Schutz DSL (Australia) Pty Ltd (ACN 009 069 907) v VIP Plastic Packaging Pty Ltd (ACN 095 313 705) (No 3) [2009] FCA 1195

Schutz DSL (Australia) Pty Ltd (ACN 009 069 907) v VIP Plastic Packaging Pty Ltd (ACN 095 313 705) (No 3) [2009] FCA 1195

The draft letter should be modified so that it gives important information to the identified customers in a proportionate, non-alarmist and non-directive manner, records that VIP disputes the allegations and gave its undertaking without admissions, confines the certification contention to the status at the time of sale, and includes a recommendation for independent legal advice only if customers have concerns or are unclear about the matters raised. The approved form was Attachment D.

Jurisdiction
Australia
Judgment Date
21 October 2009
Procedural Posture
Federal Court Proceeding Concerning Alleged Misleading and Deceptive Conduct Under the Trade Practices Act 1974 (cth) and Trade Mark Infringement / Interlocutory Order Settling the Form of Correspondence to Third Party Customers After Disclosure of Customer Details Pursuant to Norwich Pharmacal Relief
Outcome
The Court approved the form of letter to be sent, if any, to the five identified VIP customers in the form of Attachment D and reserved costs associated with that order.
Legal Topics
['norwich Pharmacal Relief' 'third Party Customer Notification' 'misleading and Deceptive Conduct' 'trade Mark Infringement' 'composite Intermediate Bulk Containers' 'dangerous Goods Certification' 'interlocutory Undertakings']
['civil Procedure' 'trade Practices' 'trade Marks' 'dangerous Goods Regulation'] ['norwich Pharmacal Relief' 'third Party Customer Notification' 'misleading and Deceptive Conduct' 'trade Mark Infringement' 'composite Intermediate Bulk Containers' 'dangerous Goods Certification' 'interlocutory Undertakings']

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Procedural Posture

Federal Court Proceeding Concerning Alleged Misleading and Deceptive Conduct Under the Trade Practices Act 1974 (cth) and Trade Mark Infringement / Interlocutory Order Settling the Form of Correspondence to Third Party Customers After Disclosure of Customer Details Pursuant to Norwich Pharmacal Relief

Legal Issues

  1. 1 ["Whether the applicants' proposed letter to five customers identified by the respondents went beyond what was proposed to the Court by threatening possible legal action." 'Whether the heading and wording of the letter should be modified so that the communication was not alarmist or directive.' 'Whether the letter should recommend that customers obtain independent legal advice about dangerous goods legislation.' 'Whether the letter should state that VIP disputed the allegations and was defending the proceeding.' 'Whether the statement about certification of DG Cross-Bottled IBCs should be confined to the time they were sold to the customers.']

Ratio Decidendi

The draft letter should be modified so that it gives important information to the identified customers in a proportionate, non-alarmist and non-directive manner, records that VIP disputes the allegations and gave its undertaking without admissions, confines the certification contention to the status at the time of sale, and includes a recommendation for independent legal advice only if customers have concerns or are unclear about the matters raised. The approved form was Attachment D.

Court Disposition

The Court approved the form of letter to be sent, if any, to the five identified VIP customers in the form of Attachment D and reserved costs associated with that order.

Orders

  • ["The letter to be dispatched (if any), to the five customers of VIP Plastic Packaging Pty Ltd and VIP Steel Packaging Pty Ltd identified in the affidavit of Mr Andrew Robert Smith sworn 13 October 2009 be in the form of Attachment 'D' to these reasons." 'Costs associated with order 1 be reserved.']