AUSTRALIA Law and Practice Contributed by: John Lee, Michael Williams, Siabon Seet and Vanessa Farago-Diener, Gilbert + Tobin
• applying for and giving discovery, or using other interlocutory processes such as inter - rogatories; • preparing and filing written affidavit evidence, which may include expert evidence; and • preparing and filing written submissions out - lining arguments in support of the respective cases. The court will typically hear oral testimony from witnesses, 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 complexity 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 Fed - eral 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 opin - ions. 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 evi - dence 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- examination or concurrently (what is known in Australia as “hot-tub” ). Costs for expert evidence vary by the rate per hour an expert might charge. Typically costs for an expert witness from initial briefing to conclu - sion of the proceedings is around AUD50,000– AUD100,000. A party can apply to the court for a preliminary (interlocutory) injunction restraining a defendant from doing certain acts, until the court deter - mines all the issues in the proceeding. Preliminary injunctions will generally only be granted after notice has been given to the defendant. In urgent cases, an application for a preliminary injunction can be made without notice and potentially granted in the absence of the defendant. Injunctions are limited to Aus - tralia. 7. Remedies 7.1 Preliminary Injunctive Relief
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