IE NOT FOR GENERAL DISTRIBUTION IN THE FEDERAL COURT OF AUSTPALTIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G245 of 198GENERAL DIVISION ) BETWEEN: PAYLESS SHOES PY, LIMITED S&pplicant AND: CLARKS SHOES LIMITED Respondent Judae Making Order: Beaumont, J. Date of Order: 4 April 1986 Mhere Made: ydaney tw MINUTE OF ORDER THE COURT ORDERS THAT: ts The applicant have leave to administer further interrogatories in respect of the answers given to fp) Loy interrogatories EB(b)(iii) and 1lOB(r){11i), such further interroagatcries to pé filed and served by 13 April 1986 and answers to ne filed and served Er 2 Mav 1986. The esponaent masce a further answer to anterregatories "Ava, SAtr), Lid and 12A Dy 2 May i386. Sr yea ere = fy na Peirnes eee ear Oe ecco wth ——— The respondent Tile and wy erve answers to interroqatory 13 annexed to the reasons for judgment by 2 May 1986. The respondent pay one-half of the applicant's costs of this application. Settlement and entry of Orders 15 dealt with in 0.26 of the Rules of the Court. soerer Ill THE FEDERAL COURT OF AUSTRALIA ) ) HEW SOUTH WALES DISTRICT FEGISTRY } No. G245 of 1285 ) CENERAL DIVISION ) EETWEEN: PAYLESS SHOES PY. LIMITED Applicant AND: CLARKS SHOES LIMITED Respondent oOio = Beaumont, J. Lon Mea Ka oI D: 4 April 1986 REASONS FOR JUDGMENT 4 dispute has arisen between the parties as to answers given by the respondent ts interrogatories tu QQ.v bo] i uw ct (D ns w p o ct or a jw dd ™ a slacant in these proceedings alleging resale price maintenance. The applicant': case in the Principal proceedings 15 that the respondent withheld the supply cf shoes to the applicant for the reason that the applicant sold or was likely to seil aoods supplied to it by the respondent at a price less than che price specified by the respondent as the price below which the goods are not to be sold. uw 'D c cr w fb jo i] u)wowy It 225 nece a a ary to asal with the dai i ra) v a er it i rrodatories in turn. Answer 6B(b) (iil) This interrogatory asked about a conversation alleged to have occurred on 20 May 1985 between Mr. Koukourou on behalf of the respondent, and Mr. <kilbeck on behalf of the applicant. In that conversation, it 15 suaqgested that Mr. Kouksourou zaid that the applicant's stores did not provide "a zuitable environment for the fErespondent's] brand and therefore Cthe applicantd will not be supplied with fEcertain shoesj." Question GA(b) (iil) asked: - "Did Mr. Koukorou have any other reason than that stated by ham Cforj not supplying the applicant with Saxone shoes? If so, what was 1t?" The answer in SB(b){(iii) was as Tollows:- "Yas, there was to be a limited production of the axone ranae and they were to be market tested, both matters dictating a limited distributicn." The applicant submits that it 1s not clear from this answer "what 13 meant the reference to "marlret tested". in my opinicn, whilst it 15 arguable that the answer Tiven was insufficient oy reason of its amblauity, the appropriate order to be made in th, ct che applicant have fm2 circumstances 2 Ww ' fu -aroeee Vee = tees Sarre ee ee ne . shad 7, er So ' mee as er wy ta liperty to administer a further interrogatory asking the respondent to explain what was meant by the phrase "market tested". For reasons which will appear later, in my view, the Court has jurisdiction to permit the administration cf a further interrogatory in these circumstances. Snswers 7Bla) and 3Bif) - esponse to questions then administered, Htba the respondent replied in the following oT w Lada oe "IT do not know. but would not be surprised if that were the case" and "Not as far as I am aware". In My opinion, the answers given are wnsurficient and I propose to make an arder pursuant to Urder 16 Fule 3(1). Answer LOB((b)(a2i) - Question 10A(a) asked whether representatives sf retail outlets were anvited to meet with Mr. Koukourcu in April 1985 ts see the Saxone Rang= of shoes. Q@uestion 1O3/b)(111) asked thea respondent to name the perzons wno attended those meetings. Ey answer ent eyes rp eee tot be ay eee ee oe. ieee Lo repre to Messrs Barnett, 4. Tavlor, Sharp and Mrs. Sharp. However, the answer did not state the perzons or corporations represented by these persons. It is arguable that this answer is net a sufficient answer for that reason but, in the circumstances, appropriate course 15 leave to the applicant interrogatory for this Answer 1B - I think that again the for the Court to grant to administer a further purpose. Ey question 114 the respondent was asked when did Mr. Koukourou receive a certazn list of accounts. The response ~as "on or before 30 April 1985....". The applicant submits that ths answer 15 ansufficrent in that it Fails to specify the tame. if any, before 20 Spril 1985, at which Mr. Foukourou received the list of accounts. In my cpinion, the answer 15 ambiguous and the matter should be I gprcopoze to make an clarified if this 25 order pursuant to Order i i. be: ao roe arswer 12Bla) - Question 123(a) asked, inter alia, when a certain document was sent to Mr. Koukourou. There was no response to this part cf the interrogatory and 1t should be answered. Answer 12B(b) - Question L2A(b) asked - "What number of shoes of the Respondent were solid by each of Forbes, Hawcrofts and Nails during the 12 month ended 31st December, 1994," The answer 12B(b) was as follows - "Tn each case the number of shoes sold exceeded the minimum number set sut in the Respondent's outlet policy. Fave as aforesaid, I object to answer this question on the around that 1t 25 rrrelevant." It 2s submitted on behalf cf the applicant that the ansver to the question administered may throw some laght on the criteria selected by the respondent in its decision to refuse to od wy s MP) ™D H a *Q iv) wm to the applicant. in my opinion, it is conceivable that a response to the question asked could provide material which is relevant ta the 1ssue of the = Tailurs to suppis reasons for tne responaent yoocs to the applicant. Furctner, I am not ene en. Satisfied that the interrogatory is oppressive. I propose to make an order under Order 16 Rule 3¢1). 4A further dispute has arisen between the parties in respect of an application made on behalf of the applicant to administer a further interrogatory. On the application, a document. apparently that of the respondent, entitled "Outlet Policy" was tendered. Reference in that document was made to a number cof standards required to be observed by outlets trading with the respondent. The applicant now seeks to administer a further ainterroqatory 1n the terms of the document annexed to these reasons. It is submitted on behalf of the applicant that the Court has power to order an additional interrogatory pursuant to Order 16 Rule "5. In my opznion, there 1s clearly a power available to the Court for thas furpese, to be exercised in Godinx v. Queensland Newsrapers i) oOa c a a or fu i) Oo o Ler] ! ie) Fy appropriat Etv. Limited (1955) 117 C.L.R. 170. as a matter cf discretion, in my view, 1t is appropriate that the applicant have liberty ta administer the interrogator; now sought. The matter raised 1s on its face céntral tos the c eoecor oo ae pegee mee pe ee mrs % Meera oe ee aes yor eT 7 Sapper cee reat coe ay re Se at iesues in the litigation and the respondent 15 unable to point to any Prejudice if it were now compelled to answer the interroagatory. I propose to order that the iunterrogatory be answered. In the circumtances, the applicant should one-half of its costs of the application. t Z certify thet this andthe 0 preceding pages are a true copy of the Reasons for Judgment herein of his Honour ur. Justice KEAUMOW Datea: - KS & receive aN y gaye ert me pe pe er _ ANNEXURE po : . we se - ' t ' ee iret Th [ ' IN THE'FEDERAL COURT OF AUSTRALIA ) { NEW SOUTH: WALES DISTRICT REGISTRY ) | GENERAL 'DIVISION ) No. G 245 of 1985 -. t Sir ahd ee } . . esse BETWEEN: PAYLESS SHOES PTY. LIMITEL' Applicant AND: CLARKS SHOES LIMITED Respondent APPLICANT'S NOTICE TO ANSWER INTERROGATORIES By 6th March, 1986 Clarks Shoes Limited is required to answer interrogatory numbered 13 and verify its answers, 13. Look at document No. 2 in the Respondent's List of Documents. (a) In the view of the Respondent in May 1985 in what way', did the retail outlets operated by the Applicant not meet the standards stated in that document? (b) one to the Respondent about the selling or servicing by the Applicant of any shoes of the Respondent. (c) What were the' "Advertising programmes" of the Respondent which other operators of any retail outlet in the metropolitan area of Sydney were asked during the year ended December 31, 1984 by or on behalf of the Respondent to co~operate in? DATED: 25th February, 1986. R. R. SPEED Solicitor for the Applicant ' — pean c ~ ene wee oar What complaints have been made by any consumers or an'*