FEDERAL COURT OF AUSTRALIA Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 16) [2012] FCA 1255 Citation: Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 16) [2012] FCA 1255 Parties: SCHUTZ DSL (AUSTRALIA) PTY LTD (ACN 009 069 907), SCHUTZ GMBH & CO KGAA and PROTECHNA S.A. v VIP PLASTIC PACKAGING PTY LTD (ACN 095 313 705) and VIP STEEL PACKAGING PTY LTD (ACN 095 314 195) File number: WAD 136 of 2009 Judge: MCKERRACHER J Date of judgment: 6 November 2012 Legislation: Federal Court Rules 2011 (Cth) r 24.15 Cases cited: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (1997) 37 ATR 432 Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 8) [2010] FCA 1108 Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 Date of hearing: 6 November 2012 Place: Perth Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 7 Counsel for the Applicants/Cross-Respondents: ML Bennett Solicitor for the Applicants/Cross-Respondents: Bennett + Co Counsel for the Respondents/Cross-Claimants: AR Lang Solicitor for the Respondents/Cross-Claimants: Gilbert + Tobin IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 136 of 2009 BETWEEN: SCHUTZ DSL (AUSTRALIA) PTY LTD (ACN 009 069 907) First Applicant/Cross-Respondent SCHUTZ GMBH & CO KGAA Second Applicant/Cross-Respondent PROTECHNA S.A. Third Applicant/Cross-Respondent AND: VIP PLASTIC PACKAGING PTY LTD (ACN 095 313 705) First Respondent/Cross-Claimant VIP STEEL PACKAGING PTY LTD (ACN 095 314 195) Second Respondent/Cross-Claimant JUDGE: MCKERRACHER J DATE OF ORDER: 6 NOVEMBER 2012 WHERE MADE: PERTH THE COURT ORDERS THAT: 1 The respondents/cross-claimants' interlocutory application dated 28 September 2012 be dismissed. 2 The respondents/cross-claimants pay the applicants/cross-respondents' costs of the interlocutory application dated 28 September 2012. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION WAD 136 of 2009 BETWEEN: SCHUTZ DSL (AUSTRALIA) PTY LTD (ACN 009 069 907) First Applicant/Cross-Respondent SCHUTZ GMBH & CO KGAA Second Applicant/Cross-Respondent PROTECHNA S.A. Third Applicant/Cross-Respondent AND: VIP PLASTIC PACKAGING PTY LTD (ACN 095 313 705) First Respondent/Cross-Claimant VIP STEEL PACKAGING PTY LTD (ACN 095 314 195) Second Respondent/Cross-Claimant JUDGE: MCKERRACHER J DATE: 6 NOVEMBER 2012 PLACE: PERTH REASONS FOR JUDGMENT (REVISED FROM TRANSCRIPT) INTRODUCTION 1 Pursuant to r 24.15 of the Federal Court Rules 2011 (Cth), the respondents/cross-claimants (VIP) apply to set aside several subpoenas issued by the applicants/cross-respondents (Schutz) on the grounds of irrelevance of the categories of documents sought and lack of particularity in the description of the documents. 2 Each of the parties has filed extensive written submissions and I have heard oral argument from Mr Lang in support of the application to set aside the subpoenas. Both parties rely on similar authorities, notably: Commissioner for Railways v Small (1938) 38 SR (NSW) 564 (at 573); Trade Practices Commission v Arnotts Ltd (1989) 88 ALR 90 (at 102, 103); Cosco Holdings Pty Ltd v Federal Commissioner of Taxation (1997) 37 ATR 432 (at 439-440); and Dorajay Pty Ltd v Aristocrat Leisure Ltd [2005] FCA 588 (at [16]-[18]). However, the application of the principles in those authorities to the facts is clearly what gives rise to the debate. 3 In my view the position concerning the subpoenas is different from the position concerning third party discovery on which I ruled in Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 8) [2010] FCA 1108. I take into account the fact that the categories sought have been narrowed to some degree and I also take into account the fact that while I declined to order third party discovery, which in some respects resembled the categories sought under the existing subpoenas, I specifically contemplated at that stage that the appropriate course would be to issue subpoenas in respect of those documents in due course. 4 As counsel for Schutz, Mr Bennett, points out, no objection has been raised by any party to the subpoenas and indeed all parties have either produced the documents where they are able to do so or have undertaken to produce them. Indeed they have done so notwithstanding that they are aware that VIP seeks to set aside the subpoenas. 5 I have examined the arguments raised for VIP in support of the suggestion that the categories of documents are both discursive and go beyond the pleaded issues, which arise both in the fourth further amended statement of claim and in the defence to that pleading. I accept, however, the arguments raised by Mr Bennett for Schutz that on their face the categories of documents as currently narrowed are apparently capable of being relevant to the pleaded issues and in that regard, I would largely adopt without repeating at length, the reasoning which he has advanced in his submissions. It seems to me quite clear that the categories sought in the subpoenas are not only apparently capable of being relevant to the issues between the parties but they could also throw light upon the pleaded issues. 6 VIP has not pointed to any other specific prejudice and, as I say, none of the subpoenaed parties has objected to the production. 7 Finally, of course, production of the documents under the subpoenas does not automatically enable them to be admitted into evidence. It will be a question primarily of relevance, which may well be debated at the material time, but for present purposes in my view the application to dismiss the subpoenas should be dismissed with costs. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate: Dated: 12 November 2012