FEDERAL COURT OF AUSTRALIA

Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 7) [2010] FCA 1107

REASONS FOR JUDGMENT

INTRODUCTION

1                     The applicants/cross-respondents (Schutz) seek an order that a confidential exhibit being SEJ3 to the third affidavit of Mr Steven Edward Oliver Johnston (the third Johnston affidavit) in opposition to the respondents/cross-claimants (VIP) motion to discharge their undertakings sworn 7 July 2010 and filed by Schutz on 13 July 2010 be sealed on the Court file until further order of this Court.

2                     On 8 July 2010, Schutz filed an affidavit of M/s Philippa Honey annexing a true copy of the third Johnston affidavit.  The affidavit deliberately omitted the confidential exhibit.  A true copy of the third Johnston affidavit was filed as an annexure to M/s Honey’s affidavit because Mr Johnston swore his affidavit in Victoria.  Schutz’s solicitors were awaiting receipt of the original executed affidavit by post.  It was subsequently received and filed with the Court by Schutz on 13 July 2010 but inadvertently on that occasion the confidential exhibit was not removed and was also filed. 

3                     Schutz contends that it has maintained its claim for confidentiality in respect of the exhibit as it was marked ‘Confidential Exhibit SEJ3’ and was expressly referred to as being confidential in the affidavit on the basis that it contained information identifying an existing customer of Schutz.  The document concerned was a material safety data sheet for a particular product manufactured by a customer of Schutz.  It contains information that Schutz seeks to protect from disclosure to VIP and the public in circumstances where the parties to the litigation are trade rivals.  Each party to the dispute regard the identity of their respective customers as commercially sensitive.  

4                     The concern of Schutz is that as long as the exhibit remains unsealed on the Court file it is susceptible to an application being made by any non-party to the Court for leave to inspect the exhibit pursuant to O 46 r 6(3)(a) of the Federal Court Rules.  Similarly it is susceptible to inspection by VIP.  In light of the existing confidential regime in place between the parties the solicitors and counsel for VIP have been permitted to inspect the exhibit and can prepare their clients’ case.  On the other hand, the benefit to VIP learning the identity of one of Schutz’s existing customers has no direct forensic significance in the context of the current proceedings.

5                     VIP opposes the motion on the basis that the document is not confidential and that, in any event, the interests of Schutz are protected by undertakings offered by VIP.  VIP makes the point that the identity of the particular customer has been redacted but to that submission Schutz observes that the surrounding material would easily provide a springboard to ascertain the identity of the customer. 

6                     In my view, at least for present purposes until the confidentiality regime and access to it and those to whom access to confidential documents is to be granted are finally resolved, the document on the basis of the springboard point should remain confidential.  Accordingly I will direct that the document be sealed until further order of the Court.  Schutz should have 50% of its costs.  The error in disclosure was caused by Schutz but it has succeeded against opposition in this motion.  The orders will be:

1.                  The confidential exhibit SEJ3 to the third affidavit of Mr Steven Edward Oliver Johnston filed on 13 July 2010 be sealed on the Court file until further order of this Court.

2.                  The respondents/cross-claimants are to pay 50% of the applicants/cross-respondents’ costs of the motion to be taxed if not agreed. 

Associate: 

Dated:         13 October 2010