FEDERAL COURT OF AUSTRALIA
Bloom v Legend Corporation Pty Ltd [2022] FCA 746
File number: WAD 22 of 2017 Judgment of: JACKSON J Date of judgment: 27 June 2022 Catchwords: PRACTICE AND PROCEDURE - discovery - Sabre order - expert requests further information - information requested may be in the possession, power or control of offshore third party - extent of knowledge of offshore manufacturing processes - principles relating to appropriateness of making a Sabre order - real likelihood of ability to obtain access to documents in control of third party - likelihood documents exist - appropriate form of order - scope of power under s 23 of the Federal Court of Australia Act 1976 (Cth) - absence of evidence of relationship between respondent and manufacturer - case for Sabre order not made out - information not essential to applicant's case - application dismissed Legislation: Competition and Consumer Act 2010 (Cth) Schedule 2 (Australian Consumer Law) ss 7, 18, 29, 33, 54, 138
Federal Court of Australia Act 1976 (Cth) s 23
Cases cited: Compagnie Financiére et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55
Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 581
Rafferty v Amaca Pty Ltd (Formerly James Hardie & Co Pty Ltd) [2017] WASC 18
Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Company (1993) 46 FCR 428
SPI Spirits (Cyprus) Ltd v Diageo Australia Ltd (No 2) [2006] FCA 931; (2006) 155 FCR 150
Division: General Division Registry: Western Australia National Practice Area: Commercial and Corporations Sub-area: Regulator and Consumer Protection Number of paragraphs: 21 Date of hearing: 27 June 2022 Counsel for the Applicant: Ms RA Hinchliffe Solicitor for the Applicant: Soul Legal Counsel for the Respondent: Mr HM O'Sullivan Solicitor for the Respondent: McCabes Lawyers ORDERS
WAD 22 of 2017 BETWEEN: KIM RUSSELL BLOOM
Applicant
AND: LEGEND CORPORATION PTY LTD (ABN 69 102 631 087)
Respondent
ORDER MADE BY:
JACKSON J
DATE OF ORDER:
27 JUNE 2022
THE COURT ORDERS THAT:
1.The interlocutory application filed by the applicant and dated 26 April 2022 is dismissed.
2.The applicant must pay the respondent's costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(edited from the transcript)JACKSON J:
The applicant, Mr Bloom, seeks an order of the kind often associated with Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Company (1993) 46 FCR 428, requiring the respondent to make inquiries concerning allegedly relevant documents that may be in the possession, power or control of a third party.
In this proceeding, Mr Bloom is pursuing the respondent for damages for what he alleges are catastrophic injuries he suffered as a result of breaches of the Australian Consumer Law (ACL) (being Schedule 2 to the Competition and Consumer Act 2010 (Cth)). The respondent was in the business of importing cable ties into Australia which were branded as…
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- Case
- [2022] FCA 746
- Decision Date
CaseChat Overview and Summary
The court found that Bloom had not demonstrated a real likelihood of obtaining access to the documents held by the third party, nor had they proven that the documents were likely to exist. The applicant's case for a Sabre order was further weakened by the absence of evidence of a relationship between Legend Corporation and the offshore manufacturer. The court held that the information sought was not essential to the applicant's case, and therefore dismissed the application. The court emphasised that the threshold for making a Sabre order was high and required clear evidence of both the necessity of the information and the likelihood of obtaining it.
The court ruled that Bloom's application for a Sabre order was dismissed and ordered that Bloom must pay Legend Corporation's costs of the application. The court's decision underscores the stringent criteria that must be met for a Sabre order to be granted, particularly where the information is held by a third party over whom the respondent has no control. The ruling also highlights the importance of establishing a clear link between the respondent and the third party in order to justify the imposition of such an order.
The orders of the court were that Bloom's interlocutory application dated 26 April 2022 was dismissed, and Bloom was to pay Legend Corporation's costs of the application. The entry of these orders was governed by Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The interlocutory application filed by the applicant and dated 26 April 2022 is dismissed.
2. The applicant must pay the respondent's costs of the application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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