AUSTRALIA Law and Practice Contributed by: John Lee, Michael Williams, Siabon Seet and Vanessa Farago-Diener, Gilbert + Tobin
Defences Defences or arguments available under the Cor - porations Act include, but are not limited to that the defendant: • was not intentionally or recklessly dishonest; • acted in the best interests of the company; • acted for a proper purpose; • did not gain anything for itself or someone else; and • did not cause detriment to the company. Mechanisms Available to Trade Secret Owners to Co-Ordinate With Law Enforcement Authorities In Australia, trade secret owners have several mechanisms available to co-ordinate with law enforcement authorities when investigating trade secret misappropriation or economic espionage offences. These mechanisms ensure that the trade secret owner can effectively protect their intellectual property while aiding law enforce - ment in their investigation. These include: • reporting the incident; • providing evidence including documentation and, if warranted, expert evidence; • maintaining regular communications with law enforcement; • seeking protective orders from the court; and • if the misappropriation involves digital theft, co-ordinate with the AFP’s cybercrime units that can trace electronic evidence and iden - tify cybercriminals. 10. Alternative Dispute Resolution 10.1 Dispute Resolution Mechanisms Mediation Mediation is by far the most common and acces - sible ADR process used by the courts. It involves
an independent third-party mediator (often a registrar or private practitioner) who facilitates discussions between disputing parties. The goal is not to decide who is right or wrong but to help parties reach a mutually acceptable resolution. Mediations may be court-ordered or voluntar - ily initiated by the parties. In many cases, the judge will refer the matter to mediation early in the proceedings if there is a reasonable chance of settlement. This referral can be made with or without the parties’ consent. A registrar usually conducts these mediations at no cost to the parties, making it an economical option. The process is confidential, informal, and tailored to the nature of the dispute. Mediators do not impose decisions; instead, they guide communication, clarify issues, and encourage compromise. Settlement agreements reached during mediation can be made legally binding and enforceable by the Court. Arbitration While less common in court proceedings com - pared to mediation, arbitration remains a recog - nised ADR mechanism. Arbitration involves the appointment of a neutral third-party arbitrator (or a panel) who hears both sides and delivers a binding decision. Timing of ADR mechanisms in proceedings When ADR is introduced into proceedings is just as crucial as the type of mechanism used. In the court, ADR can occur at various stages – before trial, during proceedings, and even in rare cases post-trial – depending on the complexity and nature of the case.
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