Cold Rock Management Pty Ltd v Maerceci Pty Ltd [2011] FCA 850

FEDERAL COURT OF AUSTRALIA

Cold Rock Management Pty Ltd v Maerceci Pty Ltd [2011] FCA 850 Citation: Cold Rock Management Pty Ltd v Maerceci Pty Ltd [2011] FCA 850

Parties: COLD ROCK MANAGEMENT PTY LTD ACN 078 334 326 v MAERCECI PTY LTD ACN 093 099 891 and AURUMINE PTY LTD ACN 106 082 400

File number: VID 452 of 2011

Judge: LOGAN J

Date of judgment: 25 July 2011

Catchwords: PRACTICE AND PROCEDURE – discovery – application for further and better discovery

Legislation: Trade Practices Act 1974 (Cth)

Date of hearing: 25 July 2011

Place: Brisbane

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 22

Counsel for the Applicant: Mr I Upjohn

Solicitors for the Applicant: ComLaw Barristers and Solicitors

Counsel for the Respondents: Mr RJ Anderson

Solicitor for the Respondents: Cleary Hoare

IN THE FEDERAL COURT OF AUSTRALIA QUEENSLAND DISTRICT REGISTRY GENERAL DIVISION VID 452 of 2011

BETWEEN: COLD ROCK MANAGEMENT PTY LTD ACN 078 334 326

Applicant

AND: MAERCECI PTY LTD ACN 093 099 891

First Respondent

AURUMINE PTY LTD ACN 106 082 400

Second Respondent

JUDGE: LOGAN J DATE OF ORDER: 25 JULY 2011 WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. The respondents make discovery of the documents set out in the Schedule hereto by filing and serving a Supplementary List of Documents on or before 28 July 2011. 2. The costs of and incidental to today's hearing in respect to the Notice of Motion be costs in the proceeding, but otherwise the costs of the Notice of Motion be reserved. 3. The Notice of Motion is otherwise adjourned to a date to be fixed. 4. The proceeding be set down for trial for four (4) days commencing on 11 August 2011. 5. By 4pm on 4 August 2011, the applicant file and serve a paginated and indexed bundle of documents which the parties agree are to be tendered in evidence. 6. The applicant file and serve its Chronology of Relevant Dates and Outline of Opening Submissions on or before 12 noon on 9 August 2011 and the respondents file and serve their Chronology of Relevant Dates and Outline of Submissions by 12 noon on 10 August 2011. 7. The time fixed in paragraph 5 of the Orders of 10 June 2011 insofar as it relates to the respondents be enlarged to on or before 29 July 2011. That enlargement of time is without prejudice to the ability of the applicant to make such application, as it may be advised, in respect of any consequence of the enlargement. 8. The costs of and incidental to that enlargement of time be the applicant's costs in the proceeding but otherwise the costs of the directions hearing be reserved. 9. Liberty to apply is reserved to the parties. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court's website. Schedule for Discovery required by the Applicant from the Respondents 1. The manual prepared by the respondents and used by the respondent whilst Franchisees of the Cold Rock Ice Creamery Franchise referred to in paragraph 10.1 of the affidavit of Paul Bailey sworn 7 June 2011. 2. All documents prepared by or on behalf of the respondents or any of them in relation to the decision to rebrand the Thuringowa, The Strand and Magnetic Island stores under the name The Ice Cream Factory. 3. All bank statements, cheque butts and deposit books and documents containing related explanations of electronic transfers or receipts of the respondents for the period 1 July 2009 to date of this Order evidencing and concerning: (a) receipts or takings of the sale of ice cream whether under the name Cold Rock or the IF Ice Cream Factory from the Thuringowa, The Strand and Magnetic Island Stores; (b) payments for all purchases of material or goods required for the manufacture or sale of ice cream; 4. All documents (including and not limited to the respondents' purchase orders and the respondents suppliers invoices) evidencing or concerning purchase of ingredients or product used in the manufacture of ice cream by the respondents between the period 1 July 2009 to the date of this Order. 5. All documents (including and not limited to the respondents' purchaser orders and the respondents' suppliers invoices) evidencing or concerning purchase of ingredients used in ice cream sold to the public by the respondents between the period 1 July 2009 to the date of this Order.