Australian Competition & Consumer Commission v Dataline.net.au Pty Ltd [2003] FCA 1027

Australian Competition & Consumer Commission v Dataline.net.au Pty Ltd [2003] FCA 1027

The respondents' repeated failures to comply with discovery orders, lack of explanation, and attitude to the Court's orders established unwillingness to co-operate with the Court and the applicant so as to enliven the discretion under O 10, r 7. Their proposed alternative sanction was insufficient and high-handed, and it was not clear that the records held by the Court comprised all discoverable material. A self-executing order was therefore appropriate, with a 28-day compliance period and costs to the applicant.

Jurisdiction
Australia
Judgment Date
25 September 2003
Procedural Posture
Federal Court Civil Proceeding / Interlocutory Motion Concerning Discovery Non Compliance and Self Executing Default Orders
Outcome
The ACCC's motion was granted in part by self-executing discovery and default orders, and the respondents were ordered to pay the applicant's costs on the motion.
Legal Topics
['discovery' 'non Compliance With Court Orders' 'self Executing Orders' 'striking Out Defence' 'costs']
['civil Procedure'] ['discovery' 'non Compliance With Court Orders' 'self Executing Orders' 'striking Out Defence' 'costs']

Case Brief

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Procedural Posture

Federal Court Civil Proceeding / Interlocutory Motion Concerning Discovery Non Compliance and Self Executing Default Orders

Legal Issues

  1. 1 ['Whether the first, second, third, fourth and seventh respondents should be ordered to comply with earlier discovery orders within a further period, failing which their defence would be struck out.' "Whether the respondents' proposed alternative sanction of making documents taken under Anton Pillar orders available to the applicant was sufficient." "Whether the discretion conferred by O 10, r 7 was enlivened and should be exercised in light of the respondents' history of non-compliance."]

Ratio Decidendi

The respondents' repeated failures to comply with discovery orders, lack of explanation, and attitude to the Court's orders established unwillingness to co-operate with the Court and the applicant so as to enliven the discretion under O 10, r 7. Their proposed alternative sanction was insufficient and high-handed, and it was not clear that the records held by the Court comprised all discoverable material. A self-executing order was therefore appropriate, with a 28-day compliance period and costs to the applicant.

Court Disposition

The ACCC's motion was granted in part by self-executing discovery and default orders, and the respondents were ordered to pay the applicant's costs on the motion.

Orders

  • ['The first, second, third, fourth and seventh respondents provide to the applicant within twenty-eight days the list referred to in paragraph 2 of the orders made on 9 May 2003 and the documents referred to in paragraph 3 of those orders, failing which their defence filed and served on 3 May 2002 be struck out.'...