CCA Beverages (Adelaide) Ltd v Hansford - [1991] FCA 925

Re: CCA BEVERAGES (ADELAIDE) LIMITED
And: SIMON JOHN HANSFORD and SIMON'S NATURAL FRUITS PTY. LTD.
No. S G58 of 1991
FED No. 925
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
O'Loughlin J.(1)

CATCHWORDS

Practice and Procedure - "pre-action" discovery - conclusion that applicant had not made "all reasonable enquiries" and that application was premature - applicant further sought an order under O.17 r 1(1)(e) permitting nominated persons to observe the process of manufacturing the respondents' product - O.15A dealing with "pre-action" discovery being self-contained applicant not entitled to Order under O.17 - for same reason applicant not entitled to issue Notice to Produce under O.33 r 12.

HEARING

ADELAIDE

#DATE 15:11:1991

Solicitors for the applicant: Messrs Finlaysons

Counsel for the applicant: Dr R.J. Baxter

Solicitors for the respondents: Messrs Baker O'Loughlin

Counsel for the respondents: Mr N. Strawbridge

ORDER

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondents' costs to be taxed in default of

agreement.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

Application for "pre-action" discovery.

The applicant manufactures a product that is described as a "soft serve fruit product"; it is sold under the trade name "Vitari". According to the affidavit of Wayne Hage, "Vitari" was developed in the United States of America and is "subject to a patent or patents granted in that country". Mr Hage, a technical manager employed by the applicant, graduated in 1973 from the Institute of Technology with the degree of Bachelor of Applied Science (majoring in chemistry and micro-biology). His academic and practical qualifications, which were not challenged, appear to entitle him to express the opinions that are contained in the papers and to which reference will later be made. The same may also be said of Professor Kenneth Alan Buckle, the Associate Professor in the Department of Food Science and Technology of the University of New South Wales and Dr. Paul Joseph Wyk; Dr. Wyk is an adviser to the applicant in his capacity as an employee of Messrs Collison and Co, Patent and Trademark Attorneys. He holds the qualification of Doctorate of Philosophy awarded for research in the Department of Microbiology and Immunology at the University of Adelaide.
All three men have sworn affidavits which have been filed by the applicant in support of its application for an order for "pre-action" discovery pursuant to the provisions of O.15A of the Rules of Court. The parties against whom the order is sought are Simon's Natural Fruits Pty. Ltd. ("the respondent company") and its managing director Simon John Hansford ("Mr Hansford"); the respondent company is the manufacturer of a product called "Hi-Fruit" and it may be accepted, at this early stage, that "Vitari" and "Hi-Fruit" are not only competitive lines but quite similar: how similar may well be the subject of litigation in due course of time. The order that the applicant seeks, and which is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1991] FCA 925
Decision Date: 15 NOVEMBER 1991

CaseChat Overview and Summary

In the Federal Court, CCA Beverages (Adelaide) Ltd initiated proceedings against Hansford, seeking pre-action discovery of documents related to the manufacturing of a beverage product. The applicant contended that the information was necessary to assess whether it should proceed with a potential claim. The court was tasked with determining whether the applicant had fulfilled its obligation to make all reasonable enquiries before seeking pre-action discovery and whether the application was premature. Additionally, the applicant sought an order permitting nominated individuals to observe the manufacturing process of the respondent's product under O.17 r 1(1)(e).

The court examined whether the applicant had conducted all reasonable enquiries to ascertain the existence and relevance of the documents it sought. It found that the applicant had not made all reasonable enquiries, deeming the application premature. Furthermore, the court addressed the applicant's request for an observation order. Given that O.15A was self-contained in dealing with pre-action discovery, the applicant was not entitled to an order under O.17. Similarly, the applicant could not issue a Notice to Produce under O.33 r 12 due to the same reasoning.

The Federal Court dismissed the application. The applicant was ordered to pay the respondents' costs, to be taxed in default of agreement. This decision underscored the importance of thorough pre-action enquiries and the self-contained nature of O.15A in pre-action discovery matters.

Orders

Orders of the court

THE COURT ORDERS THAT:

1. The application be dismissed.

2. The applicant pay the respondents' costs to be taxed in default of

agreement.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

Background

Background to the litigation

Full text does not contain this section.

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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