Henley Arch Pty Ltd v McDonald Jones Homes Pty Ltd [2011] FCA 687

Henley Arch Pty Ltd v McDonald Jones Homes Pty Ltd [2011] FCA 687

There is an objective foundation for believing the applicants may have a right to relief for copyright infringement based on the close similarity between designs and the availability of applicants' designs before the respondents’. The applicants lack sufficient information to determine whether to commence proceedings and have made reasonable inquiries. The requirements for pre-action discovery under O 15A r 6 are satisfied, and there is no discretionary reason to refuse the orders.

Parties
First Applicant: Henley Arch Pty Ltd (ACN 007 316 930); Second Applicant: Henley Properties (Qld) Pty Ltd (ACN 007 316 930); First Respondent: McDonald Jones Homes Pty Ltd (ACN 089 524 050); Second Respondent: Newcastle Quality Constructions Pty Ltd (ACN 003 687 232); Third Respondent: Stuart Everitt Design Studio Pty Ltd (ACN 114 049 106); Fourth Respondent: Stuart Everitt
Jurisdiction
Australia
Judgment Date
21 June 2011
Procedural Posture
Preliminary Discovery Application / Interlocutory Application for Pre Action Discovery
Outcome
Application for pre-action discovery granted
Legal Topics
Copyright Infringement, Pre Action Discovery, Federal Court Procedure
Intellectual Property Civil Procedure Copyright Infringement Pre Action Discovery Federal Court Procedure

Case Brief

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Parties

Henley Arch Pty Ltd (ACN 007 316 930)

First Applicant

Henley Properties (Qld) Pty Ltd (ACN 007 316 930)

Second Applicant

McDonald Jones Homes Pty Ltd (ACN 089 524 050)

First Respondent

Newcastle Quality Constructions Pty Ltd (ACN 003 687 232)

Second Respondent

Stuart Everitt Design Studio Pty Ltd (ACN 114 049 106)

Third Respondent

Stuart Everitt

Fourth Respondent

Procedural Posture

Preliminary Discovery Application / Interlocutory Application for Pre Action Discovery

Legal Issues

  1. 1 Whether the applicants are entitled to pre-action discovery under Order 15A rule 6 of the Federal Court Rules
  2. 2 Whether there is reasonable cause to believe the respondents infringed copyright in house plans and facades
  3. 3 Whether applicants have made reasonable inquiries and lack sufficient information to decide whether to commence proceedings

Ratio Decidendi

There is an objective foundation for believing the applicants may have a right to relief for copyright infringement based on the close similarity between designs and the availability of applicants' designs before the respondents’. The applicants lack sufficient information to determine whether to commence proceedings and have made reasonable inquiries. The requirements for pre-action discovery under O 15A r 6 are satisfied, and there is no discretionary reason to refuse the orders.

Court Disposition

Application for pre-action discovery granted

Orders

  • Respondents to provide, within 14 days, discovery and inspection of documents regarding the development of Chesterfield Series Designs and Balinese Tropicana Façade, subject to claims of privilege or confidentiality.
  • Applicants' access to confidential documents to be restricted to solicitors and counsel in the first instance.