Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567

Supreme Court New South Wales

Medium Neutral Citation: Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567 Hearing dates: 6 September 2018 Date of orders: 19 October 2018 Decision date: 19 October 2018 Jurisdiction: Equity Before: Ward CJ in Eq Decision: 1. Save as to the relief sought at 2B and 2C of the plaintiffs' amended notice of motion filed 4 July 2018, dismiss that amended notice of motion. 2. Direct the plaintiffs to notify the fourth defendant within 14 days whether they wish to pursue the application for the relief sought at 2B and/or 2C of their amended notice of motion filed 4 July 2018. 3. Direct that all electronic and hard copies of the following documents held by the plaintiffs, any of their legal advisers, the independent solicitor and/or the independent computer expert obtained pursuant to the search order made on 16 September 2016 by Rein J be returned to the fourth defendant within 7 days in accordance with a mechanism to be agreed between the parties (or, failing agreement, to be determined by the Court following brief submissions by the parties in relation thereto): (i) all documents which the plaintiffs admitted in the course of the hearing of the respective notices of motion were of no relevance; (ii) all documents identified by the fourth defendant in the annexures to his affidavit of 31 October 2016 as being documents not "sent or forwarded or otherwise provided" by him to any other person and therefore not authorised by the said search order. 4. Stand over for final orders, pending the election by the plaintiffs as to whether they wish to press for the relief sought at 2B and/or 2C of their amended notice of motion filed 4 July 2018, the fourth defendant's amended notice of motion filed 19 February 2018. 5. Reserve the question of costs of the respective notices of motion. 6. Stand the matter over for directions at 9.30am on 12 November 2018 before Ward CJ in Eq. Catchwords: CIVIL PROCEDURE – interim preservation – search orders – circumstances in which leave may be given to inspect documents seized pursuant to search orders – whether to grant access to plaintiffs to documents obtained on execution of search orders – whether Court's discretion to grant access to such documents governed by nature and purpose of search orders – whether permitting access to documents would subvert the purpose of a search order to that of an investigatory tool Legislation Cited: Civil Procedure Act 2005 (NSW), ss 57, 61 Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law, s 18 Corporations Act 2001 (Cth), ss 182, 183 Fair Work Act 2009 (Cth), s 345 Federal Court Rules 1979 (Cth) Federal Court Rules 2011 (Cth), rr 7.42, 7.43 Limitation Act 1969 (NSW), s 56A Supreme Court Act 1970 (NSW), s 23 Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 25.19, 25.20, 36.16 Cases Cited: Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55; [1976] 1 All ER 779 Aristocrat Technologies Australia Pty Ltd v Global Gaming Pty Limited [2006] FCA 862 Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2006] FCA 1707 Brags Electrics Pty Ltd v Gregory [2010] NSWSC 1205 Brilliant Digital Entertainment Pty Ltd v Universal Music Australia Pty Ltd [2004] FCAFC 270; (2004) 63 IPR 373 Bugaj v Bates [2004] FCA 1260 Dormeuil Freres SA v Nicolian International (Textiles) Ltd [1988] 3 All ER 197 Findex Group Ltd v iiNet Ltd (Application by ASIC) (No 2) [2017] NSWSC 1048 Findex Group Ltd v iiNet Ltd (Application by ASIC) [2017] NSWSC 853 Fletcher v Nextra Australia Ltd (2015) 229 FCR 153; [2015] FCAFC 52 Group 4 Securitas (Northern Ireland) Ltd v Mclldowney [1997] 1 NIJB 23 Hytrac Conveyors Ltd v Conveyors International Ltd [1982] 3 All ER 415 Jackson v Sterling Industries Ltd (1987) 162 CLR 612; [1987] HCA 23 Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201 Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754; (1999) 46 IPR 159 Re Lamond (No 4) [2017] FCA 820 Tassinari v Pesalaccio [2018] FamCA 12 Thermax Ltd v Schott Industrial Glass Ltd [1981] FSR 289 Universal Music Australia Pty Ltd v Sharman License Holdings Ltd [2004] FCA 183; (2004) 205 ALR 319 Universal Thermosensors Ltd v Hibben [1992] 3 All ER 257; [1992] 1 WLR 840 WEA Records Ltd v Visions Channel 4 Ltd [1983] 2 All ER 589 Texts Cited: Biscoe, Freezing and Search Orders: Mareva and Anton Piller Orders (LexisNexis, 2nd edn, 2008) George, Defamation Law in Australia (LexisNexis, 3rd edn, 2017) Category: Procedural and other rulings Parties: Findex Group Ltd (First Plaintiff) Spiro Paule (Second Plaintiff) Danielle Ludbey (Third Plaintiff) Phillip Hart (Fourth Plaintiff) iiNet Ltd (First Defendant) iiNet (Ozemail) Pty Ltd (Second Defendant) LinkedIn Australia Pty Ltd (Third Defendant) David Keith McKay (Fourth Defendant) Representation: Counsel: I M Neil SC with M A Friedgut (Plaintiffs) A J Sullivan QC with M A Karam (Fourth Defendant)