NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DISTRICT R STRY VG No. 331 of 1986 GENERAL DIVISION wewwwevw NYLEX CORPORATION LIMITED Applicant and SABCO LTD Respondent IN THE FEDERAL COURT OF AUSTRALIA ) ) VICTOR DISTRICT REGISTRY ) VG No. 366 of 1986 ) ) ) GENERAL DIVISION BETWEEN oo NYLEX CORPORATION LIMITED Applicant and DAWN PLASTICS PTY LIMITED Respondent COURT: Woodward J. DATE: 26 November 1986 PLACE: Melbourne EX-~TEMPORE JUDGMENT In this matter I am clearly of the view that the question of liability should be tried first and separately from the question of damages. I say that for several reasons, one being that the most important part of the claim, as 1t appears to me, is the claim for an injunction which would prevent the respondent from selling the disputed product. Because we are coming up to the main selling season for this particular product, every few weeks that pass can make a difference to the amount of damages which may ultimately have to be borne if the decision should go in favour of the applicant. And for that reason I think that anything which ensures that the case comes quickly to trial, and enables injunctions to be given, if that should be the outcome, is to be encouraged. Anything which would tend to delay, which would use up time - whether in preparation for trial or in the trial itself - should be discouraged. The amount of damages is a matter which, if we have to come to it at all, can properly be examined at more leisure after the basic question has been determined. My second reason for thinking that, in this case in particular, it is desirable to deal with liability first, is the view which I have already expressed that, on the evidence as it stands, the applicants' prospects of success are not strong. That is not to say that the applicant may not succeed, either in the light of additional evidence, or even on the evidence as it stands; but it is not a case in which one can be confident that the issue of damages will eventually be reached. That is another strong reason why time should not be spent investigating that complex question until the issue of liability has been determined. The third argument, which has been addressed to me by Dr Jessup and which appears to me to be sound, is that the Court should be reluctant to order one party, which is a business competitor of another, to lay open to that other details of its business, particularly sales - where they are made and the extent of them - which could be of prejudice to that party and of benefit to the other. I think that unless there is a fairly clear-cut case for making such an order, it ought not to be made; and I find that the present is by no means a clear-cut case for the making of such an order. In saying that I rely onthe three authorities that Dr Jessup has cited to me, namely Attorney-General v North Metropolitan Tramways Co (18921 3 Ch 70; Schreiber v Heymann (1894) 63 LJ (QB) 749; Fox v Cook £1914] VLR 1. So for all those reasons I think it is appropriate that there should be only limited discovery, that the matter should be prepared for trial on the question of liability only, and go to trial as soon as can be arranged conveniently to the parties and to the Court. I so order. (After further submissions) I make the following additional orders: 1. The defence is to be filed and served by 3 December. 2. Any reply is to be filed and served by 10 December. There will be mutual discovery limited to questions of liability by 21 January. There is to be mutual inspection by 6 February. The matter is to be adjourned to the callover at 9.30 on 19 December, and I will direct that it have priority at that callover. I will reserve costs, and I will also reserve liberty to apply. I will direct that the exhibits be returned to the parties who tendered then. I certify that this and the three (3) preceding pages are a true and accurate copy of the Reasons for Judgment herein of the Hon Mr Justice Woodward | Associate Dated: 26 November 1986 Solicitors for Nylex Corporation Ltd: Mr R. Keen, Messrs Clayton Utz Counsel for Sabco Ltd: Dr C.N. Jessup Solicitors for Sabco Ltd: Messrs Mallesons Counsel for Dawn Plastics Pty Ltd: Dr C.N. Jessup Solicitors for Dawn Plastics Pty Ltd: Messrs Arthur Robinson and Hedderwicks NOT FOR DISTRIBUTION IN THE FEDERAL COURT OF AUSTRALIA VICTORIA DI ICT REGISTRY G L DIVISION VG wewwewewrevwr BETWEEN: NYLEX CORPORATION LIMITED and SABCO LTD THE COURT. AUSTRAL VICTORIA DISTRICT REGISTRY GENERAL DIVISION VG ww weer we BETWEEN : NYL. CORPORATION LIMITED and DAWN PLASTICS PTY LIMITED COURT: Woodward J. DATE: 26 November 1986 PLACE: Melbourne EX-TEMPORE JUDGMENT. In this matter I am clearly of the No. No. view 331 of 1986 Applicant Respondent 366 of 1986 Applicant Respondent that the question of liability should be tried first and separately from the question of damages. I gay that for several reasons, one being that the most important part of the claim, as 1t appears to me, is the claim for an injunction which would prevent the respondent from selling the disputed product. Because we are coming up to the main selling season for this particular product, every few weeks that pass can make a difference to the amount of damages which may ultimately have to be borne if the decision should go in favour of the applicant. And for that reason I think that anything which ensures that the case comes quickly to trial, and enables injunctions to be given, if that should be the outcome, is to be encouraged. Anything which would tend to delay, which would use up time - whether in preparation for trial or in the trial itself - should be discouraged. The amount of damages 13 a matter which, if we have to come to it at all, can properly be examined at more leisure after the basic question has been determined. My second reason for thinking that, in this case in particular, it is desirable to deal with liability first, is the view which I have already expressed that, on the evidence as 1t stands, the applicants' prospects of success are not strong. That is not to say that the applicant may not succeed, either in the light of additional evidence, or even on the evidence as it stands; but it is not a case in which one can be confident that the issue of damages will eventually be reached. That is another strong reason why time should not be spent investigating that complex question until the issue of liability has been determined. The third argument, which has been addressed to me by Dr Jessup and which appears to me to be sound, is that the Court should be reluctant to order one party, which is a business competitor of another, to lay open to that other details of its business, particularly sales - where they are made and the extent of them - which could be of prejudice to that party and of benefit to the other. I think that unless there is a fairly clear-cut case for making such an order, it ought not to be made; and I find that the present is by no means a clear-cut case for the making of such an order. In saying that I rely onthe three authorities that Dr Jessup has cited to me, namely Attorney-General v North Metropolitan Tramways Co (18921 3 Ch 70; Schreiber v Heymann (1894) 63 LJ (QB) 749; Fox v Cook (19142 VLR 1. So for all those reasons I think it is appropriate that there should be only limited discovery, that the matter should be prepared for trial on the question of liability only, and go to trial as soon as can be arranged conveniently to the parties and to the Court. I sc order. (After further submissions) I make the following additional orders: l. The defence is to be filed and served by 3 December. 2. Any reply is to be filed and served by 10 December. 3. There will be mutual discovery limited to questions of liability by 21 January. 4. There is to be mutual inspection by 6 February. 5. The matter is to be adjourned to the callover at 9.30 on 19 December, and I will direct that it have priority at that callover. 6. I will reserve costs, and I will also reserve liberty to apply. 7. I will direct that the exhibits be returned to the parties who tendered then. I certify that this and the three (3) preceding pages are a true and accurate copy of the Reasons for Judgment herein of the Hon Mr Justice Woodward | Associate Dated: 26 November 1986 Solicitors for Nylex Corporation Ltd: Mr R. Keen, Messrs Clayton Utz Counsel for Sabco Ltd: Dr C.N. Jessup Solicitors for Sabco Ltd: Messrs Mallesons Counsel for Dawn Plastics Pty Ltd: Dr C.N. Jessup | Solicitors for Dawn Plastics Pty Ltda: Messrs Arthur Robinson and Hedderwicks