daytraderHQ LTD -v- HOMETRADER LTD & ORS [2001] WASC 283

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 283
Case No:	CIV:1620/2001	Heard:	31 JULY & 11 SEPTEMBER 2001
Coram:	MASTER SANDERSON	Delivered:	16/10/01
No of pages:	16	Judgment Part:	1 of 1
Result:	Application refused
Category:	A
PDF Version

Parties:	daytraderHQ LTD (ACN 086 972 429) HOMETRADER LTD (ACN 091 509 849) JASON GAVIN DAVIS BARBARA McLEESE EDWARDS JOHN DAY DAVID ROBERT JOHNSON
Catchwords:	Practice and procedure Preaction discovery Principles to be applied Test to be applied to satisfy requirements of O 26A r 4 Order seeking discovery of competitor's confidential material Discretion to refuse order
Legislation:	Nil
Case References:	Central Exchange Ltd v Anaconda Nickel Ltd [2001] WASC 128 Davis v Sagar Pty Ltd, unreported; SCt of WA; Library No 980443; 10 August 1998 McCarthy v Dolpag Pty Ltd [2000] WASCA 106 Acohs Pty Ltd v R A Bashford Consulting Pty Ltd (1997) 37 IPR 542 Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66 Charles Lo Presti Pty Ltd v Karabalios, unreported; SCt of NSW; BC 9603276; 31 July 1996 Cohen v Walthamstow Pty Ltd, unreported; SCt of WA; Library No 980148; 30 March 1998 Computer Edge Pty Ltd v Apple Computer Inc [1986] 61 CLR 171 Corrs Pavey Whiting & Byrne v Collector of Customs (1987) 14 FCR 434 Dart Industries Inc v David Bryar & Associates Pty Ltd (1997) 38 IPR 389 Faccenda Chicken Ltd v Fowler [1986] 3 WLR 288 (CA) Kim Riley in his capacity as Trustee of the Ker Trust v Jubilee Gold Mines NL [2000] WASC 114 London Economics (Aust) Pty Ltd v Frontier Economics Pty Ltd [1999] FCA 932 Mense & Ampere Electrical Manufacturing Co Pty Ltd v Milenkovich [1973] VR 784 O'Brien v Komesaroff (1982) 150 CLR 310 Stuart v Miller [1979] NSWLR 128 The Commonwealth of Australia v Fairfax and Sons Ltd (1980) 147 CLR 39 Tipperary Developments Pty Ltd v Western Australia (1999) 21 WAR 250 United Energy Ltd v Energy Risk Management Pty Ltd [1998] VSC 133

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : daytraderHQ LTD -v- HOMETRADER LTD & ORS [2001] WASC 283 CORAM : MASTER SANDERSON HEARD : 31 JULY & 11 SEPTEMBER 2001 DELIVERED : 16 OCTOBER 2001 FILE NO/S : CIV 1620 of 2001 BETWEEN : daytraderHQ LTD (ACN 086 972 429)

Applicant

AND

HOMETRADER LTD (ACN 091 509 849)

First Respondent

JASON GAVIN DAVIS

Second Respondent

BARBARA McLEESE EDWARDS

Third Respondent

JOHN DAY

Fourth Respondent

DAVID ROBERT JOHNSON

Fifth Respondent

(Page 2)

Catchwords:

Practice and procedure - Preaction discovery - Principles to be applied - Test to be applied to satisfy requirements of O 26A r 4 - Order seeking discovery of competitor's confidential material - Discretion to refuse order

Legislation:

Nil

Result:

Application refused

Category: A

Representation:

Counsel:

Applicant : Ms C Brown

First Respondent : Dr J T Schoombee

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: [2001] WASC 283
Decision Date

CaseChat Overview and Summary

daytraderHQ Ltd sought an order under r 4 of O 26A of the Supreme Court (General Civil Procedure) Rules 2006 (WA) for the first defendant, Hometrader Ltd, and other defendants to give discovery of documents that may assist daytraderHQ Ltd in deciding whether or not to commence proceedings against them. daytraderHQ Ltd claimed that the first defendant's training protocols were substantially similar to those used by daytraderHQ Ltd and may have been based upon, if not plagiarised from, the plaintiff's documents. The defendants argued that the plaintiff had not established that it may have a cause of action against them as is required by r 4(1). They also submitted that the plaintiff had already obtained sufficient information to enable it to make a decision as to whether or not to commence proceedings and in fact the evidence showed that a decision to commence proceedings had been taken. The court held that the plaintiff had established that it may have a cause of action against the defendants. However, the court was not satisfied that an order for discovery should be made as it was not in the interests of justice to do so. The court concluded that the strength of the plaintiff's case, coupled with the commercial sensitivity of the documents in question, meant that this was not a proper case in which to make orders sought by the plaintiff.

Orders