ObjectiVision Pty Ltd v Visionsearch Pty Ltd

ObjectiVision Pty Ltd sought an order for preliminary discovery from Visionsearch Pty Ltd, alleging infringement of copyright and misuse of commercially confidential information in computer source code and development documentation. The Federal Court of Australia had to determine whether ObjectiVision had a reasonable cause to believe in the infringement and misuse, and if the requested discovery was appropriate. The court examined the evidence and submissions from both parties, considering the principles set forth in Optiver and St George. It noted that the evidence provided by Visionsearch, including expert evidence, went beyond the permissible scope for such an application, venturing into resolving factual conflicts.

The court concluded that ObjectiVision had a reasonable cause to believe in the potential right to relief, despite uncertainties in some elements of the claim. The court held that on an application for preliminary discovery, it should not embark on a trial before an action, which involves resolving conflicts in evidence. The court also found that the documents sought for discovery were directly relevant to the potential causes of action and were necessary to compare ObjectiVision's work with the potentially infringing work. However, the court deemed the application for preliminary discovery to be too wide, given the confidential nature of the documents and the delay in seeking the order.

The court allowed the amended originating application for preliminary discovery in part, directing the parties to file and serve agreed minutes of orders within 21 days or, failing agreement, to submit written submissions on their respective positions. The question of costs was reserved.