Schiff v Nine Network Australia Pty Ltd (No 7)

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

Lavecky v Visa Inc [2017] FCA 454

White Oak Commercial Finance Europe (Non-Levered) Limited v Insurance Australia Limited [2022] FCA 1587

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:

1. 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…