Sy 4H JUDGMENT No. 488 aasncuesenne IN THE FEDERAL COURT OF AUSTRALIA ) ) WESTERN AUSTRALIA DISTRICT REGISTRY) No. W.A.G. 62 OF 1984 ) GENERAL DIVISTON ) On Appeal from the Decision of Mr. Justice Toohey on the Appellant's (Third Respondent's) Notice of Motion dated the 18th of June, 1984 in Action No. 52 of 1983 iy ; | a ANDRE_ROGALA RECEIVE"? Appellant 16 NOV 1998 AND ae VICTOR MARKOU and LUBICA MARK ou Respondent CORAM: Sheppard, Morling and Wilcox Jd. | DATE: 18 September 1984 REASONS FOR J THE COURT: Before us is an appeal from an order made by. Toohey J. on 13 July 1984. The order was made in respect of a notice of motion taken out by the appellant, the third respondent to the application, Andre Rogala. The motion, amongst other things, sought discovery on oath of certain documents. The documents, discovery of which was sought, were:- "Ci) All documents relating to the Applicants' personal financial affairs including all cheque butts, Bank statements, Savings and other accounts 2. operated by them or either of them from the lst 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 lst July 1983. (iii) Mortgage documents or other documents evidencing loans to the Applicants or either of them including documents from the lender evidencing receipt of funds in payment of loans or interest thereon. (iv) Taxation returns for the Applicants for the year ended 30th June 1983." On 13 July 1984, his Honour refused the motion in so far. as it sought discovery of these documents. It is from that — refusal that this appeal is brought. third respondent. The action is one in which respondents to the appeal) sue the application for damages and other relief for alleged breaches a 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 3. purchase the business by the representations referred to. The respondents admit making 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 of motion were sought, according to counsel for 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. o: 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 which | the business was carried on by the respondents to the appeal, that is, 20 August 1983 to 7 October 1983. He, at that stage, would not countenance production of documents prior to 20 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 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. (2) Paragraph 1 of the order made on wo July 1984 which dismissed - the notice of motion in so far as it sought the orders in paras. l(a)(i) to (iv) inclusive be set aside and in lieu bec dobe Mailds 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: (1) all cheque butts, bank 5. statements, savings and other accounts with recognised financial institutions operated by them or either of them from 1 July 1983 to 7 October 1983 -(ii) all documents relating to any bankcard or other credit card operated by the applicants or either of them from 1] July 1983 to 7 October 1983 | (111) mortgage documents or " other documents evidencing . loans to the applicants or . either of them "including * documents from the lender evidencing receipt of funds in payment of loans or interest. thereon from 1 July 1983_ to 7 October ° 1983 : (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 counsel and 6. solicitors for the ; 5 @ertlly that this and the 5 preceding Pager are a true copy of the reasons for Juajment herein of the Court appellants. eA P Bilson Associate Dated /? SESTEABER 19 Bk.