Kenquist Nominees Pty Limited v Campbell

Case [2016] FCA 354


FEDERAL COURT OF AUSTRALIA

Kenquist Nominees Pty Limited v Campbell [2016] FCA 354

File number: NSD 1364 of 2015
Judge: YATES J
Date of judgment: 11 April 2016
Catchwords: PRACTICE AND PROCEDURE – subpoena – application to set aside – whether issue of subpoena is premature – whether test of apparent relevance satisfied
Legislation:

Corporations Act 2001 (Cth)

Federal Court of Australia Act 1976 (Cth) ss 33ZF, 37M

Federal Court Rules 2011 r 24.15

Cases cited: Wong v Sklavos (2014) 319 ALR 378; [2014] FCAFC 120
Date of hearing: 11 April 2016
Registry: New South Wales
Division: General Division
National Practice Area: Commercial and Corporations
Sub-area: Corporations and Corporate Insolvency
Category: Catchwords
Number of paragraphs: 28
Counsel for the Applicant: Mr AS Martin SC and Mr T Bagley
Solicitor for the Applicant: Gillis Delaney Lawyers
Counsel for the First, Second and Third Respondents: Ms JD Little
Solicitor for the First, Second and Third Respondents: Norton Rose Fulbright Australia
Counsel for the Fourth Respondent: Mr P Jammy
Solicitor for the Fourth Respondent: Wotton + Kearney
Counsel for the Fifth Respondent: Mr MA Jones SC
Solicitor for the Fifth Respondent: Sparke Helmore Lawyers

ORDERS

NSD 1364 of 2015
BETWEEN:

KENQUIST NOMINEES PTY LIMITED ACN 008 797 224 ATF THE KENQUIST SUPERANNUATION FUND

Applicant

AND:

PETER CAMPBELL and others named in the schedule

Respondents

JUDGE:

YATES J

DATE OF ORDER:

11 APRIL 2016

THE COURT ORDERS THAT:

1.The fifth respondent’s interlocutory application, dated 5 April 2016 (the interlocutory application), be dismissed.

2.The fifth respondent pay the applicant’s costs of the interlocutory application.

3.Access be granted to the parties to the documents produced to the Court on 6 April 2016 in response to paragraphs 1 – 6 of the schedule of documents to the subpoena issued on 10 March 2016 to the Proper Officer of QRxPharma Limited (the subpoena), other than those documents in respect of which privilege has been claimed.

4.The subpoena be stood over to the Registrar’s list at 9.30 am on 20 April 2016 for the production of documents in response to paragraph 7 of the schedule of documents to the subpoena.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
(REVISED FROM TRANSCRIPT)

YATES J:

  1. The fifth respondent applies to set aside a subpoena issued at the request of the applicant.  The subpoena has been addressed to the Proper Officer of QRxPharma Limited (QRxPharma or the company). 

  2. On 10 March 2016, I granted leave for the subpoena to be issued. 

    BACKGROUND

  3. QRxPharma is engaged in pharmaceutical development.  It is listed on the Australian Securities Exchange.  Its relevant primary business operations were directed towards developing and obtaining regulatory approval for a dual opioid drug called MoxDuo.  QRxPharma needed regulatory approval to market and sell MoxDuo in the United States of America (the US).  The US is the largest market for pain relief, and according to the applicant, MoxDuo was represented to…

Continue reading Kenquist Nominees Pty Limited v Campbell

Sign in free to access the full text

Details
AGLC
Kenquist Nominees Pty Limited v Campbell [2016] FCA 354
Case
[2016] FCA 354
Decision Date

CaseChat Overview and Summary

Kenquist Nominees Pty Limited brought proceedings against various respondents, including QRxPharma Limited and several individuals and a firm of solicitors, alleging misleading conduct and breaches of the Corporations Act 2001 (Cth) in relation to capital raisings and continuous disclosure obligations. The applicant sought to issue a subpoena to QRxPharma to compel the production of documents. The fifth respondent, a firm of solicitors, applied to set aside the subpoena on the basis that the issue of the subpoena was premature and that the documents did not have apparent relevance. The court considered whether the subpoena should be issued at that stage of the proceedings and whether the documents had an apparent relevance.

The court determined that the issue of the subpoena was not premature, as the court has the power to issue a subpoena prior to the close of pleadings. The court also found that the documents sought by the subpoena had an apparent relevance, as they were likely to be relevant to the applicant's case and the respondents' respective cases. The court held that the apparent relevance was to be determined on the pleadings in their state at the time the question of apparent relevance arose, and in this case, the statement of claim provided sufficient basis for apparent relevance.

The court dismissed the fifth respondent's application to set aside the subpoena. The court ordered that the fifth respondent pay the applicant's costs of the interlocutory application, granted access to the parties to the documents produced in response to paragraphs 1-6 of the schedule of documents to the subpoena, and stood over the subpoena to the Registrar's list for the production of documents in response to paragraph 7 of the schedule of documents to the subpoena.

Orders

Orders of the court

1. The fifth respondent’s interlocutory application, dated 5 April 2016 (the interlocutory application), be dismissed.

2. The fifth respondent pay the applicant’s costs of the interlocutory application.

3. Access be granted to the parties to the documents produced to the Court on 6 April 2016 in response to paragraphs 1 – 6 of the schedule of documents to the subpoena issued on 10 March 2016 to the Proper Officer of QRxPharma Limited (the subpoena), other than those documents in respect of which privilege has been claimed.

4. The subpoena be stood over to the Registrar’s list at 9.30 am on 20 April 2016 for the production of documents in response to paragraph 7 of the schedule of documents to the subpoena.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

On 10 March 2016, I granted leave for the subpoena to be issued. BACKGROUND QRxPharma is engaged in pharmaceutical development. It is listed on the Australian Securities Exchange. Its relevant primary business operations were directed towards developing and obtaining regulatory approval for a dual opioid drug called MoxDuo. QRxPharma needed regulatory approval to market and sell MoxDuo in the United States of America (the US). The US is the largest market for pain relief, and according to the applicant, MoxDuo was represented to investors as a potential “blockbuster” drug for that market. The applicant’s case is that during the years 2009 to 2011, QRxPharma undertook three relevant capital raisings to provide funds for its regulatory approval studies. The statement of claim alleges that over the course of those capital raisings, the respondents, who comprised former directors and advisers of QRxPharma, were involved in misleading conduct and/or contraventions of the Corporations Act 2001 (Cth) relating to the company’s continuous disclosure and capital raising obligations. The applicant submits that the critical allegation in the statement of claim is that QRxPharma failed to disclose that the US Food and Drug Administration (the FDA) had rejected its application for a streamlined regulatory approval process for MoxDuo. This streamlined process is called a Special Protocol Assessment (SPA). The applicant’s case is that QRxPharma repeatedly represented to the market that this streamlined approval was a central component of its regulatory risk strategy. The statement of claim alleges that each of the respondents was involved in these disclosure failures. The former directors, who are the first, second and third respondents, are alleged to have been ultimately responsible for approving each of the capital raising documents and ensuring QRxPharma’s compliance with its continuous disclosure obligations. The fifth respondent is a business name. It is the name of a firm of solicitors carrying on practice in partnership. The applicant’s case is that the firm was the company’s legal adviser during the capital raising process and advised QRxPharma of its disclosure obligations. The fourth respondent was a lead manager of the capital raisings and according to the applicant was responsible for “pitching” the capital raising to investors. STATEMENT OF CLAIM By way of general summary only, the statement of claim alleges that because MoxDuo was a combination of two existing drugs, QRxPharma could avail itself of the SPA, by which the FDA would confirm that a proposed study, if successful, would satisfy the regulatory requirements for a New Drug Approval (NDA). From late 2008 to October 2009, QRxPharma made several SPA applications in relation to the study that was intended to satisfy the NDA requirements for MoxDuo. This study was referred to as Study 008. The ultimate outcome of these applications was that the FDA denied the SPA request for that study in October 2009.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

For its part, the applicant argues that the documents sought by the subpoena have an apparent relevance and that, in any event, it is “on the cards” that the documents sought will materially assist it in conducting the proceeding. The applicant submits that it could not be said that the subpoena gives rise to a “fishing expedition” as understood by the cases. CONSIDERATION Whilst the fifth respondent’s argument on the question of apparent relevance might hold good in certain cases in certain circumstances, I am not persuaded that this case is one of them. I have the benefit of the applicant’s statement of claim. I do not think that it can be argued cogently that, by reference to the allegations made in the statement of claim, the documents sought by the subpoena are not adjectivally relevant. It may be that some aspects of the applicant’s pleaded allegations might not ultimately be put in issue by the defences to be filed by the respondents. But, for reasons I will discuss, I do not think that this fact alone leads to a conclusion that the documents sought do not have an apparent relevance at the present time. The Court’s power to issue a subpoena is not limited to issue of the subpoena at a particular point in time or at a particular stage in the proceeding. Thus, there is no reason why, in principle, a subpoena cannot be issued prior to the close of pleadings. In this Court, the question of whether a subpoena should be issued requires leave of the Court. Whether the issue of a subpoena is likely to be premature is a consideration to be taken into account when considering whether leave to issue should be granted. If, in a given case, the Court feels a concern that the issue of a particular subpoena is or might be premature, then that concern would stand as a reason, or perhaps the reason, for refusing leave to issue the subpoena. However, I do not have that concern in the present case. Specifically, I am not persuaded by the fact, in the present case, that pleadings are yet to close, that the issue of the subpoena is premature. In a case where pleadings are involved, the question of apparent relevance falls to be determined on the pleadings in their state at the time that the question of apparent relevance arises. Here, as I have said, I have the statement of claim. In those circumstances, apparent relevance on the face of the statement of claim will or may be sufficient. As I have recognised, it may be that some pleaded allegations of fact will be admitted, but even if that comes to be the case, it simply does not follow that a subpoena issued now must necessarily be set aside to await the filing of the respondents’ defences. Much depends on the circumstances of the given case. In the present case, I can safely predict now that the facts and circumstances in which decisions were made or advice was given in relation to the public disclosure, or the extent of the public disclosure, of the passage and circumstances of the company’s application for a SPA, and the fifth respondent’s knowledge of those facts and circumstances, are likely to be relevant to the case brought by the applicant. This is so, regardless of specific admissions of fact which the fifth respondent might make in its defence to be filed. It can be reasonably anticipated that the documents sought by the subpoena are likely to record such facts and circumstances. As presently advised, I would be surprised if documents of the kind sought by the subpoena do not find their way into evidence as part of the applicant’s case or, indeed, as part of one or more of the respondents’ respective cases.