Im Medical Limited v Zissis Jack Minas

[2007] FCA 1513

FEDERAL COURT OF AUSTRALIA

IM Medical Limited v Zissis Jack Minas [2007] FCA 1513

Federal Court Rules, O 15A r 6

Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (unreported, Lindgren J, 24 May 1996) cited

IM MEDICAL LTD & ANOR v ZISSIS JACK MINAS & ANOR
VID 752 OF 2007

HEEREY J
27 SEPTEMBER 2007
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 752 OF 2007

BETWEEN:

IM MEDICAL LTD
First Applicant

INTELLIHEART PTY LTD
Second Applicant

AND:

ZISSIS JACK MINAS
First Respondent

HEART SMART DIAGNOSTICS PTY LTD
Second Respondent

JUDGE:	HEEREY J
DATE OF ORDER:	27 SEPTEMBER 2007
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1.The respondents on or before 19 October 2007 make preliminary discovery of all documents and property listed in the applicants’ application dated 17 August 2007.

2.The discovered documents and property be inspected by an independent expert to be determined between the parties.

3.The solicitors and counsel for the applicants and the independent expert give an undertaking of confidence not to disclose any confidential information to the applicants discovered pursuant to these orders.

4.The applicants complete inspection of the documents and property on or before 26 October 2007.

5.The respondents pay the applicants costs of the application.

Note:   Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 752 OF 2007

BETWEEN:

IM MEDICAL LTD
First Applicant

INTELLIHEART PTY LTD
Second Applicant

AND:

ZISSIS JACK MINAS
First Respondent

HEART SMART DIAGNOSTICS PTY LTD
Second Respondent

JUDGE:	HEEREY J
DATE:	27 SEPTEMBER 2007
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. This is an application for discovery prior to issue of proceedings brought under O 15A r 6 of the Federal Court Rules.  The factual background of this matter and the relevant authorities are set out in the applicants’ written submissions.  In opposing the orders sought, counsel for the respondents relied on what he said was a failure to satisfy the requirement of  r 6(b).  He referred to correspondence from the applicants’ solicitors which, it is fair to say, asserted in firm terms that the respondents had committed the wrongful acts complained of, that is to say, breach of confidence, copyright infringement, Trade Practices contraventions, passing off, and breach of contract.

2. However, this would not be the first time when solicitors on behalf of clients have made firm assertions of wrongdoing by a proposed defendant.  Assertion is not proof.  There are equally stern denials made in the responses to those assertions by the respondent’s solicitors.  As counsel for the applicants put it, an essential element of the claim is that Dr Minas is using the algorithm forming part of the applicants’ system.  There remains a possibility that he has created a new algorithm, and the applicants, reasonably, in my opinion, wants to obtain forensic examination to eliminate that possibility before making a final decision whether to commence proceedings.  I note that the provisions of O 15A r 6(b) extend to a decision whether or not to commence a proceeding which depends on whether or not a defence may be made out: see, Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd at 8 (unreported, Lindgren J, 24 May 1996). 

3. Accordingly, the court finds in favour of the applicants’ motion.

I certify that the preceding three (3) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice HEEREY.

Associate:

Dated:       27 September 2007

Counsel for the Applicant:	L Duncan
Solicitor for the Applicant:	Cornwall Stodart
Counsel for the Respondent:	A Thomas
Solicitor for the Respondent:	Browne & Co
Date of Hearing:	27 September 2007
Date of Judgment:	27 September 2007