Media Ocean Ltd v Optus Mobile Pty Ltd (No. 1) - [2009] FCA 421

FEDERAL COURT OF AUSTRALIA
Media Ocean Limited v Optus Mobile Pty Limited (No 1) [2009] FCA 421
MEDIA OCEAN LIMITED and MEDIATEL SERVICES PTY LTD v OPTUS MOBILE PTY LIMITED
NSD 242 of 2009
PERRAM J
17 APRIL 2009
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 242 of 2009

BETWEEN:
MEDIA OCEAN LIMITED
First Applicant

MEDIATEL SERVICES PTY LTD
Second Applicant

AND:
OPTUS MOBILE PTY LIMITED
Respondent

JUDGE:

PERRAM J

DATE OF ORDER:

17 APRIL 2009

WHERE MADE:

SYDNEY

THE COURT:
1.Orders that the respondent be granted access to the documents produced by the applicants.
2.Grants leave to the applicants to remove Mediatel Services Pty Limited as the second applicant.
3.Reserves any question of costs arising out of that removal.
4.Grants leave to the first applicant and to Mediatel Australia Pty Limited to join Mediatel Australia Pty Limited as the second applicant to the proceeding.
5.Reserves any question of costs arising out of that joinder.
6.To the extent necessary, grants leave to the first applicant to file an amended application.

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

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NSD 242 of 2009

BETWEEN:
MEDIA OCEAN LIMITED
First Applicant

MEDIATEL SERVICES PTY LTD
Second Applicant

AND:
OPTUS MOBILE PTY LIMITED
Respondent

JUDGE:

PERRAM J

DATE:

17 APRIL 2009

PLACE:

SYDNEY

REASONS FOR JUDGMENT

This proceeding was commenced by the applicants on 25 March 2009 and came before the expedition judge shortly thereafter. On 2 April 2009 the respondent, Optus Mobile Pty Limited (“Optus”), applied by motion for security for costs. That motion is returnable before me on Thursday 23 April 2009. As part of its preparation for that notice of motion, on 8 April 2009 Optus issued a notice to produce to the applicants relating to their financial position. The notice to produce was returnable before the registrar on Wednesday 15 April 2009. At that time the applicants made before the registrar a claim for confidentiality in relation to all of the documents produced, which claim was referred to me. I adjourned the proceeding until today in order to permit the applicants to put on evidence as to the confidential nature of the documents. When the matter came before me today the applicants read an affidavit of a Mr Charlesworth who was a director of Mediatel Australia Pty Limited. For its part, the respondent read an affidavit of Mr Lindsay Powers who is Optus’ solicitor for this proceeding.
Optus challenges the entitlement of the applicants to make a claim resisting production of the documents to anyone other than the external lawyers for Optus. Ordinarily, the fact that documents are confidential is not sufficient to prevent their inspection. So much appears from the decision of the Victorian Court of Appeal in Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR…

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.

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Details

Case: [2009] FCA 421
Decision Date: 17 April 2009

CaseChat Overview and Summary

Media Ocean Ltd and Mediatel Services Pty Limited brought an application against Optus Mobile Pty Limited in the Federal Court of Australia. The applicants sought declarations and an injunction in relation to the respondents' alleged use of their intellectual property. The applicants claimed that the respondent was using their software without permission. The applicants also sought an order for the disclosure of documents from the respondent.

The court considered whether it should grant the applicants' application for an order that the respondent be compelled to provide access to documents, and whether it should permit the applicants to amend their application to join an additional party. The court also needed to determine whether any orders for costs should be made in relation to the removal of Mediatel Services Pty Limited as a party, and the joining of Mediatel Australia Pty Limited as a party.

The court held that the applicant was entitled to access the documents produced by the respondents. The court also found that the applicants were entitled to remove Mediatel Services Pty Limited as a party and to join Mediatel Australia Pty Limited as a party. The court found that it should not make any orders for costs in relation to the removal or the joinder of the parties. The court made the orders sought by the applicants.

Orders

Orders of the court

1. Orders that the respondent be granted access to the documents produced by the applicants.

2. Grants leave to the applicants to remove Mediatel Services Pty Limited as the second applicant.

3. Reserves any question of costs arising out of that removal.

4. Grants leave to the first applicant and to Mediatel Australia Pty Limited to join Mediatel Australia Pty Limited as the second applicant to the proceeding.

5. Reserves any question of costs arising out of that joinder.

6. To the extent necessary, grants leave to the first applicant to file an amended application.

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

PERRAM J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: PERRAM J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NSD 242 of 2009

JUDGE:	PERRAM J
DATE OF ORDER:	17 APRIL 2009
WHERE MADE:	SYDNEY

JUDGE:	PERRAM J
DATE:	17 APRIL 2009
PLACE:	SYDNEY