RP Data Ltd v Property Data Solutions Pty Ltd
[2006] QSC 214
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- Unreported Judgment
- RP Data Ltd v Property Data Solutions Pty Ltd[2006] QSC 214
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RP Data Ltd v Property Data Solutions Pty Ltd[2006] QSC 214
RP Data Ltd v Property Data Solutions Pty Ltd[2006] QSC 214
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
HELMAN J
No BS2528 of 2006
RP DATA LTD (ACN 987 759 171) | Plaintiff |
and |
|
PROPERTY DATA SOLUTIONS PTY LTD (ACN 110 242 129) | First Defendant |
and |
|
NICHOLAS CHRISTIAN | Second Defendant |
BRISBANE
DATE 17/07/2006
JUDGMENT
HIS HONOUR: The parties to this application are all in the business of analysing and providing data used by real estate agents and valuers. The second defendant is a former employee of a company called Australian Business Research Pty Ltd and is now general manager of the first defendant.
The plaintiff in the principal proceeding, begun by claim on 24 March 2006, seeks a declaration, injunctions, accounts of profit, and other relief against the defendants for alleged infringement of its copyright in a computer program and for the misuse of confidential customer information. The plaintiff claims to have acquired the computer program and the confidential information from Australian Business Research Pty Ltd. The plaintiff's pleaded case is that after 31 May 2004, when the plaintiff alleges it acquired the copyright in the computer program, the first defendant, by the second defendant, copied the program to a computer or computers used by the first defendant in the course of its business and thereby reproduced the program in a material form without the licence of the plaintiff, and that, after the termination of the second defendant's employment with Australian Business Research Pty Ltd the second defendant had wrongly disclosed confidential customer information to the first defendant, and that the latter made use of that information in the course of its business. In their defence filed on 2 May 2006 the defendants deny those allegations. They counterclaim damages alleging that the plaintiff's predominant purpose in commencing and prosecuting their proceeding is and was improper, and constitutes an abuse of process.
On 13 June 2006 the defendants filed an application for summary judgment against the plaintiff under rule 293 of the Uniform Civil Procedure Rules 1999 returnable on 27 June 2006. On the latter day further hearing of the application was adjourned to 25 July 2006. A number of affidavits have been filed on behalf of the defendants in support of the application, including: those of Mr Thomas White, director of the first defendant, filed on 13 and 22 June 2006; that of Mr Jeremy Ford, systems analyst employed by the first defendant, filed on 14 June 2006; and that of the second defendant filed on 22 June 2006.
By an application filed on 3 July 2006 the plaintiff applies for orders pursuant to rules 222 and 225(2) in Part 1 (Disclosure of Parties) of Chapter 7 (Disclosure) of the Uniform Civil Procedure Rules that the defendants produce documents it says are referred to in: paragraphs 13(b), 14(b), 18, 19, 32(b)(vii), and 33 of Mr White's affidavit filed on 13 June 2006; paragraphs 7(a), 7(b), 7(c), 9, 11, 12 and 15 of Mr Ford's affidavit; and paragraphs 4, 6, 7, 9, 14, 17, 22(b), 22(f), 23, and 24 of the second defendant's affidavit. Further, if the defendants cannot produce the documents, the plaintiff seeks a direction pursuant to rule 366, that the references to them be struck out, or alternatively a direction, also pursuant rule 366, that the defendants inform the plaintiff “of the contents and the substance” of the documents in writing no later than tomorrow.
Rule 222 is as follows:
“222 A party may, by written notice, require another party in whose pleadings, particulars or affidavits mention is made of a document—
- to produce the document for the inspection of the party making the requirement or the solicitor for the party; and
- to permit copies of the document to be made.”
Rule 225(2), so far as it is relevant, provides:
“(2) If a document is not disclosed to a party under this part, the party may apply on notice to the court for—
- an order that the document be disclosed in the way and within the time stated in the order.”
Rule 225(3) provides:
“(3) The court may, in an order under subrule (2)(c), specify consequences for failing to comply with the order.”
Rule 366(2) provides that the Court may give directions about the conduct of a proceeding at any time, and rule 366(4) provides that a party may apply for directions either on an application made for the purpose or an application for other relief.
In a letter dated 16 June 2006 from its solicitors, the plaintiff gave written notice to the defendants' solicitors requiring production of the documents. The defendants have produced some documents in response to the plaintiff's notice, but there is dispute about a number of other documents, or alleged documents. Particulars of the documents, or alleged documents, and the defendants' reasons for not producing them may be found by reading a letter from the plaintiff's solicitors to the defendants' solicitors dated 11 July 2006, exhibit 1 to the affidavit of Ms Claire Sweet filed by leave on 12 July 2006, and an affidavit of Ms Robyn Morrison, also filed by leave on 12 July 2006. The issues on this application were further refined in the submissions of counsel for the parties.
There are three categories of documents, in respect of which the defendants resist the plaintiff's application. First, the defendants say that the affidavits make no mention of documents in a number of instances in which the plaintiff says they do; secondly, the defendants say that certain documents mentioned in the affidavits are no longer in their possession or under their control; and thirdly, the defendants say that other documents no longer exist.
There is a well-established distinction between the general duty of disclosure by a party to a proceeding, provided for in the Uniform Civil Procedure Rules in rule 211, and disclosure by way of production of a document for the inspection by another party or that party's solicitor in response to a requirement, provided for in rule 222: see Quilter v. Heatly (1883) 23 Ch. D. 42 at pp. 49-50 per Lindley L.J., and at pp. 50-51 per Bowen L.J.; and Mantaray Pty Ltd v. Brookfield Breeding Co Pty Ltd [1992] 1 Qd. R. 91 at p. 95 per Williams J., with whom Shepherdson and Ambrose JJ. agreed. The former duty arises in respect of documents in the possession or under the control of the disclosing party and which are directly relevant to an issue defined by the pleadings. In contrast to that duty, the latter duty arises, in the words of Lindley L.J. in Quilter v. Heatly, “to give the opposite party the same advantage as if the documents referred to had been fully set out in the pleadings” (p. 50) - in this case of course the affidavits. It is reason enough for a party to see a document that it is mentioned: ibid at p. 48-49 Jessel M. R. The refusing party bears the onus of showing why the order sought should not be made: ibid at p. 48 per Jessel M.R. and at p. 51 per Bowen L.J.
A reason that may be accepted for refusing to make an order for production of a document of which mention is made in an affidavit is that the document is not in the possession or under the control of the party required to produce it, but even in such a case the court may make the order. The question is one of discretion to be exercised with regard to the facts of the case under consideration. See Rafidain Bank v. Agom Universal Sugar Trading Co Ltd [1987] 1 W.L.R. 1606, and Mantaray Pty Ltd v. Brookfield Breeding Co Pty Ltd at pp. 96-97 per Williams, J. A refusing party generally must begin at something of a disadvantage in seeking to resist an application for an order for the production of a document on that ground because if that party has been sufficiently familiar with its contents to rely on it in a court proceeding, it is reasonable to conclude that production of at least a copy of it should be possible, particularly because it is also reasonable to assume that now those in business have available to them easy and efficient methods of making and storing copies of correspondence and other business records of all kinds.
Only peripheral relevance to an issue in the principal proceeding may, in some cases, be determined to be a reason for refusing an order for production. Here again, however, a refusing party will be at a disadvantage in relying on that ground in resisting an application because the party who mentions documents does so by choice “usually because they are either an essential part of his cause of action or defence or of significant probative value to him.” Rafidain Bank v. Agom Universal Sugar Trading Co Ltd at p. 1610 per Nourse L.J. It must be borne in mind that the degree of relevance of a document to an issue is often difficult to determine in interlocutory proceedings.
The plaintiff seeks the production of documents that it says are mentioned in paragraphs 13(b) (“the lists and details of potential clients”), 14(b) (“information”), 18 (“information”), and 19 (“market research”) of Mr White's affidavit. The words “the lists and details of potential clients” do not appear in paragraph 13(b), and in my view the words referred to in paragraphs 14(b), 18, and 19 do not constitute mentions of documents. Rules corresponding to rule 222 in which reference to a document in a pleading or affidavit confers a right on a party have been held to require direct allusion to the document, an inferred or implied reference being insufficient: see Dubai Bank Ltd v. Galadari (No. 2) [1990] 1 W.L.R. 731 at pp. 737-740, [1990] 2 All E.R. 738 at pp. 743-746; King v. GIO Australia Holdings Ltd [2001] F.C.A. 1487 at paragraphs 14-17; and Mann v. Cockburn Power Boats Association (Inc) [2005] W.A.S.C. 86 at paragraphs 14-16. There is no material difference between an allusion by reference and an illusion by making mention and so I conclude that rule 222 requires more than an inferred or implied allusion: a direct allusion is necessary.
The plaintiff seeks the production of documents that it says are mentioned in paragraphs 7(b) (“input”), 7(c) (“input”), 12 (“mapping”), and 15 (“information”) of Mr Ford's affidavit. The references to “input” and “information” are not references to documents. “Mapping” is however a mention of a document, but so far as any part of the mapping was in documentary form it has been produced to the plaintiff: see Ms Morrison's affidavit, page 5.
The plaintiff seeks the production of documents for inspection that it says are mentioned in paragraphs 4 (“the idea for a data manipulation program”, “technical programming work”, and “educating agents”), 6 (“a customer base” and “property information”), 17 (“input”), 23 (“an internal administration system”), and 24 (“a referral”) of the second defendant's affidavit. None of those references constitutes a mention of a document in my view.
That disposes of the issue concerning the production of documents the plaintiff says are mentioned in the affidavits and which the defendant says are not mentions of documents. It leaves the issue of the documents the defendants have failed to produce because they say the documents are no longer in their possession or under their control because they are in the hands of others or because they no longer exist. Those documents are referred to in Ms Morrison's affidavit.
As I have mentioned, an order under rule 225 may be refused in the exercise of the Court's discretion: see Dubai Bank Ltd v. Galadari (No 2) and rules 223 (Court orders relating to disclosure) and 224 (Relief from duty to disclose). Rule 223(1) provides that the Court may order a party to a proceeding to disclose to another party a document or class of documents, and rule 224(1) provides that the Court may order a party to be relieved, or relieved to a specified extent, of the duty of disclosure. On behalf of the defendants it was submitted that the documents sought are largely of peripheral historical relevance and there is no purpose in the making of an order that they be produced in circumstances where they no longer have the documents. Further, it was asserted that this application is vexatious.
It is not possible at this, interlocutory, stage in the proceeding to conclude that the principal proceeding constitutes an abuse of process or that this application is vexatious. While it is true that it appears that the documents in dispute are of historical relevance I am not persuaded that they are only peripheral to the defendants' case which rests upon the assertions that any program used by the first defendant was developed independently of any reference to the program that is now the plaintiff's property and that any customer information was also compiled independently of any confidential information the second defendant had access to as an employee of Australian Business Research Pty Ltd.
Accordingly, I propose granting an order that the defendants produce the documents identified by Ms Morrison in her affidavit as no longer in the possession or under the control of the defendants and adding these directions: that if a document is not produced then a copy be produced; and if a copy cannot be produced, an account of the document's contents be sworn to; and if a copy cannot be produced and its contents cannot be sworn to, a full explanation be given why the latter cannot be done. It is open to the court to add a sanction of the kind sought in the first direction referred to in the plaintiff's application, but in my view such a direction is not appropriate, provided the directions I have mentioned are complied with. Whether the evidence of the contents of documents should be received, and, if so, the weight to be accorded them will be matters for consideration by the judge hearing the defendants' application.
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HIS HONOUR: Both sides had some success, but since the plaintiff had to come to court for its success I shall award the plaintiff half of its costs against the defendants.
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HIS HONOUR: Order as in the initialled draft.