IAN DAVID MORWOOD, COMPUTERAD AUSTRALIA PTY LIMITED (FORMERLY COMPUTERAD PTY LIMITED) v CHEMDATA PTY LIMITED, AMFAC PTY LIMITED, IMS AUSTRALIA PTY LIMITED, EDWARD LLEWELLYN CROOK, COLIN RAYMOND TRAVENA, JOHN MICHAEL GREEN, PHILIP THOMSON, BRUCE MICHAEL McCONOCHIE, JAMES SUTTON HARRISON SNR, GWENDA MARY HARRISON, GRAEME PAUL HARRISON, ROBERT STANLEY RICHARDS, THE DUN AND BRADSTREET CORPORATION

REASONS FOR JUDGMENT Ian David Morwood ("Morwood") and ComputerAd Australia Pty Limited ("ComputerAd") sue Chemdata Pty Limited ("Chemdata") for alleged contraventions of ss 45, 46, 52 and 53 of the Trade Practices Act 1974 ("the Act"). Morwood and ComputerAd also sue Amfac Pty Limited ("Amfac"), IMS Australia Pty Limited ("IMS"), The Dun and Bradstreet Corporation ("Dun and Bradstreet"), four directors of Chemdata, four directors of Amfac and an employee of Chemdata as persons directly or indirectly knowingly concerned in the alleged contraventions of the Act by Chemdata within the meaning of s 75B of the Act. The directors of Chemdata who are sued are the fourth, fifth, sixth and seventh respondents: Edward Llewellyn Crook, Colin Raymond Trevena, John Michael Green and Philip Thomson. The directors of Amfac who are sued are the eighth, ninth, tenth and eleventh respondents: Bruce Michael McConochie, James Sutton Harrison Snr, Gwenda Mary Harrison and Graeme Paul Harrison. The twelfth respondent, Robert Stanley Richards, is sued either as an employee of Chemdata or, as the second further amended statement of claim alleges in para. 45(viii), as a person 'actively involved' with Chemdata and Amfac. The twelfth respondent is alleged to have been directly or indirectly knowingly concerned in the contraventions by Chemdata of Part IV of the Act. I shall sometimes refer to Chemdata and Amfac together as "Amfac Chemdata". Amfac is being sued, not only as being directly or indirectly knowingly concerned in the contraventions of Chemdata under s 75B of the Act, but also as having engaged in conduct, together with Chemdata, contrary to ss 46 and 45 of the Act; but the precise allegations and the precise basis on which Amfac is being sued apart from s 75B is not clear from the second further amended statement of claim dated 6 October 1995. That document was further amended pursuant to leave granted by the Court during the course of the hearing on 7 July 1997 and on 20 October 1997. I shall refer to the second further amended statement of claim together with the amendments made during the course of the hearing simply as the statement of claim. Mr Morwood is a shareholder and director of ComputerAd. Chemdata, Amfac and IMS are all companies formed within Australia. Since February 1994 Chemdata and Amfac have been wholly owned subsidiaries of IMS. The applicants allege that since 25 February 1994 three of the four directors of Chemdata and three of the five directors of Amfac have been IMS nominees and that through them IMS controls the board of directors of Chemdata and Amfac. Although the respondents admit that there is a degree of commonality between certain of the directors of Chemdata and Amfac, they otherwise dispute the claim made by Mr Morwood, in particular about control by IMS of the board of directors of Chemdata and Amfac. The applicants allege that since 1988 IMS has been a wholly owned subsidiary of Dun and Bradstreet, a corporation incorporated in the State of Connecticut, USA. That allegation is denied by the respondents in their defence. The allegations made in the statement of claim include the following:- · Since at least 1985 pharmacists in Australia have used computer software in the course of dispensing prescribed drugs (this is described as "dispensary software"). By 1988 most pharmacists in Australia used dispensary software for this purpose. · There is and has been since 1985 a market in Australia for the supply of dispensary software to pharmacists (described as the "dispensary software market"). · At all material times since 1988 Chemdata has had a substantial degree of power in the dispensary software market within Australia. · Amfac is and has been since 1988 a major supplier of computer hardware to retail pharmacists in Australia. · The use of dispensary software, including Chemdata's software, enables pharmacists to record and collect information concerning each prescription dispensed (described as "prescription data"). · There is and has been at all material times a market in Australia for the provision of prescription data for reward to interested persons, especially pharmaceutical manufacturers (described as the "prescription data market"). · IMS has and has had at all material times a substantial degree of power in the prescription data market within Australia. · Since about 1988 Chemdata has granted to all retail pharmacists to whom it supplied its dispensary software (the "Chemdata software") a non-exclusive, non-transferable licence to use the Chemdata software (the "Chemdata licence"). · It is an express term of the Chemdata licence that a licensee pharmacist would: * keep all information recorded on Chemdata software confidential and secret (clause 8(a)); * not use information recorded on Chemdata software for any purpose other than that for which it was acquired and not disclose or otherwise use that information for his own benefit or a third party's benefit without the prior written consent of Chemdata (clause 8(b)); and