Berry v Innovia Security Pty Ltd (No 3)

Link copied
Case Copied 23 min read

FEDERAL COURT OF AUSTRALIA

Berry v Innovia Security Pty Ltd (No 3)

[2017] FCA 244

File number: NSD 2597 of 2013
Judge: RARES J
Date of judgment: 13 March 2017
Catchwords:

EVIDENCE – application for letter of request to be sent to judicial authorities of the United Kingdom pursuant to s 7 of the Foreign Evidence Act 1994 (Cth) – where person is unwilling to come to Australia to give evidence – where person is able to give evidence material to issues to be tried – where interests of justice are served by granting the order – whether trial judge can be appointed to take the evidence of the person in London

PRACTICE AND PROCEDURE – whether trial judge could hear final submissions in London – source of power of the Court to hear final submissions abroad – s 8(2) of the Foreign Evidence Act 1994 (Cth) – ss 47B and 48(1) of the Federal Court of Australia Act 1976 (Cth)

PRACTICE AND PROCEDURE – costs requirement in [3.6] of the Federal Court Overseas Service and Evidence Practice Note (GPN-OSE) – whether respondent’s undertaking to pay the Court’s and applicants’ costs and expenses of hearing in London creates apprehension of bias  
Legislation:

Federal Court of Australia Act 1976 (Cth) ss 12, 47B, 48

Foreign Evidence Act 1994 (Cth) ss 7, 8

Prevention of Corruption Act 1906 (UK) s 1

Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.  Opened for signature on 18 March 1970.  847 UNTS 241, art 9 (entered into force on 7 October 1972)

Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
Date of hearing: 16 February 2017
Date of last submissions: 28 February 2017
Registry: New South Wales
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Commercial Contracts, Banking, Finance and Insurance
Category: Catchwords
Number of paragraphs: 34
Counsel for the Applicants: Dr CS Ward SC
Solicitor for the Applicants: Marque Lawyers
Counsel for the Respondent: Mr CG Juebner
Solicitor for the Respondent: K&L Gates

ORDERS

NSD 2597 of 2013
BETWEEN:

BENOY BERRY

First Applicant

GLOBAL SECURE CURRENCY LIMITED (COMPANY NUMBER 05127761)

Second Applicant
AND:

INNOVIA SECURITY PTY LTD (FORMERLY KNOWN AS SECURENCY PTY LTD) ACN 072 353 452

Respondent

JUDGE:

RARES J

DATE OF ORDER:

10 MARCH 2017

THE COURT NOTES THAT:

1.The Respondent, by its counsel, undertakes:

(a)to be responsible for all expenses incurred by the Court, or by any person at the request of the Court, for the issuing and execution of the letter of request;

(b)to pay the expenses of the trial judge in connection with his attendance in London, England to take the evidence of Peter Michael Chapman (Mr Chapman);

(c)on being given notice of the amount of the expenses referred to in paragraphs (a) and (b) (or an estimate thereof), to pay the amount to the Registrar of the Court;

(d)to pay the reasonable costs and incidental expenses, that would not have been incurred had Mr Chapman given…

CaseChat AU logo

Keep reading for free

Create a free CaseChat account to read Berry v Innovia Security Pty Ltd (No 3) and more:

  • Read every judgment in full
  • Ask AI and get answers linked to paragraphs
  • See how each paragraph was cited in later cases
  • Download judgments as PDF or Word
Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details
Case
[2017] FCA 244
Decision Date

CaseChat Overview and Summary

The case of Berry v Innovia Security Pty Ltd (No 3) involves an application by the applicants, Dr Benoy Berry and Global Secure Currency Ltd, for an order under section 7 of the Foreign Evidence Act 1994 (Cth) to obtain evidence from a witness, Mr Peter Chapman, who resides in the United Kingdom. The applicants allege that Mr Chapman, a former employee of Innovia Security Pty Ltd, made false representations that led to the termination of an agency agreement. Innovia denies these allegations. The court had to decide whether it was in the interests of justice to make an order for Mr Chapman’s evidence to be taken in London, whether the trial judge could hear final submissions in London, and whether the respondent's undertaking to pay the court's and applicants' costs and expenses of the hearing in London created an apprehension of bias.

The court found that it was in the interests of justice to grant the order for Mr Chapman’s evidence to be taken in London, considering his unwillingness to travel to Australia and the materiality of his evidence. The court also determined that it could hear final submissions in London under section 8(2) of the Foreign Evidence Act 1994 (Cth) and sections 47B and 48(1) of the Federal Court of Australia Act 1976 (Cth). The court further held that the respondent’s undertaking to cover the costs and expenses did not create an apprehension of bias as both parties consented to the arrangement.

The orders made included sending a letter of request to the judicial authorities of the United Kingdom, setting the costs of the application, extending the mediation deadline, and granting liberty to apply. The letter of request sought Mr Chapman’s evidence to be taken in London, with the trial judge appointed to examine him and the possibility of hearing final submissions in London.

Orders

Orders of the court

2. Pursuant to section 7(1)(c) and 8 of the Foreign Evidence Act 1994 (Cth), a letter of request, substantially in the form of Annexure A (including the cover letter), be sent to the judicial authorities of the United Kingdom:

(a) by mail addressed to:

The Senior Master

For the attention of the Foreign Process Department

Room E16

Royal Courts of Justice

Strand

London, WC2A 2LL

United Kingdom

(b) by email addressed to foreignprocess.rcj@hmcts.gsi.gov.uk.

3. The cost of the application made by the Respondents for orders under sections 7 and 8 of the Foreign Evidence Act 1994 (Cth) filed 31 January 2017, including all the costs and expenses paid by the Respondent pursuant to the undertaking noted in paragrah 1 above, be the costs in the proceeding.

4. The date by which the parties must conclude the mediation is further extended to 28 April 2017.

5. Liberty to apply.

URGENT

## March 2017

The Senior Master

For the attention of the Foreign Process Department

Room E16

Royal Courts of Justice

Strand

London, WC2A 2LL

United Kingdom

Dear Senior Master

Letter of Request under the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters

Please find enclosed a Letter of Request under the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters (Hague Convention).

The Letter of Request has been issued so as to obtain the evidence of Michael Peter Chapman (Mr Chapman), who is understood to reside at 7 Nelson Terrace, Aylesbury, Buckinghamshire HP20 2JN.

The evidence of Mr Chapman is relevant to a civil proceeding presently before the Federal Court of Australia, Sydney Registry: Berry & Anor v Innovia Security Pty Ltd (No. NSD 2597 of 2013). The proceeding is listed for trial before the Honourable Justice Rares commencing 28 August 2017. It is understood that Mr Chapman will not voluntarily give evidence in the Australian proceeding.

Having regard to the importance of the evidence of Mr Chapman in the Australian proceeding, the Letter of Request seeks that the trial judge of the Australian proceeding be appointed to take the evidence of Mr Chapman in London. The trial judge and counsel for the parties are able to attend the taking of that evidence, in London, in the week commencing 4 September 2017.

The Letter of Request seeks that Mr Chapman be served with a subpoena (or other coercive process) to compel him to attend his examination (if possible, returnable on 4 September 2017) in London.

It is understood that Mr Chapman is presently on licence, following his conviction by a jury and subsequent sentence by his Honour Judge Grieve QC on 12 May 2016. It is also understood that there is a possibility Mr Chapman may seek to return to Brazil at the expiration of his licence (after April 2017), where he had been residing before being extradited to face trial in the United Kingdom.

Accordingly, it is requested that the Letter of Request be considered urgently, so as to take all reasonable steps to serve Mr Chapman with a subpoena (or other coercive process) before the end of April 2017.

In addition to the examination of Mr Chapman sought in the Letter of Request, Justice Rares would be grateful if consideration could be given to whether it would be possible for his Honour to hear closing submissions by the parties (which would be expected to last no more than 1 day) at the end of Mr Chapman’s examination. Judge Grieve QC noted when sentencing Mr Chapman that he suffered “acute and chronic ill-health with a number of debilitating symptoms”. There is also a possibility that it may also be convenient to hear submissions if Mr Chapman is either not called, or if he is, it is necessary to adjourn his examination from time to time to take account of his medical needs.

Yours faithfully

No. NSD 2597 of 2013

Federal Court of Australia

District Registry: New South Wales

Division: General

BENOY BERRY

First Applicant

and

GLOBAL SECURE CURRENCY LIMITED

(COMPANY NUMBER 05 127 761)

Second Applicant

and

INNOVIA SECURITY PTY LTD formally known as

SECURENCY INTERNATIONAL PTY LTD (ACN 072 353 452)

Respondent

LETTER OF REQUEST

Request for international judicial assistance pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters

1. Sender

The Honourable Chief Justice Allsop AO, Federal Court of Australia, Queens Square, Sydney, 2000, Australia

2. Central Authority of the Requested State

The Senior Master, For the attention of the Foreign Process Section, Room E16, Royal Courts of Justice, Strand, London WC2A 2LL, England

3. Person to whom executed request is to be returned

Federal Court of Australia, through the Secretary, Commonwealth Attorney General's Department

4. In conformity with article 3 of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters, the undersigned applicant has the honour to submit the following request:

5. Requesting judicial authority (article 3, a)

Federal Court of Australia, New South Wales Registry, Level 17 Law Courts Building, Queens Square Sydney NSW 2000, Australia

6. To the competent authority of (article 3, a)

United Kingdom

7. Names and addresses of the parties and their representatives (article 3, b)

Applicants

Benoy Berry and Global Secure Currency Limited

C/- Marque Lawyers, Level 4, 343 George St, Sydney NSW 2000, Australia

Respondent

Innovia Security Pty Ltd

C/- K&L Gates, Level 25 (South Tower), 525 Collins Street, Melbourne VIC 3000, Australia

8. Nature and purpose of the proceedings and summary of the facts (article 3, c)

See Attachment “A”

9. Evidence to be obtained or other judicial act to be performed (article 3, d)

See Attachment “B”

10. Identity and address of any person to be examined (article 3, f)

Peter Michael Chapman, 7 Nelson Terrace, Aylesbury, Buckinghamshire HP20 2JN

11. Questions to be put to the persons to be examined or statement of the subject-matter about which they are to be examined (article 3, f)

See Attachment “C”

12. Any requirement that the evidence be given on oath or affirmation and any special form to be used (article 3, h)

It is requested that the evidence from the examinee be taken on oath or affirmation or otherwise in accordance with the judicial procedures of the requested State.

13. Special methods or procedure to be followed (articles 3, i and 9)

It is requested that the Honourable Justice Rares of the Federal Court of Australia be appointed to act as the examiner.

It is further requested that:

· a transcript of the examination be reduced to writing;

· all books, documents and things produced and referred to during the examination be duly marked for identification;

· the transcript of the examination, including all books, documents and things marked for identification, should be signed by the judicial officer or judge’s associate before whom the examination takes place;

· only if the Honourable Justice Rares is not appointed to act as examiner, the examination be video recorded and certified by the examiner.

14. Request for measures of compulsion (Article 10)

It is requested that the examinee, Peter Michael Chapman, be compelled, by subpoena (or other appropriate means) to attend his examination.

Further, it is requested that such coercive process be served on Mr Chapman before the end of April 2017.

15. Request for notification of the time and place for the execution of the Request and identity and address of any person to be notified (article 7)

Federal Court of Australia, through the New South Wales Registry Address as above.

The parties’ legal representatives:

· Marque Lawyers, Level 4, 343 George St, Sydney NSW 2000, Australia

· K&L Gates, Level 25 (South Tower), 525 Collins Street, Melbourne VIC 3000, Australia

As noted in the covering letter, it is requested that the examination be conducted, if possible, in the week commencing 4 September 2017.

16. Request for attendance or participation of judicial personnel of the requesting authority at the execution of the Letter of Request

It is requested that the Honourable Justice Rares of the Federal Court of Australia be permitted to participate in the examination as examiner.

17. Specification of privilege or duty to refuse to give evidence under the law of the State of origin (article 11, b)

Nil

18. The fees and costs incurred which are reimbursable under the second paragraph of article 14 or under article 26 of the Convention will be borne by

The Respondent, Innovia Security Pty Ltd.

A note of the fees and expenses payable in respect of the execution of the request should be made and returned to the requesting authority.

19. Date of request

10 March 2017

Attachment “A” to the Letter of Request dated 10 March 2017

Nature and purpose of the proceedings and summary of the facts (article 3, c)

1. The applicants in this civil proceeding before the Federal Court of Australia are Dr Benoy Berry and Global Secure Currency Limited. Both are based in the United Kingdom. The respondent, Innovia Security Pty Ltd (Innovia), is an Australian company in the business of manufacturing polymer substrate for banknote printing.

2. The proceedings were commenced by application and a statement of claim filed on 23 December 2013.

3. By the Second Further Amended Statement of Claim (SFASOC) dated 20 December 2016 (attached as Exhibit A) the applicants allege that they were deceived into terminating their agency agreement with Innovia, by which they had been appointed as Innovia’s agent to market the polymer in Nigeria and certain other African territories. Because the SFASOC incorporates as particulars parts of the outline of evidence of Dr Berry, the outline is also provided (attached at Exhibit B).

4. In essence, the applicants allege that certain promises were made to them by Mr Chapman (for Innovia), which caused them to agree to terminate the agency agreement.

5. Innovia denies the allegations by its Defence to SFASOC dated 3 February 2017 (attached as Exhibit C).

6.

Background

Background to the litigation

As I will explain below, Innovia amended that application, by consent, to be one under s 7(1)(c) for an order that the letter of request seek that I, as trial judge, be appointed to examine the witness on oath or affirmation in London. I made the order on 10 March 2017. These are my reasons for doing so.Background These proceedings, relevantly, concern allegations that Dr Benoy Berry, the principal of Global Secure Currency Ltd (the applicants), had conversations and dealings with Peter Chapman who was then an officer of Innovia, then known as Securency Pty Ltd. The original statement of claim alleged that Innovia was, at the time, a joint venture vehicle of the Reserve Bank of Australia and Innovia Films that was seeking to commercialise the sale to foreign governments of polymer film banknotes, of the kind used as currency in Australia, in substitution for paper banknotes. After I became docket judge on 16 September 2016, I fixed the trial to commence on 28 August 2017 with a five day estimated hearing and I also made orders for the preparation of the trial and a mediation. Relevantly, the applicants allege that:·in February 2008, Dr Berry and Mr Chapman had a conversation in London in which Mr Chapman procured Dr Berry to sign two documents, being a termination letter of the existing agreement between the applicants and Innovia and a new agreement;·Mr Chapman induced Dr Berry to sign the two documents on the faith of representations that Mr Chapman would return to Australia and have Innovia execute the new agreement immediately;·Innovia accepted the termination of the old agreement and refused to execute the new one, contrary to Mr Chapman’s alleged representation to Dr Berry that it would. Innovia denies, in its defence, that Mr Chapman made any representation about a new agreement and it asserts that Dr Berry freely and deliberately signed and gave the termination letter to Mr Chapman. It is apparent that the terms of the actual conversation between Dr Berry and Mr Chapman are critical in the context of determining both the applicants’ claim for damages based on their asserted reliance on Mr Chapman’s alleged false representations and Innovia’s defence to that claim.The legislative scheme Relevantly, s 7 of the Foreign Evidence Act provides:7 Orders for taking evidence abroad(1)In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order, relating to a person outside Australia:(a)for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint; or(b)for issue of a commission for examination of the person on oath or affirmation at any place outside Australia; or(c)for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of the person or cause it to be taken.(2)In deciding whether it is in the interests of justice to make such an order, the matters to which the court is to have regard include the following:(a)whether the person is willing or able to come to Australia to give evidence in the proceeding;(b)whether the person will be able to give evidence material to any issue to be tried in the proceeding;(c)whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order.Mr Chapman’s circumstances

Evidence

Evidence Before The Court

Relevantly, s 7 of the Foreign Evidence Act provides:7 Orders for taking evidence abroad(1)In any proceeding before a superior court, the court may, if it appears in the interests of justice to do so, on the application of a party to the proceeding, make an order, relating to a person outside Australia:(a)for examination of the person on oath or affirmation at any place outside Australia before a judge of the court, an officer of the court or such other person as the court may appoint; or(b)for issue of a commission for examination of the person on oath or affirmation at any place outside Australia; or(c)for issue of a letter of request to the judicial authorities of a foreign country to take the evidence of the person or cause it to be taken.(2)In deciding whether it is in the interests of justice to make such an order, the matters to which the court is to have regard include the following:(a)whether the person is willing or able to come to Australia to give evidence in the proceeding;(b)whether the person will be able to give evidence material to any issue to be tried in the proceeding;(c)whether, having regard to the interests of the parties to the proceeding, justice will be better served by granting or refusing the order.Mr Chapman’s circumstances Mr Chapman is, and currently resides, in England. In June 2014, he was living in Brazil when one of Innovia’s solicitors, a partner at K&L Gates, Jim Bulling, met him. They discussed and settled, with the assistance of another of Mr Bulling’s partners who has carriage of these proceedings, David Hope, the terms of an affidavit by Mr Chapman for use in Innovia’s defence of these proceedings. Mr Hope was then in Melbourne. Later in June 2014, in Brazil, Mr Bulling witnessed Mr Chapman sign two originals of the final settled form of the affidavit, both of which Mr Chapman retained. He told Mr Bulling that he would courier a signed original to K&L Gates after he received an amended letter of indemnity from them and advice from his Brazilian lawyer. In the event, Mr Chapman never provided K&L Gates with a signed affidavit, despite Mr Hope having sent him a proposed amended letter of indemnity. Mr Hope gave evidence that:·he subsequently learnt that the British Government had requested the Brazilian Government to extradite Mr Chapman, and the Brazilian authorities had issued a warrant for his arrest in May 2014;·Mr Chapman was taken into custody in November 2014 and extradited to the United Kingdom in about March 2015;·Mr Chapman stood trial in Southwark Crown Court in London before Judge Grieve QC and a jury commencing on 5 April 2016. On 11 May 2016, the jury returned four guilty verdicts against Mr Chapman on charges of corruption contrary to s 1 of the Prevention of Corruption Act 1906 (UK). The jury acquitted Mr Chapman of two other charges. The convictions were for offences that, between 8 January 2009 and 18 March 2009, Mr Chapman was involved in payments that had been made to the former managing director and chief executive officer of Nigerian Security Printing and Minting, a company in which the Nigerian Government held the majority of shares.

Decision

Reasons for decision

I am of opinion that it is in the interests of justice that the parties and I have the ability to utilise the time in London, given the expense involved and dislocation of being there, to hear submissions if that were acceptable to the United Kingdom Government.Conclusion I am satisfied for the purposes of s 7(2) of the Foreign Evidence Act that it is in the interests of justice to make orders for the taking of Mr Chapman’s evidence and submissions in London, and for a letter of request, seeking my appointment to take his evidence for that purpose under the Convention and for permission to hear submissions, to be sent to the Central Authority in the United Kingdom.

Ratio Decidendi

Legal Principle Established

The purpose of the requirement in [3.6] is to prevent any perception that only one side in the litigation is paying for the judge to travel to the foreign hearing so as to create an apprehension of bias. Here, Innovia had already proposed to make the initial expenditure on both the costs and expenses of the examiner, as well as of the applicants, to take Mr Chapman’s evidence in London (subject to that being treated as a recoverable item were Innovia to be successful at the end of the proceedings in obtaining an order for costs). In those circumstances, and because the applicants consent, I do not consider that a fair-minded lay person might reasonably apprehend that I might not bring an impartial mind to resolving the issues in the proceedings on their merits so as to warrant my insisting on strict adherence to [3.6] in the Practice Note: cf Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at 344-345 [6]-[8] per Gleeson CJ, McHugh, Gummow and Hayne JJ.Consideration I am satisfied, for the purposes of s 7(2) of the Foreign Evidence Act, that Mr Chapman is not willing to come to Australia to give evidence at the trial and that he will be able to give evidence that is material to issues that are to be tried. Both parties agree that the letter of request should propose that I be appointed by the United Kingdom judicial authorities under s 7(1)(c) to take Mr Chapman’s evidence. I do not consider that it would be in the interests of justice in the circumstances of this matter to take Mr Chapman’s evidence by any other means. This includes, as in one earlier proposal by Innovia, an audio visual link to London in which I, from Sydney, would view him being examined in London but not be able to have the benefit of being present personally to observe him, or, as trial judge, to control the hearing or to ask him questions myself. I am satisfied that it is appropriate to request the United Kingdom authorities to exercise their power to consider allowing me to take Mr Chapman’s evidence, to the extent that to do so would not be incompatible with the law of the United Kingdom, in accordance with Art 9 of the Convention. In addition, Mr Chapman’s medical condition may mean that if he does give evidence it may be necessary for him to have rest periods. Depending on what occurs and the parties’ submissions on the procedure to be followed in the circumstances encountered in London, it may be a sensible and appropriate course that some submissions on matters not involving Mr Chapman’s evidence could be made during any rest period or time that Mr Chapman were unable to give evidence. I considered the inconvenience of returning to Sydney immediately after taking a long flight to London and then hearing submissions, as opposed to dealing with them at the close of the evidence (or if Mr Chapman did not give evidence) while all concerned were in the same place. While the potential extension of the hearing in London by one day may involve the extra cost of one day’s accommodation and sustenance, I considered it preferable to the potential disruption, exhaustion and extra professional time that would be involved were the hearing to resume again later in Sydney for taking submissions.