Australian Competition and Consumer Commission v Unique International College (No 3)

[2016] FCA 592

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Unique International College (No 3) [2016] FCA 592

File number:	NSD 1277 of 2015
Judge:	PERRAM J
Date of judgment:	26 May 2016
Catchwords:	PRACTICE AND PROCEDURE – subpoena – application to set aside
Date of hearing:	18 May 2016
Registry:	New South Wales
Division:	General Division
National Practice Area:	Commercial and Corporations
Sub-area:	Regulator and Consumer Protection
Category:	Catchwords
Number of paragraphs:	7
Counsel for the Applicant:	Mr N O’Bryan SC and Mr D Tynan
Solicitor for the Applicant:	Australian Government Solicitor
Counsel for the Respondent:	Mr D Pritchard SC and Mr R Davies
Solicitor for the Respondent:	Minter Ellison

ORDERS

NSD 1277 of 2015

BETWEEN:

AUSTRALIAN COMPETITION AND CONSUMER COMMISSION

Applicant

AND:

UNIQUE INTERNATIONAL COLLEGE

Respondent

JUDGE:	PERRAM J
DATE OF ORDER:	18 MAY 2016

THE COURT ORDERS THAT:

1.The Respondent’s Interlocutory Application dated 12 May 2016 to set aside the subpoena to attend to give evidence addressed to Penelope Martin be dismissed.

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

REASONS FOR JUDGMENT

PERRAM J:

1. On Wednesday 18 May 2016 I dismissed the respondent’s application to set aside a subpoena to give evidence issued by the Court at the request of the applicants’ solicitors to Ms Penelope Martin, one of the respondent’s former employees.  Ordinarily I would not deliver written reasons for such a decision, but because it may have consequences for the conduct of the trial commencing on 6 June 2016, it is useful briefly to do so.

2. The parties have been jousting about Ms Martin’s evidence for some months now.  The short of it is that Ms Martin is probably bound by obligations of confidentiality not to disclose information about her former employer.  The respondent has declined to release her from these obligations so that she may confer with the applicants.  The applicants submit that they cannot deliver either a statement or outline of her expected evidence because they do not know what she is going to say.  Although the respondent submitted that the evidence showed that the applicants did, in fact, know what Ms Martin might say if called, I do not accept that this is so.

3. Accordingly, I accept that the applicants are unable to indicate what Ms Martin’s evidence will be.  They are, in effect, going to call her blind.

4. It was submitted on the respondent’s behalf that it would be procedurally unfair to permit the applicants to call Ms Martin without telling it what she was going to say.

5. In circumstances where the reason the applicants cannot say what Ms Martin’s evidence will be is because the respondent will not permit her to speak with them, the argument’s own terms will adequately explain the reasons for its rejection. 

6. This may well mean that the first time that the respondent knows what Ms Martin is going to say is when she says it.  But this is its own doing.  Even now it could cure the situation by permitting Ms Martin to speak with the applicants in advance of the trial, thereby permitting the service of a statement.  No doubt, it does not, as a matter of law, have to waive its rights of confidentiality.  But as presently advised, that is a matter which would appear, at least on its face, to be relevant to the question whether the respondent would be entitled to an adjournment.

7. For these reasons, I decided not to set aside the subpoena addressed to Ms Martin.

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram.

Associate:

Dated:       26 May 2016