Pro-Pac Packaging (Aust) Pty Ltd v Penn (No 2) [2020] FCA 710

Pro-Pac Packaging (Aust) Pty Ltd v Penn (No 2) [2020] FCA 710

The trigger date previously fixed gave Pro-Pac a reasonable time to commence any substantive proceedings. The reasons advanced for extending it—work in related proceedings, COVID-19 constraints, delay in seeking client access to the discovered document, and alleged absence of prejudice—were insufficient, particularly where the respondents had cooperated, only one approximately 300-page document had been produced, two respondents produced no documents, and dismissal would not prevent later substantive proceedings. The proceedings should therefore be dismissed and costs consequences imposed.

Jurisdiction
Australia
Judgment Date
25 May 2020
Procedural Posture
Preliminary Discovery Application Under R 7.23 of the Federal Court Rules 2011 (cth) / Application by the Prospective Applicant to Extend the Time for Commencement of Substantive Proceedings After Preliminary Discovery Had Been Given; Respondents Sought Dismissal and Costs
Outcome
Extension of the trigger date refused; preliminary discovery proceedings otherwise dismissed; costs ordered against the Prospective Applicant, with submissions invited on whether it should also pay the Third Prospective Respondent's costs of the proceedings.
Legal Topics
['preliminary Discovery' 'costs' 'dismissal of Proceedings' 'implied Undertaking' 'breach of Employment Contracts' 'breach of Confidence' 'corporations Act Duties']
['practice and Procedure' 'commercial and Corporations' 'employment' 'corporations Law'] ['preliminary Discovery' 'costs' 'dismissal of Proceedings' 'implied Undertaking' 'breach of Employment Contracts' 'breach of Confidence' 'corporations Act Duties']

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Procedural Posture

Preliminary Discovery Application Under R 7.23 of the Federal Court Rules 2011 (cth) / Application by the Prospective Applicant to Extend the Time for Commencement of Substantive Proceedings After Preliminary Discovery Had Been Given; Respondents Sought Dismissal and Costs

Legal Issues

  1. 1 ['Whether the trigger date for commencing substantive proceedings should be extended to 19 June 2020 for the purposes of costs consequences.' 'Whether the preliminary discovery proceedings should be dismissed after the respondents had provided discovery.' "Whether Pro-Pac should pay the respondents' costs of giving preliminary discovery and of the proceedings."]

Ratio Decidendi

The trigger date previously fixed gave Pro-Pac a reasonable time to commence any substantive proceedings. The reasons advanced for extending it—work in related proceedings, COVID-19 constraints, delay in seeking client access to the discovered document, and alleged absence of prejudice—were insufficient, particularly where the respondents had cooperated, only one approximately 300-page document had been produced, two respondents produced no documents, and dismissal would not prevent later substantive proceedings. The proceedings should therefore be dismissed and costs consequences imposed.

Court Disposition

Extension of the trigger date refused; preliminary discovery proceedings otherwise dismissed; costs ordered against the Prospective Applicant, with submissions invited on whether it should also pay the Third Prospective Respondent's costs of the proceedings.

Orders

  • ["The Prospective Applicant is to pay the First and Second Prospective Respondents' costs of giving preliminary discovery, and of these proceedings." "The Prospective Applicant is to pay the Third Prospective Respondent's costs of giving preliminary discovery." "Within seven days of the date of this order, the...