Elconnex P/L v Gerard Industries P/L

[1993] FCA 384

- 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 & Company
Counsel for the Respondent:	Mr J.T. Svehla
Solicitors for the Respondent:	Messrs Norman Waterhouse
Date of hearing:	28 April 1993