Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 6)

• Jurisdiction: Australia Federal only
• Court: Federal Court
• Judge: STEWART J
• Judgment Date: 07 March 2019
• Neutral Citation: [2019] FCA 337
• Date: 07 March 2019

FEDERAL COURT OF AUSTRALIA

Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 6) [2019] FCA 337

File number:	NSD 1816 of 2004
Judge:	STEWART J
Date of judgment:	7 March 2019
Date of publication of reasons:	12 March 2019
Catchwords:	PRIVILEGE – application for production of unredacted documents – whether cross-claimants waived legal professional privilege over redacted portions of documents produced under notices to produce – where entire documents would otherwise attract legal professional privilege ; PRACTICE AND PROCEDURE – application for suppression and non-publication order – whether order necessary for proper administration of justice – where order sought over portions of documents originally redacted on claim of legal professional privilege – where order originally sought on interim basis
Legislation:	Federal Court of Australia Act 1976 (Cth) ss 37AE, 37AF, 37AG, 37AI
Cases cited:	Attorney-General (NT) v Maurice [1986] HCA 80; 161 CLR 475 Australian Competition and Consumer Commission v Cascade Coal Pty Ltd (No 1) [2015] FCA 607; 331 ALR 68 Bailey v Director-General, Department of Land and Water Conservation [2009] NSWCA 100; 74 NSWLR 333 British American Tobacco Australia Ltd v Secretary, Department of Health and Ageing [2011] FCAFC 107; 195 FCR 123 Commissioner of Taxation v Rio Tinto Ltd [2006] FCAFC 86; 151 FCR 341 DSE (Holdings) Pty Ltd v Intertan Inc [2003] FCA 384; 127 FCR 499 Esso Australia Resources Limited v Commissioner of Taxation (Cth) [1999] HCA 67; 201 CLR 49 Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. (No 4) [2017] FCA 1345 Guy v Crown Melbourne Ltd (No 2) [2018] FCA 36; 355 ALR 420 Hastie Group Ltd (in liq) v Moore [2016] NSWCA 305; 339 ALR 635 Hearne v Street [2008] HCA 36; 235 CLR 125 Hogan v Australian Crime Commission [2010] HCA 21; 240 CLR 651 Mann v Carnell [1999] HCA 66; 201 CLR 1 Osland v Secretary, Department of Justice [2008] HCA 37; 234 CLR 275
Date of hearing:	6 March 2019
Registry:	New South Wales
Division:	General Division
National Practice Area:	Intellectual Property
Sub-area:	Trade Marks
Category:	Catchwords
Number of paragraphs:	86
Counsel for the Applicant / Cross-Respondent:	D B Larish
Solicitor for the Applicant / Cross-Respondent:	King & Wood Mallesons
Counsel for the Respondents / Cross-Claimants:	C Cochrane
Solicitor for the Respondents / Cross-Claimants:	Quinn Emanuel Urquhart & Sullivan

ORDERS

		NSD 1816 of 2004
between:	FEDERAL TREASURY ENTERPRISE (FKP) SOJUZPLODOIMPORT First Cross-Claimant ; FEDERAL PUBLIC UNITARY ENTERPRISE EXTERNAL ECONOMIC UNION SOJUZPLODOIMPORT (FGUP VO) Second Cross-Claimant
AND:	SPIRITS INTERNATIONAL B.V. (REGISTERED IN THE NETHERLANDS) Cross-Respondent
IN THE INTERLOCUTORY APPLICATION:
BETWEEN:	SPIRITS INTERNATIONAL B.V. (REGISTERED IN THE NETHERLANDS) Applicant
AND:	FEDERAL TREASURY ENTERPRISE (FKP) SOJUZPLODOIMPORT First Respondent ; FEDERAL PUBLIC UNITARY ENTERPRISE EXTERNAL ECONOMIC UNION SOJUZPLODOIMPORT (FGUP VO) Second Respondent

JUDGE:	STEWART J
DATE OF ORDER:	7 MARCH 2019

THE COURT ORDERS THAT:

1. Subject to order 3 below, the Cross-Claimants produce to the Cross-Respondent the following documents forthwith:

   1. An unredacted copy of the Joint Opinion dated 8 November 2017 referred to in paragraph 20 of the affidavit of Ms Semenova dated 14 February 2019 (“Affidavit”) (annexure G);

   2. An unredacted copy of the email dated 24 April 2017 from Ms Semenova to Agility Legal Pty Ltd (“Agility Legal”) referred to in paragraph 21(c) of the Affidavit, together with unredacted copies of the emails in that string (annexure H);

   3. An unredacted copy of the Advice on Prospects dated 11 December 2017 referred to in paragraph 23 of the Affidavit (annexure I);

   4. An unredacted copy of the letter dated 12 January 2019 from Agility Legal to Ms Semenova referred to in paragraph 24 of the Affidavit (annexure J);

   5. An unredacted copy of the letter dated 23 March 2018 from Agility Legal to Ms Semenova referred to in paragraph 24 of the Affidavit (“23 March Letter”) (annexure K);

   6. An unredacted copy of the email dated 20 February 2018 from Agility Legal to Ms Semenova and an unredacted copy of the email dated 13 March 2018 from Federal Treasury Enterprise (FKP) Sojuzplodoimport (“FKP”) to Agility Legal (annexure L);

   7. Save that the redactions of the heading immediately preceding paragraph 13 and paragraphs 13 to 16 may be retained, an unredacted copy of the email dated 13 July 2018 from Agility Legal to Ms Semenova referred to in paragraph 25 of the Affidavit (annexure M);

   8. An unredacted copy of the letter dated 27 July 2018 from Agility Legal to Ms Semenova referred to in paragraph 28 of the Affidavit (“27 July Letter”), together with unredacted copies of all attachments (annexure N);

   9. An unredacted copy of the the email from Mr Sokolov to Agility dated 27 April 2018 produced under the Second Notice to Produce (an email within tab 11);

   10. An unredacted copy of the email dated 22 November 2018 from Agility Legal to FKP produced under the Second Notice to Produce, together with unredacted copies of emails in that string (tab 12); and

   11. An unredacted copy of the email dated 26 November 2018 from FKP to Agility Legal under the Second Notice to Produce, together with unredacted copies of emails in that string (tab 21).

2. Paragraphs 1 and 2 of the interlocutory application filed on 1 March 2019 otherwise be dismissed.

3. Pursuant to ss 37AF and 37AI of the Federal Court of Australia Act 1976 (Cth), the documents referred to in order 1 shall be kept confidential and shall not be published or disclosed until 7 March 2019 at 4.00 pm or further order on the ground that it is necessary to prevent prejudice to the administration of justice, save that access to the documents be granted forthwith under order 1 to the Cross-Respondent’s Australian solicitors and counsel.

4. The matter be listed on 7 March 2019 at 2.00 pm to reconsider the interim confidentiality order in order 3 and to hear submissions on costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

ORDERS

		NSD 1816 of 2004
between:	FEDERAL TREASURY ENTERPRISE (FKP) SOJUZPLODOIMPORT First Cross-Claimant ; FEDERAL PUBLIC UNITARY ENTERPRISE EXTERNAL ECONOMIC UNION SOJUZPLODOIMPORT (FGUP VO) Second Cross-Claimant
AND:	SPIRITS INTERNATIONAL B.V. (REGISTERED IN THE NETHERLANDS) Cross-Respondent
JUDGE:	STEWART J
DATE OF ORDER:	7 MARCH 2019

THE COURT ORDERS THAT:

1. The interim confidentiality order in order 3 of the orders made on 7 March 2019 at 9.15 am be discharged.

2. The Cross-Claimants pay the costs of the interlocutory application filed on 1 March 2019.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

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