Leigh-Mardon Pty Ltd v Titan Corporation Ltd and Ors [1996] FCA 984

IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT REGISTRY No VG 346 of 1993 GENERAL DIVISION B E T W E E N : LEIGH-MARDON PTY LTD Applicant A N D : TITAN CORPORATION LTD and OTHERS Respondents COURT: NORTHROP J PLACE: MELBOURNE DATE: 7 NOVEMBER 1996 REASONS FOR JUDGMENT I propose to indicate immediately that I am not prepared to grant an adjournment, be it short or not, based on the principle of the unfairness to the respondent arising from the existence of criminal investigations being undertaken by the police and the adverse effect that has on the preparation by the respondents in the preparation of their case. This matter commenced over three years ago and was originally fixed for hearing at the beginning of this year. Since the beginning of this year there have been many matters before the Court dealing with the application and various issues arising in relation to it. Dates have been fixed for hearing and for various reasons could not be adhered to and at present the date is fixed for the beginning of February 1997.

During the course of the interlocutory steps taken this year, the nature of the claim against the respondents has been clarified. There are some 25 contracts presently forming the basis of the claims, but at the same time, it is said there are a larger number of other contracts which may become relevant on the various aspects of the case. On a number of occasions I have expressed opinions as to the unusual nature of the facts involved in this case. Arising from the fact that there was a contract of sale and purchase of a business by the Titan group of companies as vendors and Leigh-Mardon as the purchaser, the action has been brought by the applicant essentially under section 52 of the Trade Practices Act 1974 alleging that the respondents had engaged in conduct which was misleading or deceptive or likely to mislead or deceive. The essential feature of the claim is that for the purposes of the sale the conduct was said to constitute representations being the various balance sheets and profit and loss accounts and statements in relation to contracts between the Titan group of companies and their customers in relation to computer program services carried out by the respondents for which the clients were charged fees. An issue has arisen as to the basis upon which those charges were made. On one view it is on the key strokes, the number of actual depressions of each key when using the computer program, and on the other it is said that the key strokes had a different meaning resulting in a higher amount paid than on the amount per key strike itself. That is an issue. I have adverted before to the problems arising from the fact that the applicant has taken over all the books and records of the Titan companies and that the employees of the Titan companies have dispersed to a large extent. In addition there are a number of witnesses involved in the various client companies who were concerned in the original contracts with the Titan companies as well as what has been said about the meaning of the words "key stroke" and the way in which the contracts were to operate.