Cadbury Schweppes Pty Ltd ACN 004 551 473 v Darrell Lea Chocolate Shops Pty Ltd ACN 000 498 386 [2005] FCA 112

FEDERAL COURT OF AUSTRALIA

Cadbury Schweppes Pty Ltd ACN 004 551 473

v Darrell Lea Chocolate Shops Pty Ltd ACN 000 498 386

[2005] FCA 112

CADBURY SCHWEPPES PTY LTD ACN 004 551 473 and CADBURY LIMITED v DARRELL LEA CHOCOLATE SHOPS PTY LTD ACN 000 498 386

V 50 of 2003

RYAN J

15 FEBRUARY 2005

MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY V 50 of 2003

BETWEEN: CADBURY SCHWEPPES PTY LTD ACN 004 551 473

First Applicant

and CADBURY LIMITED

Second Applicant

AND: DARRELL LEA CHOCOLATE SHOPS PTY LTD ACN 000 498 386

Respondent

JUDGE: RYAN J

DATE OF ORDER: 15 FEBRUARY 2005

WHERE MADE: MELBOURNE

THE COURT ORDERS THAT: 1. That until: (a) the commencement of a fresh proceeding by the applicants seeking relief substantially in the nature sought by them in this proceeding ("the new proceeding"); or (b) 7 June 2005; whichever be the first to occur, each of the applicants and the respondent: (i) continue to have the benefit of the discovery made in this proceeding (subject always to the implied undertaking not to use such documents or the information contained in them other than for the purposes of this proceeding); (ii) continue to have the benefit of the documents obtained by each of them upon the return of subpoenas issued by each of them (subject always to the said implied undertaking); (iii) continue to have the benefit of the confidentiality undertakings given in their favour. 2. The applicants be relieved from the implied undertaking and be permitted to utilise in preparing and commencing the new proceeding, those documents received by them as a consequence of discovery having been made and/or subpoenas having been complied with in this proceeding. 3. Upon the new proceeding being commenced each of the applicants and the respondent be relieved from the implied undertaking and be permitted to utilise in the conduct of the new proceeding those documents received by them as a consequence of discovery having been made and/or subpoenas having been complied with in this proceeding. 4. The applicants have leave to discontinue this proceeding without prejudice to the applicants' right to commence the new proceeding by no later than 7 June 2005. 5. The applicants pay the respondent's costs (including all reserved costs) of the application up to and including the costs of this day including this order. 6. In the event of the new proceeding being instituted on or before 7 June 2005, the respondent have leave to apply for a stay of the new proceeding until the costs ordered by paragraph 5 of this order have been paid.