Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 5) [2010] FCA 1105

Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 5) [2010] FCA 1105

VIP was released from the undertaking because circumstances had considerably changed since it was given: VIP had obtained approval for its cross-bottled DG IBCs, the competent dangerous goods authorities were aware of Schutz's concerns and had scrutinised VIP's practices, VIP remained subject to ongoing statutory inspection and testing obligations, and there was insufficient evidence that VIP would supply uncertified products or that public safety required continued restraint. The pleaded certification misrepresentation had lost force once certification had been obtained, and the alternative labelling undertaking was sufficient pending trial or further order.

Jurisdiction
Australia
Judgment Date
13 October 2010
Procedural Posture
Trade Practices Interlocutory Injunction and Undertaking Motion / Motion by Respondents/cross Claimants to Be Released From Undertaking Given to the Court on 27 August 2009
Outcome
Motion granted; respondents/cross-claimants released from the undertaking dated 27 August 2009 and substituted undertakings accepted.
Legal Topics
['release of Undertaking to the Court' 'changed Circumstances' 'misleading or Deceptive Conduct' 'certification for Transport of Dangerous Goods' 'cross Bottled Intermediate Bulk Containers' 'balance of Convenience' 'public Safety']
['trade Practices' 'dangerous Goods Regulation' 'interlocutory Injunctions' 'competition'] ['release of Undertaking to the Court' 'changed Circumstances' 'misleading or Deceptive Conduct' 'certification for Transport of Dangerous Goods' 'cross Bottled Intermediate Bulk Containers' 'balance of Convenience' 'public Safety']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Trade Practices Interlocutory Injunction and Undertaking Motion / Motion by Respondents/cross Claimants to Be Released From Undertaking Given to the Court on 27 August 2009

Legal Issues

  1. 1 ['Whether VIP should be released from its undertaking not to sell, offer for sale or distribute Cross-Bottled IBCs designated as suitable for the transport of dangerous goods.' 'Whether changed circumstances, including WorkCover Victoria approval number 30746 and competent authority supervision, justified reconsideration of the interlocutory undertaking.' 'Whether release from the undertaking would create a real risk of misleading or deceptive conduct concerning certification, affiliation or authorisation.' 'Whether the alternative labelling undertaking offered by VIP was sufficient pending trial or further order.']

Ratio Decidendi

VIP was released from the undertaking because circumstances had considerably changed since it was given: VIP had obtained approval for its cross-bottled DG IBCs, the competent dangerous goods authorities were aware of Schutz's concerns and had scrutinised VIP's practices, VIP remained subject to ongoing statutory inspection and testing obligations, and there was insufficient evidence that VIP would supply uncertified products or that public safety required continued restraint. The pleaded certification misrepresentation had lost force once certification had been obtained, and the alternative labelling undertaking was sufficient pending trial or further order.

Court Disposition

Motion granted; respondents/cross-claimants released from the undertaking dated 27 August 2009 and substituted undertakings accepted.

Orders

  • ['The respondents/cross-claimants be released from the undertaking to the Court dated 27 August 2009, referred to in Order 2 of the Orders of the Court made on 6 October 2009.' "In lieu thereof the respondents/cross-claimants undertake that they, whether by themselves, their officers, servants, agents or otherwise,...