Zapf Creation AG v OWT Australia Pty Ltd [2001] FCA 759

FEDERAL COURT OF AUSTRALIA

Zapf Creation AG v OWT Australia Pty Ltd [2001] FCA 759

PRACTICE AND PROCEDURE – discovery – documents in the possession, power or control of third parties – whether there is a real likelihood that the party against whom discovery is sought would be given access to the documents by a third party upon request – where close relationship between the party against whom discovery is sought and a third party Federal Court of Australia Act 1976 (Cth) s 23 Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Co (1993) 27 IPR 372, followed F Hoffmann–La Roche AG v Chiron Corporation (2000) 47 IPR 516, cited Twentieth Century Fox Film Corporation v South Australian Brewery Co Ltd (1996) 66 FCR 451, considered ZAPF CREATION AG and ZAPF CREATION (HK) LTD v OWT AUSTRALIA PTY LTD N 740 of 2000 BRANSON J 28 JUNE 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 740 of 2000

BETWEEN: ZAPF CREATION AG

FIRST APPLICANT

ZAPF CREATION (HK) LTD

SECOND APPLICANT

AND: OWT AUSTRALIA PTY LTD

RESPONDENT

JUDGE: BRANSON J

DATE OF ORDER: 28 JUNE 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The respondent take all reasonable steps available to it to obtain copies of documents which are in the possession, power or control of any of: (a) Oriental World Trading Company Limited; (b) OWT International Ltd; (c) OWT (Europe) Ltd; and which fall within the categories of documents numbered (ii) and (iii) in the letter from the applicants' solicitor to the respondent's solicitor dated 3 October 2000. 2. The respondent by one of its directors, with personal knowledge of the matters deposed to, file and serve an affidavit within 21 days of the date of this order in which he or she: (a) deposes to the efforts it has made to obtain the documents or copies of the documents referred to in order 1 above, including details of each of its requests to any of the said companies and any other person or entity and their responses thereto; (b) annexes any of the responses referred to in sub-paragraph (a) which are in writing; and (c) exhibits all documents produced within the category and which have been furnished to it in response to the requests made in accordance with order 1 hereof. 3. Costs of and incidental to the notice of motion of 3 May 2001 be reserved. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.