Federal Court of Australia

EV20 Consulting Group Pty Ltd v Paperless Warehousing Pty Ltd (No 2) [2025] FCA 476

ORDERS

THE COURT ORDERS THAT:

Definitions

In these orders, the following terms have the following meanings:

(a)    Computer Program Works means the following works:

(i)    the ‘back-end’ server-based software in Paperless WMS (PWS Server);

(ii)    the following in PWS Server (collectively, PWSS Programs):

A.    @AMR200.PA;

B.    @AMR200.UPD;

C.    @BCE003;

D.    @CHI100.DISP;

E.    @CPK002;

F.    @DEB011,

G.    @DEM007.PRT;

H.    @FILE.UPDATE;

I.    @HC.MON310;

J.    @TAE008; and

K.    @TLC002;

(iii)    the ‘front-end’ client software in Paperless WMS, written in the Visual Basic (.NET) language (PWS .NET Client); and

(iv)    the computer program “Model.vb” in PWS .NET Client (PWSC Program).

(b)    Paperless Confidential Information means the following confidential information belonging to Paperless:

(i)    the source code for any of PWS Server, each PWSS Program, PWS .NET Client and the PWSC Program;

(ii)    the password used to decrypt encrypted copies of the source code for PWS Server or the PWSS Programs; and

(iii)    the technical means by which PWS Server enforced, measured or controlled the number of concurrent users under the licence granted by Paperless to the customer.

(c)    Paperless WMS means the warehouse management software system developed, marketed, maintained and supported by Paperless.

EV20’s claim against Paperless

1.    Pursuant to rule 5.23(1)(b) of the Federal Court Rules 2011 (Cth) (FCR), EV20’s claim against the Respondent be dismissed.

2.    EV20 pay the Respondent’s costs of the claim on a party and party basis, to be quantified as a lump-sum, in an amount to be determined by a Registrar of the Court.

3.    The Registrar be directed pursuant to rule 1.37 of the FCR to determine the quantum of the lump sum for costs payable in such manner as he or she deems fit including, if thought appropriate on the papers.

Paperless’ cross-claim against the Defaulting Cross-Respondents

Judgment

4.    Pursuant to FCR 5.23(2)(c)-(d), there be judgment against each of the following cross-respondents (Defaulting Cross-Respondents) as follows:

(a)    there be judgment against the First Cross-Respondent, EV20, on the cross-claims for copyright infringement, authorising copyright infringement and misuse of confidential information;

(b)    there be judgment against the Second Cross-Respondent (Scott William Symons), on the cross-claims for authorising copyright infringement and misuse of confidential information;

(c)    there be judgment against the Sixth Cross-Respondent (Christopher Stephen Pearce), on the cross-claim for authorising copyright infringement.

Injunctions

5.    Each Defaulting Cross-Respondent be permanently restrained from doing any of the following acts (whether by themselves, their servants, agents or otherwise), without the licence of Paperless:

(a)    reproducing in Australia the whole or a substantial part of any Computer Program Works in material form;

(b)    communicating in Australia the whole or a substantial part of any Computer Program Works to the public;

(c)    authorising the doing of the act in paragraph (a) or (b).

6.    EV20 be permanently restrained from using (whether by themselves, their servants, agents or otherwise) any of the Paperless Confidential Information, without Paperless’ prior written consent.

7.    Mr Symons be permanently restrained from using (whether by himself, his servants, agents or otherwise) any of the Paperless Confidential Information, without Paperless’ prior written consent.

Pecuniary relief

8.    Pursuant to FCR 5.23(2)(d), there be an inquiry as to Paperless’ damages (including additional or exemplary damages) or an account of the Defaulting Cross-Respondents’ profits, at Paperless’ election.

Other relief

9.    For reproductions and documents capable of delivery up as at the date of these orders, each Defaulting Cross-Respondent deliver up for destruction of all whole or substantial part reproductions of any Computer Program Works and all documents embodying any of the Paperless Confidential Information in that Cross-Respondent’s control, verified by oath or affirmation, within 21 days of this order.

10.    For reproductions and documents not capable of delivery up as at the date of these orders, each Defaulting Cross-Respondent permanently destroy all whole or substantial part reproductions of any Computer Program Works and all documents embodying any of the Paperless Confidential Information in that Cross-Respondent’s control, verified by oath or affirmation, within 21 days of this order.

Costs

11.    Each Defaulting Cross-Respondent jointly and severally pay Paperless’ costs of the cross-claim on a party and party basis, to be quantified as a lump-sum, in an amount to be determined by a Registrar of the Court.

12.    The Registrar be directed pursuant to rule 1.37 of the FCR to determine the quantum of the lump sum for costs payable in such manner as he or she deems fit including, if thought appropriate on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

BURLEY J:

1    On 8 April 2025, I directed that the respondent/cross-claimant, Paperless Warehousing Pty Ltd, supply draft short minutes of orders giving effect to my reasons in EV20 Consulting Group Pty Ltd v Paperless Warehousing Pty Ltd [2025] FCA 328 (judgment) where I determined, in favour of Paperless, that default judgment should be given pursuant to r 5.23 of the Federal Court Rules 2011 (Cth) (FCR) against Scott William Symons, the second cross-respondent, but not against Peter Donald McKerrell, the fifth cross-respondent, or Christopher Stephen Pearce, the sixth cross-respondent. These reasons assume familiarity with the judgment and the defined terms used in it.

2    Paperless complied with the order and supplemented it with a short submission, directing my attention to two errors that it contends appeared in the judgment. The first is that I had incorrectly referred to the Defence to the Second Further Amended Statement of Cross-Claim (2023 defence, as defined in the judgment) filed on behalf of some of the cross-respondents as including Mr Symons. In fact, the defence to which I had referred was filed on behalf of a number of parties, but not Mr Symons, and the admissions made in that document were not made by Mr Symons. The second is that I had overlooked an aspect of the pleaded case against Mr Pearce, with the consequence that he too should be found liable to default judgment against him. Both of these contentions are correct. Alternative submissions were advanced which do not need to be addressed for present purposes. No submissions were made suggesting similar error in the finding that there was insufficient material to find Mr McKerrell liable for authorising or engaging in infringing conduct (judgment at [84]).

3    FCR r 39.05(c) provides that the Court may vary a judgment or order after it has been entered if it is interlocutory. A decision is interlocutory where it does not finally determine the rights of the parties; Carr v Finance Corporation of Australia Ltd (No 1) [1981] HCA 20; 147 CLR 246 at 248 (Gibbs CJ). A decision under FCR r 5.23 is interlocutory for that reason. As Note 2 to FCR r 5.23 observes, an order or judgment under Division 5.2 may be set aside or varied.

4    The power to re-open a judgment for further consideration has been considered in the context of the power under FCR r 39.05(c) and also at common law. The discretionary power under FCR r 39.05(c) has been explored in a number of cases including Halal Certification Authority Pty Ltd v Quality Kebab Wholesalers Pty Ltd (No 2) [2014] FCA 840; 223 FCR 540 at [4]–[5] (Perram J); CIP Group Pty Ltd v So (No 5) [2024] FCA 1373 at [13] (Derrington J).

5    At common law, the overriding principle to be considered is that the Court should do what is required by the interests of justice in the particular circumstances of the case; Greenbot Pty Ltd v Clean Energy Regulator [2025] FCA 369 at [61] (Horan J) citing Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 at 46 (McLelland J). The principles to be considered are summarised by Jagot J in Pivotel Satellite Pty Ltd v Optus Mobile Pty Ltd [2010] FCA 121 at [26]. In Autodesk Inc v Dyason (No 2) [1993] HCA 6; 176 CLR 300 at 302–3, Mason CJ held that, whilst the jurisdiction to re-open a judgment is not to be exercised for the purpose of re-agitating arguments already considered by the Court, when a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or law, the public interest in the finality of litigation will not preclude the step of reviewing or rehearing an issue.

6    I consider that it is in the interests of justice to revise my reasons as set out in the judgment. The result of that revision is to affirm my decision insofar as it concerns Mr Symons and to alter my decision insofar as it concerns Mr Pearce, as I explain below.

7    In considering the pleaded case against Mr Symons and Mr Pearce for copyright infringement the judgment states at [80]:

In relation to each, the cross-claim contends that since dates unknown, they have authorised or “directed, procured, induced or engaged” each of the pleaded acts of primary infringement, five of which are enumerated above. The generic particulars provided contend that by reason of each of their senior roles in EV20 it may be inferred that each of (relevantly) Mr Symons, Mr McKerrell and Mr Pearce authorised, engaged in, directed or procured the pleaded activities. The pleading alone provides necessary, but not sufficient description of the matters relevant to the test of authoring copyright infringement. However, as noted above it is also appropriate to have regard to admissions made by these respondents in considering the default judgment application.

8    The judgment proceeds to consider, in the context of the case against Mr Symons for copyright infringement and breach of confidence, admissions made in the defence to the effect that he had directed and supervised a series of acts identified at [82] which provided support for the conclusion that his involvement went beyond merely being in a senior role in EV20. As noted, these admissions relied upon by the judgment were not made by Mr Symons.

9    In the context of the case advanced against Mr Pearce, the perceived inadequacy of the pleaded case against him was not remedied by any admissions made on his behalf going to his role in that conduct. Accordingly, I concluded that he was not, on the basis only of his default and deemed admissions arising from the pleaded cross-claim, liable for authorising or being a joint tortfeasor in the copyright infringements of EV20 (judgment at [85]).

10    Regrettably, in reaching these findings I overlooked a cross-reference (in particulars (ii) and (iv) to [53]) to an allegation in [24] of the Third Further Amended Statement of Cross-Claim (cross-claim, as defined in the judgment), which pleads that the activities of EV20 in developing the impugned WMS, granting or purporting licences to EV20 customers to use Paperless WMS or the impugned WMS and offering to provide services in relation to the Paperless WMS or impugned WMS were each done:

(a)    with the approval of;

(b)    at the direction of;

(c)    under the control of; and/or

(d)    with the actual or constructive knowledge of;

each individual cross-respondent, including Mr Symons and Mr Pearce.

11    The pleading in the cross-claim is based upon admissions made by Mr Symons and Mr Pearce in their affidavits, as well as the affidavits of Kamal Segaran Gounder, a software developer employed by Paperless.

12    These allegations may for the purposes of FCR r 5.23, be deemed to have been admitted by each of Mr Symons and Mr Pearce in accordance with the principles set out in the judgment at [14]. Having regard to these admissions, it is unnecessary to go beyond the pleading in order to conclude that each of Mr Symons and Mr Pearce is liable for authorising infringement of the pleaded acts of copyright infringement. A similar cross-reference in [64] is made to [24] of the cross-claim in the pleading that Mr Symons engaged in acts of breaches of confidentiality owed to Paperless. That is sufficient to enable me to conclude, on the face of the deemed admissions in the pleading, that Mr Symons is also liable to default judgment in respect of that cause of action.

13    In the result, I confirm on this basis that Paperless is entitled to orders pursuant to FCR r 5.23 for the relief that I have identified in section 6.7 of the judgment against Mr Symons for infringement of copyright and breach of confidence and find, contrary to the reasoning in the judgment, that Paperless is also entitled to a finding against Mr Pearce for infringement of copyright. I will make orders accordingly.

Associate:

Dated:    14 May 2025

SCHEDULE OF PARTIES