Sabre Corp Pty Ltd v Target Australia Pty Ltd

[1998] FCA 798

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 475  of 1998

BETWEEN:	SABRE CORPORATION PTY LIMITED APPLICANT
AND:	TARGET AUSTRALIA PTY LIMITED RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	28 MAY 1998
PLACE:	SYDNEY

REASONS FOR JUDGMENT
Ex-tempore Judgment

This is an application for preliminary discovery.  It is brought under O 15A rr 3 and 6 of the Federal Court Rules.  The application is made on the basis that Target Australia Pty Limited (“Target”) is selling Joico and Fudge products, which are only supplied by Sabre Corporation Pty Ltd (“Sabre”) to a limited number of persons under an exclusive selling arrangement.  This is set out clearly in the affidavits before me.

There is affidavit evidence, filed by the solicitor secretary of Target, stating that Target obtained its supplies of Joico and Fudge products solely from Coshair Pty Limited (“Coshair”).  The evidence states that Target does not know the identity of persons from whom Coshair obtained the Joico and Fudge products supplied to Target. 

However, it seems to me that there may be documents in existence, by way of correspondence or diary notes or guarantees or other commercial arrangements between the parties, in relation to the supply of the goods from Coshair, which may indicate persons who stand behind Coshair and could give information in respect of suppliers or the source from which those products came. This may assist in the identification of an appropriate respondent, in addition to Coshair.

I am satisfied, having regard to the evidence, that this is a case where there is some person who has, or is likely to have, knowledge of facts tending to assist in the ascertainment of appropriate respondents.  I think it is appropriate that there should be preliminary discovery in order to assist the identification of respondents other than Coshair.  Accordingly, I will make order 1A, with the exclusion of the words "by or", so that it only covers purchases by delivery, sales, supply or offer to purchase to Target of the products which were specified.  I make order 1B but I will also exclude the words "by or" in paragraph B.  I will add a further order 3, that the discovery be made within 10 days from today.

Submissions have been made in relation to r 6 but given the conclusion which I have reached in relation to r 3, it is not necessary for me to consider the application of that rule in the present circumstances.

In this matter, I think it is appropriate that costs should follow the outcome.  The matter was fully contested.  The disclosure of Coshair, which was inadequate as a substitute for the documents, only came to light in the last couple of days and this proceedings no doubt, brought about this result.  Because the matter has been fully contested on the merits as substantially a separate issue in the proceedings, I consider that there ought be an award of costs in favour of the applicant on this matter.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             28 May 1998

Counsel for the Applicant:	Mr S Habib
Solicitor for the Applicant:	Norton Smith & Co
Counsel for the Respondent:	Mr Reynolds
Solicitor for the Respondent:	Corrs Chambers Westgarth
Date of Hearing:	28 May 1998
Date of Judgment:	28 May 1998