NEARMAP LTD V SPOOKFISH PTY LTD

The general position is that before initiating arbitration proceedings, a prospective claimant may seek preliminary discovery under domestic court procedures: see the New South Wales Supreme Court’s (“NSWSC”) judgment innearmap Ltd v Spookfish Pty Ltd[2014] NSWSC 1790.

In this case, the plaintiff, nearmap Ltd (“nearmap”), operated a business supplying aerial and geospatial photomosaic images. It relied on innovative and confidential design processes and information. Several employees, including a former Chief Technology Officer and a Chief Operating Officer, left to operate a rival firm in the same industry, Spookfish Pty Ltd (“Spookfish”).

Nearmap was worried that its former employees retained confidential information from their employment, and that Spookfish was unlawfully using that information in its business. It sought preliminary discovery from Spookfish and its directors under the NSWSC’s procedural rules, theUniform Civil Procedure Rules 2005(NSW) (the “UCPR”), to determine whether to pursue proceedings against the defendants for breach of confidence (among other claims).

Spookfish resisted the application, arguing that it should be permanently stayed pursuant to an arbitration agreement between the parties, and determined by the arbitral tribunal instead. Spookfish cited s 8 of theCommercial Arbitration Act 2012(WA) and s 8 of theCommercial Arbitration Act 2010(NSW) (each, an “Act”), which both provide that:

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