Garnet International Resources Pty Ltd v Barton International Inc [2005] FCA 93

FEDERAL COURT OF AUSTRALIA

Garnet International Resources Pty Ltd v Barton International Inc [2005] FCA 93

PRACTICE AND PROCEDURE – discovery – discretionary power of court – whether disclosure necessary in the interests of a fair trial – claims of irrelevance and commercial sensitivity – masked portion of documents – whether order for discovery should be varied to require unmasking – whether order for discovery should be varied for non-production of masked portions Federal Court Rules O 15 r 11(e), O 15 r 15 Australian Competition and Consumer Commission v McMahon Services Pty Ltd [2004] FCA 353 followed Gray v Associated Book Publishers (Australia) Pty Ltd [2002] FCA 1045 followed Index Group of Companies Pty Ltd v Nolan [2002] FCA 608 cited Sony Music Entertainment (Australia) Limited v University of Tasmania (2003) 129 FCR 472 considered Trade Practices Commission v CC (New South Wales) Pty Ltd (1995) 58 FCR 426 cited Westfield Management Ltd v Brisbane Airport Corporation Limited [2004] FCA 611 cited GARNET INTERNATIONAL RESOURCES PTY LTD v BARTON INTERNATIONAL INC and GMA GARNET PTY LTD WAD 202 of 2004 RD NICHOLSON J 15 FEBRUARY 2005 PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY WAD 202 OF 2004

BETWEEN: GARNET INTERNATIONAL RESOURCES PTY LTD

(ACN 081 244 715)

APPLICANT

AND: BARTON INTERNATIONAL INC

(ARBN 009 475 138)

FIRST RESPONDENT

GMA GARNET PTY LTD

(ACN 009 344 227)

SECOND RESPONDENT

JUDGE: RD NICHOLSON J

DATE OF ORDER: 15 FEBRUARY 2005

WHERE MADE: PERTH

THE COURT ORDERS THAT: 1. On the applicant's notice of motion dated 31 January 2005: 1.1 the applicant's motion for dismissal for reason of default be adjourned generally; 1.2 the first respondent pay the applicant's costs of the motion referred to at 1.1; 1.3 the first respondent give the applicant inspection forthwith of each of the documents BAR.027.0770 to BAR.028.0500 inclusive; and 1.3A the masked portions in the discovered documents be excluded from production for inspection by the applicant subject to the following: (a) order 1 of 13 December 2004 be varied to provide that 'the first respondent give discovery on oath of the documents referred to in the Schedule annexed hereto (save items 2 and 8 thereof and save such portions as are masked by it as relating to evidence claimed to be irrelevant or commercially sensitive) within 7 days of this order; and (b) the applicant have liberty to apply to the Court to test the assertions of irrelevance and commercial sensitivity by inspection of the masked portions in accordance with agreed directions if they consider it desirable; 1.4 the first respondent pay the applicant's costs of the motion referred to at 1.3. 2. On the first respondent's motion dated 8 February 2005: 2.1 the first respondent's motion for leave to amend its defence and cross-claim be adjourned until 23 February 2005; 2.2 order 6 of the orders made on 22 November 2004 be varied to provide that the first respondent is to file and serve its affidavits by 8 February 2005; 2.3 that the issues of loss and damage referred to in paragraphs 42, 45 and 48 of the re-amended statement of claim and 78 of the cross-claim, and the question of an entitlement to and any account of profits raised by paragraph 79 of the cross-claim be tried subsequent to all other issues; 2.4 the first respondent pay the costs of this motion in any event. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.