Berry v Innovia Security Pty Ltd (No 3)

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.