Mykytowych v Cut Price Deli Pty Ltd

[1995] FCA 115

CATCHWORDS

PRACTICE AND PROCEDURE - discovery - application for undertakings prior to inspection - implied obligation with respect to discovery

Mykytowych & Ors v Cut Price Deli Pty. Limited & Ors
No QG18 of 1994

Kiefel J  Brisbane 3 March 1995

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION  No. QG18 of 1994

BETWEEN:

BOHODAR MYKYTOWYCH and LESIA MYKYTOWYCH

First Applicants

AND:

VANUXI PTY. LIMITED

Second Applicant
AND:

CUT PRICE DELI PTY. LIMITED

First Respondent

AND:

CUT PRICE DELI FRANCHISING PTY. LIMITED

Second Respondent
AND:

ENZO SGAMBELLONE

Third Respondent
AND:

HARRY ALBERT MALOVANY

Fourth Respondent

JUDGE MAKING ORDER:   Kiefel J.

DATE OF ORDER:                3 March 1995

WHERE MADE:  Brisbane

MINUTES OF ORDERS

THE COURT ORDERS THAT:

1. The respondents' motion be dismissed.

1. The respondents' pay the applicants' costs of and incidental to the motion to be taxed.

NOTE:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION  No. QG18 of 1994

BETWEEN:

BOHODAR MYKYTOWYCH and LESIA MYKYTOWYCH

First Applicants

AND:

VANUXI PTY. LIMITED

Second Applicant
AND:

CUT PRICE DELI PTY. LIMITED

First Respondent

AND:

CUT PRICE DELI FRANCHISING PTY. LIMITED

Second Respondent
AND:

ENZO SGAMBELLONE

Third Respondent
AND:

HARRY ALBERT MALOVANY

Fourth Respondent

CORAM:Kiefel J.

DATE:3 March 1995

PLACE:Brisbane

REASONS FOR JUDGMENT

The respondents seek orders which would condition inspection of documents by the applicants to the provision of undertakings by them and their witnesses.  I do not consider that any proper basis has been shown for concluding that the parties here do not consider themselves bound by the obligation implied with respect to discovery.  What I have been asked to do is to draw an inference with respect to these proceedings from a suggestion in other proceedings (Novamaze Pty. Ltd. & Ors v. Cut Price Deli Pty. Limited & Ors No QG149/94  - application to strike out heard at the same time) that there was a difficulty with confidentiality, but which I consider to be unfounded.

There was no suggestion that the documents are particularly commercially sensitive and no other basis was suggested.

The motion of the respondents to the action will be dismissed, and there will be an order that the respondents to the action pay the applicants' costs of and incidental to that motion to be taxed.

I certify that this and the preceding page is a true copy of the reasons for judgment herein of the Honourable Justice Kiefel.

Associate

Date:3 March 1995

Counsel for the applicants:  Mr C.E.K. Hampson QC and Mr T.W. Quinn

Solicitors for the applicants:                   Messrs Lynch & Company

Counsel for the respondents:                  Mr J. Hamilton QC and Mr P.W. Hackett

Solicitors for the respondents:                Messrs Snelgrove & Partners

Date of Hearing:  3 March 1995

Place of Hearing:  Brisbane

Date of Judgment:  3 March 1995