Equipment manufacturer Howden sued Minitek in May 2019, claiming its former employee, Remy Bourcier, used confidential information sourced from his time at Howden to create and patent large industrial fans used in mining, called mixed flow fans, for his new employer Minitek.

In a hearing on Thursday, Federal Court Justice Nye Perram heard that Minetek was considering launching proceedings against a former employee, Mr Stack, who is alleged to have unlawfully accessed and used confidential images he stored on a USB device after he left the company.

Minetek filed an interlocutory application on 2 July for orders to serve an amended defence and seek discovery from Howden. The mining technology company included an additional proposed order in the interlocutory application on 14 July, seeking access to the USB devices allegedly in the possession of its solicitors.

“I wouldn’t have thought there’s any great controversy because my learned friend’s solicitors and my learned friends said to me this morning they don’t act for Mr Stack,” said counsel for Minetek, David Studdy SC.

Minetek’s bid to access the USB devices follows Justice Peram ordering in October last year that Minetek and Bourcier hand over copies of USB flash drives, notebooks and other devices used when Bourcier jumped ship from Howden in September 2016.

An application by Howden to restrain Minetek from selling the fans or using the allegedly confidential information was refused by Justice Jayne Jagot in June 2019. The judge found that Howden had not established a prima facie case against Minetek after Bourcier gave evidence to the court denying he had used Howden’s information in creating the fans.

But later documents provided by Minetek in discovery to Howden were inconsistent with Bourcier’s blanket denials, Justice Perram found. In particular, an email sent by Bourcier to Stack attached a spreadsheet allegedly containing the confidential information. The existence of this email had previously been denied by Bourcier who, together with Minetek, attacked Stack’s credibility in evidence filed with the court.

In deciding to order the production of “forensic images” of the relevant USB drives, notebooks and other devices, Justice Perram said that the order was justified and that evidence showed that Minetek and Bourcier had failed to adequately provide proper discovery in the case.

Counsel for Howden, Emma Bathurst, said Wednesday that Howden had not had the opportunity to give instructions on whether it agreed to Minetek being given access to the USB devices, which the barrister claimed had already been inspected by the mining technology company’s former solicitors.

“Our preliminary view is that it is overreaching to require production of those (documents)…for the purpose of the respondents using them in separate proceedings that may be commenced against Mr Stack,” said Bathurst.

“It seems premature…akin to almost getting preliminary discovery in proceedings against Mr Stack.”

Studdy also confirmed that Minetek had entirely replaced its legal representation, engaging Gilbert + Tobin in February.

Howden agreed that Minetek could file an amended defence and said it would provide discovery by October. The question of Minetek accessing the USB drives has been stood over until next Friday.

Howden is represented by John Hennessy SC and Emma Bathurst, instructed by Bird & Bird. Minetek is represented by David Studdy SC, instructed by Gilbert + Tobin. Bourcier is represented by Colin Biggers & Paisley.

The case is Howden Australia Pty Ltd & Anor v Minetek Investments Pty Ltd & Ors.

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