Gillford Pty Ltd & Ors v Burton Pty Ltd & Ors [1994] FCA 1103

OURT _O ) fe) STRI s } No. AG 79 of 1994 GENERAL DIVISION BETWEEN: GILLFORD PTY LIMITED & ORS Applicants AND Respondents

15 DECEMBER 1994

SO) G)

OC J.

There is before the Court a motion by the applicants seeking orders requiring the first respondent to file and serve an affidavit setting out in short the steps it has taken to comply with orders made by another judge of this Court on 25 November 1994 (that is order 2 as sought). The third order sought is that each of the personal respondents (the second and third respondents) file and serve an affidavit also setting out steps taken by them to ensure compliance with certain of the orders made by the Court on 25 November. The fourth order sought is that the first respondent file and serve an affidavit listing certain files identifying certain

people.

The case is an unusual one. It does not suffer because of that, but it is unusual in that it arises out of a document described as "heads of agreement", which was executed on 10

June 1994 following mediation conducted outside the control of

the Court on 10 June and the day before. The proceedings before Neaves J., which culminated in his order of 25 November last, were proceedings for interlocutory and injunctive relief and they succeeded. His Honour made certain orders to which I need not refer. In substance, the applicants are seeking by their motion compulsorily to require the respondents to disclose what steps they have taken to comply with Neaves J.'s

orders.

When I pointed out that this may be indirectly seeking substantially the same benefit as would be obtained by a successful motion for contempt, counsel for the applicants, acknowledging that this has a degree of efficacy, said that the position of the respondents could be protected by ensuring that the orders sought had built into them a means whereby the respondents could disclaim to comply with the orders if they took the view so to do would either incriminate them or lead them to disclose facts which may constitute contempt of the orders of the court made on 25 November 1994, and possibly