FEDERAL COURT OF AUSTRALIA

Barrett Property Group Pty Ltd v Dennis Family Homes Pty Ltd

[2006] FCA 910

BARRETT PROPERTY GROUP PTY LTD & ANOR v DENNIS FAMILY HOMES PTY LTD

VID 1244 of 2005

HEEREY J

17 MAY 2006

MELBOURNE

THE COURT ORDERS THAT:

1.                  The cross-respondent file and serve a verified supplementary list of documents on or before 7 June 2006 which includes all building plans for the houses referred to in paragraphs 20 and 25 of its Reply and Defence to Cross Claim filed 23 December 2005;

2.                  The cross-respondent provide inspection of discovered documents included in its supplementary list of documents on or before 21 June 2006; and

3.                  Cross-respondent pay the costs of the motion.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     By a notice of motion dated 15 May 2006 the cross-claimant sought against the cross-respondent discovery and inspection of certain plans.

2                     The central claim of the cross-claimant is that the cross-respondent’s Albany and Everton houses infringe its copyrights.  Therefore unless there is some very persuasive reason to the contrary the cross-claimant ought to be able to get discovery by the cross-respondent of all plans of all the Albany and Everton houses. 

3                     While I am always sympathetic to the burden that discovery can impose on parties, in the present case, on the cross-respondent's evidence, it would take one person three days to locate and compile such plans.  This does not seem to me to be excessive.  And I think there is force in what is said on behalf of the cross-claimant that it should not be forced to accept the opponent's characterisation of particular plans already produced as "representative". 

4                     I do not see that the discovery sought necessarily would add complexity to the trial.  With competent and experienced solicitors and counsel in these sort of matters engaged in this case one would hope that after proper inspection, if there is in truth no real difference between all the plans of the houses in question then the issues can be defined and the case proceed on a plan which is accepted as truly representative.  So I will make the orders sought in the motion.

Associate:

Dated:              17 May 2006