FEDERAL COURT OF AUSTRALIA
Jones v Treasury Wine Estates Limited (No 3) [2017] FCA 961
File number: NSD 660 of 2014 Judge: FOSTER J Date of Orders: 17 July 2017 Date of publication of Reasons: 18 August 2017 Catchwords: PRACTICE AND PROCEDURE – whether the evidence of a witness ordinarily resident in the USA should be given by video link – application opposed – application dismissed with costs Legislation: Federal Court of Australia Act 1976 (Cth), s 47A(1), s 47C(1)
Federal Court Rules 2011, r 5.04(3), item 27
Cases cited: Jones v Treasury Wine Estates Limited (No 2) [2017] FCA 296
Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 3) (2009) 181 FCR 152
Kirby v Centro Properties Ltd (2012) 288 ALR 601
Traxys Europe SA v Balaji Coke Industry Pvt Ltd (No 4) [2012] FCA 1416
Unilever Australia Ltd v Revlon Australia Pty Ltd (No 4) [2014] FCA 1074
Date of hearing: 17 July 2017 Registry: New South Wales Division: General Division National Practice Area: Commercial and Corporations Sub-area: Corporations and Corporate Insolvency Category: Catchwords Number of paragraphs: 51 Counsel for the Plaintiff: Mr J Stoljar SC and Mr G Donnellan Solicitor for the Plaintiff: Maurice Blackburn Counsel for the Defendant: Mr RA Dick SC and Mr AM Hochroth Solicitor for the Defendant: Herbert Smith Freehills ORDERS
NSD 660 of 2014 BETWEEN: BRIAN JONES
Plaintiff
AND: TREASURY WINE ESTATES LIMITED (ACN 004 373 862)
Defendant
JUDGE:
FOSTER J
DATE OF ORDER:
17 JULY 2017
THE COURT ORDERS THAT:
1.The defendant’s Interlocutory Application filed on 30 June 2017 be dismissed.
2.The defendant pay the plaintiff’s costs of and incidental to that Interlocutory Application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FOSTER J:
In a Judgment delivered by me on 23 March 2017 (Jones v Treasury Wine Estates Limited (No 2) [2017] FCA 296) (Jones No 2), I said (at [1]–[3]):
1The plaintiff, Mr Jones, sues the defendant, Treasury Wine Estates Limited (TWE) for statutory compensation pursuant to causes of action based upon provisions of the Corporations Act 2001 (Cth) (Corporations Act), the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and the New South Wales and Victorian analogues of the Australian Consumer Law. Mr Jones alleges that TWE engaged in misleading and deceptive conduct and also failed to comply with its continuous disclosure obligations under s 674(2) of the Corporations Act.
2Mr Jones brings this proceeding on his own behalf and on behalf of the members of the following group:
[persons or entities] who or which:
(i)obtained an interest in TWE Securities during the period from 17 August 2012 to 9:30 am on 15 July 2013 (Relevant Period) by the purchase of those Securities on the financial market operated by ASX;
(ii)[deleted]
(iii)suffered loss or damage by reason of the Relevant Subsisting Contraventions; and
(iv)are not any of…
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- Case
- [2017] FCA 961
- Decision Date
CaseChat Overview and Summary
The court carefully considered the submissions and evidence presented by both parties. It was noted that Ms LeDrew's role at Terlato, which involved significant responsibilities and commitments, made it highly challenging for her to attend the trial in person. The court examined the reasons provided by TWE for seeking the video link, including Ms LeDrew’s new role, her critical responsibilities during the harvest season, her frequent travel, and personal commitments. Despite these factors, the court found that the plaintiff had adequately demonstrated that the attendance of Ms LeDrew in person was necessary to ensure the fairness and integrity of the trial, particularly given the potential for extensive and critical cross-examination of her evidence. The court concluded that the plaintiff’s need for Ms LeDrew's in-person attendance outweighed the defendant's application for a video link. Consequently, the court dismissed the application and ordered the defendant to pay the plaintiff's costs associated with the application.
Orders
Orders of the court
1. The defendant’s Interlocutory Application filed on 30 June 2017 be dismissed.
2. The defendant pay the plaintiff’s costs of and incidental to that Interlocutory Application.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
In a Judgment delivered by me on 23 March 2017 (Jones v Treasury Wine Estates Limited (No 2) [2017] FCA 296) (Jones No 2), I said (at [1]–[3]): 1The plaintiff, Mr Jones, sues the defendant, Treasury Wine Estates Limited (TWE) for statutory compensation pursuant to causes of action based upon provisions of the Corporations Act 2001 (Cth) (Corporations Act), the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act) and the New South Wales and Victorian analogues of the Australian Consumer Law. Mr Jones alleges that TWE engaged in misleading and deceptive conduct and also failed to comply with its continuous disclosure obligations under s 674(2) of the Corporations Act.2Mr Jones brings this proceeding on his own behalf and on behalf of the members of the following group:[persons or entities] who or which:(i)obtained an interest in TWE Securities during the period from 17 August 2012 to 9:30 am on 15 July 2013 (Relevant Period) by the purchase of those Securities on the financial market operated by ASX;(ii)[deleted](iii)suffered loss or damage by reason of the Relevant Subsisting Contraventions; and(iv)are not any of the following:A.a related party (as defined by section 228 of the Corporations Act 2001 (Cth) (Corporations Act)) of TWE; B.a related body corporate (as defined by section 50 of the Corporations Act) of TWE;C.an associated entity (as defined by section 50AAA of the Corporations Act) of TWE; orD.an officer or a close associate (as defined by section 9 of the Corporations Act) of TWE. (See par 1(b) of Mr Jones’ Further Amended Statement of Claim filed on 23 December 2015 (FASOC)). 3The proceeding was, therefore, commenced as a representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) (FCA Act). It continues to be such a proceeding. At the present time, the parties are engaged in preparing for the initial trial which is currently fixed to commence on 28 August 2017 with an estimated duration of six weeks. They were also planning to conduct a mediation of the dispute in mid-August 2017. The initial trial is to be an electronic trial. The parties have formulated 110 issues which they agree should be determined by the Court at the initial trial (as to which, see Schedule B to the case management orders made by me on 17 July 2017). The matter is factually and legally complex. In mid-October 2016, I informed the parties that I intended to list the initial trial to commence on 28 August 2017 with an estimate of six (6) weeks. The current dates for the initial trial were provisionally fixed on 10 November 2016. The parties have conducted their subsequent preparations upon the basis that the initial trial would definitely commence on 28 August 2017. By Interlocutory Application filed on 30 June 2017, the defendant (TWE) claimed the following relief:Pursuant to section 47A(1) of the Federal Court of Australia Act 1976 (Cth) and rule 5.04(3), item 27, of the Federal Court Rules 2011, the evidence of Ms Sandra LeDrew be given by video link.