15 December 2014 NEARMAP’S APPLICATION FOR PRELIMINARY DISCOVERY...

15 December 2014

NEARMAP’S APPLICATION FOR PRELIMINARY DISCOVERY AGAINST SPOOKFISH
Legal Action

On 9 September 2014, nearmap Limited, Ipernica Holdings Pty Limited and nearmap Australia Pty Limited (collectively, nearmap) filed an application in the Supreme Court of New South Wales seeking that Spookfish Pty Limited, Simon John Cope and Guy Perkins (former nearmap Australia Pty Limited employees), and Michael John Von Bertouch (a former consultant to nearmap through a controlled entity) (collectively, Spookfish), be ordered to provide preliminary discovery of documents to nearmap for the purpose of deciding whether or not to commence proceedings against Spookfish.  
On 24 September 2014, Spookfish filed a notice of motion pursuant to which they have sought that the nearmap application be indefinitely stayed and/or be referred to arbitration.  
The Spookfish notice of motion was listed for hearing before Chief Justice Bergin (in Equity) on 28 October 2014.

Context
nearmap has invested heavily in proprietary intellectual property. These assets, some of which are the subject of patent protection,  form an important part of the company’s competitive advantage. nearmap has a clear Board Policy to stridently protect and enforce its intellectual property rights in the interest of shareholders.   
With this in mind, nearmap applied to the Supreme Court of New South Wales for an order Spookfish that provide preliminary discovery documents to allow nearmap to assess if a breach of nearmap’s rights has occurred.
The Court heard the arguments as to whether nearmap’s pre-action discovery proceedings be stayed or referred to arbitration.  

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Decision

On 15 December 2014, Bergin CJ found in favour of nearmap and dismissed the Spookfish notice of motion. Spookfish has also been ordered to pay nearmap’s costs of the notice of motion.  

A copy of the Bergin CJ’s judgment can be viewed at: http://www.caselaw.nsw.gov.au/action/PJUDG?jgmtid=176268

Next Steps  
The additional orders made by the Court were to the following effect:  
1. Preliminary Discovery application listed for hearing on 19 March 2015.   
2. Defendants to file and serve any evidence by 16 February 2015.   
3. Plaintiffs to file and serve any evidence in reply by 13 March 2015.   
4. Parties to provide short outlines of submissions to Commercial List Judge’s Associate by 4 pm on 16 March 2015.   
5. Liberty to apply on 1 days’ notice.