TICA Default Tenancy Control Pty Ltd v Datakatch Pty Ltd

FEDERAL COURT OF AUSTRALIA

TICA Default Tenancy Control Pty Ltd v Datakatch Pty Ltd [2015] FCA 867

Citation:	TICA Default Tenancy Control Pty Ltd v Datakatch Pty Ltd [2015] FCA 867
Parties:	TICA DEFAULT TENANCY CONTROL PTY LTD v DATAKATCH PTY LTD, REGINALD JOSHUA, ANTHONY NOUNNIS and NATHAN PORTELLI
File number:	NSD 102 of 2015
Judge:	PERRAM J
Date of judgment:	14 August 2015
Legislation:	Federal Court Rules 2011 (Cth) r 23.01
Cases cited:	Re Saxton (decd) [1962] 1 WLR 968 cited Tyler v Thomas (2006) 150 FCR 357 cited
Date of hearing:	14 August 2015
Place:	Sydney
Division:	GENERAL DIVISION
Category:	No Catchwords
Number of paragraphs:	4
Counsel for the Applicant:	Mr K Smark SC
Solicitor for the Applicant:	Tomaras Lawyers
Counsel for the Respondents:	Mr B Katekar
Solicitor for the Respondents:	Bartier Perry

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 102 of 2015

BETWEEN:

TICA DEFAULT TENANCY CONTROL PTY LTD
Applicant

AND:

DATAKATCH PTY LTD
First Respondent

REGINALD JOSHUA
Second Respondent

ANTHONY NOUNNIS
Third Respondent

NATHAN PORTELLI
Fourth Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	14 AUGUST 2015
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1.The application to appoint an expert be dismissed.

2.The costs of that application will be costs in the cause.

3.The proceeding be stood over to 19 August 2015 at 9:30am for directions.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	NSD 102 of 2015

BETWEEN:

TICA DEFAULT TENANCY CONTROL PTY LTD
Applicant

AND:

DATAKATCH PTY LTD
First Respondent

REGINALD JOSHUA
Second Respondent

ANTHONY NOUNNIS
Third Respondent

NATHAN PORTELLI
Fourth Respondent

JUDGE:	PERRAM J
DATE:	14 AUGUST 2015
PLACE:	SYDNEY

REASONS FOR JUDGMENT

(Revised from transcript)

1. This is an application brought by the respondents pursuant to r 23.01 of the Federal Court Rules 2011 (Cth), that the Court appoint its own expert to assist in the resolution of the issues in this case. The question of expertise to which that witness’ evidence would be directed concerns the allegations arising from infringement of copyright. The basic question between the parties is whether the first respondent’s software infringes the copyright in the applicant’s software. The idea is that the court-appointed expert would be able to provide a detached and potentially clear answer to that question and it is suggested that that process may engender an early resolution of the proceedings or perhaps even a clarification of what the issues between the parties are in relation to infringement.

2. At one time the idea of making an order to appoint the Court’s own expert was regarded as something of a novelty.  Cases in the 1960s suggested that such a process might be undertaken only in the most unusual circumstances:  cf the remarks of Lord Denning MR in Re Saxton (decd) [1962] 1 WLR 968 at 972. Since that time, however, court rules in this country have been amended to…