i ¥ AND: EX TEMPORE PEASONS Ne Ne iD Neo. Gll4 of 1922 BORDEN AUSTPAL +m Lib D re fe te baal cr Q * are that the the purchase of pe ct >) b fom fa q Sa ian Ha rt i) c i. 5s b] cr 1b nN o on 'S ps) io) jae Do rs) ct 7H I heard the hy the for leavya to spondant on 15 April and gave an ex tempore judqment mongst other things:- turning to the articul in cvatories in I should say thar it is often necessary when with applications for leave to interrogate e disputed to decide questions of vslevance of errogatories. rt is, of course, always i t to decide' aquestions of relevance at this e oceeding. Not infreauently matters that t 9 be relevant at a stage ich as this s at the wai =6Chearing, as proceeds, to be relevant, and vice versa. Accordingly, any views ym at en the muestion of relevance that cause I think I have to in ord ose of cation; but they are, of cours niy oon fanding of the case as it is resent in ¥ event, prima facie vie ecessi st . respondent objected to answering gatories the subject of that earlier application on two principal grounds: first, on che ground that certain interrogatories were said =o be oppressive; on To stumma 5S and 6 of ny jedgment of 15 April in thease terms:- "The respondent objects te ans qatory on the ground that it does not ¥ ter in question between the parties in t es only to mackets outside Australia whic n& asserts are not relevant to the iss roceeding having rd to os. 4E of the applicant asserts the interrogatory do i to relevant sues e notwithstanding the i 1s of s. 4E, is tion is practised in ti fo orice by t in its sales of phe to the applicant yet the pondent lis to overseas lower worices so that the aoplicant is for the phenol purchased by it than are S purchasers, this is a matter which is ee £ said by t issu te 7 comp marks to t Bert D@imnrwWsa BOD dey oO ee me) ty sa Tt wa S nro be relevant in determi he pleadings cased ons. e whether the price discri ikely to have the effect of etition in the ct being the Aust s in my prima facie view only markets in Austra are the subject of the prohibitions imscsed by s. o far as is relevant to this case, but in any event e is no evidence before me that overseas sales d have any effect such as that alleged in relation he Australian vket. As I said earlier in certain ral cbservati , the view I form as te relevance his stage i to be treated as necessarily being final view ue course when the case reaches its l hearing; er these reasons and the ahsence of ence I nave referred to, Tamnet satisfied that interrogatory es seek answers to matters relevant any issue en the parties and accordingly Tf llow that in ogatory." $s common ground at that hearing that having disallowed Ste ayes te BR Peo ay Ver be its arguments rather differently to aroument ARUN it asserts it has now adduced ed discrimination againsht the icluding price being offered to it by ' Tt is the discrimination against as evidenced by the overseas sales which is said to have the effect of vanced today by ument of counsel ct im o fa ct ry G wa a poe is) cr iy en w a py. (i) rs iD ia oO rat fa)ct ct in particular para. 23 of the Statement of Claim. IT emphasise that my view is orima, facie only. It is not a final view. If I near the case However, in the oresent anolication I an 'even Lower for a number of ad ms toa slight, substantial or even conplete change of view on I the fact that no evidence has been adduce by respondent to suggest that crders for the interrogatories or digiavery which wonld go to the question of overseas sales would occasion undue hardship or be otherwise oppressive to the respondent. Notwithstanding that this is the second occasion on whic rs ow p> a licant seeks to interrogate the res a Q ue) ae] t pondent I am of the view that it x uw ie) ¢ ld be given leave te do so. relating to the sale by it of phenol for export are or have been in its vossession, custody or power, and a consequential order for inspection of those documents. in view of the conclusion I have reached as to the applicant's right 32 and 42 in the document annexed to the Notice of Motion of 25 May 1983 and they bear those same numbers in th in turn but will not set them out in full drafted, on more over the last 40 years. I also rejected it on the ground, independentl of Mr Reid's own evidence, that it would have been Fe oepressive because of the work which, mits face, it would have required the respondent to verform. The interrogatory has now been redrafted and is that which is now set out as interrogatory 24 attached to the Notice of Motion. The interrogatory by asking whether any The applicant seeks now to have me treat the interrogatory as words "with respect to phenol and imited both as to the limited scope which it now has; first, because on Mr Reid's earlier eviderce about 20 employees would still fall within the category of presently serving officer, second, in ordinary experience one would old, om 19. ittle point to it resin was sold fol 'l a + Lea Le it could 1S y b be wo > Q wy ' a 4) va) a x ry Le) Fa} oO » a -Lon Fs is nm Or tt ra aS n ha ia) aS) wa fa) tA n iis} Q n oe ees id ay n oh cr ny ct ry a cr fee ti [ote Tt gakhory now d second opportunity to interrogate in vespect of those matters. Although a second opportunity to interrogate or seek discovery is ances of ui3 is)) ct ry .'Q a a pe a fom pe u9 ct s 0) a fan on bE Ke ke} ran g iy pa) . be cr ty on fee+ @ re) bw sc ps or) et # applicant. That being so, the respondent has no objection to answering interrcgatory number 12 in that letter of 16 May. be crUs a) Q cr o oy ue he v fe) me wb fe ay xu ps ct res fe) cr am wD uw a) ct g oO 'S ry 's ct foe QO c ~~ ey) Lay a iy fa)2 ur oO ot ea iD he D Hy Qa om Qa m a ? ct ie) je cr cat) ny S Oo Q fo ct a) cr y 1D rs oO wu Key c i) a @ocr as to particular documents, though on slightly different bases. As to interrogatory 17, although it is directed to document No. 106 Tr cr o ron 0) ' . aron an fom n oO Tt By vu aA Dd fo ct cr * oO + oO fan oO ' bh ct cory oO an hh i a is)p Py ea ioe oO x eywo a o ct t ia) iH) that ait was overlooked. With discovery, perfection is the goal. However, especially in cases such as this, it is rarely attained. cri) ro) ct fs roy rs co Q foect oe (0) regard to oad expression is one that is defined in the answer to interrogatory 13 which appears from the verified statement in ansver to interrogatories filed by the respondent on 22 March 1983. It says that the exsression, incremental cost,: the additional cest of manufacturing, above 4 given level of production (usual budget) of an extra kilcgram of a finished Ts is said by counsel for the vespondent that information as ta cost is irrelevant te these proceedings, but the respondent has already furnished tc the applicant all the relevant information bearing on cost and price of its products to entitled and which is in issue in this case. Counsel for the applicant asserts that the information which the interrogatories seek to obtain, relating to incremental cost, is relevant in that it is adopted by the respondent as the measure of its for which the i ab this tion es L qe a Ee a a q ce Be) = ia) rt a3 to a w a $e ha Dy S o tta co) ia] ters D Ai S rH fis] fan) ra] uo p BM a mn ef roa orf tet et al s ort hy my av Se 7 % m oO G 4 Sed wn wn aw MM S24 ts "4 . a Tt gt 4 vd i) ES 16) T Re) By) 4) wt al o a wo be G oS ort LF) Gi G i) es ct St 42 HH oO . 40 4 ie] + 6: G4 ri w Ss wo 4) " a a A Ss ort Ei ba HB 4) a ei 4) uw a Ea a W m od S ay n tt in) "4 G Q fa cf ink x ct that If say is) ca) of favour n ord I ~] 2) Tn oraceedingns s litigants; (3) allegations are relevant position of not merely past breaches. Ido not take into account the submissions cf counsel for the that two documents, being chose veferred te in Cories 17 and 18 of the letter of 16 May 1923, were saié not v a wn red $4 hy 3 a mt ta) fa} a fa) 4 net oe bd ed 4 wl woo a et ey rl a ban) a oO 4d w OG vd a oe 4 n S 3 ord 43 tet QO ~ n un K 0 co) oO x ia) v my Sy > ad Q Sa qs ies] mo va u ay U Bi > A ort i) a Ba rn 4) 43 23 my Gy an co Fi 43 mt i) a a ed ba el ba fi sf iG a oy u hH 4) Ra) 3 4 os mM rsa] 4 fad a Q hy ond ee A wu Q 4) , ney a a n 'b by oT Sa 40 a ay pa] i) C mn n a E oO fo) 5 ) re) u oO n od > sf um & q Ot) 4a o ne] a 9 ba td a be Co oO uw is a S tha a ¢ Ay oO u fv] . Ub srt Se u, ct n a) 4) qi 6) MM Sa St cs! Si QO v w DM Ch oO en a) a ia) ny om qi Ey en ha aS a a lb cs nny ca 4 ce rs) g 47 ia) Ned +) 40 fa oO Le) iy Qu MO ton . an a b fa) "ch 42 ce orf Sa a) a wn ha fe Set oy ne G 16 on ort 42 Q a Io y LB) a 4 42 . ost u ted Ae] a G iy) fa) r & rt Oy fs oh ue q Ea bY a ul He) ia wu oO io be 0 3 nu oF Le] i il > be aan a