The Kettle Chip Company Pty Ltd v Associated Products & Distribution Pty Ltd

[1996] FCA 105

NOT SUITABLE FOR GENERAL DISTRIBUTION

IN THE FEDERAL COURT OF AUSTRALIA )
  )
NEW SOUTH WALES DISTRICT REGISTRY )    NG 906 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:THE KETTLE CHIP COMPANY PTY LIMITED

Applicant

AND:ASSOCIATED PRODUCTS & DISTRIBUTION PTY LIMITED

Respondent

CORAM: Burchett J.
PLACE: Sydney
DATE : 6 February 1996

EX TEMPORE REASONS FOR JUDGMENT

BURCHETT J.:

This is a motion for a stay of a proceeding that has been launched following the giving of a decision on liability in the earlier matter of The Kettle Chip Company Pty Limited v Apand Pty Limited, a matter which went on appeal and, the appeal having been disposed of, is now proceeding towards the taking of an account of profits.  An issue which has arisen relates to a capital profit realised, it is said, in respect of the sale of goodwill and intellectual property the value of which was contributed to by the breaches found in the earlier proceeding.  It is whether that capital profit may be recovered in the taking of the account.  If not, in the present proceeding, it would be sought to be recovered from the holding company of Apand, and in any case the applicant's claim is that each is responsible to it, as a joint tortfeasor, so that each would be liable. 

The applicant has therefore launched this further proceeding, of which a stay is now sought by the respondent.  The respondent's argument on the motion is that the proceeding may well prove otiose, if the capital profit is recovered on the taking of the account in the earlier proceeding, and alternatively, or additionally, that if, on the other hand, the capital profit is found irrecoverable in the earlier proceeding, it may well be irrecoverable in this also.

In my opinion, the whole trend of the modern law is to avoid having cases decided on a purely technical basis, on the footing, for instance, that although one company in a group is liable, the plaintiff has chosen the wrong company in the group.  Or otherwise on a narrow legalistic footing, if that can be avoided by permitting all the possible defendants to be joined in the one proceeding, and a substantial issue decided in that one proceeding with the least avoidable confusion, cost, or delay.

It thus seems to me that this is a suitable case for a hearing in tandem of the two claims, rather than a rigid separation of them, which might result in a great deal of time being taken up, and ultimately a decision that did not settle the substantial issue between the parties.  That might be at some cost to both parties, with the necessity after possibly significant delay, and possibly at a separate hearing, of having a different judge hearing related issues in order to resolve a matter which could be resolved at the same time as all other issues, and with very little additional expenditure.

Accordingly, I decline to stay the proceeding.  I have in mind that, subject to the progress of each matter through the directions hearings, it would probably be desirable, in the long run, to fix one bracket of dates for the hearing of both matters, either simultaneously or in tandem.

Bearing in mind that this is a separate issue, I think the applicant should have its costs.  But, of course, taxation will follow the normal rule.  In other words, costs will not be taxed until the whole of the proceedings are washed up.

I certify that this and the preceding two (2) pages are a true copy of the Reasons for Judgment herein of his Honour Justice Burchett.

Associate:

Date: 29 February 1996

Counsel for the Applicant        Mr D.K. Catterns

(Respondent to the Motion):      Q.C.

Solicitors for the Applicant     Mallesons Stephen

(Respondent to the Motion):      Jaques

Counsel for the Respondent       

(Applicant in the Motion):       Mr P.R. Whitford

Solicitors for the Respondent

(Applicant in the Motion):       Clayton Utz

Date of hearing:                 6 February 1996