AUSTRALIA Law and Practice Contributed by: John Lee, Siabon Seet, Vanessa Farago-Diener and Irini Lantis, Gilbert + Tobin
9. Criminal Offences 9.1 Prosecution Process, Penalties and Defences Trade secret claims are pursued as civil claims in either the Federal Court or the Supreme Court of the relevant state or territory. The exception is where the misappropriation of trade secrets is by a director or other officer or employee of a corporation who has used their position to obtain the information, and the use of the trade secrets has a dishonesty element, such that there has been a likely breach of Section 184 of the Corporations Act, or where the misappropriation of trade secrets involves a foreign government principal under the Code. Criminal Prosecution Under Section 92A.1 of the Code Pursuant to Section 92A.1 of the Code, a person com - mits an offence if: • the person dishonestly receives, obtains, takes, copies or duplicates, sells, buys or discloses infor - mation; • the information is not generally known in trade or business, is commercially valuable, and the owner of the information has made reasonable efforts to protect it; • the conduct (theft) is engaged in on behalf of, or in collaboration with, a foreign government principal or someone acting on their behalf; or • the conduct is directed, funded, or supervised by a foreign government principal or person acting on their behalf. To initiate a criminal prosecution in the event of trade secret theft involving a foreign government principal, the victim of the offence would contact the Australian Federal Police (AFP). An accused person cannot be tried for committing this offence without the written consent of the Com - monwealth Attorney-General. The maximum penalty for committing the offence is 15 years’ imprisonment.
more or less weight to particular evidence than should have been given. In the Federal Court, appeals may be: • in the strict sense – meaning that the Full Court may substitute its own judgment for the primary judge’s decision on a matter of law or clear error in a factual finding; or • on a question of law only – in this circumstance, questions of law will be decided by the Full Court, whereas facts that are shown to have been deter - mined in error will be remitted (sent down) to the court below for redetermination. A party may apply to the Court for further evidence to be admitted on appeal, no later than 21 days before the hearing of the appeal, supported by an affidavit stating the facts on which the party relies. Supreme Court Appeals to the Court of Appeal may be against any judgment or order of the court in any of its divisions. These appeals may concern errors of law, errors in factual findings, or a mixture of both. Where a party establishes error in the decision of the court below, the Court of Appeal may vary the orders made to correct the error, substitute its own decision for that given by the court below, or order a new trial be held. The Supreme Court may allow further evidence to be admitted on appeal. To do this, a party must apply by filing a motion with the Court, supported by an affi - davit setting out the facts on which the party relies. The Court will make a decision to allow or dismiss the motion. Further Comments The confines of an appeal are set by the boundaries of the issues run at trial. This means that, for an issue to be available to a party in an appeal, it must have been ventilated at trial. While applications for leave to appeal can be deter - mined on the papers alone, appeals themselves are usually conducted via a court hearing.
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