Rauland Australia Pty Ltd v Law - [2020] FCA 516

FEDERAL COURT OF AUSTRALIA

Rauland Australia Pty Ltd v Law [2020] FCA 516

File number: NSD 1914 of 2018

Judge: STEWART J

Date of judgment: 21 April 2020

Catchwords: PRACTICE AND PROCEDURE – application for leave to issue a subpoena and serve it in New Zealand – whether to grant leave to serve a subpoena in New Zealand under the Trans-Tasman Proceedings Act 2010 (Cth) – applicable test – apparent relevance and significance of the documents sought – too tenuous – leave refused

Legislation:
Federal Court Rules 2011 (Cth) rr 24.01, 34.66, 34.67, 42.12

Trans-Tasman Proceedings Act 2010 (Cth) s 31

Cases cited:
Chamberlain Group Pty Ltd v Kids for Life Academy Pty Ltd [2015] NSWCA 241

Comeskey v New South Wales Bar Association [2015] NSWSC 12

Foster v Australian Competition and Consumer Commission [2014] FCA 240; 219 FCR 563

King (Trustee), in the matter of Zetta Jet Pte Ltd v Linkage Access Ltd [2019] FCA 1408

Labruyere v Parsons Brinckerhoff Australia Pty Ltd (No 3) [2019] NSWSC 79

Rauland NZ Limited v Delvo [2018] NZEmpC 153

Stokes (by a tutor) v McCourt [2013] NSWSC 1014

Wong v Sklavos [2014] FCAFC 120; 319 ALR 378

Date of hearing: Determined on the papers

Date of last submissions: 2 April 2020

Registry: New South Wales

Division: General Division

National Practice Area: Intellectual Property

Sub-area: Copyright and Industrial Designs

Category: Catchwords

Number of paragraphs: 64

Counsel for the Respondents: T Brennan and S McIntosh

Solicitor for the Respondents: Norton White

ORDERS

NSD 1914 of 2018

BETWEEN:
RAULAND AUSTRALIA PTY LTD

Applicant

AND:
HUW LAW

First Respondent

HILLS LTD (ACN 007 573 417)

Second Respondent

JUDGE:

STEWART J

DATE OF ORDER:

21 APRIL 2020

THE COURT ORDERS THAT:

The application by the second respondent for leave to issue a subpoena and serve it on Rauland NZ Ltd in New Zealand is dismissed.
The second respondent is to pay its own costs of the application.

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

REASONS FOR JUDGMENT

STEWART J:

The nature of the application

The second respondent in the principal proceeding, Hills Ltd, applies under r 24.01 of the Federal Court Rules 2011 (Cth) (FCR) for leave to issue a subpoena, and under r 34.66 for leave to serve it in New Zealand.
The subpoena is proposed to be directed to Rauland NZ Ltd and served at an address in Auckland. Rauland NZ is not a party to the principal proceeding.
The interlocutory application for leave to serve the subpoena in New Zealand indicates that it is not intended by Hills to serve the application on any other party to the principal proceeding. That is one of the options that the prescribed form, Form 97, provides. An application for leave to issue a subpoena can be made without notice to any other party. That is made express in r 24.01(2).
As envisaged by the other two options given in Form 97, there may…

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.

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Details

Case: [2020] FCA 516
Decision Date: 21 April 2020

CaseChat Overview and Summary

The case involved Rauland Australia Pty Ltd, as the applicant, and Law, as the first respondent, with a dispute over the validity of a subpoena to be served in New Zealand on Rauland NZ Ltd, the second respondent. The matter was heard in the Federal Court of Australia. The primary concern was whether the second respondent should be granted leave to issue a subpoena and serve it on Rauland NZ Ltd in New Zealand under the Trans-Tasman Proceedings Act 2010 (Cth). The court needed to determine the applicable test for this matter and assess the apparent relevance and significance of the documents sought.

The court examined the Trans-Tasman Proceedings Act 2010 (Cth) and considered the test for granting leave to serve a subpoena in New Zealand. The court held that the applicant must demonstrate that the documents sought are relevant and significant to the proceedings, and that there are no other reasonable means of obtaining them. The court found that the relevance and significance of the documents sought were too tenuous, and that there were other reasonable means of obtaining the necessary information. Consequently, the court refused to grant leave for the subpoena to be served in New Zealand.

Based on the above findings, the Federal Court dismissed the second respondent's application for leave to issue a subpoena and serve it on Rauland NZ Ltd in New Zealand. Furthermore, the court ordered that the second respondent was to pay its own costs of the application. The entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

The application by the second respondent for leave to issue a subpoena and serve it on Rauland NZ Ltd in New Zealand is dismissed.

The second respondent is to pay its own costs of the 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

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number:	NSD 1914 of 2018
Judge:	STEWART J
Date of judgment:	21 April 2020
Catchwords:	PRACTICE AND PROCEDURE – application for leave to issue a subpoena and serve it in New Zealand – whether to grant leave to serve a subpoena in New Zealand under the Trans-Tasman Proceedings Act 2010 (Cth) – applicable test – apparent relevance and significance of the documents sought – too tenuous – leave refused
Legislation:	Federal Court Rules 2011 (Cth) rr 24.01, 34.66, 34.67, 42.12 Trans-Tasman Proceedings Act 2010 (Cth) s 31
Cases cited:	Chamberlain Group Pty Ltd v Kids for Life Academy Pty Ltd [2015] NSWCA 241 Comeskey v New South Wales Bar Association [2015] NSWSC 12 Foster v Australian Competition and Consumer Commission [2014] FCA 240; 219 FCR 563 King (Trustee), in the matter of Zetta Jet Pte Ltd v Linkage Access Ltd [2019] FCA 1408 Labruyere v Parsons Brinckerhoff Australia Pty Ltd (No 3) [2019] NSWSC 79 Rauland NZ Limited v Delvo [2018] NZEmpC 153 Stokes (by a tutor) v McCourt [2013] NSWSC 1014 Wong v Sklavos [2014] FCAFC 120; 319 ALR 378
Date of hearing:	Determined on the papers
Date of last submissions:	2 April 2020
Registry:	New South Wales
Division:	General Division
National Practice Area:	Intellectual Property
Sub-area:	Copyright and Industrial Designs
Category:	Catchwords
Number of paragraphs:	64
Counsel for the Respondents:	T Brennan and S McIntosh
Solicitor for the Respondents:	Norton White