Admar Computers Pty Ltd v Ezy Systems Pty Ltd & Ors [1997] FCA 885

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - applicant seeking to adduce further evidence during hearing - objection by respondents - relevant considerations - history of proceedings - trial by affidavit under case management system - prejudice to applicant in proper presentation of case - prejudice to respondents - whether prejudice could be cured by granting of adjournment and appropriate order as to costs - effect of adjournment on viability of first respondent's business. Bomanite Pty Ltd v Slatex Corporation Australia Pty Ltd (1991) 32 FCR 379 State of Queensland v JL Holdings Pty Ltd (1997) 141 ALR 353 Ketteman v Hansel Properties Limited [1987] AC 189 Commissioner of Taxation v Brambles Holdings Ltd (1991) 28 FCR 451 GSA Industries Pty Ltd v NT Gas Ltd (1990) 24 NSWLR 710 Black v City of South Melbourne (1964) 38 ALJR 309 Howarth v Adey [1996] 2 VR 535 ADMAR COMPUTERS PTY LTD v EZY SYSTEMS PTY LTD & ORS No VG 90 of 1995 GOLDBERG J MELBOURNE 3 SEPTEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY No VG 90 of 1995

BETWEEN: ADMAR COMPUTERS PTY LTD

(ACN 006 212 068)

applicant

AND: EZY SYSTEMS PTY LTD

(ACN 060 028 284)

First Respondent

EASYCOMP PTY LTD

(ACN 007 376 141)

Second Respondent

NICHOLAS THOMAS CUGURA

Third Respondent

PETER ELLIS

Fourth Respondent

JUDGE: GOLDBERG J

DATE: 3 SEPTEMBER 1997

PLACE: MELBOURNE

RULING (No 2) Introduction On 27 August 1997 I ruled that the evidence of Professor Willis and Dr Yeh in relation to their pseudocode investigation and analysis was not relevant to or admissible in relation to the cause of action based on infringement of copyright but was relevant to and admissible in relation to the cause of action based on the issue of mis‑use of confidential information. I published my reasons for this ruling on 29 August 1997. Professor Willis was then called as a witness, he was examined in‑chief and Mr Golvan, who appears for the respondents, commenced cross‑examination. In the course of the cross‑examination Professor Willis said that in preparing his reports he examined the source code of various Admar programs, which source code was made or dated 17 July 1995. Mr Golvan then interrupted the cross‑examination and, on the basis of what Professor Willis had said, submitted that the whole of the pseudocode evidence of Professor Willis and Dr Yeh was irrelevant as the basis of the experts' reports and conclusions was a version of the source code which was shown only to exist as at 17 July 1995. Mr Golvan submitted that Professor Willis was not given what he should have been given, namely the February 1993 version of the Admar source code. It was not clear what ruling Mr Golvan was seeking and he put it on the basis that the whole of the evidence was based on a misconceived factual substratum. I pointed out to counsel that much depended upon whether there could be a connection between the source code which Professor Willis examined (the hard copy of which is dated 17 and 18 July 1995) and the February 1993 version in respect of which it is alleged that the applicant owns the copyright and in respect of which it is said it is confidential information. In an affidavit sworn 14 February 1996 Mr Adrian Gilbert, a director of the applicant, said (in paragraph 115) that: "The examination of the source of (sic) code of the Respondent's software is examined in detail in the affidavit of Professor Robert Willis. In order to assist in this examination, I provided Professor Willis with a copy of the source code to the Applicant's winery system, that copy being the version of the Applicant's winery system as at February 1993." I raised with counsel the question whether it was open to me to infer from that evidence that there was a nexus between the 17 July 1995 version and the February 1993 version. Mr Golvan responded that there was no evidence which explained that the 17 July 1995 version examined by Professor Willis was the February 1993 version. At that stage of the proceedings I refused to rule on the admissibility of Professor Willis' evidence as a whole. The next morning 28 August 1997, Mr Clarke, who appears for the applicant foreshadowed an application for leave to file further evidence and also to respond to a notice to produce which had been served on the applicant by the respondents which required production of: 1. Time sheets of the applicant in relation to all of its employees for the period on and from 1 February 1993 up to and including 31 July 1995; and 2. Disk copies of all of the applicant's source code which was created or modified between 1 February 1993 and 31 July 1995. Mr Clarke said he wished to seek to tender evidence which would meet Mr Golvan's proposition and said: "So it is not merely the case, your Honour, that the purpose of me seeking to put this further evidence that I foreshadowed before the Court is to cure a hole in the case. We do not for a moment concede there is a hole in the case, but my learned friend finds significance in this matter for the purpose of his cross‑examination, it does seem desirable to sort this matter out at this time."