Barrett Property Group Pty Ltd v Carlisle Homes Pty Ltd (No 2) [2008] FCA 930

FEDERAL COURT OF AUSTRALIA

Barrett Property Group Pty Ltd v Carlisle Homes Pty Ltd (No 2) [2008] FCA 930

PRACTICE AND PROCEDURE – disclosure of confidential information to trade rival

Mobil Oil Australia Limited v Guina Developments Pty Limited [1996] 2 VR 34 cited BARRETT PROPERTY GROUP PTY LTD and SRS PROPERTY HOLDINGS PTY LTD v CARLISLE HOMES PTY LTD

VID 1245 of 2005

HEEREY J

17 JUNE 2008

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY VID 1245 of 2005

BETWEEN: BARRETT PROPERTY GROUP PTY LTD

First Applicant

SRS PROPERTY HOLDINGS PTY LTD

Second Applicant

AND: CARLISLE HOMES PTY LTD

Respondent

JUDGE: HEEREY J

DATE OF ORDER: 17 JUNE 2008

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT:

1. The respondent permit the applicants' solicitors to provide a copy of the confidential exhibit DJT-2 to the affidavit of David James Taylor sworn 13 May 2008 to Mr Darren Goodwin upon receipt of the respondent's solicitors of a signed confidentiality undertaking in the form annexed to these orders and marked "A". 2. The time for the election set out in order 5 of the orders dated 28 April 2008 be extended until 1 July 2008. 3. The proceeding be listed for directions on 15 July 2008. 4. Costs reserved. 5. Liberty to apply.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Annexure "A" IN THE FEDERAL COURT OF AUSTRALIA ) VICTORIA DISTRICT REGISTRY ) No. VID 1245 of 2005 BETWEEN: BARRETT PROPERTY GROUP PTY LTD ACN 088 015 267 First Applicant and SRS PROPERTY HOLDINGS PTY LTD ACN 096 513 218 Second Applicant and CARLISLE HOMES PTY LTD ACN 106 263 209 Respondent CONFIDENTIALITY UNDERTAKING The Confidential Exhibit DJT‑2 (Confidential Exhibit), exhibited to the affidavit of David James Taylor sworn 13 May 2008, filed and served on Middletons on 13 May 2008, contains confidential information (Information) which is secret, confidential and valuable to the Respondent. The Respondent is prepared to make the Confidential Exhibit and Information available to you for the limited purposes of the proceeding VID 1245 of 2005 (Proceeding) identified in paragraph 1 below if you agree to execute the following Confidentiality Undertaking: I, Darren Goodwin, of 163 Princes Highway, Hallam in the State of Victoria, undertake to Carlisle Homes Pty Ltd (Respondent) in relation to the Confidential Exhibit and the Information contained in the Confidential Exhibit, that: 1. I will not use the Confidential Exhibit or the Information contained within the Confidential Exhibit, or any part of them, except for the sole purpose of deciding whether to elect between the taking of an account of profits or an inquiry into damages, as required by the orders of Justice Heerey in the Proceeding, made on 28 April 2008 (Election). 2. I will not discuss or disclose the Confidential Exhibit or the Information contained in the Confidential Exhibit with, or to any person other than my legal advisors namely solicitors at Middletons and Colin Golvan SC and Dr Sam Ricketson unless: (a) such disclosure is expressly authorised by a Court; or (b) the Confidential Exhibit or the Information contained in the Confidential Exhibit has already been disclosed otherwise than in contravention of this or similar undertaking; or (c) the Respondents have expressly agreed in writing that another identified party or parties may have access to the Confidential Exhibit or the Information and that party or parties has executed a confidentiality undertaking to the effect of this undertaking. 3. I will not copy or reproduce the Confidential Exhibit or the Information contained in the Confidential Exhibit for any reason, either for myself or any other person, without the consent in writing of the solicitors for the Respondent. 4. Once the Election has been made, I will immediately: (a) stop using the Confidential Exhibit and the Information contained in the Confidential Exhibit; (b) deliver the Confidential Exhibit and any copies of the Confidential Exhibit to the solicitors for the Respondent; and (c) destroy any documents made by me or given to me recording, incorporating or otherwise referring to the Information contained in the Confidential Exhibit. 5. In this Confidentiality Undertaking, "document" takes the meaning it is given in the Evidence Act 1995 (Cth). Date: 2008 SIGNED by DARREN GOODWIN in the presence of: ) .......................................................... .......................................................... ) Signature of Darren Goodwin Signature of witness ) .......................................................... ) Name of witness (block letters) ) ) ) ) ) )