Case: Metso Minerals v Kalra [2007] FCA 2093
Outcome: cited
The search orders as made ex parte on 11 December 2007 ( Metso Minerals v Kalra [2007] FCA 2093) were executed on 12, 13 and 14 December 2007. 4 The persons against whom those orders were executed were the then Respondents, namely the First to Fourth Respondents. The " documents and materials " which were authorised to be seized were identified as being: 1. works recording, containing or including 'Plans for the building of grinding mills' and any other plans or other documentation which relates to the crushing, grinding or screening of materials which can be reasonably ascertained to have been created by or for Metso Minerals (Australia) Limited ACN 000 197 428 and/or Metso Minerals Industries, Inc including the documents listed in the table at paragraph 3 below; 2. works recording, containing or including 'Calculations for the building of grinding mills' and any other any other plans or other documentation which relates to the calculations for the crushing, grinding or screening of materials which can be reasonably ascertained to have been created by or for Metso Minerals (Australia) Limited and/or Metso Minerals Industries, Inc including the documents listed in the table at paragraph 3 below; [The "table" referred to identified documents being mainly drawings]. 4. E-Mails and correspondence between any one or more of the respondents and any other person, corporation or entity attaching copies of the works in paragraphs 1 2 above or otherwise referring to them. 5. Copies or parts of the Documents and Materials listed above. 19 The Amended Statement of Claim as now filed is a lengthy document which essentially pleads four causes of action, being: (a) breach of an equitable duty of confidence; (b) breach by the First, Second, Third and Fourth Respondents of employment consultancy agreements and confidentiality agreements; (c) breach of fiduciary duty by the First Respondent; and (d) infringement of copyright by all Respondents. As recounted in the reasons for decision when first making the order under O 25B ( Metso Minerals v Kalra [2007] FCA 2093) , the First and Second Respondents were former employees of the First Applicant, Metso Minerals (Australia) Ltd. The Third Respondent was a contractor to the First Applicant and employed the Fourth Respondent. When making the order, the case being advanced against the Respondents was that there had been a breach of the duties and the agreements now pleaded. The Respondents were said to now be employed with the " Citic Group of companies ", a competitor of the Applicants. The Fifth Respondent is said to be a company under the control of the First Respondent, Mr Kalra. 20 The search order as first made and as subsequently varied, the Respondents maintain, was relevantly made in advance of the detailed Amended Statement of Claim being filed and the Defences being filed. Those pleadings, they contend, define the ambit of the dispute between the parties and the ambit of evidence relevant or potentially relevant to the resolution of that dispute. 21 The Applicants want to continue to access the materials seized as an aid to the discovery process and in order to be able to further particularise their claims. Although not expressed in these terms, the application is presumably an application for leave to inspect (or to continue to inspect) the documents as envisaged by Practice Note 24 . Leave to continue to inspect the seized documents for the purposes identified is said by the Applicants to be desirable " in the interests of the administration of justice " and as a means to promote good " case management ".