Case: Sabre Corp Pty Ltd v Russ Calvin's Hair Care Co (1993) 46 FCR 428
Outcome: referred to
the orders sought are as follows: (a) Paragraph 4 seeks an order 'pursuant to Order 15A rule 8 of the Federal Court Rules or otherwise , that the Russian Federation provide discovery' of documents within listed categories in the schedule to the amended notice or as otherwise ordered by the Court; (b) paragraph 5 seeks an order, in the nature of a Sabre order ( Sabre Corp Pty Ltd v Russ Calvin's Hair Care Co (1993) 46 FCR 428), requiring FKP and FGUP to take steps to obtain such documents in the possession, custody or control of the Russian Federation, and par 6 seeks an order for the provision of such documents to Spirits together with verifying affidavits; (c) paragraph 6A seeks an order that the amended notice of motion be stood over for consideration, if necessary, of a stay of the cross-claim in the event of non-compliance with any order in terms of par 4 or pars 5 and 6. The 'otherwise' alternative basis to O 15A r 8 of the Federal Court Rules of the order sought in [2(a)] above, is that the Russian Federation is the 'true' or 'real' applicant/plaintiff on the cross-claim, not FKP and FGUP, which are but 'nominal' applicants/plaintiffs. It is not in dispute that FKP and FGUP are Russian State-owned enterprises; that they are separate legal entities which are distinct from the Russian Federation. FKP is a 'federal treasury enterprise', being a commercial organisation which holds property settled on it by the Russian Federation 'by right of operational management'. FGUP is a 'federal State unitary enterprise', being a commercial organisation which holds property settled on it by the Russian Federation 'by right of economic management'. In her affidavit Ms Mozgonenko confirms the foregoing (at [11] and [12]) and explains what is meant by the terms 'by right of operational management' and 'by right of economic management' (at [13] [19]) and Mr Tsyplakov, in his affidavit, confirms that he 'substantially agrees' with Ms Mozgonenko on all these matters (at [23]). On the conclusion I have reached, it is not necessary that I deal with the motion insofar as it seeks an order in terms of par 5 of the amended notice a Sabre order requiring FKP and FGUP to take steps to obtain the documents, within the listed categories or as otherwise ordered by the Court, in the possession, custody or control of the Russian Federation, and an order in terms of par 6 thereof for the provision of such documents to Spirits together with verifying affidavits. Nevertheless, again in deference to the submissions that were made, I should indicate why, had it been necessary to consider this aspect of the motion, I would have been minded to dismiss it. First, there must be a real likelihood that the party, in this case FKP and FGUP, who is to take steps to obtain access to and discover the documents which are in the possession, power or control of a third party, would be given access to the documents upon request: See Sabre at 432 433. This likelihood must be established by evidence: Gambro at [8], [17] [19]. In the present case, Spirits has made no attempt to establish this. There is nothing in the evidence from which the inference could be drawn that any documents within the very broad categories requested by Spirits would be provided by the Russian Federation or its ministries, agencies and instrumentalities.