Barrett Property Group Pty Limited v Metricon Homes Pty Limited [2009] FCA 51 (4 February 2009)

Last Updated: 4 February 2009

FEDERAL COURT OF AUSTRALIA

Barrett Property Group Pty Limited v Metricon Homes Pty Limited [2009] FCA 51

PRACTICE AND PROCEDURE – application for leave to administer interrogatories – whether interrogatories relevant, too broad or oppressive – leave refused

BARRETT PROPERTY GROUP PTY LIMITED (ACN 088 015 267), SRS PROPERTY HOLDINGS PTY LTD (ACN 096 513 218) and RSS PROPERTY HOLDINGS PTY LTD (ACN 106 590 096) v METRICON HOMES PTY LIMITED (ACN 005 108 752), ROSS PALAZZESSI, ADRIAN POPPLE and JEFFREY BUGEJA
VID 64/2008

KENNY J
4 FEBRUARY 2009
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 64/2008

BETWEEN:	BARRETT PROPERTY GROUP PTY LIMITED (ACN 088 015 267) First Applicant SRS PROPERTY HOLDINGS PTY LTD (ACN 096 513 218) Second Applicant RSS PROPERTY HOLDINGS PTY LTD (ACN 106 590 096) Third Applicant
AND:	METRICON HOMES PTY LIMITED (ACN 005 108 752) First Respondent ROSS PALAZZESSI Second Respondent ADRIAN POPPLE Third Respondent JEFFREY BUGEJA Fourth Respondent

JUDGE:	KENNY J
DATE OF ORDER:	4 FEBRUARY 2009
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. Leave to file and serve a notice to answer interrogatories be refused.
2. The motion, notice of which is dated 11 July 2008, be dismissed.
3. The respondents file and serve any further affidavits on which they propose to rely by 4.15 pm on 13 February 2009.
4. The parties file and serve any objections to the admissibility of the affidavit evidence of the other parties by 4.15 pm on 17 February 2009.
5. The respondents file and serve by 4.15 pm on 17 February 2009 their written outline in relation to the questions ordered to be tried separately pursuant to paragraph 1 of the Orders made on 9 May 2008.
6. The applicants file and serve by 4.15 pm on 20 February 2009 their written outline in relation to the questions ordered to be tried separately pursuant to paragraph 1 of the Orders made on 9 May 2008.
7. The costs of the motion referred to in paragraph 1 of these orders be costs in the cause.
   

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	VID 64/2008

BETWEEN:	BARRETT PROPERTY GROUP PTY LIMITED (ACN 088 015 267) First Applicant SRS PROPERTY HOLDINGS PTY LTD (ACN 096 513 218) Second Applicant RSS PROPERTY HOLDINGS PTY LTD (ACN 106 590 096) Third Applicant
AND:	METRICON HOMES PTY LIMITED (ACN 005 108 752) First Respondent ROSS PALAZZESSI Second Respondent ADRIAN POPPLE Third Respondent JEFFREY BUGEJA Fourth Respondent

JUDGE:	KENNY J
DATE:	4 FEBRUARy 2009
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The applicants’ claim in this proceeding is for copyright infringement of house plans. The applicants made the same claim against the respondents in earlier proceeding, although in connection with different house plans. The respondents say that the applicants’ present claim ought to have been included in the earlier proceeding and that the applicants are now estopped from bringing the additional claim in this proceeding. Whether or not this defence prevails is to be determined at a trial later this month.
2. The respondents have submitted 17 proposed interrogatories for consideration. These interrogatories are directed to establishing:

(a) the date on which the applicants actually knew or should have become aware of the house plans at issue in this proceeding; and

(b) how this knowledge was acquired or should have been acquired.

3. The applicants opposed leave to administer these interrogatories, essentially on the basis that they were not relevant to any material fact in dispute. They also opposed them on the grounds that they were too broad and oppressive.
4. Having regard to the Amended Reply, relevant parts of Mr Roberts’ affidavit and the applicants’ counsel’s statement of the applicants’ case today, I am not persuaded that the proposed interrogatories are relevant to any material fact in dispute. This is basically because, so far as relevant, the essential facts are not disputed. Following the hearing on 7 August 2008, the applicants amended [1(b)] of their Reply. The Amended Reply now reads in [1(b)]:

The applicants admit that Anthony Roberts and Daniel Stutterd, directors of the applicants, were aware of the First Respondent’s Houses, either through awareness of the relevant display home or advertisement of the relevant plan in or about at least the following dates:

(A) Aspen 31 – November 2005;
(B) Montego 28 – April 2006;
(C) Aspen 28 and 36 – June 2006;
(D) Jardine 30 and 33 – June 2006;
(E) Zenith 31 and 33 – June 2006; and
(F) Ashton 28 and 31 – August 2006.

That awareness came from the applicants’ employees or Anthony Roberts and Daniel Stutterd seeing such advertisements or articles concerning such homes in newspapers or industry magazines distributed in metropolitan Melbourne, including the magazines distributed in the Herald Sun newspaper, or from advice from employees of the applicants who had seen such display homes. The applicants cannot state with any more precision the date or how they became aware of each of the First Respondent’s Houses.

5. The applicants trade under the name “Porter Davis”. In an affidavit of 9 January 2009, Mr Roberts relevantly deposed:

I make this affidavit from my own knowledge save where otherwise stated having made all due and proper enquiries of the applicants’ servants and agents and following a review of the business books and records of the applicants.

...

I do not recall the date, and have no written record or any other way of identifying the date, on which I, or any other person employed by Porter Davis, first became aware that Metricon was offering for sale the First Respondent’s Houses. I also do not recall, and have no written record or any other way of identifying, how I, or any other person employed by Porter Davis, first became aware that Metricon was offering for sale the First Respondent’s Houses.

I am confident however that I would have been aware of the offering for sale by Metricon of the First Respondent’s Houses within two to three months of the date on which a display home was first opened for inspection in Melbourne or shortly after being either advertised in the Herald Sun or on the Metricon website or being advised by Porter Davis staff.

In the period 2000 to 2007 Porter Davis did not monitor the activities of home builders in country Victoria. This is because Porter Davis did not trade and had no plans to trade in country Victoria market during this period.

Mr Roberts also gave some details as to how he sought to monitor his competitors’ activities.

6. According to counsel for the applicants, the admissions in [1(b)] of the Amended Reply, read with Mr Roberts’ affidavit, took the issue of the applicants’ knowledge out of contention. Counsel for the respondents argued, however, that the imprecision of the admissions and evidence entitled the respondents to interrogate further. The respondents’ counsel submitted that the windows of time created by Mr Roberts’ evidence might turn out to be significant in the disposition of the case. There was force in this argument. It was met, however, by the applicants’ counsel when he said that the applicants would not segment time and seek to make anything of the dates upon which the applicants became aware of the house plans in dispute, other than to say, in a general way, that litigation costs increased as the litigation continued. The applicants conceded that it would have been open to them at any time prior to trial to have made application to amend.
7. Furthermore, in light of the way the applicants’ counsel stated the applicants’ case that it was reasonable for them not to have amended their pleadings so as to include the additional claims, the manner in which the applicants came to acquire knowledge of the additional house plans is also apparently irrelevant.
8. I accept too that parts of interrogatories 3 to 17 were objectionable in other respects. Unless further limited by reference to time, they travelled into areas where, on almost any view, there could be little scope for useful dispute about the material facts once the relevant knowledge was admitted. Save for questions 1 and 2, they were, in general, broad, open-ended questions, with the result that some were oppressive (see questions 11, 13 and 15). Other questions (see questions 8 and 9) were proper for cross-examination only.
9. I have considered whether I should view questions 1 and 2 differently from the other interrogatories. These questions seek for details of [1(b)] and [1(c)] of the Amended Reply. They are directed to the identity of the employees who gave advice to the directors and the details of this advice, including when it was given. These questions were not unduly broad, oppressive, or fit only for cross-examination. They were in the nature of a request for further and better particulars. It seems to me, however, that the information that they might elicit is largely already given by Mr Roberts, particularly in the passages set out above, and, in any event, nothing materially turns upon these further details in light of the way the applicants have said that they will put their case.
10. In all the circumstances, I would refuse leave and order accordingly.
11. The question of costs was raised at the conclusion of the hearing. I would not accede to the applicants’ application for costs. The applicants themselves acted responsibly in altering the litigation landscape by their Amended Reply and in filing further affidavits. It is against this landscape that the respondents’ request to interrogate was substantially reduced. The respondents failed today in part because of the practical way in which counsel for the applicants has stated the applicants’ case. The applicants’ attitude was not, however, known to the respondents’ counsel prior to the hearing. In the circumstances, the proper course is, so it seems to me, to order that the costs of the motion, notice of which is dated 11 July 2008, be costs in the cause.
    

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kenny.

Associate:

Dated: 4 February 2009

Counsel for the Applicants:	Mr C Golvan SC and Dr S Ricketson
Solicitor for the Applicants:	Middletons
Counsel for the Respondents:	Mr B Caine SC and Mr W Rothnie
Solicitor for the Respondents:	Davies Collison Cave

Date of Hearing:	3 February 2009
Date of Judgment:	4 February 2009