Metcash Trading Limited v Bunn - [2010] FCA 8

FEDERAL COURT OF AUSTRALIA
Metcash Trading Limited v Bunn [2010] FCA 8

Citation: Metcash Trading Limited v Bunn [2010] FCA 8

Parties: METCASH TRADING LIMITED (ACN 000 351 569), IGA DISTRIBUTION PTY LTD (ACN 004 391 422) and AUSTRALIAN LIQUOR MARKETERS PTY LTD (ACN 002 885 645) v PETER CHADLEY BUNN

File number: SAD 29 of 2006

Judge: LANDER J

Date of judgment: 19 January 2010

Catchwords: PRACTICE AND PROCEDURE – respondent seeking order for further and better discovery – Order 15 rule 8 of the Federal Court Rules introduced to obviate the hardship of the rule that the affidavit of discovery is conclusive – parties should make discovery of documents which relate to an issue raised on the pleadings – party seeking further and better discovery must establish that there is a document or class of documents which “may be or may have been in the possession, custody or power” of the other party – party seeking further and better discovery need only establish the grounds for belief for the probability of the document’s existence

Legislation: Corporations Act 2001 (Cth)
Fair Trading Act 1987 (SA)
Trade Marks Act 1995 (Cth) ss 52, 53
Trade Practices Act 1974 (Cth)
Federal Court Rules O 15 r 1, O 15 r 2, O 15 r 3, O 15 r 6, O 15 r 8, O 15 r 10

Cases cited: British Association of Glass Bottle Manufacturers, Ltd v Nettlefold [1912] 1 KB 369 cited
Compagnie Financiere et Commerciale du Pacifique v Peruvian Guana Co (1882) 11 QBD 55 referred to
F Hoffmann-La Roche AG v Chiron Corporation (2000) 171 ALR 295 referred to
Jones v Monte Video Gas Co (1880) 5 QBD 556 cited
Lubrizol Corporation Inc v Imperial Chemical Industries PLC (2000) 50 IPR 526 cited
Mulley v Manifold (1959) 103 CLR 341 referred to
Spyer v Cuddles ‘N’ Mum (Franchise) Pty Ltd (No 3) [2002] FCA 1563 cited
Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492 cited

Date of hearing: 14 November 2008 and 3 February 2009

Date of last submissions: 19 May 2009 (filed by the Applicant)

12 May 2009 (filed by the Respondent)

Place: Adelaide (Videolink to Canberra)

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 151

Counsel for the Applicants: Mr J Wells QC and Mr I Robertson SC

Solicitor for the Applicants: Kelly & Co.

Counsel for the Respondent: The Respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

GENERAL DIVISION

SAD 29 of 2006

BETWEEN:
METCASH TRADING LIMITED (ACN 000 351 569)
First Applicant

IGA DISTRIBUTION PTY LTD (ACN 004 391 422)
Second Applicant

AUSTRALIAN LIQUOR MARKETERS PTY LTD
(ACN 002 885 645)
Third Applicant

AND:
PETER CHADLEY BUNN
Respondent

JUDGE:

LANDER J

DATE OF ORDER:

19 JANUARY 2010

WHERE MADE:

ADELAIDE (VIDEOLINK TO CANBERRA)

THE COURT ORDERS THAT:
1.The respondent bring into Court short minutes relating to the orders to be made in respect of paras 1.8, 1.11 and 1.26 of the respondent’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] FCA 8
Decision Date: 19 January 2010

CaseChat Overview and Summary

Metcash Trading Limited filed a suit against Bunn, a retail corporation, which led to a dispute regarding the discovery of documents. The Federal Court of Australia was tasked with resolving the matter. The crux of the legal issues revolved around the application of Order 15 rule 8 of the Federal Court Rules, which was designed to address the strictness of the rule that an affidavit of discovery is conclusive evidence. The primary concern was whether the respondent could seek further and better discovery of documents that might be relevant to issues raised in the pleadings.

The court examined whether the respondent had substantiated their belief that specific documents or a class of documents might exist in the possession, custody, or power of the other party. It was held that the respondent needed only to establish a reasonable basis for the belief in the probable existence of such documents. The respondent was required to provide short minutes relating to the orders they intended to make in respect of certain paragraphs of their notice of motion filed on 14 November 2008.

The court ruled in favour of the respondent, allowing them to seek further and better discovery under the specified conditions. The court ordered the respondent to bring into the court the short minutes relating to the orders they intended to make in respect of paragraphs 1.8, 1.11, and 1.26 of their notice of motion. This decision underscored the importance of balancing the rights to discovery with the necessity to avoid unnecessary burdens on parties.

Orders

Orders of the court

1. The respondent bring into Court short minutes relating to the orders to be made in respect of paras 1.8, 1.11 and 1.26 of the respondent’s notice of motion filed on 14 November 2008.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citation:		Metcash Trading Limited v Bunn [2010] FCA 8
Parties:		METCASH TRADING LIMITED (ACN 000 351 569), IGA DISTRIBUTION PTY LTD (ACN 004 391 422) and AUSTRALIAN LIQUOR MARKETERS PTY LTD (ACN 002 885 645) v PETER CHADLEY BUNN
File number:		SAD 29 of 2006
Judge:		LANDER J
Date of judgment:		19 January 2010
Catchwords:		PRACTICE AND PROCEDURE – respondent seeking order for further and better discovery – Order 15 rule 8 of the Federal Court Rules introduced to obviate the hardship of the rule that the affidavit of discovery is conclusive – parties should make discovery of documents which relate to an issue raised on the pleadings – party seeking further and better discovery must establish that there is a document or class of documents which “may be or may have been in the possession, custody or power” of the other party – party seeking further and better discovery need only establish the grounds for belief for the probability of the document’s existence
Legislation:		Corporations Act 2001 (Cth) Fair Trading Act 1987 (SA) Trade Marks Act 1995 (Cth) ss 52, 53 Trade Practices Act 1974 (Cth) Federal Court Rules O 15 r 1, O 15 r 2, O 15 r 3, O 15 r 6, O 15 r 8, O 15 r 10
Cases cited:		British Association of Glass Bottle Manufacturers, Ltd v Nettlefold [1912] 1 KB 369 cited Compagnie Financiere et Commerciale du Pacifique v Peruvian Guana Co (1882) 11 QBD 55 referred to F Hoffmann-La Roche AG v Chiron Corporation (2000) 171 ALR 295 referred to Jones v Monte Video Gas Co (1880) 5 QBD 556 cited Lubrizol Corporation Inc v Imperial Chemical Industries PLC (2000) 50 IPR 526 cited Mulley v Manifold (1959) 103 CLR 341 referred to Spyer v Cuddles ‘N’ Mum (Franchise) Pty Ltd (No 3) [2002] FCA 1563 cited Union Bank of Australia v Harrison, Jones & Devlin Ltd (1910) 11 CLR 492 cited
Date of hearing:	14 November 2008 and 3 February 2009
Date of last submissions:	19 May 2009 (filed by the Applicant)
12 May 2009 (filed by the Respondent)
Place:	Adelaide (Videolink to Canberra)
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	151
Counsel for the Applicants:	Mr J Wells QC and Mr I Robertson SC
Solicitor for the Applicants:	Kelly & Co.
Counsel for the Respondent:	The Respondent appeared in person

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION	SAD 29 of 2006

JUDGE:	LANDER J
DATE OF ORDER:	19 JANUARY 2010
WHERE MADE:	ADELAIDE (VIDEOLINK TO CANBERRA)