B.P. & F.M. Nominees v Petelor Business Systems Pty Ltd

[1987] FCA 62

I N THE FEDERAL COURT )

A U S T R A L I A O F )

WESTERN AUSTRALIA )

D I S T R I C T R E G I S T R Y )

G E N E R A L D I V I S I O N ) N O . WAG 4 2 of 1986

B E T W E E N : B . P . &. F . M . NOMINEES AS

TRUSTEE FOR THE GLORIE FAMILY

TRUST RADING AS "TERRACE

S T A T I O N E R Y S U P P L I E S '

A p p l i c a n t

and

P E T E L O R	B U S I N E S S	S Y S T E M S	PTY
L I M I T E D

R e s p o n d e n t

HINUTE OF ORDER

J U D G E MAKING ORDER: FRENCH J.

DATE OF ORDER: 11 February 1 9 8 7

MADE: WHERE P e r t h

THE COURT ORDERS THAT:

1. T h e m o t i o n is dismissed.

2 . The R e s p o n d e n t pay t h e A p p l i c a n t ' s costs of t h e

m o t i o n i n any e v e n t .

Note: S e t t l e m e n t and e n t r y of orders is d e a l t

w l t h I n O r d e r 36 of t h e Federal C o u r t R u l e s .

IN THE FEDERAL COURT	1
OF AUSTRALIA	)

WESTERN AUSTRALIA 1

DISTRICT REGISTRY 1

GENERAL DIVISION ) NO. 1!4G 42 O f 1986

B E T W E E N :

B.P. & F.M. NOMINEES AS TRUSTEE

FOR THE GLORIE FAMILY TRUST

TRADING AS "TERRACE STATIONERY

SUPPLIES"

Applicant

and

PETELOR BUSINESS SYSTEMS PTY

LIMITED

Respondent

CORAM :	FRENCH J.
11 February 1987

EX TEMPORE REASONS FOR JUDGMENT

In this matter the applicant on 8 May 1986 filed an

appllcatlon In thls court seeklng, among other thlngs, damages for a contravention of s.52 of the Trade Practlces Act 1974 agalnst the respondent.

The applicant 1s the proprietor of a registered buslness named "Terrace Statlonery Supplies" and the respondent 1s said to

be a trading corporation whlch carries on the business of retalllng, installlng and operational commzssioning of Toshlba brand computer systems.

- . _ - - . .- . -

The actlon arlses out of certain representatlons said to

have been made on behalf of the respondent In relation to the

2 .

performance characterlstlcs of certaln computer systems and associated software. Actlng, 1t was sald, on the falth of the

representatlons the applicant entered lnto an agreement o

purchase a computer system and software from the respondent. The appllcant contends that the representatlons made to It as to the performance characterlstics of the products which lt purchased

were false in that the system and software 1t purchased were

lncapable of performlng any	of the functions which had been
represented.

They were lnappropriate to lts needs. The back up

facllities and the hard disk storage recommended by the respondent had insufficient volume and capaclty. The system and software were improperly installed and there was a failure to provide

competent servlce technlclans for installation, malntenance and

repalr of the system. It is further alleged that the system

frequently gave data reading errors and destroyed debtor lnformatlon whlch should have been stored on memory and that the software contained erroneous start-up instructions.

The respondent has filed a defence in which it admits that the appllcant agreed to purchase a computer system and

software from lt, denles that 1t made representations alleged against It and denles that the performance characteristics or that the systems as purchased had the faults contended for. It also

cross clalms €or the cost of repairs and service work	to	the
computer system €or a total price of $450.01).

3 .

The proceedings have progressed through varlous

Interlocutory stages to the point where they have now been llsted

for hearing for three days commencing on 25 February 1987. The

respondent by a notlon filed	on 9 February 1987, seeks the
following orders:-

1. That the applicant forthwith permit the respondent

to take a copy of all data on the applicant's

Toshiba T200 computer hard disk relating to the software programmes the sub~ect, inter alla, of the action; and

2 . That the time for the service of the notice of

motlon upon the applicant be abridged.

As to the second order there was no opposition to the

abrldgment motion and I give leave for the time for the service of the notice of motion to be abridged to enable it to be dealt with today.

In a supporting affidavlt a solicitor for the respondent

deposes that the dispute concerns, among other things, the functlons which software sold by the respondent to the applicant can perform and the quality of the software and its performance. It is said that in order to inspect the documents for the partles and to enable the respondent to obtain a copy of the software the subject of the action, a meeting was arranged at the offices of the applicant on 16 January 1987.

At that meetlng it is sald lnspection of documents took

place. In addition, ln the presence of various Computer

? I .

4 .

programmers the respondent took copies of the applicant's software programmes. The applicant was not then prepared to release to the respondent copies of data upon the Toshiba 200 hard dlsk. The respondent, according to its solicltor, at that time believed It would be able to obtain the layout or source to the software programmes from the software house that originally prepared it namely CDM BuslneSS Systems.

Subsequently, the respondent was advised that the lay

out or source material to the software, held by CDM Business Systems, had been destroyed. On 5 February 1987 Mr Norman of the respondent's solicitors spoke to the solicitor for the applicant who advised that in order to check and run off the software

programmes the respondent required the data for them. As a result

it was arranged for a representative of the respondent and a computer programmer to attend at the offlces of the applicant on the afternoon of Frlday, 6 February 1987.

Mr Norman was then advised by the applicant's solicitor,

Mr Stokes, that he and a computer programmer would be In

attendance at the applicant's office. On 6 February 1987 Mr Norman recelved a message from the respondent advising that it had been unable to obtain the data from the applicant. He was

subsequently advised by telephone by P1r Stokes that the applicant would not allow the respondent to have a copy oE the data, that the applicant had a proprietary interest in it and would only release to the respondent data which previously had all confidential lnformatlon deleted from It.

5.

He was then told by Mr Stokes that he was uncertain as to how long it would take the appllcant to provlde the edited data but was advised the respondent would have to pay the appllcant's costs of provldlng it.

The respondent now seeks an order from this court

directing the appllcant to make available to it, not only copies

of the software programmes which it has already acqulred, but the

data on the applicant's computer. That data evidently, so I am told from the bar table by Mr Stokes, contains debtor information lncluding the names of debtors, their addresses, their credit

ratings as determined by some credit agency, credlt references	and
the extent of their Indebtedness to the applicant.

In addition ~t contains information wi th r espect to

involces sent to cllents of the buslness and stock control

informatlon. It is apparently possible to provide an edlted

version of the data and it is also posslble to make up a dummy cllent file for the purposes of testlng the software programme. That would involve Inserting fictltious names and addresses.

Although not without some hesltation, I am of the view proceedings. Access to it is sought on the part of the respondent so that lt can use the data as a basis for or way of testing the software programme which is sald to be defective. that it would be unreasonable at this stage to require the applicant to provide a copy of all data on its computer hard disk.

6 .

In that sense release of the data does not fall wlthln any accepted notion of dlscovery and having regard to the obviously confldential nature of lt and to the evldent commercial value of it, ~t would be in my oplnlon, both unreasonable and burdensome on the appllcant for me to make an order in the terms sought.

The appllcant has offered to make avallable to the

respondent an edlted version of the data and if that can be done in t m e for the hearlng of the action then that will facilitate the smooth conduct of It.

Another factor that I bear In mind is that the respondent comes to court to seek this order as it were, on the eve of trial. It 1s very late in the day for it to seek an order

of thls kind and for that reason also I will decllne the motion.

The motlon 1s dlsmissed and I order that the respondent pay the appllcant's costs of the motion In any event.

I hereby certlfy that this and the

preceding five (5) pages are a

true copy of the Reasons for Declslon

of his Honour Mr Justice French.

l .

Counsel for the applicant :	C1r B. stokes
Solicltors for the Appllcant	r1essrs.B.F Stokes & Associates

Counsel for the Respondent : Ms. Pearnan

SOllCltOrS for the Respondent: Trewln Norman & Co.