Central Innovation Pty Ltd v Garner [2017] FCA 5

FEDERAL COURT OF AUSTRALIA

Central Innovation Pty Ltd v Garner [2017] FCA 5 File number: NSD 2221 of 2016

Judge: MARKOVIC J

Date of judgment: 3 January 2017

Date of publication of reasons: 12 January 2017

Catchwords: PRACTICE AND PROCEDURE – urgent application in relation to compliance with preservation orders – whether the court may order a party to request access to electronic devices in the possession of a third party

Legislation: Federal Court Rules 2011 (Cth) r 7.01

Cases cited: Saber Corporation Pty Ltd v Russ Kalvin's Haircare Company & Ors (1993) 46 FCR 428

Date of hearing: 3 January 2017

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Category: Catchwords

Number of paragraphs: 27

Counsel for the Prospective Applicant: Mr G Boyce

Solicitor for the Prospective Applicant: FD Commercial Lawyers

Counsel for the Prospective Respondent: Mr A Sandbach

Solicitor for the Prospective Respondent: AJH Lawyers

ORDERS NSD 2221 of 2016

BETWEEN: CENTRAL INNOVATION PTY LTD Prospective Applicant

AND: GARY GARNER Prospective Respondent

JUDGE: MARKOVIC J DATE OF ORDER: 3 JANUARY 2017

THE COURT ORDERS THAT:

1. Pursuant to Rule 39.05(h) of the Federal Court Rules 2011 (Cth) (the Rules) the Orders made by the Court on 23 December 2016 be varied by including the following by way of endorsement at the end of the Orders as set out in r 41.06 of the Rules: "The consequences of failing to comply with the above orders may be committal, sequestration or punishment for contempt if the prospective respondent neglects or refuses to do the act or thing within the specified time in the order or disobeys the order". 2. The prospective respondent be required by 5.00 pm on 5 January 2017 to request NC Cadcam Systems Pty Ltd (NC Cadcam) to provide him with any desktop computer, laptop computer or removable storage device used directly by him in connection with his employment with NC Cadcam (the Devices) for the purpose of taking an electronic image of the Devices which image or images will then be subject to the Orders made in this proceeding on 23 December 2016 and in particular Order 5 thereof. 3. Any application to vary or set aside the Orders made on 23 December 2016, as varied by Order 1 above, to be filed and served by the prospective respondent by 5.00 pm on 5 January 2017. 4. Any evidence in support of the application referred to in Order 3 above be filed and served by 2.00 pm on 6 January 2017. 5. Costs of today's application be reserved. 6. The parties have leave to appear by video conference facility at the hearing on 10 January 2017. THE COURT NOTES: 7. The undertaking of the prospective applicant not to access in any way any image obtained as a result of Order 2 above. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.