Rogala v Markou

[1984] FCA 488

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IN THE FEDERAL COURT OF AUSTRALIA ) )

WESTERN AUSTRALIA DISTRICT REGISTRY) No. W.A.G. 62 OF 1984

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GENERAL DIVISION )

On Appeal from the Decis'ion of

Mr. Justice Toohep on the

Appellant's (Third Respondent's) Notice of Motion dated the 18th

of June, 1984 in Action No.	52
of 1983

"(i) All documents relating tohe

Applicants' personal financial affairs

including all cheque butts, Bank

statements, Savings and other accounts

2.

operated by them or either of them

from the 1st of July 1983.

(ii) All documents relating to any Bankcard

. '	or other credit card operated by the
Applicants or either of them as from
the 1st July 1983.

of S . 52 of the Trade Practices Act 1974. The action arises

because of alleged misrepresentations made by or on behalf of

the respondents in relation to the returns received by the third respondent from the business of carrying on a video library. The applicants purchased the business and carried it on between 20 August 1983 and 7 October 1983. Their case

is that the representations as to takings and as to expected

profits were not fulfilled and that they were induced to

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purchase the business by the representations referred to.

The respondents admit makina some of the representations but

say that they were not false. the applicants' assertions to

the contrary being denied in their defence.

The documents which were sought by the notice f motion

were sought, according to counsel f o r the appellants, in

order to assist the appellants to assess ' whether or not the

applicants may not have received moneys from the business

during the period they carried it on additional to those

which they concede they received. If that were to be shown,

the applicants' case would be damaged in an important

respect.

Argument proceeded this morning until counsel for the

respondents to the appeal, that is the applicants , in the .: .., '. .' '

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principal proceedings, conceded, at least': as' a secondary or

fall-back position, that some of the documents. discovery of

which was sought, would have been relevant to the issues if

they had been sought in respect of the period during whiih . .

the business was carried on by the respondents to he appea=l,

that is, 20 August 1983 to 7 October 1983. He, at that

stage, would not countenance production of documents prior to

2 0 August 1983. However, during discussions which took place

at our suggestion the parties have reached agreement on

documents which should be produced with the consequence that

the appeal should by consent be allowed in part. That

agreement involves the generality of para (i) being cut out,

the period specified therein becoming 1 July 1983 to 7

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4.

October 1983 and similar periods being specified in paras.

(ii) and (iii). The taxation returns sought in para. (iv)

are not sought upon the basis, no doubt, that they could not

be relevant.

Discussion has taken place as to what the order for

.( costs ought to be and we have expressed the view that the

costs of the' -appeal should be costs in the principal

proceedings.

In the light of the foregoing, the orders which the

court makes are as follows:-

(1) The appeal be allowed.

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( 2 ) Paragraph 1 of the order made . .on 13 ' . . . . . L . . .

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July 1984 which dismissed. &e notice .~ . .

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of motion in so far as it-sought'the

orders in paras. l(a) (i) to ,(iv)

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inclusive be set aside and in lieu	- , .
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thereof there be substituted the

following:

The applicants do, within seven

days from the date hereof, give

discovery on oath of the following

documents or classes of documents

in their possession, custody or

power :

( i) all cheque butts, bank

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( 3 )	The costs of the	appeal	be	costs	in
the proceedings.

The Court notes the agreement of the parties that until

further order inspection of the documents is limited to

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counsel and solicitors for the appellants.

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