Leigh-Mardon Pty Ltd v Titan Corporation Ltd

[1996] FCA 985

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY  No VG 346 of 1993
GENERAL DIVISION

B E T W E E N :

LEIGH-MARDON PTY LTD  Applicant
A N D :
  TITAN CORPORATION LTD and OTHERS  Respondents

COURT:         NORTHROP J
PLACE:          MELBOURNE
DATE:  8 NOVEMBER 1996

REASONS FOR JUDGMENT

Before the court is what is said to be a notice to produce specified documents to be produced at return of the hearing of a motion dealing with interrogatories for the purpose of evidence. The documents are then identified. On the face of it it would appear that the notice to produce is based upon Order 33 rule 12 of the Federal Court Rules, a matter dealing with evidence of a secondary nature of documents unproduced. Having regard to the facts of this case that is entirely unnecessary at this stage.

Before the matter came on for hearing, notice was given that really what was being sought was production pursuant to Order 15 rule 10 which enables a party to seek production of documents referred to, in substance, in a pleading to be inspected and a procedure is laid down for that to be done within a certain time after service of the notice to produce. To a large extent, the notice to produce was misconceived but it is apparent from what had been said from the bar table, and also from my knowledge of the case and also from the notice of motion which has been filed by the applicants to have the notice to produce set aside, that there is an issue between the parties as to certain documents, being computer programs or parts of computer programs, related to or referred to or arising out of particulars to paragraph 12(a)(22) of the relevant statement of claim and as set out in paragraph (b)(6) of those particulars which applies to various customers - some 25 in number.

In this matter, in my opinion, there is no doubt that the Court has power to make an order for production of documents sought to be produced by notice under Order 15, rule 10. One could take a narrow view of the rules and say no formal notice has been given therefore the Court will make no order. But having regard to the nature of this case, the length of time it has taken and the stage it has reached, it would be a dereliction of duty on the part of the Court to adopt a course like that. I should also indicate that as far as this Court is concerned, Order 15, rule 10, is a method whereby a party can, in substance, get inspection of documents which are referred to in pleadings or in particulars to pleadings and this is distinct altogether from the general purpose of notices to produce under Order 33 which, traditionally, is a two step process of leading with evidence. Authorities on the latter have no bearing on the matter now before the Court.

In the present case, it is also said that discovery has been given and that in truth the programs, the subject of the notice to produce, have been discovered and have been inspected. This is a case where there has been a huge number of documents discovered
over periods of time. It is also a case where the documents originally were in the custody of the respondents, but have been handed over to the applicants pursuant to the contract of sale, and now either are or have been in the custody of the applicants. It is true also that copies of the print outs of a number of these programs have been given to the respondents, but in my opinion in order to enable a fair trial to take place it is essential that the applicants do identify those programs which come within the terms of the notice to produce.

This may entail some degree of sorting through papers. To some extent it may be said that this is a case of obtaining evidence, but to a large extent this forms a crucial part of the whole case of the applicant and gives rise to a fundamental dispute between the applicant and the respondent. It is also true that it may well be that there will need to be oral evidence to explain the programs, to explain how they give rise to the uplift factor and that the mere production of them for inspection will not enable the respondents to find the answers they are seeking; that is beside the point.

Once it is established that the Court has power to do it, it becomes a matter of discretion whether the Court should make an order for the inspection of these documents or force the respondents to start again and go through the matter in a formal way. In my opinion, as a matter of discretion, if the matters were done formally, the Court would make the orders sought. If the notice was not complied with by the applicant in giving the inspection as sought an order would be made. It would be merely a waste of time and further expense by not doing it now. Accordingly, the Court is disposed to make an order for the inspection of the documents referred to in the notice to produce dated 5 August 1996.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice R M Northrop.

Associate:

Date:

ATTACHMENT

Counsel for the applicant:  Mr R Robson QC with N Lucarelli
Solicitors for the applicant:                   Maddock Lonie & Chisholm

Counsel for the First, Second,
Fifth to Eighth, Tenth and
Eleventh respondents:              Mr P Hayes QC with S Shirrefs and K Williams

Solicitors for the First, Second,
Fifth to Eighth, Tenth and

Eleventh respondents:              Jerrard & Stuk

Date of hearing:  8 November 1996