FEDERAL COURT OF AUSTRALIA Pro-Pac Packaging (Aust) Pty Ltd v Penn [2020] FCA 540 File number: NSD 126 of 2020 Judge: BURLEY J Date of judgment: 17 April 2020 Date of publication of reasons: 23 April 2020 Catchwords: PRACTICE AND PROCEDURE – whether prospective applicant should be released from implied undertaking in respect of documents produced in preliminary discovery – where prospective applicant has commenced proceedings in the Federal Court against the first prospective respondent and others – where all parties in both proceedings consent to the release Cases cited: Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283 Rinehart v Rinehart (No 3) [2016] NSWSC 1645 Date of hearing: 17 April 2020 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Category: Catchwords Number of paragraphs: 5 Counsel for the Prospective Applicant: J. Dooley Solicitor for the Prospective Applicant: Allens Counsel for the First and Second Prospective Respondents: D. Larish Solicitor for the First and Second Prospective Respondents: Abadee Dresdner & Freeman Pty Ltd Counsel for the Third Prospective Respondent: The Third Prospective Respondent did not appear ORDERS NSD 126 of 2020 BETWEEN: PRO-PAC PACKAGING (AUST) PTY LTD (ACN 059 499 660) Prospective Applicant AND: BRANDON PENN First Prospective Respondent NENAD MILINKOVIC Second Prospective Respondent GORDON FENBOW Third Prospective Respondent JUDGE: BURLEY J DATE OF ORDER: 17 APRIL 2020 THE COURT ORDERS THAT: 1. The Prospective Applicant is released from its implied undertaking so as to permit use of the email from Wendy Penn to Nick Papadimatos and Nenad Milinkovic of 9 December 2019 at 10.13am, with the subject line 'Emailing: ECO tray pricelist-04122019' and its attachment in Federal Court proceedings NSD 127 of 2020. 2. The matter be listed for case management hearing on 22 May 2020. 3. The parties have liberty to apply on 3 days' notice. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (Revised from transcript) BURLEY J: 1 The Prospective Applicant in the present proceedings is Pro-Pac Packaging (Aust) Pty Ltd. Brandon Penn, Nenad Milinkovic, and Gordon Fenbow are, respectively, the First, Second and Third Prospective Respondents. The Prospective Applicant now seeks an order that: In respect of the email from Wendy Penn to Nick Papadimatos and Nenad Milinkovic of 9 December 2019 at 10.13 am, whose subject line is "Emailing: Eco tray pricelist-04122019" and its attachment, as produced in these proceedings by the First and Second Prospective Respondents, the [Prospective] Applicant is released from its implied undertaking so as to permit use of the document by the [Prospective] Applicant in [Federal Court] proceedings number NSD 127 of 2020. 2 These proceedings involve an application for preliminary discovery of certain documents from the Prospective Respondents. One of the documents produced in answer to that application is the email the subject of the proposed order. The proceedings in which the document is sought to be used, NSD 127 of 2020, involve some overlapping parties. The Applicant in those proceedings is the present Prospective Applicant. The Respondents are Linhua Packaging Pty Ltd, Mr Brandon Penn and Ms Wendy Penn. The solicitors for the First and Second Prospective Respondents in the present proceedings also act for the three Respondents in NSD 127 of 2020. 3 The bases on which the application for the order set out above is put is threefold. First, the parties in the present proceedings, and the Respondents in the NSD 127 of 2020 proceedings, consent to the order. Secondly, the document is a single email and attachment that the Prospective Applicant contends is likely to be relevant to the dispute in proceedings NSD 127 of 2020. Whilst the First and Second Prospective Respondents do not concede that the document is likely to be sufficiently relevant to be admissible in the proceedings, they do not otherwise dispute its relevance, or the making of the order. Thirdly, the document was generated in December 2019, prior to these proceedings and proceedings NSD 127 of 2020 being commenced, and it is apparent on the face of the document that it is a business record prepared before the commencement of the litigation. 4 The principles relevant to the ascertainment of the "special circumstances" required before a court will provide a release from an implied undertaking are well-established, and are set out in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; 218 ALR 283 at [31]. See also, in the context of a preliminary discovery application, Rinehart v Rinehart (No 3) [2016] NSWSC 1645 at [12] to [15]. 5 I am satisfied that special circumstances exist to warrant, that is to say, that there is good reason to justify the making of the order, substantially for the reasons provided in the submissions advanced on behalf of the Prospective Applicant. I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Burley. Associate: Dated: 23 April 2020