daytraderHQ Ltd v Hometrader Ltd

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



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2001] WASC 283
Case No:CIV:1620/200131 JULY & 11 SEPTEMBER 2001
Coram:MASTER SANDERSON16/10/01
16Judgment Part:1 of 1
Result: Application refused
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
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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.

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