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CCOM Pty Ltd v Jiejing Pty Ltd

CCOM Pty Ltd v Jiejing Pty Ltd

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Case Copied 21 August 1992 13 min read

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C A T C H W O R D S 1

Practice and procedure - Notice to produce under Order 33 Rule 12 Federal Court Rules - service of notice - non-production of source code - consequences of non-production - whether effect as a subpoena for production - whether compliance mandatory - discretion to excuse the production of material.

Order 33 Rule 12 Federal Court Rules.

1 SEP 1992

CCOM PTY. LTD. AND RONALD HOWARD THOMAS v. JIEJING PTY. LTD. ,

PARAVET INSTRUMENTS P m . LTD.. ALLAN GARNHAM. JEFFWY JOHN
YATES. ERIC RUSSELL CHAPPELL
No. G124 of 1991

Cooper J.. Brisbane. 21 Auaust. 1992

RECEIVED

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY \

GENERAL DIVISION No. G124 of 1991
BETWEEN:

CCOM PTY. LTD. and RONALD HOWARD THOMAS

ADDlicants

AND: JIEJING PTY. LTD.

First Respondent

W : PARAVET INSTRUMJ3NTS PTY. LTD.

Second Res~ondent

m: ALLAN GARNHAM

Third Respondent

m: JEFFREY JOHN YATES

Fourth Respondent

AND: ERIC RUSSELL CHAPPELL

Fifth Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER: Cooper J.
WHERE MADE: Brisbane

m: 21 August, 1992
THE COURT ORDERS:

The respondents other than the third respondent are not required to produce to the court in compliance with the applicant's notice to produce so much of the source codes of the Jiejing computer programs as does not relate to instructions leading to the identification of the entry point of a stroke character category in the stroke
category data base and/or the Chinese ch racter data base and to the retrieval and display of a character or e
characters from within the said databases in the "character box" as defined in the statement of Jeffrey John Yates filed 24 July, 1992, in the visual display unit.

IN THE FEDERAL COURT OF AUSTRALIA
PUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

BETWEEN :

CCOM PTY. LTD. and RONALD HOWARD THOMAS

Applicants

JIEJING PTY. LTD.

First Respondent

PARAVET INSTRUMENTS PTY. LTD.

Second Respondent

ALLAN GARNHAM

Third Respondent

JEFFREY JOHN YATES

Fourth Respondent

AND : ERIC RUSSELL CHAPPELL

Fifth Respondent

m: Cooper J.
PLACE : Brisbane
m: 21 August, 1992

REASONS FOR JUDGMENT

The applicant has served upon the respondents, other than the third respondent ("the respondents") a notice to

produce in accordance with Order 33 Rule 12 of the Federal

Court Rules. The notice requires production at the trial of the source codes of the Jiejing computer programs in issue in these proceedings. A call has been made for the source codes. The source codes were not produced in response to the call nor to the court.

It was submitted by Counsel for the respondents that

Order 33 Rule 12 on i t s proper construction does not require

production and that a fai lure t o produce the source codes only has the consequence t h a t the applicant may tender secondary evidence o f the codes and that the respondents may be exposed t o an order for costs. Beyond th i s it was submitted no

consequences flowed. Alternatively it was submitted…

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: [1992] FCA 626
Decision Date: 21 Aug 1992

CaseChat Overview and Summary

In the Federal Court of Australia, the case of CCOM Pty Ltd v Jiejing Pty Ltd involved the applicants, CCOM Pty Ltd and Ronald Howard Thomas, seeking the production of source codes from the respondents, Jiejing Pty Ltd, Paravet Instruments Pty Ltd, Allan Garnham, Jeffrey John Yates, and Eric Russell Chappell. The applicants argued that the respondents failed to produce the source codes in response to a notice to produce under Order 33 Rule 12 of the Federal Court Rules. The legal issues before the court were whether the notice to produce had the same effect as a subpoena for production, and whether the court had the discretion to excuse the production of the source codes.

The court held that Order 33 Rule 12 did confer the same coercive effect as a subpoena for production, making compliance mandatory unless excused by the court. The court found that the respondents were required to produce the source codes to the court unless excused by the court. The court also considered the respondents' alternative application for an order excusing them from producing the source codes. While the court had previously refused to order discovery and inspection of the source codes, the court found that the source code relevant to the retrieval and display of characters from within the databases was now relevant due to a clear issue arising on the evidence.

The court concluded that the interests of justice did not require the production of the source code relating to the word help facility of the program or the source code that did not relate to the instructions leading to the identification of the entry point of a stroke character category. However, the court ordered that the respondents were required to produce the source codes to the extent that they related to the instructions leading to the identification of the entry point of a stroke character category in the stroke category database and/or the Chinese character database and to the retrieval and display of a character or characters from within those databases in the "character box" as defined in the statement of Jeffrey John Yates. The court also allowed the respondents to cover up the non-relevant parts of the source codes if they could not be physically excluded.

The final orders of the court were that the respondents, other than the third respondent, were not required to produce to the court in compliance with the applicant's notice to produce so much of the source codes of the Jiejing computer programs as did not relate to the specified instructions and database retrieval and display functions.

Orders