Urgent applications, preservation orders and third party rights

Posted on November 1st, 2017

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Many courts in Australia have processes that allow applications to be made before any formal litigation is commenced.  In the Federal Court, one form of ‘pre-litigation’ application that can be made, relates to the preservation of property or information that may be relevant to a later, substantive, claim. 

A recent example was where a software designer suspected a former employee had taken, and was using, its confidential information for the benefit of a direct competitor.  It sought orders for access to the ex-employee’s computers and other electronic devices for the purposes of copying their contents in order to preserve information that may be relevant to a future substantive claim.

In the course of the application the ex-employee contended he did not have possession of any computer or storage device of the kind sought; but an inference arose that he had been using computers and devices of his new employer and that relevant information may, therefore, be on those devices.  In the particular circumstances the Federal Court was prepared to make orders requiring the employee to request his new employer to provide him with (so he could provide his former employer with) his work computers and the like.  The Court made the order over opposition from the ex-employee on grounds including the limited time available to comply; the likelihood his new employer would object because of the potential for disclosure of commercially sensitive information; and because he did not wish his new employer to become aware of the litigation at all.

Whilst applications of this kind are relatively infrequent and they demonstrate the breadth of power, at least in the Federal Court, to make orders to preserve evidence that may be critical to future litigation.  Where a person or business has a reasonable suspicion their legal rights have been infringed, and some (but not conclusive) evidence that has occurred, these pre-trial processes for the preservation of evidence can be a useful tool for seeking to ensure that any remaining evidence that may be necessary to make out a case, is not lost or destroyed:  Central Innovation Pty Limited v Garner [2017] FCA 5.


Tony Cavanagh Director at Mullane & Lindsay Solicitors, NewcastleTony Cavanagh is a Director at Mullane & Lindsay Solicitors and practises extensively in Commercial dispute resolution and litigationand employment lawIf you require any assistance in these areas please contact Tony Cavanagh to arrange a consultation or contact our Newcastle or Sydney office. 

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