Schütz Australia Pty Ltd v VIP Plastic Packaging Pty Ltd (No 19) [2013] FCA 408

Schütz Australia Pty Ltd v VIP Plastic Packaging Pty Ltd (No 19) [2013] FCA 408

Although Schütz had been tardy and VIP would suffer prejudice from delay and additional cost, there remained a substantial period before the listed trial dates, it had not been specifically suggested that the trial dates would be lost, and specific objections to the affidavit material could be determined later. In those circumstances, and subject to VIP being compensated by costs thrown away and liberty to apply, Schütz should be permitted to file, serve and rely on the affidavit evidence so that it could put forward the case it sought to advance.

Jurisdiction
Australia
Judgment Date
03 May 2013
Procedural Posture
Practice and Procedure / Interlocutory Application for Leave to File and Serve Affidavits Out of Time and Rely on That Evidence at Trial
Outcome
Leave granted to file, serve and rely on specified affidavits, subject to later determination of objections; applicants/cross-respondents ordered to pay respondents/cross-claimants' costs thrown away; general liberty to apply granted.
Legal Topics
['extension of Time' 'leave to Rely on Evidence Filed Out of Time' 'case Management' 'prejudice' 'costs Thrown Away']
['civil Procedure' 'evidence'] ['extension of Time' 'leave to Rely on Evidence Filed Out of Time' 'case Management' 'prejudice' 'costs Thrown Away']

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Procedural Posture

Practice and Procedure / Interlocutory Application for Leave to File and Serve Affidavits Out of Time and Rely on That Evidence at Trial

Legal Issues

  1. 1 ['Whether the applicants/cross-respondents should be granted leave to file and serve affidavits out of time and rely on them at trial.' 'Whether the late evidence was confined to reply or introduced evidence in chief requiring a response from the respondents/cross-claimants.' 'Whether granting leave would prejudice the respondents/cross-claimants or disrupt the trial timetable.' 'Whether leave was in the interests of justice despite earlier defaults in compliance with programming orders.']

Ratio Decidendi

Although Schütz had been tardy and VIP would suffer prejudice from delay and additional cost, there remained a substantial period before the listed trial dates, it had not been specifically suggested that the trial dates would be lost, and specific objections to the affidavit material could be determined later. In those circumstances, and subject to VIP being compensated by costs thrown away and liberty to apply, Schütz should be permitted to file, serve and rely on the affidavit evidence so that it could put forward the case it sought to advance.

Court Disposition

Leave granted to file, serve and rely on specified affidavits, subject to later determination of objections; applicants/cross-respondents ordered to pay respondents/cross-claimants' costs thrown away; general liberty to apply granted.

Orders

  • ['The applicants/cross-respondents be granted leave to file and serve the affidavits of Sabine Rojahn sworn on 25 February 2013, Manfred Neef affirmed on 26 February 2013, Rolf Heinz Pürckhauer affirmed on 26 February 2013, and Philip Darren Pease sworn on 13 March 2013 pursuant to the orders made on 17 May 2012 as...