Reasoning
Order 15A r 6(a)
24 It is well established that O 15A r 6(a) poses an objective test. The test is whether there is reasonable cause to believe that the applicant has or may have the right to obtain relief from the prospective respondent. The applicant does not have to make out a prima facie case to satisfy par (a), although it is not enough for an applicant merely to assert that there is a case against the prospective respondent: Hooper v Kirella Pty Ltd (1999) 96 FCR 1 (FC), at 11-12 [39]; W R Pateman Pty Ltd v Walker Corp Pty Ltd [1990] ATPR 41-016, at 51,299, per Wilcox J.
25 Although the respondent resiled from its concession that the applicant had satisfied r 6(a), Mr Gelbart accepted that, if the letter of 18 July 1996 were put to one side, the applicant had indeed shown that there was reason to believe that it may have an action for infringement of copyright against the respondent. So much followed from the admission in the letter of 11 April 2000. That letter, it will be recalled, acknowledged that the respondent had used portions of EUNICE modules, although the precise nature and extent of the use were left unclear.
26 In my opinion, the agreement evidenced by the letter of 18 July 1996 does not detract from the conclusion that the applicant has satisfied the requirements of O 15A r 6(a). The agreement did not expressly authorise the respondent to use the source code as part of the EUNICE software. On the contrary, the language is consistent with Mr Allison's explanation that the agreement was intended to resolve a dispute arising from the applicant's refusal to supply updated source codes until the respondent paid amounts said to be due under the Dealer Agreement. There is nothing in the language used in the letter that suggests that the applicant was granting the respondent a licence outside the terms of the Dealer Agreement, such a licence, which would entitle the respondent to incorporate EUNICE modules into its own software.
27 I do not mean to suggest that the respondent will ultimately be unable to establish that it received a licence to incorporate portions of the EUNICE software into the UNISON software or to act in some other way outside the scope of the Dealer Agreement. At a hearing on the substantive issues, the respondent may be able to show that the letter should be construed as confirming a licence in the terms it propounds. It is not necessary to consider that question here. It is enough to conclude that, on the evidence before me, the agreement of 18 July 1996 does not necessarily negate any claim the applicant may have against the respondent for infringement of copyright in respect of the EUNICE modules.
Order 15A r 6(b)
28 In my view, the applicant has made all reasonable inquiries to obtain sufficient information to enable it to make a decision whether to commence a proceeding in the Court. The applicant lacked information as to the manner in which the respondent had used the EUNICE modules and, in particular, whether they had been incorporated into the respondent's UNISON software (or, indeed, into other software). If the respondent had simply sold the EUNICE modules separately, a question might arise as to whether the applicant could maintain an action for infringement of copyright, as distinct from a claim in contract based on the terms of the Dealer Agreement.
29 The applicant requested the respondent to provide documents, including source codes, which would enable the former to determine whether its copyright had been infringed and, if so, by what means. The request was made in terms which may have been over-inclusive. Nonetheless, it was the respondent which had the relevant information and it is difficult to see who else might have been asked to provide it. The applicant's own files would not have revealed what use the respondent had made of the EUNICE modules outside the terms of the Dealer Agreement: cf London Economics (Aust) Pty Ltd v Frontier Economics Pty Ltd [1999] FCA 932, at [29] (Finkelstein J).
30 In my view, the fact that the applicant did not adduce evidence that it had systematically examined its own files is not a barrier to concluding that it had made all reasonable inquiries. The information required by the applicant was the nature and, perhaps, extent of the respondent's use of the EUNICE modules in connection with the sale and distribution of UNISON or other software. That information was not available in the applicant's files. It presumably is and always has been available in the respondent's files.
31 Nor do I think that the applicant could reasonably be expected to have examined its own files to determine whether a licence had been granted to the respondent to incorporate EUNICE modules in its UNISON software, or otherwise make use of the modules outside the terms of the Dealer Agreement. If such a licence had been granted, it was reasonable for the applicant to expect that the respondent would point out that fact very promptly. Moreover, Mr Allison gave unchallenged evidence that he understood the letter of 18 July 1996 merely to clarify the operation of the Dealer Agreement in relation to the respondent's access to updated source codes. There is no evidence that Mr Allison believed or had reason to believe that a licence had been granted by the applicant to the respondent authorising the latter to incorporate EUNICE modules into its own software.
32 The respondent contended, in the alternative, that the applicant had not satisfied O 15A r 6(b) because the only information sought by it related to the quantumof any claim. It is true that many of the documents within the four categories identified by the applicant in its letter of 3 May 2000 would be likely to relate only to quantum. But the applicant's request was not confined to such documents. It was seeking documents that would enable it to determine whether the respondent had infringed copyright and, if so, in what manner. Documents within this category included the applicant's source codes used by the respondent or sold by it in conjunction with UNISON or other software and the contracts entered into between the respondent and its customers.
33 In any event, I would not accept the proposition that documents relating only to quantum are necessarily irrelevant in determining whether an applicant has satisfied O 15A r 6(b). As Lindgren J observed in Alphapharm Pty Ltd v Eli Lilly Australia Pty Ltd (unreported, 24 May 1996), at 24, r 6(b) invokes a notion of "reasonable sufficiency". The question posed by the sub-rule is not whether an applicant has sufficient information to enable it to decide if a cause of action is available against the prospective respondent. The question is whether the applicant has sufficient information to enable a decision to be made whether to commence a proceeding in the Court to obtain relief from an ascertained person. The extent to which copyright has been infringed, for example, may be highly material to a decision to commence a proceeding in respect of infringement of copyright. A trivial claim may not be worth pursuing and might prove to be a waste of the time and resources not only of the applicant but of the Court.
34 None of this is intended to imply that FCR O 15A r 6 can be used as a matter of course to obtain preliminary discovery of documents relevant to the quantum of a particular claim. Each case must depend on its own circumstances. There may be cases, however, in which an applicant, after making the reasonable inquiries, has insufficient information relating to quantum to enable it to make a decision whether to commence a proceeding in the Court. In such instances the requirements of O 15A r 6(b) may well be satisfied.