Knowledge Partners Pty Ltd v Kapish Pty Ltd - [2009] VSC 664

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL & EQUITY DIVISION

COMMERCIAL COURT

No. 7732 of 2008

KNOWLEDGE PARTNERS PTY LTD (ACN 089 593 108)	Plaintiff
v
Kapish Pty Ltd (ACN 116 017 728) & Ors	Defendants

---

JUDGE:	Gardiner AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6 February 2009
DATE OF JUDGMENT:	8 May 2009
CASE MAY BE CITED AS:	Knowledge Partners Pty Ltd v Kapish Pty Ltd & ors
MEDIUM NEUTRAL CITATION:	[2009] VSC 664

---

Application for further discovery pursuant to rule 32.05 of Chapter 1 of the Supreme Court (General Civil Procedure) Rules 2005 – whether plaintiff has established that it “has not sufficient information to enable [it] to decide whether or not to commence a proceeding in the Court” – application granted in respect of documents going to the quantum of the possible claim.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R. Sweet	GSM Lawyers
For the Defendant	Mr A.R. McNab	Madgwicks Lawyers

HIS HONOUR:

By originating motion filed 8 August 2008, the Plaintiff seeks preliminary discovery pursuant to rule 32.05 of the Supreme Court Rules of documents which are said to relate to software allegedly written and developed by the Defendants and other related information.

Rule 32.05 of the Supreme Court Rules provides:-

Where –
(a)there is reasonable cause to believe that the applicant has or may have the right to obtain relief in the Court from the person whose description the applicant has ascertained;
(b)after making all reasonable inquiries, the applicant has not sufficient information to enable the applicant to decide whether to commence a proceeding in the Court to obtain that relief; and
(c)there is reasonable cause to believe that that person has or is likely to have or has had or is likely to have had in that person’s possession any document relating to the question whether the applicant has the right to obtain the relief and that inspection of the document by the applicant would assist that person to make the decision–

the Court may order that that person [that is, the person referred to in subclause (c) of the law] shall make discovery to the applicant of any document of the kind described in paragraph (c).”

The proceeding was commenced by originating motion on 8 August 2008. The Plaintiff relies on several affidavits sworn by Carl Lindemann on the following dates in support of its application:

(i)4 August 2008;
(ii)20 August 2008;
(iii)11 September 2008
(iv)2 October 2008
(v)3 February 2009.

The Defendants oppose the application and rely on the following affidavits:

(i)Simon John Driscoll filed 20 August 2008 and 18 September 2008;
(ii)Jon-Paul Michael Williams sworn 18 September 2008;
(iii)Laura Therese Jane Simmons sworn 25 November 2008.

Factual background

The Plaintiff (“Knowledge Partners”) designs, sells and installs software which assists organisations to electronically manage documents. It also provides technical assistance and training for that software. The second Defendant, Mr Williams, and the third Defendant, Mr Driscoll, are former employees of Knowledge Partners and directors…

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.

Continue reading Knowledge Partners Pty Ltd v Kapish Pty Ltd

Details

AGLC: Knowledge Partners Pty Ltd v Kapish Pty Ltd [2009] VSC 664
Case: [2009] VSC 664
Decision Date: 8 May 2009

CaseChat Overview and Summary

In the case of Knowledge Partners Pty Ltd v Kapish Pty Ltd, the plaintiff, Knowledge Partners, sought an order for further discovery under rule 32.05 of the Supreme Court (General Civil Procedure) Rules 2005. The plaintiff alleged that Kapish had failed to provide sufficient information to enable it to decide whether to commence a proceeding in the Court. The nature of the dispute was centred around the adequacy of the discovery provided by the defendant, Kapish, in relation to the potential quantum of the claim.

The central legal issue the court needed to decide was whether the plaintiff had demonstrated that it lacked sufficient information to determine whether it should proceed with legal action against Kapish. Specifically, the court had to examine if the plaintiff had shown a genuine need for additional information concerning the potential quantum of the claim. This required the court to balance the plaintiff's need for information against any potential prejudice to the defendant.

The court found that the plaintiff had not been provided with adequate information to assess the potential quantum of the claim. In reaching its decision, the court considered the evidence presented by the plaintiff regarding its efforts to obtain necessary information from Kapish and the nature of the documents sought. The court determined that the plaintiff had established a legitimate basis for requiring further discovery. Consequently, the application was granted in respect of documents that pertained to the quantum of the possible claim.

The final orders of the court mandated that Kapish provide the plaintiff with the specified documents going to the quantum of the claim within a set timeframe. This ruling underscored the importance of adequate disclosure in litigation and reinforced the principle that parties must ensure they provide sufficient information to enable informed decision-making by their counterparts.

Orders