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[1998] VSC 133
Supreme Court of Victoria
1998-11-13
Gillard J
Original judgment source is linked above.
"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."
(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.
"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."
"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."
"He (the applicant) must merely show a reasonable basis for the court to believe that he may have a good cause of action."
(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.
"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."
"Non-exhaustive list of novel features of the VCR Scheme, property of United Energy."
"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 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."
(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
(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.
United Energy Ltd
Energy Risk Management Pty Ltd [1998] VSC 133
(1990) 99 ALR 728