Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited
[2011] FCA 298
•29 March 2011
FEDERAL COURT OF AUSTRALIA
Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2011] FCA 298
Citation: Jarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2011] FCA 298 Parties: JARRA CREEK CENTRAL PACKING SHED PTY LTD (ACN 085 691 425) v AMCOR LIMITED (ACN 000 017 372), AMCOR PACKAGING (AUSTRALIA) PTY LIMITED (ACN 004 275 165), FIBRE CONTAINERS (QUEENSLAND) PTY LIMITED (ACN 051 607 517), VISY BOARD PTY LTD (ACN 005 787 913), VISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968) and VISY INDUSTRIES (AUSTRALIA) PTY LTD (ACN 004 337 615) File number: NSD 702 of 2006 Judge: FOSTER J Date of judgment: 29 March 2011 Legislation: Federal Court Rules O 46 r 6(1) Date of hearing: 29 March 2011 Place: Sydney Division: GENERAL DIVISION Category: No Catchwords Number of paragraphs: 13 Counsel for the Applicant: Mr IS Wylie Solicitor for the Applicant: Maurice Blackburn Pty Limited Counsel for the First, Second and Third Respondents: Mr M Darke Solicitor for the First, Second and Third Respondents: Allens Arthur Robinson Counsel for the Fourth, Fifth and Sixth Respondents: Ms V Whittaker Solicitor for the Fourth, Fifth and Sixth Respondents: Arnold Bloch Liebler
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 702 of 2006
BETWEEN: JARRA CREEK CENTRAL PACKING SHED PTY LTD (ACN 085 691 425)
ApplicantAND: AMCOR LIMITED (ACN 000 017 372)
First Respondent/First Cross-Claimant and Fourth Cross-RespondentAMCOR PACKAGING (AUSTRALIA) PTY LIMITED (ACN 004 275 165)
Second Respondent/Second Cross-Claimant and Fifth Cross-RespondentFIBRE CONTAINERS (QUEENSLAND) PTY LIMITED (ACN 051 607 517)
Third Respondent/Third Cross-Claimant and Sixth Cross-RespondentVISY BOARD PTY LTD (ACN 005 787 913)
Fourth Respondent/Fourth Cross-Claimant and First Cross-RespondentVISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968)
Fifth Respondent/Fifth Cross-Claimant and Second Cross-RespondentVISY INDUSTRIES (AUSTRALIA) PTY LTD (ACN 004 337 615)
Sixth Respondent/Sixth Cross-Claimant and Third Cross-Respondent
JUDGE:
FOSTER J
DATE OF ORDER:
29 MARCH 2011
WHERE MADE:
SYDNEY
THE COURT:
1.ORDERS that, up to and including 29 April 2011 or until further order, pursuant to O 46 r 6(1) of the Federal Court Rules, the Written Opening Submissions filed by the respondents be and remain confidential.
2.DIRECTS the solicitors for the applicant to serve upon the solicitors for Fairfax Media Publications Pty Limited the approval Notice of Motion and all affidavits in support (but not including material in respect of which confidentiality is claimed), such service to be effected on 21 April 2011 (and not before).
3.DIRECTS Fairfax Media Publications Pty Limited to notify by no later than 27 April 2011 any party whose claims for confidentiality are to be challenged by Fairfax Media Publications Pty Limited of the fact that such challenge will be made and of the grounds of such challenge.
4.ORDERS that the application made by Fairfax Media Publications Pty Limited for access to the respondents’ Written Opening Submissions be adjourned for further consideration to 29 April 2011.
5.ORDERS that the costs to date of the said application made by Fairfax Media Publications Pty Limited be reserved.
6.GRANTS to all parties liberty to apply on three days’ notice, or on such shorter notice as a Judge might direct.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 702 of 2006
BETWEEN: JARRA CREEK CENTRAL PACKING SHED PTY LTD (ACN 085 691 425)
ApplicantAND: AMCOR LIMITED (ACN 000 017 372)
First Respondent/First Cross-Claimant and Fourth Cross-RespondentAMCOR PACKAGING (AUSTRALIA) PTY LIMITED (ACN 004 275 165)
Second Respondent/Second Cross-Claimant and Fifth Cross-RespondentFIBRE CONTAINERS (QUEENSLAND) PTY LIMITED (ACN 051 607 517)
Third Respondent/Third Cross-Claimant and Sixth Cross-RespondentVISY BOARD PTY LTD (ACN 005 787 913)
Fourth Respondent/Fourth Cross-Claimant and First Cross-RespondentVISY INDUSTRIES HOLDINGS PTY LTD (ACN 005 787 968)
Fifth Respondent/Fifth Cross-Claimant and Second Cross-RespondentVISY INDUSTRIES (AUSTRALIA) PTY LTD (ACN 004 337 615)
Sixth Respondent/Sixth Cross-Claimant and Third Cross-Respondent
JUDGE:
FOSTER J
DATE:
29 MARCH 2011
PLACE:
SYDNEY
REASONS FOR JUDGMENT
When this proceeding was called on before me last Thursday (24 March 2011), the solicitor for Fairfax Media Publications Pty Limited (Fairfax) informed me that his client wished to make an application for access to the written opening submissions made by the respondents in the proceeding pursuant to directions of the docket judge. At the time when that application was made, I deferred consideration of it until this morning in order to enable each of the interested parties to consider their position, to discuss the matter and, if necessary, to file Written Submissions on the question of access.
Yesterday, the respondents and Fairfax lodged with my Associate full Written Submissions on the question of access. The respondents opposed any access to their Opening Submissions. Fairfax sought access on terms that a reasonable level of confidentiality, if claimed, would be respected.
When the matter was called on before me this morning, I indicated to Counsel for Fairfax that my preliminary view was that I would decline his client’s access application at this stage. I informed Counsel that, in my view, a refusal of access now would not prevent his client from making a further application at a later point in time. In particular, I suggested that one point in time which might be convenient would be when the documentation in support of the approval application was available which, as matters have turned out, will be late April 2011.
After some discussion between Counsel for Fairfax and myself concerning my present views, Counsel requested that I defer further consideration of his client’s application so that it could be reconsidered in light of future developments in the matter and, in particular, in light of the terms of the material that will become available to the public once the affidavits in support of the approval motion are filed and served.
Counsel for the respondents did not oppose a deferral of the present application. In effect, that application is made by consent.
However, two matters were not agreed.
The first is the question of costs. The respondents seek the costs of Fairfax’s access application. They submit that they have been put to considerable trouble and expense and were ready to proceed this morning. They argued that Fairfax has effectively abandoned its access application for the time being.
There is much force in the respondents’ submissions, particularly in light of the fact that the parties’ Written Submissions directed to Fairfax’s access application may not turn out to be all that useful if the application is renewed at a later date. However, it seems to me that the utility of those submissions is best judged later when the application is renewed, rather than anticipated at this point in time. For this reason I propose to reserve the costs to date of Fairfax’s access application.
The second matter about which there is a contest concerns the question of whether I should protect the respondents’ Opening Submissions by making a confidentiality order in respect of them pursuant to O 46 r 6(1) of the Federal Court Rules. The respondents sought such an order. Counsel for Fairfax opposed the making of such an order. He submitted that there was no evidence before me which would support such an order.
It seems to me that, in order to avoid unnecessary arguments directed to what are nothing more than mere matters of form, I should make an order under O 46 r 6(1) that the respondents’ Written Opening Submissions in this proceeding be confidential for the period up to and including 29 April 2011, which is the date which I have fixed for the approval hearing.
If, as I expect, Fairfax presses an application for access in light of the material then available to the public, then the future disposition of the respondents’ Opening Submissions can be dealt with as a matter of substance in light of such application. It is for that reason that I will make the order under O 46 r 6(1) and not for any other.
I also propose to direct the solicitors for the applicant to serve upon the solicitors for Fairfax the approval Notice of Motion and all affidavits in support.
There will be orders accordingly.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate:
Dated: 30 March 2011
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