Data Access Corporation Powerflex Services P/L and Ors

[1994] FCA 343

JUDGMENT Na .,..&%$A ".2$..

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

B E T W E E N :

DATA ACCESS CORPORATION

Applicant

A N D :

POWERFLEX SERVICES PTY LTD AND OTHERS

Respondents

8       A

COURT :	NORTHROP J	RECEIVED
PLACE : MELBOURNE	L -6	JUN 1994

dDEAAL CWRT OF

DATE :  12 MAY 1994 AUSTRALIA

9 PRINCIPAL
-Tnv

REASONS FOR JUDGMENT

There is a motion on notice before the Court seeking a number of orders in this matter. Submissions were made by counsel for the respondent in relation to an order sought for the evidence in the hearing in this matter to be by way of affidavit. Submissions were made as to whether this would lead to any savings of costs and whether any useful purpose would be achieved by affidavit evidence.

witness without going into what might be said to be questions of	would be a considered statement of the facts and opinions of that
advocacy supporting the view of the client but limited to evidence to assist the Court in determining conflicting evidence possibly of a technical nature.
The Court is faced with great difficulties when expert evidence is given of a technical nature between parties who are experts in their field but who disagree both as to the facts and the conclusions to be drawn from those facts, namely the opinions arising from them. The parties expect the Court to determine what is the correct view in these circumstances. In many cases, the expert witness may well take on the part of an active advocate for the client for whom the evidence is being given. This merely clouds the issue and makes the task of the Court more difficult and often detracts from the impact of the evidence of an expert witness.
The affidavits should be prepared on the basis that these are documents to assist the Court in understanding technical matters and to draw inferences of fact and conclusions from the
affidavit materjal. The alternative is to exchange expert technical matters. This can be done more effectively by way of statements, which I have not found a very satisfactory method.
This is a case where it is appropriate to order that the matter proceed by way of affidavit subject to cross-examination. At the same time, it is quite clear that any affidavit is still subject to the ordinary rules of evidence to be applied in a practical sense as to objectionable material. I propose to make order 1 set out in the notice of motion.
As far as the times are concerned, from the discussions occurring, I propose to give a greater time for the respondents to file and serve their affidavits.
Paragraph 2 will be as in the notice of motion. In paragraph 3, I will change 21 July to 16 August 1994, and in paragraph 4, I will change the date 4 August to 13 September.
Paragraph 5 seeks that the hearing of the matter be expedited. During the course of submissions, attention was drawn to this matter. One is aware of the fact that possibly the applicants knew of the infringement of copyright as early as
1990. Nevertheless, where the alleged infringement is continuing it is always desirable to have the hearing as soon as practicable and in the circumstances I propose to direct that the matter be placed in the list of cases awaiting trial, noting that the estimated length of trial is two weeks, and that the matter be fixed for trial as early as practicable after 14 October 1994.
I make that order on the basis that in all probability it is unlikely that a date could be fixed before the beginning of next year, but I make that order and to that extent I order that there be an expedited hearing. The matter could not come on for hearing before the beginning of October in any event.

In my opinion, in technical matters of this kind, evidence by affidavit is a very useful and desirable procedure to adopt, particularly in relation to evidence of a technical nature. This arises from a number of features. First, one would hope that in the preparation of an affidavit the attention of any expert witnesses would be directed to the real issues involved and there

Paragraph 6 does give rise to some problem. The affidavit

in support of the motion suggests that there has not been full inspection of the documents numbered 8 and 9. here is a suggestion made by an affidavit on behalf of the respondent that there has been inspection. In order to obviate any difficulty, I make an order in the form of paragraph 6 in the notice of motion, but I will change the date to 25 May 1994. That should not affect the overall conduct of this case.

The final matter for determination relates to particular discovery. An order was made by Sweeney J by consent on 22 April 1994 that the respondents file and serve a further affidavit of discoverable documents on or before 6 May 1994. No such affidavit has been filed. Looking at the order, it is not clear what documents are to be included in any such further affidavit of discoverable documents. The order is not in the normal form of particular discovery of the kind referred to in 015 r8 of the Federal Court Rules.

At the hearing today, there was an oral motion made on behalf of the applicant that there be particular discovery of the class of documents referred to in paragraphs 1 to 10 inclusive of the letter from the solicitors for the applicant to the

solicitors for the respondents dated 10 May 1994 and paragraphs	1, 2 and 3 on page 9 of the letter from the applicants'
solicitors to the respondents' solicitors dated 10 May 1994. These classes of documents appear on their face to cover a wide range of documents and counsel for the respondents says he is not in a position to argue the matter today. It may well be that some of these documents relate to questions of damages and there has already been an order that the trial of the action be limited to the question of liability.
In all the circumstances, this is a case where the respondents should have an opportunity to consider the oral motion for particular discovery and to make any appropriate submissions to the Court. I propose to adjourn the further hearing of this oral motion for particular discovery for a fortnight to 26 May 1994. In doing that, I would urge upon the respondent the desirability of giving this discovery if, on reflection, it is considered appropriate and so obviate the need for further hearing on that date.
I propose to order that the respondents pay the applicant's costs of the motion notice of which is dated 3 May 1994. This was a motion which was required because of the absence of agreement at the last directions hearing. The applicant has succeeded on that motion, therefore I see no reason to depart from the normal course of ordering costs to follow the event. As far as the oral motion for particular discovery was concerned, that has not increased the costs of today. What has occurred is that the oral motion today is now being treated as if it were a
notice of a motion which has been adjourned to a fortnight. If the matter is not agreed between the parties, any question of
costs could well be determined at the hearing of that oral motion.
I also order that, since there are witnesses coming from overseas in this matter, as much notice as possible should be given of the hearing date once it is fixed.
I certify that this and the preceding five (5) pages are a true
copy of the Reasons for Judgment of The Honourable Mr Justice R.M. Northrop.
Date :