ZORZI BUILDERS PTY LTD -v- SAEEDI & ANOR [2003] WASC 74

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 74
Case No:	CIV:1077/2003	Heard:	2 APRIL 2003
Coram:	MASTER NEWNES	Delivered:	11/04/03
No of pages:	9	Judgment Part:	1 of 1
Result:	Discovery ordered
Category:	B
PDF Version

Parties:	ZORZI BUILDERS PTY LTD ABBAS SAEEDI GUITY SAEEDI
Catchwords:	Practice and procedure Pre-action discovery against potential party O 26A r 4 Turns on own facts
Legislation:	Rules of the Supreme Court 1971, O 26A r 4
Case References:	Cohen v Walthamstow Pty Ltd, unreported; SCt of WA; Library No 980148; 30 March 1998 McCarthy & Ors v Dolpag Pty Ltd [2000] WASCA 106 Glowatzky v Insultech Group Pty Ltd (1997) 39 IPR 220

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ZORZI BUILDERS PTY LTD -v- SAEEDI & ANOR [2003] WASC 74 CORAM : MASTER NEWNES HEARD : 2 APRIL 2003 DELIVERED : 11 APRIL 2003 FILE NO/S : CIV 1077 of 2003 BETWEEN : ZORZI BUILDERS PTY LTD

Plaintiff

AND

ABBAS SAEEDI

GUITY SAEEDI

Defendants

Catchwords:

Practice and procedure - Pre-action discovery against potential party - O 26A r 4 - Turns on own facts

Legislation:

Rules of the Supreme Court 1971, O 26A r 4

Result:

Discovery ordered

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr T M Hobday

Defendants : Mr L Chalmers

Solicitors:

Plaintiff : Lewis Blyth & Hooper

Defendants : Chalmers & Partners

Case(s) referred to in judgment(s):

Cohen v Walthamstow Pty Ltd, unreported; SCt of WA; Library No 980148; 30 March 1998
McCarthy & Ors v Dolpag Pty Ltd [2000] WASCA 106

Case(s) also cited:

Glowatzky v Insultech Group Pty Ltd (1997) 39 IPR 220

(Page 3)

1 MASTER NEWNES: This is an application by the plaintiff for discovery from a potential party under O 26A r 4 of the Rules of the Supreme Court 1971.

2 That provides:

"4(1) This rule applies if a person who may have a cause of action against a party … ('the potential party') wants -

(a) to commence proceedings against the potential party

…

but the person, after reasonable enquiries, has not been able to obtain sufficient information to enable a decision to be made as to whether to commence or take proceedings.

(2) If there are reasonable grounds for believing that the potential party had, has, or is likely to have had or to have, possession of documents that may assist in making the decision, the person may apply for an order under this rule."

3 In an affidavit filed in support of this application Mr Thorncroft, a director of the plaintiff, says that the plaintiff is a builder and the owner of the copyright in the design of a house called "Le Majestic". The plaintiff had engaged Peter Robinson Designer to prepare the design.

4 Mr Thorncroft says that in about 2002 he became aware of a house being constructed on the corner of Fletcher and McCrae…

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: [2003] WASC 74
Decision Date

CaseChat Overview and Summary

The case of Zorzi Builders Pty Ltd v Saeedi & Anor, heard by Master Newnes of the Supreme Court of Western Australia, involved an application for pre-action discovery by the plaintiff, Zorzi Builders Pty Ltd, against potential defendants Abbas Saeedi and Guitty Saeedi. The plaintiff alleged that the defendants had infringed their copyright in a house design called "Le Majestic" by constructing a house that significantly copied its features. The plaintiff sought discovery of specific documents to assist in determining whether to proceed with legal action against the defendants.

The legal issues before the court included whether the plaintiff had a potential cause of action, whether the plaintiff had made reasonable inquiries but was still unable to obtain sufficient information to decide on initiating proceedings, and whether the plaintiff had genuinely changed its mind about commencing proceedings. The defendants argued that the plaintiff had not established a potential cause of action, had sufficient information already, and had decided to proceed with litigation, thereby barring further use of pre-action discovery.

Master Newnes ruled that the plaintiff likely had a potential cause of action for copyright infringement, despite the defendants' contentions. The court found that the plaintiff had not made a firm decision to commence proceedings when the application was made, and had not obtained sufficient information, particularly regarding the interior layout of the defendants' house. The court also held that a previous intention to proceed with litigation did not bar the plaintiff from seeking pre-action discovery if it later changed its mind and found itself lacking in necessary information.

The court granted the plaintiff's application for discovery of certain documents relating to the design and construction contract of the defendants' house, but limited the scope to exclude documents related to the actual building process. The precise form of the orders and the costs were to be determined in subsequent proceedings.

Orders