FEDERAL COURT OF AUSTRALIA
Schiff v Nine Network Australia Pty Ltd (No 7) [2023] FCA 1432
File number(s): NSD 1086 of 2021 Judgment of: JACKMAN J Date of judgment: 21 November 2023 Catchwords: PRACTICE AND PROCEDURE – interlocutory application for leave to apply under 28 United States Code §1782 for the production of documents by the trustee of the Euro Pacific Bank in Puerto Rico – principles of case management – where the documents in question may shed light on the issues in dispute at the final hearing – where the grant of leave will occasion a substantial delay to the date of the final hearing – application dismissed Legislation: Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, opened for signature 15 November 1965, 658 UNTS 163 (entered into force 10 February 1969)
Convention on the Taking of Evidence Abroad in Civil or Commercial Matters, opened for signature 18 March 1970, 847 UNTS 231 (entered into force 7 October 1972)
28 United States Code §1782
Cases cited: Jones v Treasury Wine Estates Limited [2016] FCAFC 59; (2016) 241 FCR 111
Division: General Division Registry: New South Wales National Practice Area: Other Federal Jurisdiction Number of paragraphs: 16 Date of hearing: 16 November 2023 Counsel for the Applicant: Ms S Chrysanthou SC and Mr N Olson Solicitor for the Applicant: Kennedys (Australasia) Partnership Counsel for the Respondents: Mr D Sibtain SC and Mr M Lewis Solicitor for the Respondents: Minter Ellison ORDERS
NSD 1086 of 2021 BETWEEN: PETER DAVID SCHIFF
Applicant
AND: NINE NETWORK AUSTRALIA PTY LTD ACN 008 685 407
First Respondent
THE AGE COMPANY PTY LTD
Second Respondent
NICHOLAS MCKENZIE (and others named in the Schedule)
Third Respondent
ORDER MADE BY:
JACKMAN J
DATE OF ORDER:
21 NOVEMBER 2023
THE COURT ORDERS THAT:
1.The amended interlocutory application dated 9 November 2023 be dismissed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
JACKMAN J:
This is an application by the respondents for leave to apply under §1782 of Title 28 of the United States Code in the United States District Court for the District of Puerto Rico for the production by Mr Mender, the Receiver and Trustee of the Euro Pacific International Bank, Inc. (the Trustee) of the classes of documents identified in the draft application exhibited to the affidavit of Mr Bartlett, the respondents’ solicitor, dated 2 November 2023. The application was foreshadowed at a case management hearing on 30 June 2023 as a matter which may arise depending upon what the applicant was able to discover by way of documents under his control: T11.13-20. On that occasion, I fixed the matter for hearing with a five-day estimate commencing on 29 January 2024, and I also made orders for the giving of standard discovery and…
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- Case
- [2023] FCA 1432
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the documents in question were relevant to the issues in dispute at the final hearing and whether the grant of leave to apply for their production would occasion a substantial delay to the final hearing. The court considered the principles of case management and the importance of ensuring that the final hearing was heard in a timely manner.
The court found that while the documents in question may shed light on the issues in dispute, the grant of leave to apply for their production would occasion a substantial delay to the final hearing. The court noted that the application was made at an interlocutory stage and that the final hearing was already delayed. The court held that the principles of case management required it to consider the overall progress of the case and to ensure that the final hearing was heard in a timely manner. Accordingly, the court dismissed the application for leave to apply for the production of the documents.
The court's final order was that the amended interlocutory application dated 9 November 2023 be dismissed. The entry of orders was dealt with in Rule 39.32 of the Federal Court Rules 2011.
Orders
Orders of the court
1. The amended interlocutory application dated 9 November 2023 be dismissed.
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
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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