AUSTRALIA Law and Practice Contributed by: John Lee, Siabon Seet, Vanessa Farago-Diener and Irini Lantis, Gilbert + Tobin
As a rough estimate, the costs a party can expect to incur in a trade secret proceeding where multiple grounds have been asserted (such as breach of con - fidence, breach of contract and contravention of the Corporations Act) are as follows. • For a fully contested first instance decision, costs are likely to exceed AUD500,000. • For preliminary injunction proceedings, costs are likely to exceed AUD200,000. • For an appeal to the Full Federal Court, costs are likely to exceed AUD200,000. Proceedings in the Federal Court and state/territory Supreme Courts are usually decided by a single judge, without a jury. While a party to civil proceedings can request a trial by jury in both the Federal Court and the Supreme Courts of Australia, this is rarely done. In recent decades, the only civil proceedings which have been determined by jury in Australia were in relation to defamation cases. 6.2 Trial Process Proceedings involving misappropriation of trade secrets are litigated in either the Federal Court of Aus - tralia or state/territory Supreme Courts and follow the rules of procedure in whichever of those jurisdictions the matter is heard. Typical procedural steps include: • filing written pleadings setting out the claims and defences; 6. Trial 6.1 Bench or Jury Trial • applying for and giving discovery, or using other interlocutory processes such as interrogatories; • preparing and filing written affidavit evidence, which may include expert evidence; and • preparing and filing written submissions outlining arguments in support of the respective cases. The court will typically hear oral testimony from wit - nesses, both lay and expert (if used), together with oral submissions made by counsel for the parties. Where
appropriate, the court may direct that such evidence be given via video-link. It is unusual for cases involving misappropriation of trade secrets to be determined on the papers. Trial duration can vary widely, depending on the com - plexity of the matter. By their nature, trade secrets disputes are rarely simple, which means that it may take anywhere from one to several weeks to ventilate all the relevant factual and legal issues at trial. 6.3 Use of Expert Witnesses Expert witness evidence is used in the Federal Court of Australia and in the state/territory Supreme Courts, for the purpose of assisting the court in understanding complex subject matter by the giving of independent and objective opinions. Each jurisdiction has its own rules and guides for the preparation of expert evidence available to the public, eg, the Federal Court of Australia’s “Expert Evidence Practice Note (GPN-EXPT)” and in the New South Wales Supreme Court, “PRACTICE NOTE SC Eq 5 Supreme Court Equity Division – Expert Evidence in the Equity Division”. The court will give more or less weight to expert evidence depending on its credibility and relevance. In summary, the process for expert witness evidence is: • a party decides that, given the nature of the subject matter, the court would be assisted by the opinion of an expert witness; • the expert prepares a written report, which is filed with the court; • where the court requires, the experts for each party will meet and confer on an agreed set of topics and produce a Joint Expert Report, which sets out areas of agreement and/or disagreement between them; and • during trial, each party’s expert will provide oral evidence, which may be by way of cross-examina - tion or concurrently (what is known in Australia as a “hot-tub”). Costs for expert evidence vary by the rate per hour an expert might charge. Typically costs for an expert
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