Stockbrands Co. Pty Ltd v Leader Products Pty Ltd

[1991] FCA 456

Re: STOCKBRANDS CO PTY LTD
And: LEADER PRODUCTS PTY LTD; GEOFFREY NOEL DUMBRELL; STOCKBRANDS CO PTY LTD;
DESMOND DUMBRELL and JOHN TERRY FOREHAN
No. WA G153 of 1987
FED No. 456
Limitation of Actions - Interrogatories - Discovery of Documents

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)

CATCHWORDS

Limitation of Actions - application for leave to amend statement of claim to plead a cause of action arising prior to the limitation period - whether fraudulent concealment of facts should be pleaded in statement of claim - whether statute of limitation bars remedy and not the right to sue -requirement that statute of limitations be specially pleaded.

Interrogatories - leave required to administer interrogatories - complex issues raised by pleadings.

Discovery of Documents - further and better discovery - issues raised in statement of claim - further affidavit of documents required.

Limitation of Actions Act (1958) Victoria, s.27

Rules of Federal Court of Australia, O.11 r.10; O.13 r.2(2).

Gantis v Gantis (1963), SASR 194

Ronex Properties Ltd v John Laing Construction Ltd (1983), QB 398

Palmdale Insurance Co. (In liq.) v L. Grollo and Co. Pty Ltd (1986), VR 408

Gibb v Guild (1882), 9 QBD 59

HEARING

MELBOURNE

#DATE 2:7:1991

Counsel for the applicant : Mr J. Langmead

Solicitors for the applicant : Arthur Robinson and Hedderwicks

Counsel for the respondents : Mr D. Shavin

Solicitors for the respondents : Freehill Hollingdale and Page

JUDGE1

In the applicant's Notice of Motion filed 17 May 1991, in addition to the matter relating to interrogatories referred to in my reasons delivered on 28 June 1991, the applicant sought an order that:

the respondents and each of them give further and better discovery, each verified by affidavit of the second respondent, of all documents in their respective custody power or control relating to the manufacture, sale and/or distribution by, or caused by, the respondents and each of them of "Strand" or "Sidney" stocktags, or stocktags substantially the same as, or similar to, "Strand" or "Sidney" stocktags in New Zealand through the commercial entity known as Leader Products (NZ) or any other commercial entity which is or was at any material time controlled by the respondents or either of them or in respect of which entity or entities the respondents or either of them have or at any material time had a legal or beneficial interest.

1. At the hearing on 30 May 1991 counsel for the applicant sought to amend the application by inserting after the words "respondents and each of them" in the first line, the words:
   

including the second respondent in his capacity as director of the first respondent and in his capacity as the second respondent.

1. In dealing with the other matters argued on 30 May 1991 I inadvertently overlooked this aspect of the notice of motion.

2. Order 15 Rule 8 of the Rules of the Federal Court provides:
   

8. Where, at any stage of the proceeding, it appears to the Court from evidence or from the nature or circumstances of the case or from any document filed in the proceeding that there are grounds for a belief that some document or class of document relating to any matter in question in the proceeding may be or may have been in the possession, custody or power of a party, the Court may order that party -

(a) to file any affidavit stating whether that document or any document of that class is or has been in his possession, custody or power and, if it has been but is not then in his possession, custody or power, when he parted with it and what has become of it; and

(b) to serve the affidavit on any other party.

1. Put shortly, and I hope without injustice to the argument advanced, the applicant says that the discovery of documents supplied by the respondents is deficient because no documents have been discovered in relation to any of the respondents' activities in New Zealand. The respondents' answer, in brief, is that there is no issue raised in the statement of claim which calls for discovery of documents relating to what has been conveniently called the New Zealand connection.

2. It is common cause that the second respondent personally is a partner in a firm which carries on business in New Zealand under the name of Leader Products NZ and there is some evidence before me capable of supporting an inference that in that business the product described in paragraph 29 of the statement of claim (as amended on 13 December 1990) as the "respondent's tag" is sold in New Zealand. There is therefore a compelling inference that it is highly likely that there may be documents in the possession or power of the respondents relevant to the supply of those goods in New Zealand.

3. In the following summary of the statement of claim, I have endeavoured to identify the applicant's pleading in relation to the supply of the respondent's tag in New Zealand.
   

a) In 1968 the applicant entered into an agreement with the first respondent granting the first respondent a non-exclusive licence to supply the applicant's "Sidney" tags, inter alia, to New Zealand (hereafter referred to as the distribution agreement) (para. 27).

b) It was an express term of the distribution agreement that the first respondent was to acquire "Sidney" tags from the applicant at 50% of the applicant's normal retail price (para. 27, particulars (a)(i)).

c) It was a term of the distribution agreement (either express or implied) that the first respondent would not supply or allow any other person to supply a tag the same as, or substantively the same as, or deceptively similar to the "Sidney" tag, inter alia, to New Zealand (para. 27, particulars (b)). d) Since 1981 (now amended to 1974) the first respondent has supplied the respondent's tag to New Zealand under a name and in a get up similar to the "Sidney" tag (para. 30). e) The second respondent has aided, abetted, counselled and/or procured the first respondent to manufacture and supply the respondent's tag, inter alia, to New Zealand and at all times has been knowingly concerned in or a party to that conduct (para. 35) f) The first respondent has breached an implied term of the distribution agreement and the applicant has suffered loss and damage as a result (para. 40). g) The first respondent contravened various provisions of the Trade Practices Act (the Act) and passed off the first respondent's goods as the applicant's by reason of its conduct in relation to markets other than New Zealand (para. 37). h) The second respondent has aided, abetted, counselled and/or procured the first respondent's contraventions of the Act or alternatively induced the same or was a party directly or indirectly knowingly concerned therein (para. 42).

1. In the prayer for relief against the first respondent the applicant seeks inter alia, certain injunctive relief and damages pursuant to the common law for the first respondent's breach of the distribution agreement (para. A(3)(c)).

2. The relief claimed against the second respondent includes:
   

1) an injunction pursuant to s.80 of the Act restraining him from aiding and abetting etc. contraventions of ss. 52 and/or 53 of the Act by the first respondent, and 2) damages pursuant to s. 82 in relation to having aided and abetted etc. the first respondent's contravention of the Act.

1. Although the prolix nature of the statement of claim, and the very obvious errors that have crept into it as a result of frequent amendment, make it difficult to follow, I think that it can be said with a reasonable degree of confidence that by reason of the manner in which paragraphs 37 and 38 are pleaded (which restrict the various complaints to markets other than New Zealand), the only cause of action pleaded against the first respondent in relation to conduct alleged in respect of New Zealand is the claimed breach of the distribution agreement. But no relief in respect of that alleged conduct is claimed against the second respondent. The respondents' submission that there is no issue raised in the statement of claim which calls for discovery of documents relating to the New Zealand connection is valid only in relation to the second respondent but not the first respondent. It appears therefore that the first respondent may have excluded documents under a misconception as to the issues raised against it.

2. In my opinion the first respondent's obligation to give discovery of documents relevant to the applicant's claim for damages for breach of the distribution agreement, requires it to disclose documents relating to the allegations relating to the supply to New Zealand of the respondent's tag.

3. Accordingly, I order that within 14 days the first respondent file and serve on the applicant an affidavit stating whether it has or has had in its possesion, custody or power any document or documents relating to the supply to New Zealand of goods referred to in paragraph 29 of the statement of claim as the respondent's tag, and if any such document or documents has or have been in its possession, custody or power, stating when it parted with it or them and what has become of the same. The applicant will have leave to deliver further interrogatories within 30 days of the service of any list of documents pursuant to this order. The costs of this aspect of the matters raised in the notice of motion should be reserved.