- NOT SUITABLE FOR DISTRIBUTION
IN THE FEDERAL COURT OF AUSTRALIA )
)
NEW SOUTH WALES DISTRICT REGISTRY ) NG 351 of 1990
)
GENERAL DIVISION )
BETWEEN: ELCONNEX PTY LIMITED Applicant
AND : GERARD INDUSTRIES PTY LIMITED Respondent
C O W : Burchett 3. PLACE: Sydney DATE : 28 April 1993
FEDERAL COURT OF
EX TEMPORE REASONS FOR JUDGMENT AUSTRALIA
BURCHETT 3.:
In this matter a problem has arisen on discovery of documents. The applicants, who have obtained discovery in respect of various invoices which they desire to utilise in an inquiry as to damages, have up to now been denied an opportunity actually to inspect the invoices because the respondent says inspection would disclose commercially sensitive material.
authorities would be applicable.
I am asked to rule on whether the applicants are in fact entitled to have an inspection, it being accepted on their part that some degree of control and limitation by the court may be appropriate, and that, in particular, the implied undertaking which has been discussed in a number of recent
In my opinion, the applicant is entitled to have such information made available as would enable it to make the use of discovery that it proposes, namely, to obtain access to a reasonable number of customers of the respondent, who have purchased the particular goods in question, in order to seek to obtain from them evidence that, had the goods marketed (according to my findings in an earlier judgement) in contravention of the Trade Practices Act not been so marketed, corresponding goods of the applicant would have been purchased. I think that is a valid use to make of discovery, and accordingly I rule in favour of the applicant.
I order that the respondent pay the applicant's costs of this motion, and I will defer making any further order until short minutes are brought in at 9.30 in the morning.
I certify that this and the preceding page are a true copy of the Reasons for Judgment herein of his Honour Mr Justice Burchett.
Associate: kCbcS(&& Date: 10 June 1993 Counsel for the Applicant: Mr D.K. Catterns Q.C. Solicitors for the Applicant: Messrs Landerer &
CompanyCounsel for the Respondent: Mr J.T. Svehla Solicitors for the Respondent: Messrs Norman
WaterhouseDate of hearing: 28 April 1993
- AGLC
- Elconnex P/L v Gerard Industries P/L [1993] FCA 384
- Case
- [1993] FCA 384
- Decision Date
CaseChat Overview and Summary
The court examined the nature of the discovery process and the balance between the parties' rights to inspect documents and protect sensitive information. It considered the applicants' entitlement to inspect the invoices to the extent necessary to pursue their claim for damages, while acknowledging that some degree of control and limitation by the court may be appropriate. The court ultimately found that Elconnex was entitled to inspect the invoices to the extent necessary to make use of the discovery process in their proposed inquiry. The court emphasised that the inspection should be limited to the information necessary for the valid use of discovery, and any further orders would be considered once short minutes were available.
In light of the court's decision, it ordered that Gerard Industries pay Elconnex's costs associated with the motion. The court also deferred making any further orders until the short minutes were brought in at 9.30 in the morning. The reasons for judgment were certified as a true copy by the Associate of the court on 10 June 1993.
Orders
Orders of the court
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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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