Judge rejects ‘flimsy’ appeal bid in software IP case
Intellectual Property June 14, 2018 10:16 pm By Miklos Bolza | Sydney

A Federal Court judge on Thursday dismissed a “flimsy” application by IT firm EIFY to launch an appeal out of time in a software copyright dispute with 3D Safety Services.

In rejecting EIFY’s application for an extension of time to appeal, Justice Steven Rares said none of the company’s 25 grounds for appeal against a ruling by the NSW Supreme Court in September had any prospect of succeeding.

The application for more time was brought in the Federal Court in November after EIFY’s solicitor Russell Phair, of Proctor Phair Lawyers, missed the 28-day appeal deadline required by the state Supreme Court.

EIFY, which specialises in IT solutions for inducting new employees in the construction industry, filed the case in 2012 after a joint venture between EIFY and 3D Safety Services came to a messy end in 2011.

EIFY accused 3D Safety Services of infringing its copyright and misappropriating confidential information from its e-Induct platform to create a competing web-based portal.

Franco Corsaro, SC, barrister for EIFY, faced a grilling about the strength of his client’s case, with Judge Rares echoing NSW Supreme Court Justice Robert McDougall’s concerns that EIFY had failed to identify specific information that was alleged to be confidential.

Corsaro argued the “look and feel” of 3D Safety’s entire website breached a confidentiality agreement signed by the two companyes on December 2011 after their joint venture was dissolved.

“What was confidential, what was copyright, was the labour and work involved in the creation of the induction pages,” Corsaro said. “We extended it to claim the whole system.”

Judge Rares wasn’t buying the argument.

“You say all of it is copyright. That’s just rubbish,” he said.

In his September judgment, Judge McDougall found that EIFY had failed to establish any grounds for contractual duties or fiduciary obligations owed to EIFY by 3D Safety and the other respondents in EIFY’s case, including 3D’s current director Anthony Conacher and its former director Simon Morrow.

Questions were also raised by Judge McDougall about the credibility of one of EIFY’s key witnesses, the firm’s managing director, Patrick Culbert.

“Mr Culbert was a witness who did not find it easy to give a direct answer to questions, where (it seemed) he perceived that to answer directly might not be helpful to his cause,” Judge McDougall wrote. “Further, Mr Culbert was a person who found it very difficult to concede that his evidence had been incorrect, even when it became plainly apparent that it was.”

Judge Rares also ordered that EIFY pay the respondents’ costs.

3D Safety Services and the other respondents were represented in Thursday’s hearing by Kevin Andronos, SC, who was instructed by Norton Rose Fulbright.

The case is EIFY Pty Ltd v 3D Safety Services Pty Ltd & Ors.

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Miklos Bolza

Miklos Bolza has been a journalist for three years. He has written for a variety of publications, including NZ Lawyer, HRD Australia, and Australian Broker. He is currently the Sydney court reporter for Lawyerly.