IMO Siabon Seet

[2019] VSC 696

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S ECI 2019 04706

IN THE MATTER of SIABON SEET, being the person nominated by the United States District Court Southern District of New York in proceedings State Street Global Advisors Trust Company v Kristen Visbal, 1:19-CV-91718-GWH, for the purposes of applying for orders under Division 1C of Part I of the Evidence (Miscellaneous Provisions) Act 1958 (Vic)

SIABON SEET Plaintiff

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 October 2019
DATE OF RULING:	21 October 2019 (ex parte, revised)
CASE MAY BE CITED AS:	IMO Siabon Seet
MEDIUM NEUTRAL CITATION:	[2019] VSC 696

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OBTAINING EVIDENCE FOR AN EXTERNAL COURT – Application for a subpoena to take oral evidence of a witness in a proceeding in an external court – Supreme Court (General Civil Procedure) Rules 2015 (Vic) Order 81 (‘the Rules’) – Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters – Civil Procedure Act 2010 (Vic) – UDP Holdings Pty Ltd (rec and mgr appted) v Ironshore Corporate Capital Ltd & Anor (2016) 51 VR 60 – Evidence (Miscellaneous Provisions) Act 1958 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Studdy SC with Mr M Fleming	Gilbert + Tobin
For the Affected Parties	Ms M Marcus	Simpsons Solicitors

HER HONOUR:

1. There are proceedings in the United States District Court for the Southern District of New York concerning the Fearless Girl Statue.[1]  The proceedings are brought by State Street Global Advisors Trust Company (‘the trust company’), who allegedly commissioned the Fearless Girl statue.  The proceedings are brought against the sculptor, Kristen Visbal.  The trust company alleges, amongst other things, that Ms Visbal unlawfully made a replica statue for Maurice Blackburn.  I will refer to these as the ‘New York proceedings’. 

   [1]State Street Global Advisors Trust Company v Kristen Visbal, 1:19-cv-01719-GHW.

1. At about the same time as the New York proceedings were issued, in February 2019, the trust company also issued proceedings in the Federal Court of Australia against Maurice Blackburn and others regarding the alleged replica of the Fearless Girl statue.[2]  I will refer to these as the ‘Federal Court proceedings’.

   [2]State Street Global Advisors Trust Company & anor v Maurice Blackburn Pty Ltd (trading as Maurice Blackburn Lawyers) & anor VID 113/2019.

1. This Court has received a letter of request for judicial assistance from the United States District Court for the Southern District of New York (‘letter of request’).  The request is made pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters.  The request is for a deposition from Ms Rebecca Hanlan said to be an employee of Maurice Blackburn, to appear for a deposition and give oral testimony.  The Court was informed today that Ms Hanlan is a former employee of Maurice Blackburn.

1. The applicant in this proceeding, Ms Siabon Seet, has filed an originating motion exhibiting the letter of request. She seeks orders for an oral examination to occur pursuant to Order 81 of the Rules. Ms Seet is a solicitor acting for the trust company and a partner of Gilbert + Tobin Lawyers. In the letter of request, she is nominated as the person who may bring this application for oral examination. The application is supported by her affidavit sworn on 15 October 2019.

1. The issue for ruling today is an application made by Ms Hanlan and Maurice Blackburn for an adjournment or stay of the application in this Court until hearing and determination of an urgent injunction in the Federal Court proceedings.  It is common ground that Ms Hanlan’s former employer, Maurice Blackburn, has made an application for an urgent injunction in the Federal Court proceedings seeking to restrain the trust company from taking further steps in respect of their originating motion in this proceeding and from taking the deposition from Ms Hanlan. The application is listed for hearing tomorrow morning.

Applicable Law

1. The Civil Procedure Act 2010 (Vic) is applicable to all civil proceedings. Its overarching purpose is to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute.

1. The relevant stay principles were summarised by Hargrave J in UDP Holdings Pty Ltd (rec and mgr appted) v Ironshore Corporate Capital Ltd & Anor as follows:[3]

   [3](2016) 51 VR 60, [26]–[30] (citations omitted, emphasis in original).

To begin with, I will set out the relevant principles which apply in circumstances where there are proceedings pending in two courts which raise parallel claims, or where there is a substantial overlap of issues. 

It is first necessary to note that there is a substantial difference between an application for a permanent stay, and an application for a temporary stay or adjournment pending the completion of other proceedings which are likely to impact the outcome of the proceeding in question.  In Sterling Pharmaceuticals Pty Ltd v Boots Company (Australia) Pty Ltd, Lockhart J pointed to the difference between the two forms of stay: 

There is obviously a substantial difference between a motion for a permanent stay or dismissal of a proceeding and a notice of motion for a temporary stay or lengthy adjournment of a case. … The court remains in full control of the proceeding before it when it is stayed only temporarily …

Earlier, Lockhart J stated:

The court has a general power to control its own proceedings, and that power extends to enable it to order a temporary stay of proceedings in various circumstances, including the case where proceedings are pending in another court and it is desirable that those proceedings should proceed to their conclusion first …

Lockhart J then proceeded to list a catalogue of factors to be taken into account by a court in considering whether to grant a temporary stay pending the determination of proceedings in another court involving the same or substantially similar issues:

In my opinion, relevant considerations to be taken into account in the present case include the following:

[1]        Which proceeding was commenced first.

[2]Whether the [de]termination of one proceeding is likely to have a material effect on the other.

[3]        The public interest.

[4]The undesirability of two courts competing to see which of them determines common facts first.

[5]        Consideration of circumstances relating to witnesses.

[6]Whether work done on pleadings, particulars, discovery, interrogatories and preparation might be wasted [if the stay is not granted].

[7]The undesirability of substantial waste of time and effort if it becomes a common practice to bring actions in two courts involving substantially the same issues.

[8]        How advanced the proceedings are in each court.

[9]The [application of the principle that the] law should strive against permitting multiplicity of proceedings in relation to similar issues.

[10]       Generally balancing the advantages and disadvantages to each party.

In Commonwealth Bank v White (No. 3), Warren J (as she then was) expressly approved this list of relevant factors, and described factor [10] as involving ‘weighing up issues of justice and convenience’.  Moreover, as Warren J noted, the approach in Sterling Pharmaceuticals  was referred to with approval by the High Court of Australia in Henry v Henry, and also in CSR Ltd v Signa Insurance Australia Ltd. 

Application

1. Here, the Federal Court proceedings were commenced first.  They are well advanced and indeed listed for trial in approximately one month.  There is the potential for overlap in both proceedings concerning the evidence to be given by Ms Rebecca Hanlan.  I make no finding about the extent of any overlap.

1. The applicant says there will be prejudice in staying this application until the hearing and determination of the injunction application in the Federal Court.  Her counsel says that it is not expeditious, economical or in the interests of justice for her to return to proceed with her application in this Court at a later date.  She says that discovery in the New York proceeding needs to be finalised by 4 November 2019 and that delaying the deposition will affect other steps in the timetable.  There is no evidence of these dates before me, but the submission was not contested and I accept it.  Given the injunction application is being heard tomorrow, and the deposition was not proposed to be taken until the middle of next week, it does not appear there will be any substantial effect of the timetable in the New York proceeding.

1. The applicant says that Maurice Blackburn, and says I should infer Ms Hanlan, were on notice of the proposed deposition since 24 September 2019.  However, they concede that the actual date of service of the application was 15 October 2019. 

1. Finally, the applicant suggested ‘ring fencing’ the deposition.  This appears to be a submission put in the alternative and it is premature to consider it, if I consider it at all.

Disposition

1. There is no substantial prejudice to the applicant in staying this proceeding until the hearing and determination of the injunction application in the Federal Court.  On the other hand, it is appropriate, considering the stay principles discussed above, that the proceeding be temporarily stayed.  I will make orders that it is.