Tramanco Pty Ltd (ACN 010 101 872) v BPW Transpec Pty Ltd (ACN 006 645 272) [2009] FCA 1605

Tramanco Pty Ltd (ACN 010 101 872) v BPW Transpec Pty Ltd (ACN 006 645 272) [2009] FCA 1605

Given the known relevance and specific identification of the software at issue, and considering exchanges evidencing the existence and possession of the source code by the foreign parent, it is not premature to permit non-party discovery. The court is satisfied there is a basis for an application for leave to serve out of jurisdiction and directs the application be served on the German parent via its Australian subsidiary according to draft orders, facilitating adequate contestation of the application while balancing efficiency and procedural fairness.

Jurisdiction
Australia
Judgment Date
24 December 2009
Procedural Posture
Application (practice and Procedure) / Interlocutory (urgent Application for Leave to Serve Notice of Motion for Non Party Discovery Out of Jurisdiction)
Outcome
Orders made in terms of draft orders formulated by the applicant. Costs reserved.
Legal Topics
['non Party Discovery' 'service Out of Jurisdiction' 'patent Infringement' 'federal Court Rules']
['practice and Procedure' 'intellectual Property Law'] ['non Party Discovery' 'service Out of Jurisdiction' 'patent Infringement' 'federal Court Rules']

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Procedural Posture

Application (practice and Procedure) / Interlocutory (urgent Application for Leave to Serve Notice of Motion for Non Party Discovery Out of Jurisdiction)

Legal Issues

  1. 1 ['Whether the court has jurisdiction to grant leave to serve a notice of motion for non-party discovery on a foreign (German) corporation out of jurisdiction' 'Whether non-party discovery of software source code from a foreign parent company is relevant and appropriate at this stage' 'Whether the proposed mode of service (via Australian subsidiary) is permissible']

Ratio Decidendi

Given the known relevance and specific identification of the software at issue, and considering exchanges evidencing the existence and possession of the source code by the foreign parent, it is not premature to permit non-party discovery. The court is satisfied there is a basis for an application for leave to serve out of jurisdiction and directs the application be served on the German parent via its Australian subsidiary according to draft orders, facilitating adequate contestation of the application while balancing efficiency and procedural fairness.

Court Disposition

Orders made in terms of draft orders formulated by the applicant. Costs reserved.

Orders

  • ['Leave granted for service of application for non-party discovery out of the jurisdiction (on German parent) via Australian subsidiary as per draft orders.' 'Costs of the application are reserved.']