Cargill Australia Ltd v Viterra Malt Pty Ltd (No 15)
[2018] VSC 523
•6 SEPTEMBER 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
| AT MELBOURNE COMMERCIAL COURT |
S ECI 2014 000146
| CARGILL AUSTRALIA LIMITED (ACN 004 684 173) | Plaintiff |
| v | |
| VITERRA MALT PTY LTD (ACN 096 519 658) AND OTHERS | Defendants |
| and | |
| CARGILL, INCORPORATED AND OTHERS | Third parties |
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JUDGE: | ELLIOTT J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 6 SEPTEMBER 2018 |
DATE OF RULING: | 6 SEPTEMBER 2018 |
DATE OF REASONS: | 10 SEPTEMBER 2018 |
CASE MAY BE CITED AS: | CARGILL AUSTRALIA LTD v VITERRA MALT PTY LTD (No 15) |
MEDIUM NEUTRAL CITATION: | [2018] VSC 523 |
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PRACTICE AND PROCEDURE – Witnesses – Application by plaintiff to call witness – Witness statement filed for witness by defendants – Plaintiff’s case still open – Witnesses already called by defendants – Application granted.
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff and the 1st and 2nd third parties | Mr P Anastassiou QC Ms L Nichols QC Ms K Burke Ms H Tiplady Mr C Tran Mr T Barry Mr M Tennant | Gilbert + Tobin |
| For the defendants | Mr A Myers QC Mr S Senathirajah QC Mr S Parmenter QC Mr K Wolahan Mr S Prendergast Ms K Dovey Mr O Wolahan | King & Wood Mallesons |
| For the 3rd third party | Mr J Peters QC Mr S Rosewarne | Maddocks |
| For the 4th third party | Mr M Galvin QC Mr D Bongiorno | Ward Lawyers |
| For the 5th third party | Mr R Attiwill QC Ms M Szydzik | Ward Lawyers |
| For the 6th third party | Ms W Harris QC Mr C Archibald Mr T Jeffrie | HWL Ebsworth |
| For the 7th third party | Mr S Pitt Ms C Alden | Ward Lawyers |
HIS HONOUR:
A. Introduction
The plaintiff, Cargill Australia Ltd (“Cargill Australia”), brought an application seeking leave to call Kate Lindner (“Lindner”) as a witness in its case. Linder is a solicitor at King & Wood Mallesons who previously acted for the defendants (“the Viterra Parties”),[1] including in respect of the events the subject of this proceeding.
[1]The defendants are Viterra Malt Pty Ltd, Viterra Operations Ltd and Viterra Ltd and the ultimate holding company of those 3 companies, being Glencore International AG.
On 6 September 2018, I granted leave to Cargill Australia to issue a subpoena addressed to Linder requiring her to attend to give evidence in the proceeding.[2] The following are the written reasons for that decision.
[2]Orders made on 7 September 2018. Brief reasons were given at the time of the ruling, but, the following day, the Viterra Parties sought a formal ruling.
B. Background
On 15 January 2018, the Viterra Parties filed a witness statement for Linder dated 22 December 2017. On 22 August 2018, an updated version of the statement was provided to the court and the other parties to the proceeding.
On 6 September 2018, the court was informed that the solicitors for Cargill Australia had written to the solicitors for the Viterra Parties asking whether they proposed to call Lindner as a witness in their case. Senior counsel for Cargill Australia indicated that a “non-committal” response had been received from the solicitors for the Viterra Parties. Senior counsel for the Viterra Parties stated that no undertaking was given to the effect that the Viterra Parties would call Lindner in their case. Cargill Australia, accordingly, sought leave to issue a subpoena requiring Lindner to attend to give evidence in the proceeding as part of its case.
The Viterra Parties submitted that they would suffer prejudice if Cargill Australia were granted leave to issue a subpoena, and to call Lindner in their case, in circumstances where 2 of the Viterra Parties’ witnesses had already given evidence in the proceeding.[3]
[3]See par 13 below.
C. The conduct of the case
Some further background is relevant to the present application. On 9 August 2018, Cargill Australia sought leave to keep its case open so far as necessary to allow for the possibility of calling the third, fourth, fifth, sixth and seventh third parties (“the Third Party Individuals”) to give evidence in Cargill Australia’s case if the Third Party Individuals did not give evidence in their own cases. The Viterra Parties objected to this course.
On 17 August 2018, orders were made permitting Cargill Australia to leave its case open for the limited purpose of allowing it to adduce evidence from the Third Party Individuals in the event that any of them are not called to give evidence.[4] Further, it was ordered that the Viterra Parties’ case be left open until all evidence given by the Third Party Individuals is completed, Cargill Australia has closed its case (save for expert evidence) and the Viterra Parties have elected not to lead or tender any further evidence. Finally, it was ordered that the Third Party Individuals’ cases be left open until the Viterra Parties have led or tendered any further evidence and closed their case. Those orders were made subject to further order.
[4]Oral reasons in respect of the application were given on 15 August 2018 and written reasons were published on 17 August 2018: Cargill Australia Ltd v Viterra Malt Pty Ltd (No 12) [2018] VSC 454.
Cargill Australia is still leading evidence in its case. In addition to the issues concerning the Third Party Individuals, there are 2 primary reasons why Cargill Australia has not yet closed its case. First, Cargill Australia is currently tendering additional documentary evidence not previously tendered through its lay witnesses to date. Secondly, there is an outstanding issue concerning the admissibility of certain evidence. This issue requires some further explanation.
Cargill Australia settled on the purchase of the second third party, Joe White Maltings Pty Ltd (“Joe White”), from the Viterra Parties on 31 October 2013. Cargill Australia alleges that the Viterra Parties failed to disclose certain practices and policies of Joe White (“the Viterra Practices”). Cargill Australia alleges the Viterra Practices were unlawful. In seeking to establish the existence and extent of the Viterra Practices, Cargill Australia sought to tender certain data extracted from the laboratory information management system (“the System”)[5] maintained by Joe White prior to its acquisition by Cargill Australia (“the Extracts”).[6] The Extracts were sought to be tendered on the basis that the System was corrupted by a ransomware attack on 16 June 2017 and could not be accessed or interrogated in its original form by the parties. The Cargill Parties submitted that the data contained in the Extracts was highly relevant to the issues in dispute between the parties.[7] The Viterra Parties and the Third Party Individuals objected to the tender of the Extracts on the basis that they constituted hearsay evidence,[8] or, alternatively, that the probative value of the evidence was substantially outweighed by the danger that the evidence would be unfairly prejudicial or might be misleading or confusing.[9]
[5]Broadly speaking, the System recorded details of the malt supplied by Joe White to its customers.
[6]The Extracts were the result of the use of certain structured query language queries to extract data from the System. Structured query language is a programming language used to manage relational databases such as the System.
[7]During the trial, the Viterra Parties conceded that the occurrence of some aspects of the Viterra Practices was “not insignificant”: Cargill Australia Ltd v Viterra Malt Pty Ltd (No 12) [2018] VSC 454, [16]. On 22 August 2018, senior counsel for the defendants stated that the Viterra Parties did not admit that the Viterra Practices had occurred, and that any concession in that regard was “withdrawn wholly”. The questions of the existence and extent of the Viterra Practices therefore remain live issues in the proceeding, as does the question of whether the Viterra Parties are entitled to withdraw the concession.
[8]See Evidence Act 2008 (Vic), s 59(1). Cargill Australia relied on the exception to the hearsay rule for business records: s 69.
[9]See Evidence Act, s 135(a) and (b). In this regard, it was asserted that the data contained in the Extracts was incomplete and unreliable. The Third Party Individuals also asserted unfair prejudice arising from the fact that they were unable to test the Extracts, given the unavailability of the System from which they were derived.
Prior to the issue of the admissibility of the Extracts being determined, the Viterra Parties located several back up tapes containing a version or versions of the System. The relevant data has since been requisitioned and is in the process of being inspected by the parties. It is highly likely that, as a result of this alternate approach, the issues relating to the admissibility of the Extracts will become moot.
Cargill Australia seeks to tender any relevant evidence arising from the current inspection process prior to closing its case. The process of requisitioning the backed up version of the System and making it accessible by the parties has necessarily caused some delay. Cargill Australia has previously indicated that it may seek to call further lay witnesses depending on the admissibility of any data now being extracted from the System.
At the conclusion of calling its lay witnesses, and once the 2 outstanding issues are finalised, Cargill Australia will be required to close its case, subject to the limited purpose discussed above.[10]
[10]See par 7 above. It has been agreed between the parties, and accepted by the court, that all lay evidence will be given before any expert evidence: Cargill Australia Ltd v Viterra Malt Pty Ltd (No 12) [2018] VSC 454, [1].
The Viterra Parties originally contended that it would be unfair to require them to lead any lay evidence before Cargill Australia had closed its case.[11] Subsequently to my ruling permitting Cargill Australia to leave its case open,[12] the Viterra Parties indicated that they did not intend to call any of their witnesses before Cargill Australia closed its case. However, prior to this occurring, the Viterra Parties changed their position. They sought leave to interpose 2 of their witnesses for reasons of convenience to those witnesses.
[11]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 12) [2018] VSC 454, [19]-[20].
[12]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 12) [2018] VSC 454.
The first witness, David Mattiske, was called by the Viterra Parties on 29 August 2018 and gave evidence for 3 days.[13] Cargill Australia then called further witnesses in its case on 4 September 2018. The second witness, Ian King, was called by the Viterra Parties on 5 September 2018 and gave evidence for 2 days.[14] At the time leave was given to interpose these 2 witnesses, I indicated that I would not permit the Viterra Parties to lead any further evidence until Cargill Australia closed its case, subject to the possibility of adducing evidence from the Third Party Individuals.
[13]David Mattiske resides in Rotterdam, Netherlands.
[14]Ian King resides in London, United Kingdom.
D. Legal principles
The Civil Procedure Act 2010 (Vic) requires the court to seek to give effect to the overarching purpose of facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute in exercising any of its powers.[15] The court must have regard to several objects, including, relevantly, the efficient conduct of the business of the court, the efficient use of judicial and administrative resources and the just and timely determination of the civil proceeding.[16]
[15]Sections 7 and 8.
[16]Civil Procedure Act, s 9(1)(a), (c), (d) and (f).
The Supreme Court (General Civil Procedure) Rules 2015 (Vic) provide that the court may give directions as to the order of evidence and addresses and generally as to the conduct of the trial.[17] In exercising its powers, the court has a broad discretion to give any direction or impose any term or condition as it thinks fit.[18]
[17]Rule 49.01(1). See also Civil Procedure Act, s 49(1).
[18]Rule 1.14(1)(b).
It is also relevant to note that the court may grant leave to a party to re-open its case once it has been formally closed.[19]
[19]See, for example, Ezra Abrahams Pty Ltd v Milburn [2017] VSCA 355, [46]-[58] (Kyrou, Kaye and McLeish JJA), and the cases there cited; Advanced Fuels Technology Pty Ltd v Blythe [2017] VSC 250, [5]-[13] (Macaulay J), and the cases there cited.
E. Ruling
The position is straightforward, and no formal leave is required. In circumstances where Cargill Australia has not yet closed its case, it is open to it to call Lindner as a further lay witness in its case. Lindner is potentially a significant witness. In my view, the decision to call her is consistent with the due administration of justice and the overarching purpose.[20]
[20]See par 15 above.
With respect to the alleged prejudice, in making this submission, no specific prejudice was identified by the Viterra Parties. Further, as noted above,[21] the relevant witnesses were interposed at the request of the Viterra Parties based on their availability. In my view, the Viterra Parties cannot now assert prejudice arising from further lay witnesses being called by Cargill Australia on the basis that the Viterra Parties have already led lay evidence in their case.
[21]See par 13 above.
F. Conclusion
Cargill Australia has leave to issue a subpoena, addressed to Linder, and to call her to give evidence as part of its case. In the circumstances that Linder is currently on leave, it has been directed that she be permitted to give evidence via video link.[22]
[22]Orders made on 7 September 2018.
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