Bluescope Steel Limited (ACN 000 011 058) v Kelly No 3 [2007] FCA 1467

FEDERAL COURT OF AUSTRALIA

Bluescope Steel Limited (ACN 000 011 058) v Kelly No 3 [2007] FCA 1467

BLUESCOPE STEEL LIMITED (ACN 000 011 058) (FORMERLY BHP STEEL (JLA) PTY LIMITED AND BHP STEEL LIMITED) AND CASTRIP LLC v BRIAN FRANCIS KELLY AND K.CON PTY LIMITED (ACN 092 106 940) NSD82 OF 2002

EMMETT J

20 JULY 2007

SYDNEY IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY NSD82 OF 2002

BETWEEN: BLUESCOPE STEEL LIMITED (ACN 000 011 058) (FORMERLY BHP STEEL (JLA) PTY LIMITED AND BHP STEEL LIMITED)

First Applicant

CASTRIP LLC

Second Applicant

AND: BRIAN FRANCIS KELLY

First Respondent

K.CON PTY LIMITED (ACN 092 106 940)

Second Respondent

JUDGE: EMMETT J DATE OF ORDER: 20 JULY 2007

WHERE MADE: SYDNEY

THE COURT ORDERS THAT:

1. Each of the First and Second Respondents, whether by himself or itself, his or its servants, employees, agents or otherwise, be restrained from disclosing to any person, or otherwise using, any technical, engineering, operational, commercial or other information relating to Project M communicated to, or received directly or indirectly by, the First Respondent from: (a) the First Applicant; (b) Ishikawajima-Harima Heavy Industries Co Ltd; or (c) the Second Applicant, unless:

(a) at the time of disclosure to the First Respondent, that information was in the public domain, as evidenced by printed publication or otherwise;

(b) after the time of disclosure to the First Respondent, that information has become or becomes part of the public domain by printed publication or otherwise, through no fault of the First or Second Respondent. 2. Each of the First and Second Respondents, whether by himself or itself, his or its servants, employees, agents or otherwise, be restrained from infringing the Applicants' copyright in: (a) the document entitled "The Strip Casting Commercialisation Challenge Process Technology Review December 1996 Status" authored by Dr Joe Herbertson and Dr Yvonne Durandet in or about February 1997; (b) the document entitled "Helical" Study and Solution" authored by Nik Nikolovoski on or about 17 May 1996; and (c) the document entitled "The Strip Casting Commercialisation Challenge Process Technology Review December 1996 Status" authored by Dr Joe Herbertson and Dr Yvonne Durandet in or about February 1997, copies of which appear in Confidential Exhibit 13 tendered in this proceeding. 3. There be judgment for the Applicants against the First and Second Respondent, other than interest under section 51A of the Federal Court of Australia Act 1976, in the sum of $445,805by way of an account of the profits which they obtained through their unlawful conduct as described in the reasons for judgment of His Honour Justice Emmett dated 12 April 2007. 4. The Respondents pay the Applicants interest on the sum of $445,805 in the sum of $176,892. 5. The First and Second Respondents' cross-claim be dismissed. 6. The First and Second Respondents pay the Applicants' costs of the proceeding, including the cross-claim, incurred after 26 September 2002, being the date on which the Second Applicant was joined as a party to the proceeding, except to the extent that such costs have been covered by orders previously made in the proceeding. 7. Paragraph 11 of the Orders made by His Honour Justice Emmett on 12 November 2003 be varied so as to release each of the Applicants' Legal Representatives who have given an undertaking in connection with these proceedings in terms of Schedule 1 to those Orders from the obligations contained in paragraphs 5 and 6 of that undertaking in relation to Documents and copies of Documents which were exhibited to an affidavit filed in the proceedings or otherwise admitted into evidence in the proceedings.