Perceptual Development Corporation v Versi Pty Ltd

[1988] FCA 632

JUDGMENT No .... 63d.?..BA

NOT FOR DISTRIBUTg

C A T C H W O R D S

PRACTICE AND PROCEDURE - pleadings - strike out application -

relevant considerations - further and better particulars -

interrogatories - whether adequate answers - principles - specific discovery - reply - expert reports - content a matter for the parties.

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Trade Practices Act	1974 s.45	I/
Federal Court Rules

PERCEPTUAL DEVELOPI-IENT CORPORATION V VERSI PTY LTD,	DONALD	LEE	r ,
ZIMMERMAN and WINIFRED CAROLINE ZIMMERMAN	I
NO. WAG 78 Of 1987
FRENCH J. PERTH 19 OCTOBER 1988

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NOT FOR DISTRIBUTION	I .!
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IN THE FEDERAL COURT	)	!.
OF AUSTRALIA	)
WESTERN AUSTRALIA	)
DISTRICT REGISTRY	1

GENERAL DIVISION	)	No. WAG 78 of	1987	..
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B E T W E E N :  PERCEPTUAL DEVELOPMENT CORPORATION > . '

Applicant

and	i
VERSI PTY LTD

First Respondent

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DONALD LEE ZIMMERMAN ._

Second Respondent

WINIFRED CAROLINE ZIMMERMAN ..

Third Respondent

MINUTE OF ORDER c ,

JUDGE MAKING ORDER:	FRENCH 3.	i .
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DATE OF ORDER:	19 OCTOBER 1988
WHERE MADE:	PERTH
THE COURT ORDERS:

1.        That paragraph 5(f) of the amended defence be re-amended

in accordance with these reasons for decision and that ! :

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the re-amended defence be filed on or before	26 October
1988.

2. That the respondents do on or before 2 November 1988

file and deliver further and better	particulars	in
accordance with questions 1,	1(4), 2 ( 4	1, 4(1), ( 2 ) and

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(4), 5. 6(3) and 7(1), ( 2 ) , ( 3 ) , (5) and (6) of the

request filed on 10 October 1988. . . ,

3. That the respondents do on or before 2 November 1988

file and deliver further and better answers to the

interrogatories 1.35 and 3.2 of	the	applicant's
interrogatories.

4 . That the respondents do on or before 2 November 1988

file and deliver further discovery of the documents

referred to in 7(b), (c),	( e ) and (f) of the applicant's
minute filed herein on	11 October.

5. That the applicant not be required to file or serve a

reply until no later than	14 days after the respondents
have filed and served	a defence as amended in proper
form.	I
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6.         That any party intending to rely upon expert evidence

file and deliver a copy of any report o be adduced and

a statement of the substance of such evidence no later

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than 28 days prior to the date fixed for trial.

7. The matter will be relisted for further directions on 16 r

November 1988 at 9 a.m.

8. The costs of today and on 14 October will be reserved.

NOTE: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.	i
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NOT FOR DISTRIBUTION

IN THE FEDERAL COURT	)
OF AUSTRALIA	1
WESTERN AUSTRALIA	1
DISTRICT REGISTRY	)
GENERAL DIVISION	1 NO. WAG 78 OF 1987
B E T W E E N :	PERCEPTUAL DEVELOPMENT CORPORATION

Applicant

and

VERSI PTY LTD

First Respondent

DONALD LEE ZIMMERMAN

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Second Respondent

WINIFRED CAROLINE ZIMMERMAN

Third Respondent

CORAM:  FRENCH J.

1 9 OCTOBER 1988

EX TEMPORE REASONS FOR JUDGMENT

ON DIRECTIONS HEARING

At this resumed directions hearing, the applicant seeks

an order striking out certain parts of the re-amended defence

filed on 5 October 1988 and requiring the provision of further and

better particulars and of further and better answers to certain

interrogatories. It is convenient to deal with each of the points

individually, albeit briefly.	!
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2.

The Attack on the Pleadings

Paragraph 5(f) By this paragraph the defendant pleads that c1.4

of the licensing agreement invoked by the applicant is "void and

unenforceable" for contravention of sub-s.45(2) of the Trade -

Practices Act 1974, as an unreasonable restraint of trade, as a

restrictive covenant purporting to restrain the us of information

which is not a trade secret or its equivalent and for lack of

subject	matter.	The	plea	relating	to	s.45	is attacked	for
inadequate	market	definition.	Whilst	it	may	be	that	he

geographical market defined	as the "Perth metropolitan area" is a
narrow one, and not without difficulty for	the respondent's case,
it does not give rise to a pleading which	is so untenable that it
ought to be struck out. Nor is there anything	in the point that

the numbering of the paragraph does not comply with 0.11 r.1.

Although not as easy to read as it could be, it does endeavour to follow the numbering in the statement of claim.

There are two valid points to be made about para.5(f)

however.	The	first	that	is	the	conjunction	"void	and
unenforceable"	is	embarrassing.	That	is	accepted	by	the	r
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respondent and there will be leave to amend the plea to read "void
or	unenforceable". Further, certain of the particulars provided

in para.5(f) are expressed as follows:

"The Respondents repeat the particulars to paragraph 12

hereof.	"	I .
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No doubt God transcending time and space is capable of repeating that which has not yet happened, the pleader, however, is not God.

More fundamentally, the cross reference to para.12	is embarrassing
as it embodies two sets of particulars, one	on the issue of

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confidentiality, the other on the issue of ownership. In my i .

opinion the pleader should set out the particulars explicitly in

this case.

Further and Better Particulars of Defence

By a request filed on 10 October 1988, the applicant has

sought further and better particulars of the re-amended defence. Having heard the argument in respect of those particulars, I am

prepared, for reasons which I expressed in the course of argument,

to order that further and better particulars be given in

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accordance with questions 1, 2 ( 4 ) , 3(4), 4(1), ( 2 ) and (4), 5,

6(3) and 7(1), (21, ( 3 1 , (5) and (6).

Interrogatories

The sec0 'nd and third respondents h ave each provided

I	answers to interrogatories administered to them individually and
as representatives of the first respondent. Certain of the
answers are said by the applicant to be inadequate and it seeks
orders that they be required to provide further and better
answers. I will deal with each of the contested interrogatories
seriatim.

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4.

Interrogatory 1.24 This was administered to the second respondent

on the assumption that he had done research in certain specified

areas prior to the licensing agreement of 24 January 1986. It

asked what was the nature of the research and when and where was

it done, the number of persons tested and under whose auspices it

was carried out. The answer made clear that the "research" did

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not go beyond "reading and studying". The answer is, in my

opinion, a sufficient one.

Interrogatory 1.25 This asked what research in the specified '

areas had been done since the termination of the licensing

agreement. The answer was in general terms, describing areas of

enquiry by reference to various subjects. It was not an

inadequate response to the question posed.

Interrogatory 1.34 This asked the second respondent whether he

admitted that pursuant to the licensing agreement he was supplied

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with copies of various documents which were itemised in the

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question in some ten categories. The answer was "no" with the

qualification that not all materials were supplied and those that

were supplied were not supplied pursuant to the licensing

agreement, but before the respondent entered into the licensing

agreement. While the answer may not be satisfactory to the

applicant, it is, on	strict analysis, a sufficient answer to the
question as posed.

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5.

Interrogatory 1.35 Assuming that the respondent did not admit the

supply of materials referred to in interrogatory 1.34, the

question went on to ask which of the materials were not supplied
to the two respondents, whether it was admitted that the documents

and materials were supplied for use only in accordance with the

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licensing agreement and if not, by reason of what facts that	!
denial or non-admission was made. The answer referred to in 1.34 indicated that the materials to be supplied were not to be used only in accordance with the terms of the licensing agreement and
asserted that they were received before it was made. The answer
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is, I think, deficient insofar as it does not specify the

materials not actually received. In my opinion the second

respondent should specify which of the listed documents were not

received.

Interrogatory 3 . 2 Interrogatory 3.1 asked who compiled and

drafted each of certain documents and publications apparently used

by the respondents. The documents were specified and the answer

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given was "the s cond and third espondents ogether".

Interrogatory 3 . 2 then asked in respect of each document "from

what sources, materials, investigations, research	or statistics it
was prepared". The answer merely annexed a brochure prepared by
the respondent and containing, inter	alia, references to various

articles and publications. That answer is plainly insufficient.

The respondents should set out a list of the sources as required

by the interrogatory.

Interrogatories 3 . 3 4 and 3.35	In my opinion these interrogatories
are adequately answered and	no further answer is required.

Specific Discovery

In the area of specific discovery, set out in para.7 of

the proposed minute of orders, counsel for the respondents

indicates that the items referred to in paras. (a) and (c) are

already in the discovery. In the absence of any evidentiary

basis for a finding that those items have not been discovered, I

am not prepared to make orders in that regard. So far as (b),

(d), (e) and (f) are concerned, I am satisfied that a basis for

specific discovery is made out and an order will be made

accordingly.

Filing of Reply

It is, I think, appropriate to order as is requested in

para. 8 of the applicant's minute, that the applicant not be

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required to file or serve a reply until 14 days after the I '

respondents have filed and served a defence as amended in proper

form, which will take account of the comments	I have made about
para. 5(f) and the particularisation thereof.

Expert Reports

In relation to para.9 of the minute, I am not prepared

to make the order sought in so far as it would direct that each

side serve a report as to its own technology. The content of

expert reports is	a matter for the parties and whether they seek	I
to rely on expert	evidence in a particular area is	a matter for

them. However, I am prepared to make the standard order requiring

exchange of expert reports	no later than 28 days prior to the date
set down for hearing.

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There is foreshadowed an application for leave to apply

to administer further interrogatories on the part of the

applicant, but no draft or statement of issues is presently before

me so I am not prepared to make an order in that regard at the

present time. Otherwise I would propose, having made appropriate

orders in the light of these reasons, to relist the matter for

further directions on 16 November 1988.

The orders I propose to make are as follows:

1.    That paragraph 5(f) of the amended defence be re-amended in accordance with these reasons for decision and that

the re-amended defence be filed on or before 26 October

1988.

2. That the respondents do on or before 2 November 1988

file and deliver further and better particulars in

accordance with questions 1, 1(4), 2(4), 4(1), (2) and
( 4 ) , 5, 6(3) and 7(1), (21, (31, (5) and (6) of the
request filed on 10 October 1988. L -
3.	That the respondents do on or before 2 November 1988
file and deliver further and better answers to the i
interrogatories 1. 35 and 3.2 of the applicant's , S

interrogatories.

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4. That the respondents do on or before 2 November 1988

file and deliver further discovery of the documents

referred to in 7(b), (c), (e) and (f) of the applicant's

minute filed herein on 11 October.

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5. That the applicant not be required to file or serve a

reply until no later than 14 days after the respondents	I -
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have filed and served	a defence as amended in proper
form.

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6.    That any party intending to rely upon expert evidence

file and deliver a copy of any report to be adduced and

a statement of the substance of such evidence no later
than 28 days prior to the date fixed for trial.

7.    The matter will be relisted for further directions on 16 November 1988 at 9 a.n.

8. The costs of today and on 14 October will be reserved.

I certify that this and the preceding

seven (7) pages are a true copy of the

Ex Tempore Reasons for Judgment of !

His Honour Justice French.

Associate: 

Counsel for the Applicant: Mr M.J. Stevenson

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Solicitors for the Applicant: Jackson McDonald

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Counsel for the Respondents:  Mr S.G. Leslie

Solicitors for the Respondents: Phillips Fox

Date of Hearing: 19 October 1988
Date of Judgment:	19 October 1988