Kerry Equipment (Aust) Pty Ltd v Gill [2004] FCA 1323

FEDERAL COURT OF AUSTRALIA

Kerry Equipment (Aust) Pty Ltd v Gill [2004] FCA 1323 KERRY EQUIPMENT (AUST) PTY LTD and K.D.B. ENGINEERING PTY LTD v GREGORY DAVID GILL and ABLE INNOVATORS PTY LTD W229 of 2004 RD NICHOLSON J 5 OCTOBER 2004 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY W229 OF 2004

BETWEEN: KERRY EQUIPMENT (AUST) PTY LTD

ACN 082 784 147

FIRST APPLICANT

K.D.B. ENGINEERING PTY LTD

ACN 008 884 482

SECOND APPLICANT

AND: GREGORY DAVID GILL

FIRST RESPONDENT

ABLE INNOVATORS PTY LTD

ACN 108 981 933

SECOND RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 5 OCTOBER 2004

WHERE MADE: PERTH

THE COURT ORDERS THAT: UPON application made this day by motion filed 5 October 2004 by the applicants AND UPON hearing Patricia Cahill of Counsel for the Applicants AND UPON reading the said motion and affidavits of: 1. Affidavit of Don Turner sworn 1 October 2004. 2. Affidavit of Fiona Chubb sworn 1 October 2004 3. Affidavit of Mitchell Bezzina sworn 1 October 2004. 4. Affidavit of Paul Sheiner sworn 1 October 2004. 5. Affidavit of Jennifer Ivimey sworn 30 September 2004. 6. Affidavit of Alan Plant sworn 29 September 2004. 7. Affidavit of Paul Sheiner sworn 5 October 2004. in support thereof AND UPON the undertakings dated 1 October 2004of the applicants filed in these proceedings AND UPON the undertaking dated 1 October 2004 of Stephen Lemonis, a certificated legal practitioner ("the Supervising Solicitor") filed in these proceedings IT IS ORDERED THAT: 1. The second respondent is restrained from carrying on business in the manufacture and distribution of hospital and nursing home equipment including manufacture, sale or distribution of the products listed in its price list dated July 2004 until 4 pm on 12 October 2004. 2. The respondents permit the Supervising Solicitor and such persons, not exceeding three members, employees or agents of the applicants' solicitors, Christensen Vaughan, a computer expert and Paul Rowe, to enter at any time between 9 am and 5 pm on 6 and/or 7 October 2004: (a) the business premises of the second respondent at39 Juna Drive, Malaga in the State of Western Australia; (b) the residence of the first respondent at 18 Inthanoona Road, Gidgegannup, 6083; (c) suchpremises as may be disclosed to the Supervising Solicitor pursuant to paragraph 4 of this order; (d) together with any outhouses forming part of the premises referred to in paragraphs (a)-(c) above, and any motor vehicles owned or used by the respondents, for the purposes of looking for, inspecting, photographing, photocopying, copying or downloading onto disks or other electronic data storage devices and removing into the custody of the Supervising Solicitor and making notes of, documents, electronic data or articles being: (1) design drawings and component design drawings for Kerry Equipment and K*Care products; (2) turret punch computer programs for Kerry Equipment and K*Care products; (3) Kerry Equipment pricelist; (4) bills of material for Kerry Equipment and K*Care products; (5) standard production cards for Kerry Equipment and K*Care products; (6) any documents or articles relating to or which wholly or partly reproduce or were derived from the information referred to in (1) and (2) above; 3. For the purpose of giving effect to paragraph 2 of this order the respondents where necessary will cause to be displayed or printed out by computer or computers all documents and materials referred to in paragraph 2 or any portion or part of such materials as are in computer readable form. 4. The respondents, having made all due and proper inquiries, within 24 hours of service upon them of this order: (a) disclose to the Supervising Solicitor the whereabouts of any documents, electronic data or other material falling within the categories of documents or other data or material referred to in paragraphs 2(1)-(6) herein whether on the premises mentioned in paragraphs 2(a) and (b) herein or on other premises insofar as such documents, data or material have not already been taken into the custody of the Supervising Solicitor; (b) deliver up to the Supervising Solicitor all documents, electronic data or other material in their possession, custody or control falling within the categories of documents or other data or material referred to in paragraphs 2(1)-(6) herein insofar as such documents, data or material have not already been taken into the custody of the Supervising Solicitor; 5. The respondents within 48 hours of service upon them of this order make and provide to the Supervising Solicitor a sworn affidavit deposing to: (a) the whereabouts of any documents, electronic data or other material falling within the categories of documents or other data or material referred to in paragraphs 2(1)-(6) herein whether on the premises mentioned in paragraphs 2(a) and (b) herein or on other premises; (b) all documents, electronic data or other material in their possession, custody or control falling within the categories of documents or other data or material referred to in paragraphs 2(1)-(6) herein insofar as such documents, data or material have not already been taken into the custody of the Supervising Solicitor; 6. Until 8 October 2004 the respondents and their servants and agents be restrained from directly or indirectly informing any person company, or firm of these orders of this proceeding save for the purpose of obtaining legal advice. 7. Annexures 'DGT7' and 'DGT28' to the affidavit of Don Turner be placed in a sealed enveloped with the following description on its face 'This document is commercially sensitive. Access to this document is restricted by the judicial officers of the Court until further notice'. 8. The applicants and/or the Supervising Solicitor are not required to serve annexures 'DT7' or 'DGT28' on the respondents. 9. The respondents are at liberty to apply to discharge or vary this order upon giving to the solicitors for the applicants 24 hours' notice. 10. This motion be adjourned to 12 October 2004 for hearing inter partes. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.