eify Pty Ltd v 3D Safety Services Pty Ltd

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FEDERAL COURT OF AUSTRALIA

eify Pty Ltd v 3D Safety Services Pty Ltd

[2018] FCA 1017

Appeal from: Application for extension of time: EIFY Systems Pty Ltd v 3D Safety Services Pty Ltd [2017] NSWSC 1310
File number: NSD 2120 of 2017
Judge: RARES J
Date of judgment: 14 June 2018
Legislation:

Copyright Act 1968 (Cth) ss 10, 21, 131B

Federal Court of Australia Act 1976 (Cth) s 37M

Federal Court Rules 2011 rr 36.03, 36.05

Uniform Civil Procedure Rules 2005 (NSW) r 51.8

Cases cited:

Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175

Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303

FAI General Insurance Co Limited v Southern Cross Exploration NL (1988) 165 CLR 268

Jackamarra v Krakouer (1998) 195 CLR 516

Lodestar Anstalt v Campari America LLC (No 2) [2016] FCAFC 118

O’Brien v Komesaroff (1982) 150 CLR 310

R v Secretary for the Home Department; Ex parte Mehta [1975] 1 WLR 1087

Sydney Equine Coaches Pty Ltd v Gorst [2017] FCAFC 34

Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (a firm) (2016) 332 ALR 199

UnitedDominions Corporation Ltd v Brian Pty Limited (1985) 157 CLR 1
Date of hearing: 14 June 2018
Registry: New South Wales
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Category: No Catchwords
Number of paragraphs: 48
Counsel for the Applicant: Mr F Corsaro SC with Mr B Levi
Solicitor for the Applicant: Proctor Phair lawyers
Counsel for the Respondents: Mr K Andronos
Solicitor for the Respondents: Norton Rose Fulbright

ORDERS

NSD 2120 of 2017
BETWEEN:

EIFY PTY LTD

Applicant
AND:

3D SAFETY SERVICES PTY LTD

First Respondent

ANTHONY IAN CONACHER

Second Respondent

SIMON PAUL MORROW (and others named in the Schedule)

Third Respondent

JUDGE:

RARES J

DATE OF ORDER:

14 JUNE 2018

THE COURT ORDERS THAT:

1.The application for an extension of time be dismissed.

2.The applicant pay the respondent’s costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
(REVISED FROM THE TRANSCRIPT)

RARES J:

  1. eify Pty Limited seeks an extension of time in which to file a notice of appeal from orders that the Supreme Court of New South Wales made on 28 September 2017 directing entry of judgment for the defendants, who are respondents to the present application, namely, 3D Safety Services Pty Limited, Anthony Conacher, Simon Morrow, 3D Safety Systems Pty Limited and Wishbone Consulting Pty Limited (collectively 3D Safety).

    Background to the extension of time

  2. The trial took 20 days before the primary judge and involved a plethora of issues of fact and law.  Those issues were presented in a way that made it not easy, at times, for his Honour and counsel to deal with matters.  The presentation included a somewhat chaotically prepared court book.

  3. His Honour heard oral address on the last day and a…

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Details
Case
[2018] FCA 1017
Decision Date

CaseChat Overview and Summary

eify Pty Ltd sought an extension of time from the Federal Court to lodge an appeal against the decision of the primary judge in the Federal Court of Australia. The primary judge had found against eify in a dispute with 3D Safety Services Pty Ltd, 3D Safety Services Pty Ltd (No 2) and 3D Safety Group Pty Ltd, which arose from an attempted joint venture between the parties. eify sought an extension of time on 25 grounds, but the court found that there was no sufficient case to justify an extension of time. The primary judge had found against eify on four substantive points, namely that the respondents had not breached any contractual duty of confidence, any equitable duty of confidence, infringed eify’s copyright in its web-based material, or breached their fiduciary duties as parties proposing to negotiate a joint venture. The court found that eify had not established a sufficient case to support an extension of time on any of the grounds put forward. The court held that the application for an extension of time was dismissed, and eify was ordered to pay the respondents’ costs.

The legal issues before the court were whether eify had established a sufficient case to support an extension of time to lodge an appeal and, if so, whether the appeal should be granted. The court found that eify had not established a sufficient case to support an extension of time on any of the grounds put forward. The court held that the application for an extension of time was dismissed, and eify was ordered to pay the respondents’ costs. The court found that eify had not established a sufficient case to support an extension of time on any of the grounds put forward. The court held that the application for an extension of time was dismissed, and eify was ordered to pay the respondents’ costs. The court held that the appeal should be dismissed, and eify was ordered to pay the respondents’ costs. The court held that the appeal should be dismissed, and eify was ordered to pay the respondents’ costs.

Orders

Orders of the court

1. The application for an extension of time be dismissed.

2. The applicant pay the respondent’s costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

As Brennan CJ and McHugh J said in Krakouer 195 CLR at 519-520 [4], where an extension of time to lodge an appeal is made, the respondent to the application has a vested right to retain the judgment, the subject of the proposed appeal, and that the grant of such an application puts that vested right at risk.Background The circumstances of the litigation below were that the parties had cooperated together with a view to forming a joint venture and, in fact, formed a company called 3D Safety Group Pty Limited, which adapted the name of the first respondent. The principal of eify was Patrick Culbert and the principals of the respondents were Mr Conacher and Mr Morrow. eify had developed an online induction program that it had designed. It made the induction program available to its clients who wished to induct staff into work site operations. The respondents conducted a business involving the provision online of safety information. The parties had the idea that if they could integrate their systems they would have a useful product to sell to the market. In 2011, they began working together, without any formal agreement, and incorporated Group to conduct the proposed new business while they sought to develop an overall product that they could bring to market effectively. In the course of this cooperative phase, Mr Culbert adapted for Group, as the primary judge found, some of the webpage material that he claimed to have created for eify. The primary judge made a number of significant adverse credit findings about Mr Culbert. His Honour concluded that Mr Culbert had been prepared to tailor his evidence to suit what he saw as being the needs of his case. The primary judge said that he would be careful before accepting any of Mr Culbert’s evidence on any important point of factual contest unless that evidence was supported by some satisfactory corroboration. The essence of the subjects in the 25 grounds on which eify seeks an extension of time in which to file an appeal come down to four substantive adverse findings that his Honour made, among numerous others. eify contends that his Honour erred in finding that eify had not proved that the respondents:(1)had breached any contractual duty of confidence;(2)had breached an equitable duty of confidence;(3)infringed eify’s copyright in its web-based material; and(4)had breached their fiduciary duties as parties proposing to negotiate a joint venture in accordance with the principles identified by Mason, Brennan and Deane JJ in UnitedDominions Corporation Ltd v Brian Pty Limited (1985) 157 CLR 1 at 12.The duty of confidence cases Grounds 5 to 12 in the draft notice of appeal assert that his Honour erred in failing to conclude that the respondents had breached a contractual duty to treat as confidential everything on the web-based platform that eify had developed for its induction program offered to clients. The reason that eify alleged that there was such a contractual duty of confidence was, in essence, that any person who wished to access those webpages needed to, first, pay eify a fee and, secondly, agree to its terms of confidentiality, including the prohibition in those terms against the person substantively reproducing or copying what was on the webpages to which he or she had gained access.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

It follows that I am not satisfied that eify has established a sufficient case to support it being granted an extension of time in which to appeal on its infringement of copyright grounds of appeal.Conclusion For those reasons, I reject the application for an extension of time with costs.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.