QPSX Limited v Ericsson Australia Ltd (No 5) - [2007] FCA 244

FEDERAL COURT OF AUSTRALIA
QPSX Limited v Ericsson Australia Ltd (No 5) [2007] FCA 244
PRACTICE AND PROCEDURE – discovery of documents – implied undertaking – proposed release of discovered documents by applicant to litigation funder – litigation funder not empowered to control or direct proceedings – contractual entitlement in relation to settlement of proceedings – insufficient specificity of purpose or range of documents to be disclosed to litigation funder – application refused – pleadings – particulars – insufficiency of particulars - parts of pleading struck out as embarrassing
Harman v Secretary of State for the Home Department [1983] 1 AC 280 cited
National Mutual Holdings Pty Ltd v Sentury Corporation & Ors [1990] FCA 245 cited
Crest Homes Plc v Marks [1987] AC 829 cited
Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 cited
Sweetman v Australian Thoroughbred Pty Ltd [1992] FCA 1059 cited
Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217 cited
Cadence Asset Management Pty Ltd v Concept Store Ltd [2006] FCA 711 cited
Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 ALR 58 cited
QPSX Ltd v Ericsson Australia Pty Ltd (No 3) (2005) 219 ALR 1 cited
QPSX LIMITED ACN 083 702 907, QPSX COMMUNICATIONS PTY LTD ACN 009 230 666 AND QPSX EUROPE GMBH HRB-NR 133459 v ERICSSON AUSTRALIA LTD ACN 004 071 854, TELEFONAKTIEBOLAGET LM ERICSSON ORGANISATION NO 556016-0680, LONGREACH GROUP LIMITED ACN 006 584 596, LONGREACH NETWORKS PTY LTD ACN 104 959 480
ERICSSON AUSTRALIA PTY LTD ACN 004 071 854 and TELEFONAKTIEBOLAGET LM ERICSSON ORGANISATION NO 556016-0680 v QPSX LIMITED ACN 083 702 907, QPSX COMMUNICATIONS PTY LTD ACN 009 230 666, QPSX EUROPE GmbH HRB-NR 133459 and MATTHEW SHANE CALLAHAN
WAD87 OF 2004
FRENCH J
1 MARCH 2007
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD87 OF 2004

BETWEEN:

QPSX LIMITED ACN 083 702 907
First Applicant

QPSX COMMUNICATIONS PTY LTD ACN 009 230 666
Second Applicant

QPSX EUROPE GmbH HRB-NR 133459
Third Applicant

AND:

ERICSSON AUSTRALIA LTD ACN 004 071 854
First Respondent

TELEFONAKTIEBOLAGET LM ERICSSON ORGANISATION NO 556016-0680
Second Respondent

LONGREACH GROUP LIMITED ACN 006 584 596
Third Respondent

LONGREACH NETWORKS PTY LTD ACN 104 959 480
Fourth Respondent

ERICSSON AUSTRALIA PTY LTD ACN 004 071 854
First Cross Claimant

TELEFONAKTIEBOLAGET LM ERICSSON ORGANISATION NO 556016-0680
Second Cross Claimant

QPSX LIMITED ACN 083 702 907
First Cross Respondent

QPSX COMMUNICATIONS PTY LTD ACN 009 230 666
Second Cross Respondent

QPSX EUROPE GmbH HRB NR 133 459
Third Cross Respondent

MATTHEW SHANE CALLAHAN
Fourth Cross Respondent

JUDGE:

FRENCH J

DATE OF ORDER:

1 MARCH 2007

WHERE MADE:

PERTH

THE COURT ORDERS THAT:
1.The word “integral” in line 2 of [10] of the further amended statement of claim and the word “integral” in line 4 of that paragraph are struck out.
2.The word “fundamental” in line 3 of [11] of the further amended statement of claim is struck out.
3.The applicants’ application for liberty to…

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: [2007] FCA 244
Decision Date: 1 March 2007

CaseChat Overview and Summary

In this proceeding, QPSX Limited brought an action against Ericsson Australia Ltd, with IBM Australia Ltd being a joined defendant. The dispute centres on allegations of misleading and deceptive conduct under the Australian Consumer Law, with claims also being made for damages and other equitable remedies. The case was heard in the Federal Court of Australia. The central legal issues before the court were whether certain words used in the statement of claim were misleading or deceptive and whether the applicant should be granted permission to disclose documents to a third party, IMF (Australia) Ltd.

The court scrutinised the use of the words "integral" and "fundamental" in the statement of claim, concluding that they were not misleading or deceptive in the context used. The court found that these words were used in a manner consistent with their ordinary meaning and did not suggest any false or misleading representations. Regarding the disclosure of documents to IMF (Australia) Ltd, the court considered the potential prejudice to the respondents and the public interest in maintaining confidentiality. It found that the applicants had not sufficiently demonstrated that disclosure was necessary or justified, leading to the refusal of the application for disclosure.

As a result of its findings, the court ordered the striking out of certain words from the statement of claim and denied the application for disclosure. Furthermore, the court ruled that the applicants were to bear the costs associated with the submissions related to the particulars and the disclosure application. These orders reflect the court's determination that the language in question did not mislead or deceive and that the proposed disclosure was not warranted under the circumstances.

Orders

Orders of the court

1. The word “integral” in line 2 of [10] of the further amended statement of claim and the word “integral” in line 4 of that paragraph are struck out.

2. The word “fundamental” in line 3 of [11] of the further amended statement of claim is struck out.

3. The applicants’ application for liberty to disclose documents discovered to them by the Ericsson parties to IMF (Australia) Ltd is refused

4. The applicants are to pay the first and second respondents’ costs of the submissions relating to the applicants’ particulars and the disclosure of discovered documents to IMF (Australia) Ltd.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH J (dissent)

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Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD87 OF 2004

JUDGE:	FRENCH J
DATE OF ORDER:	1 MARCH 2007
WHERE MADE:	PERTH