undertaken or instigated by the respondent or any Potential Respondents into the transaction between them, or between the applicant and AutoTech International LLC, involving an IBM 9672-R35 CMOS processor (serial number 0046889). (f) All documents exchanged between Mr Mark Deviney of IBM (USA) and Mr Gerry Cassidy (formerly, the Remarketing Representative of the respondent) regarding the restriction of sale or supply or the destruction of second-hand Mainframe computers. (g) All documents relating to or concerning the employment and the cessation of employment of Mr Gerry Cassidy and Mr Nick Nuske (formerly, the General Manager of the respondent) with the respondent or Potential Respondents and which refer to the applicant, its officers or employees or the policies referred to in paragraphs (b), (c) or (d), including without limitation, the contracts of employment and terms of cessation of employment and any confidentiality agreement executed by them. (h) A list of all System 390 processors currently located in Australia. (i) Documents containing the terms of any lease by IBM of any System 390 processors currently located in Australia. (j) All documents recording any agreement or arrangement between the respondent and Independent Systems Integration Pty Ltd relating to or concerning the sale of second-hand IBM Mainframe computers. (k) All documents relating to or concerning the sale from the respondent to Independent Systems Integration Pty Ltd of an IBM 9672-R36 Mainframe computer (serial number 0249714) in or about January 2002. 2. the respondent pay the applicant's costs. THE COURT NOTES THAT: In the above orders a reference to: (a) 'document' or 'documents' means any record of information and includes: (i) anything on which there is writing; and (ii) anything from which sounds, images or writings can be reproduced with or without the aid of anything else. (b) 'Mainframe computer' or 'Mainframe computers' means a mainframe computer that runs the Multiple Virtual System (MVS) operating system and the related equipment and peripherals attached. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.