Complete Technology P/L v Toshiba (Australia) P/L

[1994] FCA 1081

\O%l J C14

JUDGMENT NO. .. .mm . . . . . . . . . . . . nw,,,,nw

IN THE FEDERAL COURT OF AUSTRALIA	)	Limited Distribution
)

NEW SOUTH WALES DISTRICT REGISTRY ) No NG163 of 1993

)

GENERAL DIVISION )

BETWEEN:  COMPLETE TECHNOLOGY PTY LIMITED
Applicant

m:  TOSHIBA (AUSTRALIA) PTY LIMITED
Respondent

CORAM :	HILL J
PLACE	: SYDNEY
DATED	:  28 OCTOBER 1994

MINUTES OF ORDER

THE COURT DIRECTS THAT:

1. The applicants make available for inspection the documents described in para. 3.3 of the amended supplementary list of documents dated 11 October 1994 on or before 1 November 1994, together with the pleadings in those proceedings deleting, should the applicant wish so to do, from the affidavits filed materlal which goes to and only to the question of whether Epson had breached the provisions of Part IV of the Trade Practices Act 1974 (Cth) as alleged in the applicant's statement of claim in the Epson proceedings. That material might be whited out if that is the way in which the applicant wishes to proceed.

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

The application be stood over so far as it relates

to AST Research AN2 Pty Limited.

RECEIVED
19 APR 1995
FEDERAL COURT OF

AUSTRALIA PRINCIPAL

REQISTAY

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No NG163 of 1993

)

GENERAL DIVISION )

BETWEEN:  COMPLETE TECHNOLOGY PTY LIMITED
Applicant

m:  TOSHIBA (AUSTRALIA) PTY LIMITED
Respondent

CORAM :	HILL J
PLACE	: SYDNEY
DATED	:  28 OCTOBER 1994

REASONS FOR JUDGMENT

Application is made by Toshiba (Australia) Pty Limlted ( "Toshlba" ) for inspection of all af f idavlts, statements and expert reports filed in proceedings NG681 of 1990 between Complete Technology Pty Llmlted ("Complete Technology"), also the applicant in the present proceedings, and Epson Australia Limited ("Epson"), together with the pleadings in those proceedings. A similar application is made

for discovery and inspection of documents in proceedings NG647

of 1990 between Complete Technology and AST Research AN2 Pty Limited ("AST"). The background to the present dispute is set out in a judgment given on 7 September 1994 where Complete Technology sought to have disqualified counsel and certain witnesses who had been involved in the proceedings against Epson and AST respectively.

In the course o f t ha t judgment I discussed t h e privi lege tha t attaches t o documents which have been f i l e d i n court proceedings i n circumstances where there i s t o be implied an undertaking tha t t he information or documents f i l e d

w i l l not be used otherwise than for the purposes o f those

proceedings. Special circumstances may prompt the Court t o

grant leave for the material t o be used i n other cases. By

"special circumstances" i s meant features which a f f o r d a reason for releasing or modifying the undertaking; see Sprinafield Nominees P t v Limited v Bridaelands Securi t ies

Limited (1992) 38 F C R 217.

In tha t case Wilcox J , a f t e r summarising t h e cases,

said ( a t 225):

"For ' special circumstances' t o e x i s t i s enough that there i s a special feature o f the case which a f f o r d s a reason for modifying or releasing the undertaking and i s not usually present. The matter then

becomes one o f the proper exercise o f the	court ' S discret ion, many factors being
re1 evan t . I t i s nei ther possible nor
desirable t o propound an exhaustive l i s t
o f those factors. But plainly they include the nature o f the document, t he circumstances under which it came i n t o exis tence, the a t t i t ude o f the author o f the document and any prejudice the author may sustain, whether the document pre- exis ted l i t i g a t i o n or was created for that purpose and therefore expected t o enter the public domain, the nature o f the information i n the document ( i n particular
whether i t contains personal d a t a or
commercially sens i t i ve information), the circumstances i n which the document came i n t o the hands o f the applicant for leave and, perhaps most important o f a l l , the
likely contribution of the document to achieving justice in the second
proceeding. "

The question of relevance of the material arises, so it was submitted by senior counsel for Toshiba, in the following circumstances. A witness in the present proceeding has calculated the applicant's loss of profits over a period of time. His calculation depends in part upon determining how much profit the applicant would have made if permitted to engage in discount advertising. The statement of claim in effect asserts that the respondent prohibited advertising of discount prices and that this ultimately led to supply being withheld.

The evldence filed by the applicant seeks to analyse the effect of discount advertising by reference to Epson's trading. That company's products were apparently discounted from time to time by the applicant. The underlying data is

respondent for its part seeks to distinguish sales made of	said to have already been discovered to the respondent. The
Epson products from sales of its own product, which it is said were scarcely advertised at all. The expert witness on behalf of the applicant annexes material which appears to have emanated in the Epson litigation, and senior counsel for the respondent in the present proceedings asserts that it would be relevant to obtain all of the affidavits, statements, and expert reports flled in the Epson proceedings, inter alia it may be assumed, to test what has been said by the expert for the applicant.
It is accepted that the solicitors for Epson have advised the legal advisers of the respondent that they have no objection to the material being made available to the legal advisers of the respondent and such expert as may be nominated by the respondent, no doubt subject to an undertaking that material of a commercial nature be kept confidential. The attitude of AST is not presently known and counsel for Toshiba has requested that the present application, to that extent, be adjourned for a later time when it may or may not arise.
Counsel for the applicant has pointed to the delay which it is said would be caused by the material now being made available to experts briefed by the respondent; queries the relevance of the material once the underlying data has been supplied; and presses that there is lust no issue to
which the material sought to be inspected might go.
I must say that I have serious doubts about the relevance of that part of the affidavit material filed in the Epson proceedings which deals with factual matters going to the breaches that were alleged in those proceedings. Looking at the various matters outlined by Wilcox J in Springfield Nominees, it is clear that so far as documents emanating from Epson are concerned, the authors of those documents have no objection to them being seen by the parties advisers, and no prejudice can be said to be suffered by them.
I have pressed counsel for the applicant in the present proceedings as to what prejudice there might be to his client by documents emanating from his clients being
discovered but, apart from a suggestion that it would take
time and expense which I discount slnce the documents are clearly readily available, no prejudice at all has been suggested. All of the documents in question were obviously created for the purposes of the Epson proceedings, and had those proceedings continued would, subject to such orders as to confidential~ty as may have been made to protect commercially sensitive information, have gone into the public domain.
No doubt much of the material could be obtained directly from Epson, although to do so might add additional
of the view, looking at the matter overall, that it could cost to the present litigation and certainly take time. I am
contribute to the speedler resolution of the present case and
its more economic management if the material, other than material relating to breach, were made available as soon as possible. The time has come for the affidavits in the present proceedings to be completed and the matter to proceed to trial. This can only happen when inspection takes place and the material in the affidavits in the Epson matter on both
sides, other than the matters relatlng to breach, appears to have relevance to part of the debate between the parties in the present proceedings.
In these circumstances, and subject to orders necessary to vary an undertaking of Professor Bewley given to the Court in the Epson matter on 23 April 1992, and such undertakings as to confidentiality as may be necessary to protect Epson information, I would direct that the applicants make available for inspection the documents described in paragraph 3.3 of the amended supplementary list of documents dated 11 October 1994, on or before 1 November, together with the pleadings in those proceedings, deleting should the applicant wish so to do from the affidavits filed, material which goes to and only to the question of whether Epson had breached the provisions of Part IV of the Trade Practices Act 1974 (Cth) as alleged in the applicant's statement of claim in the Epson proceedings. That material might be whited out if
will stand over the application, so far as it relates to AST. that is the way in which the applicant wishes to proceed. I I certify that thls and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of his Honour Justice H111.
Associate: =.my /

U

Date: 12	CpS
Counsel and Solicltors	N Cotman instructed by
for Applicant:	Adrian Holmes
Counsel and Solicitors	JP Heydon QC with CP Comans
for Respondent:	i n s t r u c t e d  b Y F r e e h i l l
Hollingdale & Page
Dates of Hearing:	28 October 1994
Date Judgment Delivered:	28 October 1994