Bryer Merchandisers Pty Limited v Nike Australia Pty Limited [2002] FCA 880

Bryer Merchandisers Pty Limited v Nike Australia Pty Limited [2002] FCA 880

The evidence relied on by the applicants did not justify an inference that further documents within the agreed categories were or had been in the respondent's possession, custody or power, and no case was made out for an order under O 15 r 8. However, one refinement concerning policies relating to product segmentation and selective distribution or timing of delivery of new ranges was desirable, and the respondent conceded that the further topics suggested by the economic consultancy might capture some documents not already covered and did not submit that discovery would be oppressive. The respondent should therefore give discovery in respect of the ten identified categories, with costs of...

Jurisdiction
Australia
Judgment Date
17 July 2002
Procedural Posture
Federal Court Proceeding Involving Claims in Contract, Negligence and Under the Trade Practices Act 1974; Interlocutory Discovery Dispute / Applicants' Motion for Discovery Orders Under O 15 R 5 and R 8 of the Federal Court Rules
Outcome
Applicants' discovery motion allowed in part; no order under O 15 r 8; further discovery to be ordered under O 15 r 5 in respect of ten identified categories; costs of the motion to be part of the parties' costs of the proceedings.
Legal Topics
['sufficiency of Discovery' 'categories of Discovery' 'continuing Discovery Obligation' 'misuse of Market Power' 'resale Price Maintenance' 'unconscionable Conduct']
['civil Procedure' 'discovery' 'competition and Consumer Law' 'contract' 'negligence'] ['sufficiency of Discovery' 'categories of Discovery' 'continuing Discovery Obligation' 'misuse of Market Power' 'resale Price Maintenance' 'unconscionable Conduct']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Federal Court Proceeding Involving Claims in Contract, Negligence and Under the Trade Practices Act 1974; Interlocutory Discovery Dispute / Applicants' Motion for Discovery Orders Under O 15 R 5 and R 8 of the Federal Court Rules

Legal Issues

  1. 1 ["Whether the respondent's discovery to date was insufficient so as to justify an order under O 15 r 8 of the Federal Court Rules." 'Whether the respondent should be ordered under O 15 r 5 of the Federal Court Rules to give discovery by reference to further categories.' "How the costs of the applicants' discovery motion should be dealt with."]

Ratio Decidendi

The evidence relied on by the applicants did not justify an inference that further documents within the agreed categories were or had been in the respondent's possession, custody or power, and no case was made out for an order under O 15 r 8. However, one refinement concerning policies relating to product segmentation and selective distribution or timing of delivery of new ranges was desirable, and the respondent conceded that the further topics suggested by the economic consultancy might capture some documents not already covered and did not submit that discovery would be oppressive. The respondent should therefore give discovery in respect of the ten identified categories, with costs of...

Court Disposition

Applicants' discovery motion allowed in part; no order under O 15 r 8; further discovery to be ordered under O 15 r 5 in respect of ten identified categories; costs of the motion to be part of the parties' costs of the proceedings.

Orders

  • ['The applicants bring in short minutes of a proposed order to give effect to these reasons for judgment.' "The costs of the applicants' motion, including any reserved costs, be part of the parties' costs of the proceedings."]