Gillford Pty Ltd v Burton Pty Ltd

[1994] FCA 1103

i ;Q;

JUDGMENT No .eo:ee....e...oe../ .... .......

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY ) No. AG 79 of 1994

)

GENERAL DIVISION 1

BETWEEN : GILLFORD PTY LIMITED ORS

Applicants

AND : BURTON PTY LIMITED

Respondents

15 DECEMBER 1994

mASONS FOR JUDGMENT

LOCKHART J.

There is before the Court a motion by the applicants seeking orders requiring the first respondent to file and serve an affidavit setting out in short the steps it has taken to comply with orders made by another judge of this Court on

25 November 1994 (that is order 2 as sought). The third order

sought is that each of the personal respondents (the second and third respondents) file and serve an affidavit also setting out steps taken by them to ensure compliance with certain of the orders made by the Court on 25 November. The fourth order sought is that the first respondent file and serve an affidavit listing certain files identifying certain people.

The case is an unusual one. It does not suffer because

of that, but it is unusual in that it arises out of a document described as "heads of agreement", which was executed on 10 June 1994 following mediation conducted outside the control of

the Court on 10 June and the day before. The proceedings before Neaves J., which culminated in his order of 25 November last, were proceedings for interlocutory and injunctive relief and they succeeded. His Honour made certain orders to which I need not refer. In substance, the applicants are seeking by their motion compulsorily to require the respondents to disclose what steps they have taken to comply with Neaves J.'s orders.

When I pointed out that this may be indirectly seeking substantially the same benefit as would be obtained by a successful motion for contempt, counsel for the applicants, acknowledging that this has a degree of efficacy, said that the position of the respondents could be protected by ensuring that the orders sought had built into them a means whereby the respondents could disclaim to comply with the orders if. they took the view so to do would either incriminate them or lead them to disclose facts which may constitute contempt of the orders of the court made on 25 November 1994, and possibly orders sought today.

There is evidence before the Court and some of it is treated as confidential (to which I shall not therefore refer), which if unanswered does give rise to some ground of disquiet as to the activities of the respondents since the making of the orders of 25 November last. But I propose to say nothing further about that.

I am troubled by the making of orders of the kind that are sought by the applicants. I think it really is seeking indirectly to force them to reveal material akin to a contempt of court motion. 1 am not disposed to make the orders. It '

seems to me that the undertakings that are offered by counsel for the respondents, though not going by any means the full distance the applicants seek, cover the position to some degree. I think this is a case which should be heard as soon as possible on a final basis in the interests of all parties.

I will therefore make any necessary order for expedition.

I note the undertaking of the first, second and third respondents by their counsel to the Court and until further order each of the respondents shall preserve all things, including documents, recording or evidencing (a) the financial position of the first respondent up to and including 10 June 1994, and (b) all dealings between the first respondent and Richkit Pty Limited trading as Sheer Madness.

I dismiss' the notice of motion of 5 December 1994 and reserve the costs of all parties of the motion.

The Court orders that the final hearing of this matter be expedited and that it be referred to the Registrar to fix the date for hearing in 1995.

Any notices of motion that any party may seek to file to be filed and served returnable on 3 March 1995 at 9.30 a.

All subpoenas may be issued and returnable before a Registrar on Wednesday, 18 January next.

I make orders 1 to 7 in accordance with the short minutes initialled by me and placed with the papers.

I certify that this and the

preceding three (3) pages are a true copy of the reasons for judgment herein of the Honourable Mr. Justice Lockhart.

Dated: 15 1994

Counsel for the Applicants	Mr P Comans
Solicitors for the Applicants :	Sly & Weigall
Counsel for the Respondents :	Mr B Toomey QC
M r C Leggatt
Solicitors for the Respondents:	Donovan Oates & Hannaford
Date of Hearing	15 December 1994
Date of Judgment	15 December 1994