Qe gn * IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIA ) DISTRICT REGISTRY ) ) GENERAL DIVISION BETWEEN: No. WAG 42 of 1986 B.P. & F.«M. NOMINEES AS TRUSTEE FOR THE GLORIE FAMILY TRUST TRADING AS "TERRACE STATIONERY SUPPLIES' Applicant and PETELOR BUSINESS SYSTEMS PTY LIMITED Respondent MINUTE OF ORDER JUDGE MAKING ORDER: FRENCH J. DATE OF ORDER: WHERE MADE: Perth THE COURT ORDERS THAT: ll February 1987 The motion is dismissed. The Respondent pay the Applicant's costs of the motion in any event. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. BKB IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION were yew NO. WAG 42 of 1986 BETWEEN: B.P. & F.M. NOMINEES AS TRUSTEE FOR THE GLORIE FAMILY TRUST TRADING AS "TERRACE STATIONERY SUPPLIES" Applicant and PETELOR BUSINESS SYSTEMS PTY LIMITED Respondent CORAM: FRENCH J. ll February 1987 EX _TEMPORE REASONS FOR JUDGMENT In this matter the applicant on 8 May 1986 filed an application in this court seeking, among other things, damages for a contravention of s.52 of the Trade Practices Act 1974 against the respondent. The applicant 1s the proprietor of a registered business named "Terrace Stationery Supplies" and the respondent is said to be a trading corporation which carries on the business of retalling, installing and operational commissioning of Toshiba brand computer systems. The action arises out of certain representations said to have been made on behalf of the respondent in relation to the 2. performance characteristics of certain computer systems and associated software. Acting, 1t was said, on the faith of the representations the applicant entered into an agreement to purchase a computer system and software from the respondent. The applicant contends that the representations made to it as to the performance characteristics of the products which it purchased were false in that the system and software 1t purchased were incapable of performing any of the functions which had been represented. They were inappropriate to its needs. The back up facilities and the hard disk storage recommended by the respondent had insufficient volume and capacity. The system and software were improperly installed and there was a failure to provide competent service technicians for installation, maintenance and repair of the system. It is further alleged that the system frequently gave data reading errors and destroyed debtor unformation which should have been stored on memory and that the software contained erroneous start-up instructions. The respondent has filed a defence in which it admits that the applicant agreed to purchase a computer system and software from it, denies that 1t made representations alleged against it and denies that the performance characteristics or that the systems as purchased had the faults contended for. It also cross claims for the cost of repairs and service work to the computer system for a total price of $450.00. The proceedings have progressed through various interlocutory stages to the point where they have now been listed for hearing for three days commencing on 25 February 1987. The respondent by a motion filed on 9 February 1987, seeks the following orders:- l. That the applicant forthwith permit the respondent to take a copy of all data on the applicant's Toshiba T200 computer hard disk relating to the software programmes the subject, inter alia, of the action; and 2. That the time for the service of the notice of motion upon the applicant be abridged. As to the second order there was no opposition to the abridgment motion and I give leave for the time for the service of the notice of motion to be abridged to enable it to be dealt with today. In a supporting affidavit a solicitor for the respondent deposes that the dispute concerns, among other things, the functions which software sold by the respondent to the applicant can perform and the quality of the software and its performance. It is said that in order to inspect the documents for the parties and to enable the respondent to obtain a copy of the software the subject of the action, a meeting was arranged at the offices of the applicant on 16 January 1987. At that meeting it is said inspection of documents took place. In addition, in the presence of various computer 4. programmers the respondent took copies of the applicant's software programmes. The applicant was not then prepared to release to the respondent copies of data upon the Toshiba 200 hard disk. The respondent, according to its solicitor, at that time believed it would be able to obtain the layout or source to the software programmes from the software house that originally prepared it namely CDM Business Systems, Subsequently, the respondent was advised that the lay out or source material to the software, held by CDM Business Systems, had been destroyed. On 5 February 1987 Mr Norman of the respondent's solicitors spoke to the solicitor for the applicant who advised that in order to check and run off the software programmes the respondent required the data for them. As a result it was arranged for a representative of the respondent and a computer programmer to attend at the offices of the applicant on the afternoon of Friday, 6 February 1987. Mr Norman was then advised by the applicant's solicitor, Mr Stokes, that he and a computer programmer would be un attendance at the applicant's office. On 6 February 1987 Mr Norman received a message from the respondent advising that it had been unable to obtain the data from the applicant. He was subsequently advised by telephone by Mr Stokes that the applicant would not allow the respondent to have a copy of the data, that the applicant had a proprietary interest in it and would only release to the respondent data which previously had all confidential information deleted from it. 5. He was then told by Mr Stokes that he was uncertain as to how long 1t would take the applicant to provide the edited data but was advised the respondent would have to pay the applicant's costs of providing it. The respondent now seeks an order from this court directing the applicant to make available to it, not only copies of the software programmes which it has already acquired, but the data on the applicant's computer. That data evidently, so I am told from the bar table by Mr Stokes, contains debtor information including the names of debtors, their addresses, their credit ratings as determined by some credit agency, credit references and the extent of their indebtedness to the applicant. In addition it contains information with respect to invoices sent to clients of the business and stock control information. It is apparently possible to provide an edited version of the data and it is also possible to make up a dummy client file for the purposes of testing the software programme. That would involve inserting fictitious names and addresses. Although not without some hesitation, I am of the view that it would be unreasonable at this stage to require the applicant to provide a copy of all data on its computer hard disk. The data itself, after all, is not germane to any issue in these proceedings. Access to 1t 1S sought on the part of the respondent so that 1t can use the data as a basis for or way of testing the software programme which is said to be defective. 6. In that sense release of the data does not fall within any accepted notion of discovery and having regard to the obviously confidential nature of it and to the evident commercial value of it, it would be in my opinion, both unreasonable and burdensome on the applicant for me to make an order in the terms sought. The applicant has offered to make available to the respondent an edited version of the data and if that can be done in time for the hearing of the action then that will facilitate the smooth conduct of it. Another factor that I bear in mind is that' the respondent comes to court to seek this order as it were, on the eve of trial. It 1s very late in the day for it to seek an order of this kind and for that reason also I will decline the motion. The motion is dismissed and I order that the respondent pay the applicant's costs of the motion in any event. I hereby certify that this and the preceding five (5) pages are a true copy of the Reasons for Decision of his Honour Mr Justice French. Dated: (7° February , /V§ 7 Counsel for the Applicant : Mr B. Stokes Solicitors for the Applicant Nessrs.B.F Stokes & Associates Counsel for the Respondent : Ms. Pearman Solicitors for the Respondent: Trewin Norman & Co. - wf . ' ' af ' 1 ' : 7 ! : ! \ ot ' : : \e 'af, ' 1 ' ' Fyre s a ' aa . 5 . ge Fd : i neu "Oo fe oa - te tt : wy ' \ ' i ' 1 1 , tf it