LIMITED DISTRIBUTION ONLY IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G245 of 1985 GENERAL DIVISION BETWEEN: PAYLESS SHOES PTY. LIMITED Applicant AND: CLARKS SHOES LIMITED Respondent MINUTES OF ORDER Judge making order: Beaumont, J. Date order made: 12 November 1986 Where made: Sydney THE COURT ORDERS THAT: NOTE: Settlement and entry of orders is dealt wi On or before 28 November 1986, the respondent file and serve an affidavit and supplementary list of documents pursuant to 0.15 r.8 and r.9 specifying, apart from documents produced on subpoena, any documents of the class described in the schedule. The costs of this application, including reserved costs, be the applicant's costs in the proceedings. Reserve liberty to either party to apply on 7 days' notice. THE SCHEDULE All documents in the period in question in the proceedings which relate to prices at which retailers other than the applicant sold,' or offered for sale, shoes supplied by the respondent. Y Bankruptcy Rule 124. + Roo "VED 12 NOV 1986 FEDERAL COURT OF AUSTRALIA PRINCIPAL REGISTRY yt ot tet ee y w stl i reailed ee pe eee woe ee ee on t I yee gor in nee IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G245 of 1985 ) GENERAL DIVISION ) BETWEEN: PAYLESS SHOES PTY. LIMITED Applicant D: CLARKS SHOES LIMITED Respondent CORAM: Beaumont, J. DATED: 12 November 1986 REASONS FOR JUDGMENT Before the Court is an application by the applicant for further and better discovery (see 0.15 r.8). In the principal proceedings, the applicant has sued for declarations, injunctions, damages and specific performance on a number of causes of action. For present purposes it is sufficient to refer to the declarations sought by the applicant that the respondent has contravened the resale price maintenance provisions of the Trade Practices Act 1974 ("the Act") as follows: "1. A declaration that the Respondent has withheld the supply of shoes (namely 552 pairs of the Saxone range of shoes manufactured and distributed by the Respondent, being 92 pairs of Sultan (black), 92 pairs of Sancho (mist), 92 pairs of Sayer (natural), 92 pairs of Wat ery Be IS . wf of _ aoe 2. Sidney (beige), 92 pairs of Samual (natural) and 92 pairs of Sancho (black)) (*the 552 Pairs') to the Applicant for the reason that the Applicant has sold or is likely to sell goods (namely shoes of the Hush Puppies brand) supplied to it by the Respondent at a price less than the price specified by the Respondent as the price below which the goods are not to be sold. 3. A declaration that the Respondent has, by withholding supply of the 552 Pairs, induced or attempted to induce the Applicant not to sell at a price less than a price specified by the Respondent goods being Hush Puppies shoes supplied to the Applicant by the Respondent. 5. A declaration that the Respondent has used in relation to Hush Puppies shoes supplied or that may be supplied by it to the Applicant a statement of a price that was likely to be understood by the Applicant as the price below which shoes of that brand are not to be sold." (It will be remembered that when, for instance, s.96(3)(d) speaks of a supplier withholding supply to a second person "for the reason" that the second person has sold or is likely to sell ata price less than the price specified by the supplier, the provisions of s.4F of the Act apply: it will suffice if the reason is only one of the reasons provided it is a "substantial" reason). It appears that the respondent has approached its obligation to discovery on the footing that it is obliged to discover only those documents which are concerned with its dealings with the applicant and, in particular, with the question wt rene 3. whether statements made by the respondent to the applicant that a specified retail price was "recommended only" was, in truth, obligatory. In the result, the respondent has treated itself as under no obligation to discover documents relating to its dealings with retailers other than the applicant, even if those dealings may be open to the inference that the respondent was concerned to influence the prices at which those retailers sold their products. In seeking to justify this approach, it was argued on behalf of the respondent that such material could not be relevant to the narrow issues raised by the terms of the relevant declarations sought by the applicant. In my opinion, the respondent's argument confuses adjectival relevance with substantive relevance. The test for discovery is not, of course, limited to the ultimate conclusion in the principal proceedings: a document is discoverable if it "relates in some way to a matter in issue...but it is sufficient if it would, or would lead to a train of inquiry which would, either advance a party's own case or damage that of his adversary." (See Mulley v. Manifold (1959) 103 C.L.R. 341 per Menzies J. at p.345). It follows, in my view, that the respondent was obliged to discover all documents in the period in question in the proceedings which relate to prices at which retailers other than the applicant sold, or offered for sale, shoes supplied by the respondent. I propose to so order. In accordance with the suse Raterone ate ¥ as ky oe SAO Ten ne ee re ee a ere ne oy a ' 6p nen eens IE a "4 — 4. agreement of the parties, there will be excluded from the order documents produced by the respondent in answer to the applicant's subpoena. Finally, it should be noted that the respondent called no evidence in the proceedings to show, for example, that the order proposed could be oppressive given the potential volume of documents involved (see Spencer Motors Pty. Ltd. v. L.N.C. Industries Pty. Ltd. (1982) 2 N.S.W.L.R. 921). Since this is a matter within the knowledge of the respondent, it would bear the onus of establishing this discretionary ground for refusing or limiting further discovery (see Darling Island Stevedoring & Lighterage Co. Ltd. v. Jacobsen (1945) 70 C.L.R. 635 per Starke J. at p.642; D.M. Byrne Q.C. and J.D. Heydon Cross on Evidence 3rd Australian ed. at p.190. I order that: 1. On or before 28 November 1986, the respondent file and serve an affidavit and supplementary list of documents pursuant to 0.15 r.8 and r.9 specifying, apart from documents produced on subpoena, any documents of the class described in the schedule. 2. The costs of this application, including reserved costs, be the applicant's costs in the proceedings. 3. Reserve liberty to either party to apply on 7 days' notice. THE SCHEDULE All documents in the period in question in the proceedings which relate to prices at which retailers other than the applicant sold, or offered for sale, shoes supplied by the respondent. 5. I certify that the four (4) preceding pages are a true copy of the Reasons for Judgment herein of his Honour Mr. Justice Beaumont. cdak etaets/ A/ Associate Dated: 12 November 1986 pe a re y PR ee nee ree . us Xe - s Site ian eben