AUSTRALIA Law and Practice Contributed by: John Lee, Michael Williams, Siabon Seet and Vanessa Farago-Diener, Gilbert + Tobin
• that there has been independent creation; and • that the plaintiff cannot establish a causal connection between the defendant’s actions and the alleged breach. 5.10 Dispositive Motions Prior to trial, a party can seek “summary judg- ment” (in relation to the whole or any part of the proceeding) where the other party has no “rea- sonable prospect” of successfully defending or prosecuting the claim. The court can also give judgment (generally or in relation to any claim for relief) where it is satisfied that the proceeding or claim is frivolous, vexatious, an abuse of process or no reasonable cause of action is disclosed. When requesting summary judgement, the mov - ing party will need to provide supporting evi - dence in the form of an affidavit/s establishing why summary judgment is warranted. A party making an application for summary judg - ment should only do so where there is a strong case that summary judgment is warranted. 5.11 Cost of Litigation It is difficult to accurately estimate the cost of trade secret proceedings. The cost will depend on factors such as: • the nature and number of asserted grounds in issue; • the number of documents which are said to comprise the misappropriated trade secret or confidential information; • the nature of the evidence required to estab - lish that the trade secret or confidential information has the necessary quality of confidence; and • the extent to which expert technical evidence is required to support or defend the claim.
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 confidence, breach of con - tract 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/ter - ritory 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 Australia 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
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