ConSIDERATION
21 The schedules essentially constitute source evidence or summaries of source evidence from which conclusions have been expressed in other affidavits. In May 2012 Schütz filed and served six affidavits from its employees, each of which contained a paragraph or multiple paragraphs specifically referring to the cross-bottled IBC schedules. There is no proper basis in my view for declining access to those schedules when reliance is placed on the material said to be in them. In addition, references were made to versions of the cross-bottled IBC schedules in further affidavits of Ms Officer and Mr Bloomer to which I have referred above.
22 I am satisfied that VIP has justified the relevance of the material. Those grounds of relevance are set out in the supporting affidavit sworn by VIP's solicitor. More specifically, Schütz has pleaded that VIP's cross-bottling activity gives rise to a series of representations referred to as an 'Affiliation Representation' and certain 'Authorisation Representations' (See Fifth Further Amended Statement of Claim, paras [48] - [54]). In essence those allegations are that the act of cross-bottling a Schütz IBC gives rise to a representation that VIP is affiliated with Schütz or that the cross-bottled IBC is authorised by Schütz. I have discussed this in previous judgments. The persons to whom the representations are said to have been made include Schütz's customers and potential customers and VIP's customers and potential customers. VIP contends that no such representation is made.
23 VIP pleads in its Defence that cross-bottling is a well known practice in the Australian market and is not confined to VIP. This contention bears directly upon whether persons such as actual potential customers would consider that a cross-bottled IBC is affiliated with, or approved by, Schütz. The cross-bottled IBC schedules identify the sources of cages and bottles of cross-bottled IBCs from sources other than VIP. The redacted portions of the schedules may help VIP to test the evidence of Schütz witnesses concerning the practice of cross-bottling in Australia. It is material which is peculiarly within the possession of Schütz.
24 In addition, I accept VIP's submission that the cross-bottled IBC schedules may identify IBCs that have entered the Australian market from overseas which are relevant to matters in issue in the manner discussed above. VIP specifically alleges cross-bottling is prevalent and is an established practice internationally. Schütz does not admit this to be the position so the contention is directly in issue.
25 There is no general right to mask parts of documents on the grounds of alleged irrelevance as distinct from privilege. This was specifically discussed in Gray where Branson J said (at [14]-[15]):
[14] There is an established practice whereby inspection is provided of discovered documents with parts of the documents masked (Grofam Pty Limited v Australia and New Zealand Banking Group Limited (1993) 43 FCR 408; Optus Communications Pty Ltd v Telstra Corporation Ltd [1995] FCA 254; GEC Marconi Systems Pty Ltd v BHP Information Technology Pty Ltd [2000] FCA 593; Fort Dodge Australia Pty Limited v Nature Vet Pty Limited [2002] FCA 501; GE Capital Corporate Finance Group Ltd v Bankers Trust Co [1995] 1 WLR 172 (CA)). Where there is a valid claim for privilege in respect of the portion of the document withheld from inspection, this practice is based on a positive right to withhold from inspection that part of the document. However, there is no such positive right in respect of portions of documents sought to be withheld from inspection on the grounds of confidentiality or irrelevance (Telstra Corporation v Australis Media Holdings (McLelland CJ in Eq, 10 February 1997, unreported)).
[15] In my view, where in this Court categories of documents are required to be discovered and thereafter made available for inspection, the true obligation on the party giving discovery is the same as that identified by McLelland CJ in Eq in Telstra Corporation v Australis Media Holdings by reference to Pt 23 of the New South Wales Supreme Court Rules. The Chief Judge there said:
'Under the new discovery rules, Pt 23 of the Supreme Court Rules, … classes of documents required to be discovered may be, and were in the present case, specified not by reference to relevance to a fact or facts in issue, but by description of the nature of the documents, rendering it unnecessary to consider questions of relevance to an issue, as such. If in such cases the party giving discovery desires to withhold, by making or otherwise, production of part of a discoverable document on the ground that that part does not contribute to the satisfaction of any of the criteria by reference to which the class of documents is described, then it may be that a case can be made for giving effect to that desire, but in my view, unless there is some relevant qualification in the order for discovery, the order requires that the whole document be produced unless there is an agreement to the contrary by the party to which discovery is being made, or unless relief from the requirement, for example by making certain portions is obtained from the Court.'
26 In the 11 October 2011 orders, the redaction on the ground of relevance alone was not contemplated. Redaction only on the grounds of confidentiality was addressed. Although Schütz makes the point that these documents were not discovered documents but produced in evidence or proposed to be produced in evidence, the fact remains that there is not an automatic entitlement absent consent or order to redact on the grounds of irrelevance.
27 It is difficult to see in this instance that Schütz has a strong claim for confidentiality over the redacted portions of the cross-bottled IBC schedules given that it has previously disclosed on an open basis an earlier version of the document in the Bloomer affidavit. Nevertheless I would certainly entertain, should it be necessary to resolve this matter, some regime for confidentiality to protect this material. Senior counsel for VIP has made it clear that VIP would be willing to negotiate on that topic.