Apple Computer v Wily - [2003] NSWSC 191

CITATION: Apple Computer v Wily [2003] NSWSC 191

HEARING DATE(S): 10/03/03

JUDGMENT DATE:
25 March 2003

JURISDICTION:
Equity Division
Corporations List

JUDGMENT OF: Barrett J

DECISION: Notice of motion dismissed

CATCHWORDS: PROCEDURE - notice to produce - whether abuse of process - whether impermissible substitute for discovery

LEGISLATION CITED: Corporations Act 2001 (Cth), ss.536, 596B

CASES CITED: Commissioner for Railways v Small (1938) 38 SR (NSW) 564
National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
Williams v Spautz (1991) 174 CLR 509

PARTIES :
Apple Computer Australia Pty Ltd - Plaintiff
Andrew Hugh Jenner Wily - First Defendant
Buzzle Operations Pty Ltd (Receivers Appointed) (In Liquidation) - Second Defendant

FILE NUMBER(S): SC 2698/02

COUNSEL: Mr C R C Newlinds - Plaintiff
Mr M R Aldridge SC - Defendants

SOLICITORS: Clayton Utz - Plaintiff
MBP Legal, McCrohon Bergseng Partners - Defendants

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

TUESDAY, 25 MARCH 2003

2698/02 – APPLE COMPUTER AUSTRALIA PTY LTD v WILY & ANOR

JUDGMENT

1 By notice of motion filed on 10 March 2003 and heard by me on that day, the defendants, being Buzzle Operations Pty Ltd and its liquidator Mr Wily, seek an order setting aside a notice to produce dated 4 February 2003 given by the plaintiff to the first defendant (that is, Mr Wily).

2 The notice to produce requires the production of documents of various categories each of which is defined by reference to one or more paragraphs of an affidavit sworn on 26 March 2002 by the first defendant in support of an application by him, as liquidator of the second defendant (“Buzzle”), for the issue of summonses under s.596B of the Corporations Act 2001 (Cth) directed to various persons associated with either Buzzle or the present plaintiff, Apple Computer Australia Pty Ltd (“Apple”).

3 The various paragraphs of the notice to produce all follow one or other of several patterns. One class of paragraphs calls for the production of documents or computer records referred to in a designated paragraph of the first defendant’s affidavit commencing with or including words such as “based on the computer records available to me” or “stocktakes and valuations obtained by each of the vendor companies and provided to Apple”. Another category involves paragraphs calling for documents that evidence identified assertions made in the first defendant’s affidavit or support particular allegations in the affidavit. There is, for example, a paragraph of the affidavit saying that, in a particular period, Buzzle purchased stock to a certain value, paid a certain amount by way of price and was allowed to continue to place orders and to purchase stock. The notice to produce seeks, in respect of this, all documents of any kind and in any form (including electronic) that support the allegations made.

4 The notice to produce must, of course, be understood in its context. Apple’s originating process filed on 14 May 2002 seeks, in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Apple Computer v Wily

Details

AGLC: Apple Computer v Wily [2003] NSWSC 191
Case: [2003] NSWSC 191
Decision Date: 25 March 2003

CaseChat Overview and Summary

Apple Computer filed proceedings against Wily seeking a declaration and injunctive relief to restrain Wily from continuing to infringe Apple's copyright in certain computer software. Wily resisted the proceedings on the basis of Apple's alleged copyright infringement of Wily's software. The dispute between the parties arose from the development and use of computer software products.

The court was required to determine whether Apple's request for a notice to produce was an abuse of process, and whether it amounted to an impermissible substitute for discovery. Apple argued that the notice to produce was a legitimate step in the discovery process and necessary to address the complexity of the case. Wily contended that the notice to produce was an abuse of process and an impermissible substitute for discovery, as it was overly broad and would impose an unreasonable burden on Wily.

The court held that the notice to produce was not an abuse of process and did not constitute an impermissible substitute for discovery. The court found that the notice to produce was a reasonable and proportionate step in the discovery process, and was necessary to address the complexity of the case. The court also found that the notice to produce was not overly broad and did not impose an unreasonable burden on Wily. The court held that the notice to produce was an appropriate means of obtaining the necessary information to resolve the dispute between the parties.

The court ordered Apple to pay Wily's costs of the application.

Orders