Pan v Hampton Accelerate Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Pan v Hampton Accelerate Pty Ltd [2023] FCA 46  

File number(s): QUD 118 of 2022
Judgment of: COLLIER J
Date of judgment: 2 February 2023
Catchwords:  PRACTICE AND PROCEDURE – interlocutory application – application for non-standard discovery –  rules 20.13, 20.15 and 20.17 of the Federal Court Rules 2011 (Cth) – principles referrable to an order for discovery – whether applicant has established the onus of satisfying the court that the documents sought are necessary – application dismissed
Legislation: Federal Court Rules 2011 (Cth)
Cases cited:

Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd (No 4) [2013] FCA 1044

Rivas v The Republic of Chile [2020] FCA 737
Division: General Division
Registry: Queensland
National Practice Area: Commercial and Corporations
Sub-area: Regulator and Consumer Protection
Number of paragraphs: 24
Date of hearing: 1 February 2023
Counsel for the Applicant: Mr O Cook
Solicitor for the Applicant: Auslaw Partners
Counsel for the First, Second and Fourth Respondents: Ms F Lubett
Solicitor for the First, Second and Fourth Respondents: Bridges Lawyers

ORDERS

QUD 118 of 2022
BETWEEN:

MINER PAN

Applicant
AND:

HAMPTON ACCELERATE PTY LTD

First Respondent

HAMPTON CAPITAL LP

Second Respondent

REMOTE HOST PTY LTD

Third Respondent

JOHN PRIEST
Fourth Respondent

ORDER MADE BY:

COLLIER J

DATE OF ORDER:

2 FEBRUARY 2023

THE COURT ORDERS THAT:

1.

The interlocutory application filed by the applicant on 25 November 2022 is dismissed to the extent that the applicant seeks discovery of documents described in category


1 (d) of the Annexure thereto.

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


REASONS FOR JUDGMENT

COLLIER J:

INTRODUCTION

  1. Before the Court is an interlocutory application for discovery filed on 25 November 2022 by the applicant, Ms Miner Pan, seeking discovery of a number of categories of documents from the first, second and fourth respondents.

  2. At the hearing, the parties resolved a number of the categories of documents sought by the applicant. Materially, the only category that remains in dispute is as follows:

    1.Performance of the Services

    …

    (d) Any bill of costs, timesheets or similar documents recording the tasks undertaken by the First or Second Respondents (including their employees or agents) in providing the Applicant with services in relation to her attempts to obtain a subclass 132 visa.

    RELEVANT BACKGROUND

  3. By originating application filed on 12 April 2022 the applicant sought the following relief:

    (1)An order that the First and Fourth Respondent pay damages to the Applicant pursuant to s236 of the Australian Consumer Law, being Sch 2 to the Competition and Consumer Act 2010 (Cth) in the amount of $385,000

    (2)Alternatively, an order that the First Respondent pay to the Applicant restitution in the amount of $385,000.00 as money paid under a void contract;

    (3)Orders pursuant to s237 and s242 of the Australian Consumer Law, declaring the following agreements void:

    (a)The Services Agreement (Visa and Venture Capital Services) between the Applicant and the First Respondent dated 15 January 2020;…

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Details
Case
[2023] FCA 46
Decision Date

CaseChat Overview and Summary

The parties to the proceeding were Pan, the applicant, and Hampton Accelerate Pty Ltd, and others, the respondents. The applicant sought an order for non-standard discovery of documents related to the performance of services rendered by the respondents in connection with the applicant’s attempts to obtain a visa. The court was required to determine whether the applicant had discharged the onus of proving that the documents sought were necessary for the resolution of the case.

The court considered the arguments of the parties, including the respondents' contention that the documents sought were not relevant to the issues in the proceeding and would impose an undue burden on them. The court also noted that the parties had already agreed to provide documents in a category that encompassed the documents sought by the applicant. The court concluded that the applicant had not established that the documents sought were necessary for the resolution of the proceeding.

The interlocutory application was dismissed to the extent that the applicant sought discovery of documents described in category 1(d) of the Annexure. The court ordered that the applicant would bear the costs of the proceeding.

Orders

Orders of the court

1.

The interlocutory application filed by the applicant on 25 November 2022 is dismissed to the extent that the applicant seeks discovery of documents described in category

1 (d) of the Annexure thereto.

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

Background

Background to the litigation

At the hearing, the parties resolved a number of the categories of documents sought by the applicant. Materially, the only category that remains in dispute is as follows:1.Performance of the Services …(d) Any bill of costs, timesheets or similar documents recording the tasks undertaken by the First or Second Respondents (including their employees or agents) in providing the Applicant with services in relation to her attempts to obtain a subclass 132 visa. RELEVANT BACKGROUND By originating application filed on 12 April 2022 the applicant sought the following relief:(1)An order that the First and Fourth Respondent pay damages to the Applicant pursuant to s236 of the Australian Consumer Law, being Sch 2 to the Competition and Consumer Act 2010 (Cth) in the amount of $385,000(2)Alternatively, an order that the First Respondent pay to the Applicant restitution in the amount of $385,000.00 as money paid under a void contract;(3)Orders pursuant to s237 and s242 of the Australian Consumer Law, declaring the following agreements void:(a)The Services Agreement (Visa and Venture Capital Services) between the Applicant and the First Respondent dated 15 January 2020; and(b)The Subscription Agreement between the Applicant and the Second and Third Respondent dated 23 March 2020;(4)Interest; and(5)Costs of the proceeding. Both parties filed concise statements in the proceedings. The applicant is a Chinese national who resides in Australia, has obtained a number of tertiary degrees from Australian universities, and in late 2019 was the holder of a student visa (subclass 500). The applicant claimed that she was interested in applying for a visa under the Migration Act 1958 (Cth) which would permit her to reside in Australia on a permanent basis, and in pursuit of this objective she was introduced to Ms Winnie Ou (who at that time was the Business Development Manager of the first respondent). The applicant further claimed that Ms Ou showed her a PowerPoint presentation concerning a program offered by the first respondent intended to assist visa applicants seeking a Business Talent (Permanent) visa subclass 132, and that if the applicant engaged the first respondent and did not secure a visa, the fee she paid would be refunded. The applicant claimed that other executives of the first respondent (namely Mr Sean Lim and Mr Tom Chan) made similar assurances at a meeting in Sydney she attended. The applicant claimed that she was presented with a draft contract entitled “Services Agreement (Visa and Venture Capital Services), and that she signed the contract on 20 January 2020. The applicant claimed that the agreement provided for the provision of two kinds of services, namely:·“Matter 1” relating to the application for a subclass 132 visa for a fee of $15,000 including GST; and·“Matter 2” relating to the establishment and organisation of a venture capital project and proposed business for a fee of $685,000 including GST. The applicant claimed that the agreement did not provide for the result of a failure of a nomination by a state or territory government to nominate Ms Pan, such that she was not invited to lodge an application.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Noting that the applicant bears the onus of satisfying the Court that the discovery of documents sought in category 1 (d) is necessary for resolution of this case, I am not prepared to order non-standard discovery in those terms. In particular:·Given that the respondents are private companies and an individual – rather than, for example, law firms or accounting practices – it is entirely unclear to me how there would be any “bills of costs, timesheets or similar documents” prepared by any of them recording described tasks, as sought in category 1 (d); ·I am satisfied that category 2 (c), as agreed by the parties, being communications recording or identifying any input, comments or instructions by the applicant in relation to the Business Plan, encompasses the documents sought in category 1 (d), such that a further order in terms of category 1 (d) is unnecessary for determination of issues in the proceeding; ·Put another way, although the applicant submits that the objective of the applicant in seeking the documents in category 1 (d) is to reveal the extent of the work undertaken by the respondents and their agents in preparing the Business Plan, category 2 (c) appears directed to the same objective; and·I am not persuaded that an additional order in terms of category 1 (d) would be necessary for the just and expeditious resolution of the proceeding.CONCLUSION The interlocutory application is dismissed to the extent that the applicant seeks discovery of documents described in category 1 (d) of the Annexure. I will hear the parties in respect of costs.

Ratio Decidendi

Legal Principle Established

The respondents submitted, in summary, as follows: ·In relation to category 1(d), the material sought is not directly relevant to the issues raised in the parties pleadings;·The discovery would amount to a disproportionate burden on the respondent, particularly given the applicant’s description of the work undertaken by the respondent’s representatives;·The parties have agreed that the respondents would provide discovery of documents in the following category:2(c)All Communications recording or identifying any input, comments or instructions by the Applicant in relation to the Business Plan.The respondents submitted that this category would encapsulate the material sought in category 1 (d).CONSIDERATION Relevantly the Federal Court Rules 2011 (Cth) provide as follows:20.13 Application for discovery(1)A party may apply to the Court for an order that another party to the proceeding give discovery.(2) The application must state:(a) whether the party is seeking standard discovery; or(b) the proposed scope of the discovery.(3) An application may not be made until 14 days after all respondents have filed:(a)a defence; or(b)an affidavit in response to the affidavit accompanying the originating application.(4) The Court may order that discovery be given by an electronic means.(5) If a party who is required to give discovery wants an order under paragraph 43(3)(h) of the Act, the party must file an affidavit stating:(a) the orders sought; and(b) the party's calculation of the cost of making discovery; and(c) why the orders should be made.Note:Section 43 of the Act provides for the Court or a Judge to do any of the following in relation to discovery:(i)order the party requesting discovery to pay in advance for some or all of the estimated cost of discovery;(ii)order the party requesting discovery to give security for the payment of the cost of discovery;(iii)make an order specifying the maximum cost that may be recovered for giving discovery or taking inspection.…20.15: Non-standard and more extensive discovery(1)A party seeking an order for discovery (other than standard discovery) must identify the following:(a) any criteria mentioned in rules 20.14(1) and (2) that should not apply;(b)any other criteria that should apply;(c)whether the party seeks the use of categories of documents in the list of documents;(d)whether discovery should be given in an electronic format;(e)whether discovery should be given in accordance with a discovery plan.(2)An application by a party under sub rule (1) must be accompanied by the following:(a)if categories of documents are sought--a list of the proposed categories; and(b)if discovery is sought by an electronic format--the proposed format; and(c)if a discovery plan is sought to be used--a draft of the discovery plan.(3)An application by a party seeking more extensive discovery than is required under rule 20.14 must be accompanied by an affidavit stating why the order should be made.(4) For this Division:"category of documents" includes documents, or a bundle of documents, of the same or a similar type of character.Note: A discovery plan is a plan that has regard to the issues in dispute and the likely number, nature and significance of the documents discoverable in relation to those issues--see the Court's Practice Note CM6, 'Electronic Technology in Litigation'.…20.17: List of documents(1)A list of documents must be in accordance with Form 38.(2)The list must describe:(a)each category of documents in the party's control sufficiently to identify the category but not necessarily the particular document; and(b)each document that has been, but is no longer in the party's control, a statement of when the document was last in the party's control and what became of it; and(c)each document in the party's control for which privilege from production is claimed and the grounds of the privilege.(3)A party may apply to the Court, before or after the list of documents has been served, for an order:(a) about the use of categories in the list; or(b) that a more detailed list of documents be provided; or(c) that each document in a category be separately described.(4)The list of documents must be verified by an affidavit sworn in accordance with rule 20.22.Note:Control is defined in the Dictionary.