Jones v Treasury Wine Estates Limited (No 3)

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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:

  1. 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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Details
Case
[2017] FCA 961
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Jones v Treasury Wine Estates Limited (No 3) arose as an interlocutory matter concerning the evidence of a witness, Ms Sandra LeDrew, ordinarily resident in the United States of America. The defendant, Treasury Wine Estates Limited (TWE), sought to have Ms LeDrew's evidence at the initial trial, scheduled for 28 August 2017, given by video link. The plaintiff opposed the application, leading to the court’s decision on the matter. The primary legal issue before the court was whether it should grant TWE's application for Ms LeDrew's evidence to be given by video link, despite the plaintiff's opposition. This issue hinged on whether the court should exercise its discretion under section 47A of the Federal Court of Australia Act 1976 and rule 5.04 of the Federal Court Rules 2011 to allow evidence to be given by video link, considering the circumstances presented by the parties.

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

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Evidence

Evidence Before The Court

Ms LeDrew is likely to be in the witness box for several days during the initial trial. Her credit as a witness may well be challenged. At the very least, it is likely that she will be closely questioned about her involvement in the decisions made by TWE in relation to its US stock levels and her involvement in TWE’s dealings with its US distributors throughout the critical period in 2012 and 2013. THE EVIDENCE IN RESPECT OF THE VIDEO LINK APPLICATION In early November 2016, HSF requested MB to consent to Ms LeDrew’s evidence at the initial trial being given by video link. MB refused its consent. In late June 2017, HSF renewed its request. Consent to having Ms LeDrew’s evidence given by video link was still not forthcoming. On 30 June 2017, TWE filed the present application. By letter of the same date, MB informed HSF that the plaintiff would not consent to Ms LeDrew’s evidence being given by video link and set out its reasons for adopting that attitude. The factual basis for the order which TWE now seeks is set out in par 13 of Mr Mitchell’s affidavit. Paragraph 13 of that affidavit is in the following terms: I am informed by Ms LeDrew and believe that:(a)Ms LeDrew is a citizen of the USA and lives in Danville, California;(b)In about February 2017, Ms LeDrew commenced employment with Terlato Wine Group (Terlato) in the role of President of Winery Operations & Chief Development Officer. Terlato’s businesses include vineyard ownership, winery ownership and management, wine import and export, and wine marketing and sales.(c)Ms LeDrew is a member of Terlato’s executive leadership team and reports directly to the CEO. She is responsible for managing Terlato’s winery interests, comprising full ownership of 7 wineries in the US and part ownership of 4 wineries outside of the US. Ms LeDrew is also responsible for managing production from Terlato’s vineyards, the direct to consumer business and business development. The business development component of Ms LeDrew’s role involves managing business strategy, acquisitions and new brand relationships. Ms LeDrew is currently involved with several projects in this regard.(d)Ms LeDrew’s usual hours of work are from approximately 7am to 7pm. Ms LeDrew is also required to attend a large number of business meetings over dinner.(e)Ms LeDrew’s role at Terlato means that it would be very difficult for her to attend the trial in person, including for the following reasons:i.Having commenced her employment in February 2017, Ms LeDrew is relatively new to her role at Terlato, and the transition process involved with taking on this role is still underway.ii.The period from about August to October of every year is critical to Terlato’s production operations (which, as set out above, Ms LeDrew is responsible for managing). The harvest of Terlato’s vineyards is at its peak in the months of September and October.iii.Ms LeDrew’s role involves regular travel between California and Terlato’s head office in Chicago. Ms LeDrew is based in Terlato’s Napa office and spends the first week of every month in Terlato’s Chicago office. Any attendance at trial may therefore disrupt Ms LeDrew’s need to travel as part of her role. Further:AMs LeDrew has European based suppliers of Terlato scheduling visits to Chicago in the week starting 11 September 2017.BMs LeDrew will be in New York at the end of the week starting 11 September 2017 for a board meeting.CMs LeDrew is expected to attend Terlato’s Board meeting on 18 September 2017 in Chicago.DAt the time of swearing this affidavit, Ms LeDrew expects to receive further requests for meetings that require her to travel.(f)Ms LeDrew also has personal difficulties arising from any travel in the period from 27 August 2017 to 5 September 2017. At this time, Ms LeDrew’s son will be visiting her in California. Ms LeDrew has not seen her son since the Christmas period as he attends college in San Diego and has been (and will be) in Wisconsin over the US summer period due to baseball related commitments with his university.(g)Ms LeDrew has therefore requested that she be permitted to give evidence at the trial by video link.

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.