Ceramic Fuel Cells Limited (In Liq) v McGraw-Hill Financial, Inc (No 2)

Ceramic Fuel Cells Limited, in liquidation, sought to issue subpoenas to McGraw-Hill Financial, Inc. and two other foreign entities, located in Luxembourg and Belgium, to compel them to produce documents relevant to a class action it had initiated against the defendants. The defendants contested the subpoenas on the basis that the Court lacked the requisite jurisdiction to compel the production of documents from foreign entities. The defendants also argued that the Court should not exercise its discretion to issue the subpoenas because of the significant impact of national banking secrecy laws on the enforceability of the subpoenas. The case was heard in the Federal Court of Australia.

The court was required to determine whether it had the power to issue subpoenas to foreign entities and whether it should exercise its discretion to do so. The court noted that there was no statutory basis for the Court to compel the production of documents from a foreign entity, but that it had the power to do so under its inherent jurisdiction. The court also considered the impact of national banking secrecy laws on the enforceability of the subpoenas, and whether the subpoenas would have utility if issued. The court held that the subpoenas would likely be unenforceable in the jurisdictions of the foreign entities and that they would not have utility.

The court dismissed the application to issue the subpoenas. The court held that the significant impact of national banking secrecy laws on the enforceability of the subpoenas meant that it should not exercise its discretion to issue them. The court also held that the subpoenas would not have utility because they were likely to be unenforceable. The court noted that the liquidator had other avenues available to it to obtain the documents it required, such as seeking an order from the relevant foreign courts.

The court dismissed the interlocutory application dated 23 June 2016. The liquidator was ordered to pay the defendants’ costs of the application.