Optiver Australia Pty Ltd v Tibra Trading Pty Ltd

• Jurisdiction: Australia Federal only
• Judgment Date: 01 February 2008
• Neutral Citation: [2008] FCA 47
• Court: Federal Court

FEDERAL COURT OF AUSTRALIA

Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2008] FCA 47

APPEAL – application for leave to appeal – whether the grant or refusal of leave to appeal is an exercise of appellate jurisdiction – Order 52 rule 2AA – distinction between a clear-cut case for the grant or refusal of leave and an evenly balanced case – significance of no right of appeal from grant or refusal of leave or confusion about whether such a right exists.

PRELIMINARY DISCOVERY – refusal to grant – whether a matter of practice or procedure – whether effectively final in nature.

Federal Court of Australia Act 1976 (Cth) s 25(2)

Federal Court Rules O 15A r 6(b), O 52 r 2AA, O 52 r 6

Applicant S1815 [2007] HCA Trans 613

Bahonko v Sterjov [2007] FCA 1717

C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864

Dart v Norwich Union Life Australia Ltd [2005] FCA 327

Electricity Retail Corporation v Griffin Energy Pty Ltd [2006] FCA 1810

Hooper v Kirella Pty Ltd (1999) 96 FCR 1

Johnson Tiles Pty Ltd v Esso Australia Pty Ltd (2000) 104 FCR 564

Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCAFC 269

Malouf v Malouf (1999) 86 FCR 134

Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2007] FCA 1348

Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2007] FCA 1560

Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2007] FCA 2065

Qanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536

Sharman License Holdings Ltd v Universal Music Pty Ltd [2005] FCA 505

Tait v Harris [2003] FCA 416

Thomas Borthwick and Sons (Pacific Holdings) Ltd v Trade Practices Commission (1988) 18 FCR 424

United Mexican States v Cabal (2001) 209 CLR 165

Visy Industries Holdings Pty Ltd v Australian Competition and Consumer Commission (2007) 161 FCR 122

Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543

Hamod v New South Wales (2002) 188 ALR 659

OPTIVER AUSTRALIA PTY LTD v TIBRA TRADING PTY LTD, TIBRA CAPITAL PTY LTD, TIBRA CAPITAL MANAGEMENT PTY LTD, TIBRA INTELLECTUAL PROPERTY PTY LTD, DINESH BHANDARI, GLENN WILLIAMSON, TIMOTHY BERRY, ANDREW KING AND KINSEY COTTON

NSD 84 OF 2008

BUCHANAN J

1 FEBRUARY 2008

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 84 OF 2008

BETWEEN:	OPTIVER AUSTRALIA PTY LTD Applicant
AND:	TIBRA TRADING PTY LTD First Respondent TIBRA CAPITAL PTY LTD Second Respondent TIBRA CAPITAL MANAGEMENT PTY LTD Third Respondent TIBRA INTELLECTUAL PROPERTY PTY LTD Fourth Respondent DINESH BHANDARI Fifth Respondent GLENN WILLIAMSON Sixth Respondent TIMOTHY BERRY Seventh Respondent ANDREW KING Eighth Respondent KINSEY COTTON Ninth Respondent

JUDGE:	BUCHANAN J
DATE OF ORDER:	1 february 2008
WHERE MADE:	SYDNEY

THE COURT DIRECTS THAT:

1. The notice of motion be referred to a Full Court.

2. Although it will be a matter for the Full Court to decide whether to hear the substance of an appeal at the same time as the application for leave to appeal the parties are to be in a position to fully argue an appeal if the Full Court so decides.

3. The parties are to comply with Practice Note No 1 as though leave to appeal had been granted.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 84 OF 2008

BETWEEN:	OPTIVER AUSTRALIA PTY LTD Applicant
AND:	TIBRA TRADING PTY LTD First Respondent TIBRA CAPITAL PTY LTD Second Respondent TIBRA CAPITAL MANAGEMENT PTY LTD Third Respondent TIBRA INTELLECTUAL PROPERTY PTY LTD Fourth Respondent DINESH BHANDARI Fifth Respondent GLENN WILLIAMSON Sixth Respondent TIMOTHY BERRY Seventh Respondent ANDREW KING Eighth Respondent KINSEY COTTON Ninth Respondent

JUDGE:	BUCHANAN J
DATE:	1 february 2008
PLACE:	SYDNEY

REASONS FOR JUDGMENT

BUCHANAN J:

1 The notice of motion at present before the Court seeks that an application for leave to appeal against an interlocutory judgment of Tamberlin J (Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2007] FCA 2065) be heard and determined by a Full Court, that the appeal be heard together with the application for leave to appeal and that the hearing of the application for leave to appeal and the appeal be expedited. The respondents opposed the application for leave to appeal being referred to a Full Court and indicated that they do not agree, in any event, that the application for leave to appeal, if it is to be determined by a Full Court, should be heard at the same time as the substantive appeal. They opposed expedition.

2 Under s 25(2) of the Federal Court of Australia Act 1976 (Cth) (‘the Act’) an application for leave to appeal to the Court may be heard and determined by a single judge or by a Full Court. For many years it was accepted that a party seeking to appeal an interlocutory decision had a practical right to elect whether its application for leave to appeal was dealt with by a single judge or by a Full Court (see Tait v Harris [2003] FCA 416, see also Wati v Minister for Immigration and Multicultural Affairs (1997) 78 FCR 543 at 554 (‘Wati’)). However, Kristoffersen v Department of Employment, Workplace Relations and Small Business [2002] FCAFC 269 (‘Kristoffersen’) held that an applicant for leave to appeal had no right to require its application to be dealt with by a Full Court. Sharman License Holdings Ltd v Universal Music Pty Ltd [2005] FCA 505 (‘Sharman’) is an example of a subsequent case where it was directed that an application for an extension of time and leave to appeal be dealt with by a single judge and not, as had been sought, by a Full Court. Any question about that aspect of the Court’s practice (and power) was, in 2005, put beyond further debate by O 52 r 2AA of the Federal Court Rules which directs that an application under s 25(2) of the Act must be heard and determined by a single judge unless a judge directs that the application be heard and determined by a Full Court.

3 Tamberlin J, in his judgment of 21 December 2007, dismissed an application for preliminary discovery pursuant to O 15A r 6 of the Federal Court Rules. In earlier judgments concerning the application for preliminary discovery Tamberlin J struck out the bulk of a notice to produce served by the respondents (Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2007] FCA 1348 – 31 August 2007) and rejected objections by the respondents to evidence filed by the applicant in support of its application for preliminary discovery (Optiver Australia Pty Ltd v Tibra Trading Pty Ltd [2007] FCA 1560 – 12 October 2007).

4 In the judgment in respect of which the application for leave to appeal is brought Tamberlin J dismissed the application for preliminary discovery on two grounds. First, he held that the applicant had sufficient information to enable it to decide whether to commence proceedings to obtain relief and that O 15A r 6(b) accordingly denied to the Court the discretion to grant preliminary discovery. In particular, his Honour rejected an argument that the applicant had insufficient information about the extent of the relief which might be available to decide whether to commence proceedings. His Honour said (at [34]):

‘In this case, there is real doubt about the extent of the relief to which Optiver may be entitled, particularly in relation to the amount of compensatory and additional damages it might receive under s 115 of the Copyright Act 1968 (Cth). However, there seems to be little doubt in the submissions and evidence of Optiver that it will seek compensatory damages under s 115(2), additional damages under s 115(4), equitable compensation for breach of confidence and injunctive relief restraining further breaches of copyright and confidence. Given that the type of relief which might be obtained is clear, and given that there is sufficient information to formulate the necessary pleadings, I do not accept that some uncertainty regarding the extent of relief renders Optiver unable to decide whether to commence proceedings to obtain that relief.’

5 The second basis upon which his Honour declined to exercise the Court’s discretion to grant preliminary discovery was that a requirement to reveal the information sought by the applicant might be unfairly prejudicial to the respondents. His Honour was not persuaded that a proposed regime of confidentiality suggested by the applicant would outweigh the possible prejudice. He also noted that there had been ‘substantial delay’ in bringing the application with the result that some highly sensitive information sought would have to be disclosed in its current form, rather than its form when ‘suspicions were aroused’. Another concern was that the grant of preliminary discovery might create ‘an imbalance between the parties’ with respect to ‘the conduct of future negotiations and proceedings’.

6 If leave to appeal is granted the applicant wishes to argue that his Honour misconstrued the requirements of O 15A r 6(b). Amongst other matters it wishes to contend that the approach taken by his Honour is in conflict with judgments of Gyles J in C7 Pty Ltd v Foxtel Management Pty Ltd [2001] FCA 1864 at [44]) and Sackville J (Qanta Software International Pty Ltd v Computer Management Services Pty Ltd (2000) 175 ALR 536 – see especially at [33] – [34]). The applicant also contends that his Honour’s findings that undue prejudice may be caused to the respondents or an inappropriate imbalance created between the parties should not have been made because there was no evidence to support those findings.

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