John S. Hayes & Associates P/L v Kimberly Clark Australia P/L Kimberly Clark Australia P/L v John S. Hayes & Associates P/L

[1993] FCA 382

JUDGMENT No. ........ ........ ../ ........ .... 3x2

IN THE FEDERAL COURT OF AUSTRALIA	)
)
NEW SOUTH WALES DISTRICT REGISTRY )	No. NG 231 of 1992

)

GENERAL DIVISION )

BETWEEN:  JOHN S. HAYES & ASSOCIATES
PTY LIMITED

Applicant

AND :  KIMBERLY CLARK AUSTRALIA PTY
LIMITED

10 JUN 1993 Respondent

FEDERAL COURT OF

AUSTUALIA	AND:	KIMBERLY CLARK AUSTRALIA PTY
PRINCIPAL
REGISTRY	LIMITED

Cross Claimant

AND :  JOHN S. HAYES & ASSOCIATES
PTY LIMITED

Cross Respondent

23 April 1993

REASONS FOR JUDGMENT

LOCKHART J.

By consent, I make four orders in accordance with four sets of short minutes of order, initialled by me dated today and placed with the papers.

Further directions are sought by the respondent and cross- claimant for the purpose of preparing this case for hearing, which has been fixed to commence on 22 July 1993. Certain of those directions are consented to; others are opposed. Those that are opposed fall broadly into two categories. First, the

claim that is before the Court. That is not opposed.

respondent/cross-claimant seeks leave to file a further amended

cross claim which, in essence, seeks to raise matters which are referred to in paragraph 8 of the draft further amended cross

What is opposed are the amendments sought to the new paragraphs 10, 11 and 12 and, of course, consequential relief that is referred to in the last portion of the proposed amended cross claim. The essential area of dispute is that the applicant says it is a misuse of the processes of discovery for the cross claim sought to be propounded in those last mentioned paragraphs because the material that has been gleaned from discovery to be used in this way would contravene the implied limitation necessarily imposed in the discovery process upon using the material for purposes other than that for which it is legitimately obtained in the course of interlocutory processes.

It is difficult, of course, for the Court to assess these matters in any definitive way in an interlocutory hearing of which this is one and of which there have been very many in this case. Doing the best I can, it seems to me that the matters which are sought to be raised do relate directly to the essential issues between the parties, and that it is imperative to comply

with the requirements of the Federal Court of Australia Act and,	indeed, of the case law that relates to it. All matters in issue
between the parties that are reasonably referrable to the issues in the dispute presently before the Court, that is, without the amendments, are allowed to be raised. This seems to me to be simply an offshoot of the matters that are in issue between the parties. It is desirable that it be determined in this case and not in some subsequent litigation.
Indeed, counsel for the applicant says that the material which was obtained by his client which has led to the proposed amendments by erasing paragraphs 10, 11 and 12 is not obtained really from discovery processes, but from documents that have come to the attention of the applicant produced by third parties on subpoena. If that is so, it puts an end to the point; but if it is not so and, if it is discovery that has produced the material which has given rise to the application, it does not seem to me to be an illegitimate use of discovery processes.
The other matters that are in dispute concern further discovery of documents. Counsel for the applicant fairly states that he has himself not had very recent notice of the matters that are sought to be raised but it does seem from the material to which I have been referred that the matters that are sought to be agitated in paragraphs 6 and 7 of the short minutes are of some long standing and are not matters of recent origin. In any event, what is sought seems to me to be legitimate and to relate
directly to the matters in issue and the further discovery that is sought should be allowed. Questions of cost, of course, can
be determined later.
I therefore propose to make orders 1 to 10 inclusive, as set out in the short minutes of order, initialled by me and placed with the papers. I have deleted from order 10 reference to "for seven days." I do that only because it looks as though it is a mandate of the court that you take seven days to hear the matter.
Counsel for the applicant seeks further and better particulars of certain of the assertions in paragraph 11 of the further amended cross claim and in respect of which I gave leave to have filed today. In my opinion it is appropriate to make the usual order for particulars with respect to what is said to be the express or, alternatively, the implied term mentioned in paragraph 11 of the document.
The Court makes the usual order for particulars in respect of those two terns pleaded in the alternative.
The said particulars are to be furnished in writing to the solicitors for the applicant on or before Thursday, 29 April next.

I certify that this and the preceding three (3) pages are a true copy of the reasons for

Associate iudqment herein of the Honourable Dated: 23 April 1993

Counsel for the Applicant	C C Hodgkiss
Solicitors for the Applicant :	Sly & Weigall
Counsel for the Respondent	C D Curtis
Solicitors for the Respondent :	Hunt & Hunt
Date of Hearing	23 April 1993
Date of Judgment	23 April 1993