United Energy Ltd v Energy Risk Management Pty Ltd [1998] VSC 133

Supreme Court of Victoria|1998-11-13|Before: Gillard J

The applicant, United Energy Ltd, acquired the assets of the State Electricity Commission of Victoria and the electricity assets of the old Cities of Box Hill and Doncaster. It supplies and sells electricity.

The respondent, Energy Risk Management Pty Ltd, is a company within the group of companies known as Morrison & Co which is an adviser to the electricity industry in both Australia and New Zealand. It has been involved in the business of adviser to the electricity industry for some time and has gained much experience by its involvement in industry reform processes, privatisation and advice to market participants in Australia and New Zealand since approximately 1990. From 1995 to date Morrison & Co has advised clients on a number of specific projects within the eastern States of Australia.

Mr Rattray was formerly employed by the applicant from December 1994 as manager of its energy trading business. Part of his duties was involved with the ongoing and vexing problem of the risks involved with the purchasing of electricity from a pool in which the prices are extremely changeable. Because electricity cannot be stored, prices often are prone to fluctuations.

He signed a service agreement with the applicant which contained a confidentiality clause.

In late January 1998 Mr Rattray ceased his employment with the applicant and commenced employment with Utilicorp Australia Holdings Pty Ltd which is closely associated with the applicant and operated out of the same premises. On 8 May 1998 Mr Rattray's employment ceased with Utilicorp Australia Holdings Pty Ltd and since then he has been providing services to the respondent through his employment with HRL Morrison & Co (Australia) Pty Ltd.

The basic facts which have led to the dispute between the parties and the present application can be briefly stated.

The applicant has on the market a product known as the VCR Scheme which it developed between late 1995 and May 1996. The VCR scheme provides participants in the Victorian electricity market with a means for managing their risk during periods when the cost of electricity is substantially increased. By being a participant in the scheme this enables entities involved in the electricity market particularly generators, to manage the operational risk to which they are exposed, by fluctuating prices. The risk comes about because electricity cannot be stored. As a result prices vary considerably so that in times when supplies are tight the prices become extreme, for example, as high as 200 times the normal price and producers may have to purchase expensive electricity to meet supply commitments. As a result a scheme was evolved by the applicant between late 1995 and May 1996 to manage these risks. The scheme was to enable generators and retailers of electricity to obtain relatively firm hedging cover in relation to their exposure to high electricity prices.

As Mr Robert Lee Poehling swore, on behalf of the applicant, in an affidavit of 14 October 1998 -

"The VCR Scheme was designed, primarily, to provide participants in the Victorian electricity market with a tool for managing their risk during high price periods. The VCR Scheme allows hedging cover to electricity retailers and generators during periods when the market price exceeds the Cap Price and enables the provision by retailers to end use customers of firm retailers prices even when the electricity price is high."

The scheme contained a number of novel features and in May 1996 the applicant lodged two applications for authorisation of its scheme pursuant to s. 88 of the Trade Practices Act 1974 with the Australian Competition and Consumer Commission ("ACCC").

The applicant devised a set of rules known as the VCR Scheme Rules. They set out the operation of the VCR Scheme and its novel features in some detail and the applicant has successfully claimed with the ACCC, acceptance that the rules are confidential.

Mr Rattray was involved in the development and promotion of the VCR Scheme and what is more was well aware of the confidential nature of the scheme and its rules. Indeed, he was one of a number of employees of the applicant who insisted that prior to any third parties viewing the Scheme Rules an appropriate confidentiality agreement be executed.

The scheme has been sold to participants in the electricity industry and in August 1998 the applicant sought amendments to its scheme through the ACCC to enable it to be sold nationally.

Prior to Mr Rattray providing services to the respondent, it did not have a risk management scheme. Mr Rattray was engaged by the Morrison & Co group for his electricity industry expertise in support of the group's business of providing investment, banking and advisory services to the electricity industry as a whole. He suggested that Morrison & Co should consider supplying risk management services to market participants as part of its overall services to the electricity industry.

As a result the respondent commenced to develop a similar type risk management scheme called "d - Risk" Scheme (derived from "Diversify your Risk").

Mr Poehling who is vice president and general manager of a subsidiary of the applicant first became aware on or about 23 September this year that the respondent had made an application for authorisation of the d - Risk Scheme.

The evidence establishes beyond doubt that Mr Rattray not only suggested the scheme to the respondent but was involved in its development.

It is also clear from the evidence that there are striking similarities between the two schemes.

The applicant has formed the belief that there are grounds to infer that the d - Risk Scheme includes and incorporates confidential aspects of the VCR Scheme and that Mr Rattray was responsible for the similarities. It believes that Mr Rattray may have breached his confidential obligations to his former employer.

The applicant is considering taking proceedings against the respondent on the basis that its d - Risk Scheme evolved using information supplied by Mr Rattray in breach of his confidential obligations to his former employer. However, the applicant is uncertain whether it has a right to claim the relief.

Correspondence has passed between the legal representatives of both parties with the applicant seeking the documents relating to the d - Risk Scheme and the respondent refusing to supply them. The situation has now reached stalemate.

Hence the present application brought by the applicant pursuant to R.32.05 of the Rules of Court seeking discovery from a prospective defendant, that is, from a potential party prior to the issue of any proceeding.

On an application pursuant to R.32.05, for discovery from a prospective defendant, an applicant has to establish:

(i) that there is reasonable cause to believe that the applicant has OR may have the right to claim relief from an identified person;

(ii) that it has made all reasonable enquiries but does not have sufficient information to decide whether to commence a proceeding to obtain relief;

(iii) that there is reasonable cause to believe that the person has OR is likely to have OR has had OR is likely to have had in his possession a document relevant to the question whether the applicant has the right to obtain relief;

(iv) that inspection of the document by the applicant would assist to make a decision whether to proceed.

Whether the court makes an order is a matter for the discretion of the court.

The application is by motion and the person against whom the order is sought, is the respondent to the motion.

The affidavit in support must identify the documents to be discovered.

The mischief which the rule seeks to address is the avoidance of a situation where a prospective plaintiff does not have all the relevant documentation to enable him and his advisers to make a decision whether he has a good cause of action or not, but nevertheless issues a proceeding and subsequently gains access to relevant documents in the possession of the opposing party, only to find he does not have a cause of action.

Often in the past a proceeding was instituted in the expectation that the plaintiff had a good cause of action postponing a final decision as to the merits until all the discovery and inspection steps were completed.

If it turned out upon a proper consideration of all relevant documents that the plaintiff did not have a cause of action, it causes, inter alia, much anguish, soul searching and results in wasted legal costs and time. It does nothing for the administration of justice that the party has to go down that path to determine whether he has a good cause of action.

The object of the rule is to avoid that undesirable situation occurring and to enable a prospective plaintiff to see the relevant documents which the prospective defendant has or has had in his possession in order to make an informed decision as to whether he has a good cause of action.

It is clear from the wording of the rule that the applicant does not have to show that he does have a good cause of action before he can obtain his order, and indeed to require him to do so would defeat the very object of the rule.

On the other hand, an applicant would have to show more than a mere hunch, a hope or a suspicion that he may have a good cause of action.

The fact that the end result of a successful application is a fishing expedition for evidence is not a ground for refusing relief. See Dunning v. United Liverpool Hospitals (1973) 1 W.L.R. 586 at 591 per Stamp, L.J. and Clarkson v. DPP [1990] VicRp 65; (1990) V.R. 745 at 758 per Murphy, J.

The prime object of the rule is to enable access to documents to enable an informed decision to be made. The fact that in the process the applicant gathers evidence also, is not a ground for refusing relief; it is an inevitable by-product of the procedure.

The rule sets out what matters have to be considered and established on an application and places the onus on the applicant to establish the bases for an order. However, in my opinion the power should be exercised to give effect to the clear purpose of the provision which is to advance the administration of justice, namely, that a prospective plaintiff should be able to make an informed decision whether to proceed or not upon proper material before issuing his proceeding.

By providing this facility to assist the decision making process, speculative or baseless claims can be avoided with a consequential saving in cost and time.

These considerations lead to the conclusion that the rule should be liberally applied.

I refer to and adopt what Burchett, J. said in Paxus Services v. People Bank Pty Ltd [1990] FCA 500; (1990) 99 A.L.R. 728 at 733 -

"It would be unfortunate if a rule designed to amplify the court's power to penetrate obscurities and uncertainties in the interests of justice were to be weakened by restrictive and unnecessary glosses. I think the rule is of a beneficial kind within the meaning of the well-known principle of interpretation, and should be given the fullest scope its language will reasonably allow it. The proper brake on any excesses in its use is the discretion of the court, which is to be required to be exercised in the particular circumstances of each case."

In Scarletti Pty Ltd & Ors v Millwood Printing Co Pty Ltd, the Full Court in an unreported decision delivered 28 July 1994 stated the following:

"We accept as correct the submissions of counsel for the appellants that before an order will be made under rule 32.05 there must be a foundation for the belief that the directors of Image committed the alleged breaches of duty. By stating that, we are not to be taken to be disagreeing with observations of Burchett, J in Paxus Services Ltd v Peoples Bank Pty Ltd [1990] FCA 500; (1990) 99 ALR 728 at 733 that `the rule is of a beneficial kind within the meaning of the well known principle of interpretation and should be given the fullest scope its language will reasonably allow.' But that is not to say a flimsy foundation for the required belief will be sufficient - a flimsy foundation cannot constitute `reasonable cause' within the meaning of the rule."

The court, however, should approach any application with a degree of care. In the present case the parties are trade rivals, the applicant selling its product in the market place and the respondent in the process of finalising its product for sale in the same market place. The court must be on guard against the rule being used to ascertain trade secrets or stifle competition.

But having said that, the efficacy of the rule should not be destroyed or reduced by any narrow application.

The rule is to enable a prospective plaintiff to make an informed decision. If an order is not made the only course open to the prospective plaintiff is to issue the proceeding and then put in operation procedures available to gain access to the other party's documents. This may involve an application for an interlocutory injunction in which a subpoena is issued to produce the documents at court on the application. Another course is the discovery process during the interlocutory steps. The practical result will be inspection later rather than sooner and the incurring of legal costs. If a decision is then made to discontinue, costs will have been unnecessarily incurred and time wasted, factors which reflect upon the administration of justice.

The pragmatic approach supports a sooner rather than a later decision and an approach by the court to readily facilitate the making of an informed decision by a prospective plaintiff on proper materials at an early stage.

The main dispute between the parties centred on this element of proof.

With respect to this element, the Full Court said in Scarletti Pty Ltd supra at p.4 -

"He (the applicant) must merely show a reasonable basis for the court to believe that he may have a good cause of action."

At the outset it is important to emphasise that the applicant has to establish the reasonable cause for belief.

The second matter to emphasise is that the element is satisfied if the belief is that the applicant "may have the right to claim any relief".

This is clearly something less than a belief that the applicant "has the right to relief". The word "may" in this context has been construed by Beach J as meaning "that it is possible (the applicant has) a right to obtain relief": see Australian Marketing Corporation Pty Ltd v Jasam (AMC) Pty Ltd, unreported, delivered 25 August 1994.

In my opinion the important question is whether there is a basis for the belief and is it reasonable?

Mr Garner of counsel who appeared for the applicant, identified the cause of action against the respondent as a claim for breach of confidence.

It is well established that in order for a plaintiff to succeed in a claim for breach of confidence he must prove:

(i) that the information was of a confidential nature;

(ii) that the information was communicated in circumstances imparting an obligation of confidence;

(iii) that there has been an unauthorised use of the information to the detriment of the person communicating it.

See Talbot v General TV Corporation Pty Ltd [1980] VicRp 26; [1980] VR 224 at p.230.

There may be a fourth element where it is alleged that the person misusing the confidential information was not provided with the information in the first place. If that is the position then it is necessary to show that at some point that person became aware that the information was confidential.

In other words the relief will extend to such persons even though they were not involved in receiving the original information in confidence.

It is trite law that if the information was in the public domain then what may have been confidential information ceases to be so.

Mr Garner submitted that on the evidence there was a basis for belief that such a cause of action existed against the respondent. This was grounded on a number of bases, namely, that Mr Rattray was an employee subject to an express confidentiality clause, that the clause continued after his employment ceased, that he was given information in confidence concerning the VCR Scheme during his employment with the applicant and its associate company and that in all the circumstances the cloak of confidence had been established. He submitted that once the respondent was aware of the claim made by the applicant then it was also bound by the obligation of confidence.

The applicant relies upon two broad categories of evidence which it submits points to the possession of and breach of confidential information by the respondent.

First, the applicant has the VCR Scheme which it sells on the market, and the respondent is seeking to establish and sell a scheme which provides the same service and there is a degree of similarity between the two schemes.

Secondly, Mr Rattray was employed by the applicant and was involved in the development of the VCR Scheme and clearly was involved in the development of the d - Risk Scheme.

I am quite satisfied that both schemes were developed in circumstances of confidentiality, that there was an awareness by Mr Rattray and others that both schemes were confidential, that the ACCC accepted that aspects of the VCR Scheme were confidential and, importantly, Mr Rattray accepts that both schemes are based on information which was confidential.

The applicant, however, is not satisfied at this stage on the information it has that it does have a good cause of action against the respondent. In order to enable it to make an informed decision it wishes to have access to the documents of the respondent which constitute the d - Risk Scheme so that a proper comparison can be made between the two schemes. In other words it wishes to be satisfied that the evidence establishes a breach of confidential information and that the similarities between the schemes in respect to their features and process and the involvement of Mr Rattray in both schemes is not purely coincidental and exclude the possibility the d - Risk Scheme has been developed without the use of any confidential information obtained from the applicant.

The applicant has identified two categories of alleged confidential information. The first concerns what is described as the VCR Scheme Rules. They have not been provided to the court or the respondent.

"The VCR Scheme Rules are extremely complex and comprise 92 pages plus schedules of the detail of the basis of the operation of the VCR Scheme and its unique aspects. These rules contain complex mathematical algorithms and formulae."

The second category of confidential information is listed in confidential Exhibit "RLP6". A perusal of that exhibit shows 10 dot-point paragraphs. The list is described as:

"Non-exhaustive list of novel features of the VCR Scheme, property of United Energy."

Each dot-point is a general description of the features of the scheme.

In confidential Exhibit "RLP10" to the affidavit of Mr Poehling an exercise is carried out of a comparison of the two schemes.

In essence Mr R. MaCaw QC who appeared with Ms E. Hollingworth for the respondent, submitted that what had been identified by the applicant as confidential information was not confidential because it was all in the public forum. He submitted that any question of misuse of confidential information had to be answered with an emphatic negative.

Mr MaCaw QC took the court through a number of exhibits and submitted that the 10 dot-point features in Exhibit "RLP6" were all in the public domain. This was supported by an affidavit of Mr Rattray sworn 22 October 1998 in which he took each point and demonstrated by reference to other documents and his knowledge that the matters were in the public domain.

In addition, he relied upon the affidavit evidence of Alan Rattray. In his affidavit Mr Rattray swore he did not take any documentation with him when he left his previous employment and states albeit indirectly that he did not use any of the applicant's confidential information.

Mr MaCaw QC then submitted that on the evidence before the court there was no basis at all for coming to any belief that there was a cause of action against the respondent for misuse of confidential information.

Mr Garner countered that argument by pointing out that the VCR Scheme Rules had a number of features, covered many matters and used a unique process. These were of a confidential nature. What the applicant sought was to compare the two sets of rules to determine whether the features of and the process used in, the VCR rules were used to develop the d - Risk Scheme.

In considering these rival contentions it is appropriate at this stage to refer to an alternative argument put on behalf of the respondent. It was submitted by the respondent that the applicant should not obtain an order for pre-trial discovery, because there was already sufficient evidence available to the applicant which would enable the applicant to make a decision to proceed.

Mr Garner, not surprisingly, points to the inconsistency of the arguments put forward by the respondent as supporting his submission that his client, the applicant, has cause to believe that it may have a right to claim relief from the respondent and the basis of the belief is reasonable.

A robust, experienced counsel may advise there was sufficient basis for bringing a proceeding on the evidence of similarity and the involvement of Mr Rattray but if inspection of documents proved the decision wrong then time and money would be wasted. One could not possibly criticise any lawyer for being careful and cautious before making any decision to proceed in the circumstances of this case.

The respondent submitted, based upon the High Court decision of O'Brien v. Komesaroff [1982] HCA 33; (1981) 150 C.L.R. 310 that in a breach of confidence case it was necessary for a plaintiff to precisely define what the confidential information was which formed the foundation of an action for breach of confidence. It was submitted that without such definition the court is unable to determine the question. See O'Brien's case at p.327. It is said here that the applicant has not identified what constitutes the confidential information other than the features set out in confidential exhibit RLP6 and these were in the public domain.

Mr Garner submitted it was the process found in the VCR Scheme Rules which constituted the confidential information. For present purposes that is sufficient identification.

In my opinion there is a basis for believing that the applicant may have a right to claim from the respondent for breach of confidential information and the similarities between the schemes and Mr Rattray's involvement are some evidence to support that belief. Mr Rattray accepts that the VCR Scheme does contain confidential information. I do not accept that as the evidence now stands the court could be confident in saying that all the information which has been used by the applicant to develop its scheme is in the public domain.

There is allegation and counter-allegation and in the circumstances the court cannot finally resolve the question as to whether the information is all in the public domain. It is arguable that not all is in the public domain and in this regard I refer to the evidence concerning the nature of the scheme.

The respondent relied upon the evidence of Mr Rattray. In a long and detailed affidavit covering a number of topics, under the heading of "NO MISUSE OF CONFIDENTIAL INFORMATION" he addresses the topic of his involvement.

One thing is clear. Mr Rattray, of all people, knows both schemes and knows whether or not confidential information belonging to the applicant has been used by the respondent. One might have thought that he could swear positively in his affidavit that he did not use any confidential information. However, the affidavit does not condescend to such a positive assertion.

He takes up the topic by referring to two letters sent by the applicant's solicitors which sought, inter alia, undertakings about use of confidential information. He then went on to say that both the respondent and he instructed their solicitors to respond to the assertions which they did in letters which are Exhibits "RLP13" and "RLP14" to the affidavit of Mr Poehling.

"I say that I took no documentation relevant to the VCR Scheme when I left my previous employment. I state to the best of my knowledge and on the basis of enquiries made of Sabine Schleicher, which I verily believe, the information in 'RLP13' and 'RLP14' is correct."

In the letter written on his behalf the solicitor writes that Mr Rattray confirms that he has not -

"in any way disclosed or used confidential or proprietary information the property of United Energy ...

in breach of any of his continuing obligations to United Energy (or its associates) and that, to the best of his knowledge, he has previously complied with his obligation to return documents relating to such information or the property of United Energy."

The reference to Sabine Schleicher is to a person who was involved in the development of the d-Risk Scheme but who is a non-technical person. What she informed Mr Rattray is not revealed.

It would not have been difficult for Mr Rattray in his affidavit to directly state on oath that he did not use any confidential information belonging to the applicant.

Clearly the evidence of Mr Rattray is to be considered in determining whether the applicant has reasonable cause to believe it may have a right to claim relief from the defendant. It has to be weighed with the other factors.

The question is, taking it into account, does it lead to the conclusion that the applicant does not have reasonable cause to believe it may have a right to claim relief from the respondent?

Whether or not Mr Rattray has misused confidential information is a matter peculiarly known to him. His knowledge and the possible use of same is central to this case.

He has sworn, albeit indirectly, that he has not misused confidential information but the applicant wishes to test that assertion and determine whether it is true. He has not been cross-examined on his assertion.

I have weighed up his evidence in considering whether the applicant has established the basis for its belief and in my opinion there are a number of reasons why it is not a complete answer to the application.

First, the court would be naive in the extreme to exclude the possibility that after full investigation and the proper testing of the evidence, the evidence may turn out to be unsatisfactory. Experience shows that sometimes evidence is not accepted after a full investigation.

Secondly, a breach of confidence may occur through the subconscious use of information.

Thirdly, the way the evidence is phrased in the affidavit raises issues that must be investigated.

What the applicant seeks is access to the documents concerning the d-Risk Scheme and in the scale of things this will turn out to be the strongest evidence as to the issue whether confidential information has been used.

The court must balance the factors and having done that I am of the opinion that the applicant has shown there is reasonable cause to believe that it may have the right to claim relief from the respondent.

The respondent submitted that the applicant has not made all reasonable enquiries because in the correspondence that passed between the parties' legal advisers it is alleged that the applicant's solicitors refused to provide any justification to the respondent to provide to them, the alleged intellectual property, i.e., the d-Risk documents. It is submitted that the demand to see the documents concerning the d-Risk Scheme was unreasonable in the circumstances. This argument misconceives what the rule requires.

In my opinion the only entities and person to make enquiries of, are the respondent, its associated companies and Mr Rattray and in my opinion the correspondence clearly establishes that the applicant has made all reasonable enquiries of the proposed respondent and Mr Rattray who refused to provide the documents. The enquiries were reasonable and as things turned out, fruitless. The applicant could not go to any other reliable source of information.

As I have already stated, a robust legal practitioner may consider that there is sufficient evidence to justify the bringing of a proceeding. On the other hand, nobody could possibly criticise a cautious lawyer seeking further information before making the decision. Adopting that test the applicant does not have sufficient information to make the decision. I am satisfied that inspection of the documents concerning the d -Risk Scheme of the respondent would assist the applicant to make a decision whether to proceed against the respondent for breach of confidential information.

I am satisfied that the applicant has made out all the requirements of Rule 32.05 to justify an order being made in its favour for discovery. No submission was addressed to the court by the respondent that the discretion should not be exercised in favour of the applicant.

The respondent has raised the question of confidentiality with respect to the documents concerning the d-Risk Scheme. I accept that the scheme does contain information which the respondent wishes and is entitled, to be kept confidential.

The applicant wishes to show the documents to Dr Ross Gawler who was involved in the development of the VCR scheme. The applicant also wishes to show the documents to Mr Richard Lewis, a solicitor at Deacons Graham & James, the solicitors acting for the applicant and who was involved with the drafting of the VCR scheme rules. The respondent objects to them looking at the d-Risk Scheme.

The respondent is concerned that if they were granted access then they may use the information consciously or subconsciously when considering any amendments or improvements to the VCR scheme rules. I think that is a well-founded concern and if possible, should be avoided.

The prime object of the application is to gain access to documents to enable a decision to be made, namely, whether or not to bring a proceeding. It seems to me that that object can be achieved without Dr Gawler or Mr Lewis looking at the d-Risk Scheme documents. If a decision is made not to proceed then the respondent's interests are protected.

That is not to say that if a decision is made to proceed they cannot be later consulted for the purposes of any court proceedings to assist with preparation of the court case or to give evidence. But at this early stage, in my opinion the applicant should retain some other expert to consider the d-Risk documents to enable the decision to be made.

The applicant should inform the respondent of the name of the person who is to view the documents prior to inspection being made.

In my opinion, justice would be best served if the inspection of the documents at this stage is confined to counsel, the solicitor at Deacons Graham & James instructing him provided it is not Mr Richard Lewis, and an expert selected by the applicant and named. In addition, the named expert must execute a document that he will not reveal the contents of any of the d-Risk documents except under compulsion of law.

It will be necessary for the applicant to name the expert before I am prepared to make the orders sought.

Subject to the identity of the expert and any contrary submissions of counsel, I would be prepared to make the following orders -

(1) That the requirements of Rules 5.03(1) and 8.02 of the Rules of the Supreme Court be dispensed with.

(2) That the applicant be authorised to commence this proceeding by originating motion in the form 5C.

(3) Pursuant to Rule 32.05 of Chapter 1 of the Rules of Court, the respondent by 4.00 p.m. on 16 November 1998 make discovery of the documents referred to in Schedule "A" attached to this order by making, filing and serving an affidavit of documents in form 29B of the said Rules and in accordance with the requirements of Rule 29.04 of the said Rules.

(4) That by 4.00 p.m. on 18 November 1998 the respondent make available the documents listed in its affidavit of documents for inspection by the applicant's counsel Mr Garner, his solicitor Mr C. Harvey and its expert, Mr "X" (to be named).

(5) That the expert, Mr X, prior to inspecting the documents, sign a confidentiality covenant addressed to the respondent undertaking not to disclose any of the contents of the documents to any person other than Messrs Garner and Harvey.

(6) That the applicant pay the reasonable costs of the respondent of making discovery pursuant to this order.

(7) The respondent pay the applicant's costs of this application.

(8) That there be general liberty to apply.

(9) That the applicant's solicitors draw up this order and it be signed by a judge pursuant to Rule 60.04(1) of the Rules of Court.

"A"

SCHEDULE

"Document" includes, in addition to a document in writing:

(a) any book map plan graph or drawing;

(b) any photograph;

(c) any label marking or other writing which identifies or describes any thing of which it forms part, or to which it is attached by any means whatsoever;

(d) any disc tape sound track or other device in which sounds or other data (not being visual images) are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced therefrom;

(e) any film negative tape or other device in which one or more visual images are embodied so as to be capable (as aforesaid) of being reproduced therefrom; and

(f) anything whatsoever on which is marked any words figures letters or symbols which are capable of carrying a definite meaning to persons conversant with them.

1. The rules of the "d-risk" scheme (whether or not called by that name).

2. Any and all drafts of the rules of the d-risk scheme (whether or not called by that name).

3. Any and all documents filed or lodged by or on behalf of the Respondent with the Australian Competition and Consumer Commissioner on or about or after 16 September 1998 in support of

(a) the Respondent's application or authorisation of the d-risk scheme;

(b) the Respondent's application nor interim authorisation of the d-risk scheme.

4. Any and all documents relating to the d-risk scheme (including but not

(a) provided or sent by the Respondent to any potential participants in the d-risk scheme;

(b) prepared by the Respondent for the purpose of being provided or sent by the Respondent to any potential participants in the d-risk scheme.

At a glance

Court

Decision date

Before

Source

Judgment (132 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (2)