McAssey v Nemo (BC) HoldCo - [2020] NSWSC 1893

Supreme Court

New South Wales

Medium Neutral Citation: McAssey & Anor v Nemo (BC) HoldCo & Anor [2020] NSWSC 1893
Hearing dates: 21 December 2020
Date of orders: 21 December 2020
Decision date: 21 December 2020
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Directions made; see [19]

Catchwords:
CIVIL PROCEDURE - application for Court endorsement of proposed §1782 application under Title 28 of the United States Code -

Legislation Cited:
United States Code (US) Title 28 §1782

Cases Cited:
Jones v Treasury Wine Estates Ltd [2016] FCAFC 59; (2016) 241 FCR 111
Lavecky v Visa Inc [2017] FCA 454

Category: Procedural and other rulings
Parties: Brendan Joseph McAssey (First Plaintiff)
JFTT Pty Ltd as trustee for Joseph Family Trust (Second Plaintiff)
Nemo (BC) HoldCo Pty Ltd (First Defendant)
Nemo (BC) Cayman, LP acting through its general partner Bain Capital Investors, LLC (Second Defendant)
Representation:
Counsel:
C R C Newlinds SC with N Bender (Plaintiffs)
T Boyle (First Defendant)
R May (Second Defendant)
Solicitors:
Arnold Bloch Liebler (Plaintiffs)
Allen Overy (First Defendant)
Quinn Emmanuel (Second Defendant)

File Number(s): 2020/140985

Judgment

These proceedings are listed for hearing for four weeks commencing on 22 February 2021.
I am dealing with this matter as Commercial List Duty Judge.
By notice of motion filed on 17 December 2020, the McCassey Parties apply for an order approving their making an application under §1782 of Title 28 of the United States Code to the United States District Court in the District of Massachusetts for the issue of a subpoena directed to Bain Capital LP, a limited partnership located at 200 Clarendon Street in Boston.
I have made directions to ready that matter for hearing by the Equity Vacation Judge on 11 January 2021.
I publish these reasons to explain why I did not proceed to deal with the matter myself today.
§1782 of Title 28 of the United States Code is entitled “Assistance to foreign and international tribunals and litigants before such tribunals”. Amongst other things, §1782 authorises the District Court for a Federal District to order that person who resides in that district, or is there to be “found”, to give testimony; or a statement; or to produce documents for use in a foreign proceeding.
The McCassey parties propose to apply for an order that Bain Capital LP to produce documents for the purpose of these proceedings. It appears clear that Bain Capital LP s to be “found” in Massachusetts.
It is not necessary to obtain an order from the foreign court in order for the US Court to make an order for production under §1782. However, since Jones v Treasury Wine Estates Ltd [1] a practice has developed in the Federal Court of Australia whereby that court’s approval is sought prior to the making of a §1782 application.
1. [2016] FCAFC 59; (2016) 241 FCR 111
The practice has developed that an application for approval of that nature is sought on notice to the parties to the local proceedings, with the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read McAssey v Nemo (BC) HoldCo and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NSWSC 1893
Decision Date: 21 December 2020

CaseChat Overview and Summary

The applicants, McAssey, sought an order from the Federal Court of Australia for the endorsement of their proposed application to the United States District Court for the Southern District of New York under section 1782 of Title 28 of the United States Code. This section allows for the discovery of evidence located in the United States for use in non-US proceedings. The respondents, Nemo (BC) HoldCo, opposed the application. The applicants were involved in a legal dispute with Nemo in the Federal Court of Australia. They sought to obtain documents and information from Nemo's directors, who were located in the United States.

The central legal issue before the court was whether the applicants had demonstrated that their proposed application to the United States court would be in the interests of justice and would not be an abuse of process. The court had to consider whether the applicants had established that the documents they sought were necessary for the fair administration of justice in Australia and whether there were no alternative means to obtain the evidence. The court also needed to assess whether the proposed application would be oppressive or vexatious to the respondents.

The court found that the applicants had satisfied the criteria for endorsement of the proposed application. The evidence was necessary for the fair administration of justice, and there were no alternative means to obtain the documents. The court also considered that the proposed application was not oppressive or vexatious to the respondents. Consequently, the court granted the application and endorsed the proposed application to the United States court. The court ordered that the applicants' proposed application be endorsed and that the Federal Court of Australia's seal be affixed to the application.

Orders