Nylex Corporation Ltd v Dawn Plastics Pty Ltd

[1986] FCA 572

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT	OF	AUSTRALIA	1
)

VICTORIA DISTRICT REGISTRY	)	VG No. 331 of 1986
)
GENERAL DIVISION	)
)
BETWEEN:

NYLM CORPORATION LIMITED Applicant

and

SABCO LTD Respondent

IN THE FEDERAL COURT OF AUSTRALIA	)
)
VICTORIA DISTRICT REGISTRY	) VG No. 366 of 1986
)
GENERAL DIVISION	1
)

NYLEX CORPORATION LIMITED Appl 1 can t

and

DAMN PLASTICS PTY LIMITED Respondent

m: Woodward J.

-	DATE: 26 November 1986
PLACE: Melbourne

EX-TEMPORE JUCGMJWT

In this matter I am clearly of the view that the

question of liability should be tried first and separately from

- 2 -

the question of damages. I say that for several reasons, one

being that the most important part of the claim, as it appears to

me, is the claim for an injunction which would prevent the

respondent from selling the dlsputed product. Because we are

coming up to the maln selling season for this particular product,

every few weeks that pass can make a difference to the amount of

damages which may ultimately have to be borne If the decision

should go in favour of the applicant. And for that reason I think

that anything which ensures that the case comes quickly to trial,

and enables injunctions to be given,	if	that	should be	the
outcome, is to be encouraged.

Anything which would tend to delay, which would use up

time - whether in preparation for trial or in the trial itself	-
should be discouraged. The amount of damages is a matter which,

if we have to come to it at all, can properly be examined at more

leisure after the basic question has been determined.

My second reason for thinking that, in this case in

particular, it is desirable to deal with liability first, is the

view which I have already expressed that, on the evidence as it

stands, the applicants' prospects of success are not strong. That

is not to say that the applicant may not succeed, either in the

light of additional evidence, or even on the evidence as it

stands; but it is not a case in which one can be confident that

the issue of damages will eventually be reached. That is another

strong reason why time should not be spent investlgating that

complex question until the issue of liability has been determined.

- 3 -

The third argument, which has been addressed to me by

DK Jessup and which appears	to	me to be sound, is that the Court
should be reluctant to order	one party, which is a business

competitor of another, to lay open to that other details of its

business, particularly sales - Where they are made and the extent of them - which could be of prejudice to that party and of benefit

to the other. I think that unless there is a fairly clear-cut

case for making such an Order, it ought not to be made; and I

find that the present is by no means a clear-cut case for the

making of such an order. In saying that I rely on the three

authorities that DK Jessup has cited to me, namely

Attornev-General v North Metropolitan Tramwavs CO C18923 3 C h 70;

Schreiber v Hevmann (1894) 63 LJ (QB) 749; Fox v Cook C19143 VLR 1.

So for all those reasons I think it is appropriate that

there should be only limited discovery, that the matter should be

prepared for trial on the question of liability only, and go to

trial as soon as can be arranged conveniently to the parties and

to the Court. I so Order.

(After further submissions)

I make the following additional Orders:

1.    The defence is to be filed and served by 3 December.

2. Any reply is to be filed and served by 10 December.

- 4 -

3.	There will be mutual discovery limited	to questions	of
liability by 21 January.

4.    There is to be mutual inspection by 6 February.

5.    The matter is to be adjourned to the callover at 9.30 on 19 December, and I will direct that it have priority at that callover.

6.    I will reserve costs, and I will also reserve liberty to apply.

7.	I will direct that the exhibits be returned to the
parties who tendered them.

I certify that this and the

three ( 3 ) preceding pages are

a true and accurate copy of the

Reasons for Judgment herein of

the Hon Mr Justice Woodward

P Associate

Dated: 26 November 1986

Solicitors for Nylex Corporation Ltd: Mr R. Keen,

Messrs Clayton Utz

Counsel for Sabco Ltd: Dr C.N. Jessup

Solicitors for Sabco Ltd: Messrs Mallesons

Counsel for Dawn Plastics Pty Ltd: Dr C.N. Jessup

Solicitors for Dawn Plastics Pty Ltd: Messrs Arthur Robinson

and Hedderwicks

NOT FOR DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA	)
1
VICTORIA DISTRICT REGISTRY	) VG No. 331 of 1986
)
GENERAL DIVISION	)
1

NIZEX CORPORATION LIMITED Applicant

and

SABCO LTD Respondent

IN THE F'EDEXAL COURT OF AUSTRALIA	) )
VICTORIA DISTRICT REGISTRY	) VG No. 366 of 1986
)
GENERAL DIVISION	) )

NYLM CORPORATION LIMITED Applicant

and

DAWN PLASTICS FTY LIMITED Respondent

COURT: Woodward J.

-	DATE: 26 November 1986
PLACE: Melbourne

E3(-"PORE JUDGMENT

In this matter I am clearly of the view that the

rv)

e question of liability should be tried first and separately from

I

the question of damages. I say that f o r several red~~ns, one

belng that the most Important part of the claim, as It appears to

me, is the clalm for an injunctlon whlch would prevent the

respondent from selling the dlsputed product. Because we are

coming up to the main selling season for this particular product,

every few weeks that pass can make a difference to the amount of

damages whlch may ultimately have to be borne if the declslon

should go in favour of the applicant. And for that reason I think

that anything whlch ensures that the case comes quickly to trial,

and enables injunctions t o be given, if that should be the

outcome, is to be encouraged.

Anything which would tend to delay, which would use up

time - whether in preparation for trlal or in the trial itself - should be discouraged. The amount of damages 1s a matter which,

if we have to come to it at all, can properly be examlned at more

leisure after the baslc question has been determined.

My second reason for thlnking that, in this case In

particular, it is desirable to deal with liability first, is the

view which I have already expressed that, on the evidence as It

stands, the applxants' prospects of success are not strong. 'hat

is not to say that the applicant may not succeed, either in the

light of additional evidence, or even on the evidence as It

stands; but it is not a case in which one can be confident that

the issue of damages will eventually be reached. That is another

strong reason why time should not be spent investlgating that

complex question until the issue of liability has been determined.

- 3 -

The third argument, which has been addressed t o me by

Dr Jessup and which appears to me to be sound, is that the Court

should be reluctant to Order one party, which is a business

competitor of another, to lay open to that other details of its

business, particularly sales - where they are made and the extent

of them - which could be of prejudice to that party and of benefit

to the other. I think that unless there is a fairly clear-cut

case for making such M order, it ought not to be made; and I

find that the present is by no means a clear-cut case for the

making of such an order. In saying that I rely on the three

authorities that DK Jessup has cited to me, namely

Attorney-General v North Metropolitan Tramways CO C18921 3 Ch 70;

Schreiber v Hewann (1894) 63 LJ (OB) 749; Fox v Cook C19141 VLR 1.

So for all those reasons I think it is appropriate that

there should be only limited discovery, that the matter should be

prepared for trial on the question of liability only, and go to trial as soon as can be arranged conveniently to the parties and

to the Court. I sc order.

(After further submissions)

I make the following additional orders:

1.    The defence is to be filed and served by 3 December.

2.    Any reply is to be filed and served by 10 December.

- 4 -

3.	There will be mutual discovery limited to questions	of
liability by 21 January.
4.	There is to be mutual inspection by 6 February.

5.    The matter is to be adjourned to the callover at 9.30 on 19 December, and I will direct that it have priority at that callover.

6.    I will reserve costs, and I will also reserve liberty to

apply -
7.	I will direct that the exhibits be returned to the

parties who tendered them.

I certify that this and the

three (3) preceding pages are

a true and accurate copy of the

Reasons for Judgment herein of the Hon Mr Justice Woodward

1 Associate

Dated: 26 November 1986

Solicitors for Nylex Corporation Ltd: Mr R. Keen,

Messrs Clayton Utz

Counsel for Sabco Ltd: Dr C.N. Jesskp

Solicitors for Sabco Ltd: Messrs Mallesons

Counsel for Dawn Plastics Pty Ltd:	br C.N. Jessup
I

Solicitors for Dawn Plastics Pty Ltd; Messrs Arthur Robinson

I	and Hedderwicks
l