Bso Network Inc v EMClarity Pty Ltd - [2020] QSC 186

SUPREME COURT OF QUEENSLAND

CITATION:

BSO Network Inc v EMClarity Pty Ltd [2020] QSC 186

PARTIES:

BSO NETWORK INC COMPANY NO. 4980727

(First Plaintiff)

APSARA NETWORKS INC
(Second Plaintiff)

AND

EMCLARITY PTY LTD ACN 88 139 128 180

(Defendant)

FILE NO/S:

BS No 12112 of 2019

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane Supreme Court

DELIVERED ON:

19 June 2020

DELIVERED AT:

Brisbane

HEARING DATE:

4 June 2020

JUDGE:

Brown J

ORDER:

The order of the Court is that:

1. These reasons are only to be published to the parties until further order.

2. The matter will be listed for mention on Monday, 22 June 2020 for submissions as to costs and the appropriate form of order.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION OF DOCUMENTS – DOCUMENTS IN POSSESSION OF NON-PARTY – where plaintiffs claim for specific performance and breach of confidence – where plaintiff alleges objective likelihood of noncompliance with r 211 – where documents would be with third-party in United States – where defendant subsidiary of third-party – whether defendant should disclose documents in identified categories – whether a Sabre order should be granted against Unites States parent company

Uniform Civil Procedure Rules 1999 (Qld) r 211, r 223, r 367

Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust 4A v Sage Group plc (No 3) (2013) 306 ALR 414, considered
Ceneavenue Pty Ltd v Martin [2008] SASC 332, cited
Harris v Australand[2010] QSC 385, considered
In the matter of Kavia Holdings Pty Limited (Administrators Appointed) (Receivers and Managers appointed) [2013] NSWSC 1269, considered
Integrated Medical Technology Pty Ltd v Gilbert (No 2)[2015] QSC 124, considered
McGoldrick v Sports TG Pty Ltd [2019] NSWSC 1154, considered
Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276; [1999] QCA 276, considered
Psalidis v Norwich Union Life Australia Ltd (2009) 29 VR 123, considered
Sabre Corporation Pty Ltd v Russ Calvin’s Haircare Company (1993) 46 FCR 428, followed
Sogelease Australia Ltd v Griffin [2003] NSWSC 178, considered

The Queensland Local Government SuperannuationBoard vAllen[2016] QCA 325, cited

COUNSEL:

D O’Brien QC with F Lubett for the plaintiffs
G Beacham QC with G Coveney for the defendant

SOLICITORS:

Johnson Winter & Slattery for the plaintiffs
Ashurst Australia for the defendant

Application

The Plaintiffs seek orders requiring the Defendant (EMC) to:
(a)complete disclosure as required by r 211 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) which it contends if viewed objectively, is likely to be incomplete; or
(b)request certain documents from its parent company, McKay Brothers LLC (McKay) which it contends are directly relevant to the issues in the proceeding, and are likely to be in the possession of McKay (a Sabre order).
Background
The following matters are…

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.

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Details

Case: [2020] QSC 186
Decision Date: 19 June 2020

CaseChat Overview and Summary

In the case of Bso Network Inc v EMClarity Pty Ltd, the plaintiffs, Bso Network Inc, brought an action for specific performance and breach of confidence against the defendants, EMClarity Pty Ltd. The dispute primarily revolved around the discovery and inspection of documents, particularly those in the possession of a third-party located in the United States. The plaintiffs alleged an objective likelihood of noncompliance with rule 211 of the relevant procedural rules, necessitating further disclosure of documents from the defendant, who is a subsidiary of the third-party entity.

The primary legal issues before the court were whether the defendant should disclose documents in the specified categories and whether a Sabre order should be granted against the United States-based parent company of the defendant. The court had to balance the need for discovery and inspection of documents with the potential impact on commercially sensitive information.

The court determined that the defendant should request the relevant documents from the third-party within a reasonable timeframe and subsequently file an affidavit detailing the steps taken and any documents provided. The court also concluded that a Sabre order should be issued, thereby requiring the United States parent company to disclose the necessary documents. The reasons for the decision were to be published to the parties only until a specified date to allow for consideration of any confidential matters. The matter was listed for further mention to address costs and the form of order.

The final order mandated that the reasons be published to the parties only until further order, and the matter was scheduled for a mention on 22 June 2020 to discuss costs and the appropriate form of order.

Orders

Orders of the court

The order of the Court is that:

1. These reasons are only to be published to the parties until further order.

2. The matter will be listed for mention on Monday, 22 June 2020 for submissions as to costs and the appropriate form of order.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The draft order provides for EMC to request the relevant documents from McKay within five business days of the order being made. That is a reasonable time period. The order should provide for EMC to file and serve an affidavit of the steps taken to obtain the documents and any documents provided 14 days after that request has been made. Conclusion Given the above reasons, the Court will order further disclosure be made by EMC and a Sabre order will be made. These reasons will be published to the parties only until Monday, 22 June 2020, to permit the parties to consider whether they contain any confidential matters. I will list the matter for mention on 22 June 2020 at 9.15am to hear the parties in relation to that matter, the form of order and in relation to costs. Having heard the parties further and being satisfied that some references in the reasons revealed confidential information containing commercially sensitive information, those references have been removed from the published reasons.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	BSO Network Inc v EMClarity Pty Ltd [2020] QSC 186
PARTIES:	BSO NETWORK INC COMPANY NO. 4980727 (First Plaintiff) APSARA NETWORKS INC (Second Plaintiff) AND EMCLARITY PTY LTD ACN 88 139 128 180 (Defendant)
FILE NO/S:	BS No 12112 of 2019
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane Supreme Court
DELIVERED ON:	19 June 2020
DELIVERED AT:	Brisbane
HEARING DATE:	4 June 2020
JUDGE:	Brown J
ORDER:	The order of the Court is that: 1. These reasons are only to be published to the parties until further order. 2. The matter will be listed for mention on Monday, 22 June 2020 for submissions as to costs and the appropriate form of order.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION OF DOCUMENTS – DOCUMENTS IN POSSESSION OF NON-PARTY – where plaintiffs claim for specific performance and breach of confidence – where plaintiff alleges objective likelihood of noncompliance with r 211 – where documents would be with third-party in United States – where defendant subsidiary of third-party – whether defendant should disclose documents in identified categories – whether a Sabre order should be granted against Unites States parent company Uniform Civil Procedure Rules 1999 (Qld) r 211, r 223, r 367 Archer Capital 4A Pty Ltd as trustee for the Archer Capital Trust 4A v Sage Group plc (No 3) (2013) 306 ALR 414, considered Ceneavenue Pty Ltd v Martin [2008] SASC 332, cited Harris v Australand[2010] QSC 385, considered In the matter of Kavia Holdings Pty Limited (Administrators Appointed) (Receivers and Managers appointed) [2013] NSWSC 1269, considered Integrated Medical Technology Pty Ltd v Gilbert (No 2)[2015] QSC 124, considered McGoldrick v Sports TG Pty Ltd [2019] NSWSC 1154, considered Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants & Bars Pty Ltd [2001] 1 Qd R 276; [1999] QCA 276, considered Psalidis v Norwich Union Life Australia Ltd (2009) 29 VR 123, considered Sabre Corporation Pty Ltd v Russ Calvin’s Haircare Company (1993) 46 FCR 428, followed Sogelease Australia Ltd v Griffin [2003] NSWSC 178, considered The Queensland Local Government SuperannuationBoard vAllen[2016] QCA 325, cited
COUNSEL:	D O’Brien QC with F Lubett for the plaintiffs G Beacham QC with G Coveney for the defendant
SOLICITORS:	Johnson Winter & Slattery for the plaintiffs Ashurst Australia for the defendant