SOCIÉTÉ Des Produits NestlÉ SA v Christian (No.14)

[2014] FCCA 2968

FEDERAL CIRCUIT COURT OF AUSTRALIA

SOCIÉTÉ DES PRODUITS NESTLÉ SA & ORS v CHRISTIAN (No.14) [2014] FCCA 2968

Catchwords:
PRACTICE AND PROCEDURE – Whether the Court should make a declaration allowing the respondent to administer interrogatories pursuant to s.45(1) of the Federal Circuit Court of Australia Act 1999 (Cth) – whether subpoenas filed by the respondent are for a legitimate forensic purpose.

Legislation:

Federal Circuit Court of Australia Act 1999 (Cth), s.45(1)

First Applicant: SOCIÉTÉ DES PRODUITS NESTLÉ SA

Second Applicant: NESTLÉ AUSTRALIA LTD
(ACN 000 011 316)

Third Applicant: PREMIER NUTRITION CORPORATION

Fourth Applicant: POST FOODS AUSTRALIA PTY LIMITED

Respondent: JAMES WILLIAM  CHRISTIAN

File Number: SYG 3214 of 2013

Judgment of: Judge Manousaridis

Hearing date: 9 December 2014

Delivered at: Sydney

Delivered on: 19 December 2014

REPRESENTATION

Counsel for the Applicants: Ms J.M. Beaumont

Solicitors for the Applicants: Banki Haddock Fiora

Respondent appeared by telephone.

DECLARATION

1. It is not appropriate, in the interests of the administration of justice, to allow the respondent to administer interrogatories.

ORDERS

1. The subpoenas filed by the respondent on 5 December 2014, being subpoenas addressed to Ms Judith Brimer, Executive Officer of the Therapeutic Goods Advertising Code Council and the Complaints Resolution Panel; Mr Graeme J. McEwen, barrister; and Mr Christopher Freeland, the National Managing Partner of Baker & McKenzie, are set aside.

2. The respondent must not file with the Registry of the Court any subpoena without the prior leave of a Judge of the Court.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 3214 of 2013

SOCIÉTÉ DES PRODUITS NESTLÉ SA

First Applicant

NESTLÉ AUSTRALIA LTD (ACN 000 011 316)

Second Applicant

PREMIER NUTRITION CORPORATION

Third Applicant

POST FOODS AUSTRALIA PTY LIMITED

Fourth Applicant

And

JAMES WILLIAM CHRISTIAN

Respondent

REASONS FOR JUDGMENT

Introduction

1. In these reasons for judgment, I consider whether the respondent, Mr Christian, should be permitted to serve three subpoenas he has filed with the Court, file a fourth subpoena, and administer interrogatories.

Theproposed subpoenas and interrogatories

1. The subpoenas Mr Christian has filed or wishes to issue, and the interrogatories he wishes to administer, are attached to Mr Christian’s affidavit of 3 December 2014. I first describe the documents specified in the subpoenas.

2. The first subpoena is addressed to Ms Judith Brimer, Executive Officer of the Therapeutic Goods Advertising Code Council (TGACC) and the Complaints Resolution Panel (CRP). It calls for all documents known of and in the possession of the TGACC, CRP, and any affiliated entities, employees, agents or advisers, relating to “Complaint 2013/07/031 A-Sashi products” and “any related complaints”. It also requires the production of documents that contain the “[f]ull name and contact details of the complainant in relation to “Complaint 2013/07/031 A-Sashi products”.

3. The second subpoena is addressed to Mr Graeme J. McEwen, a barrister in Melbourne. It calls for documents relating to the barrister’s being briefed to investigate whether an employee of any of the applicants or of any affiliated entities, agents or advisers, engaged in misconduct.

4. The third subpoena is addressed to Mr Aldo D’Agostino, the Head of Sales Oceania of DHL, Deutsche Post Global Mail (Australia Pty Ltd) (DHL). It proposes to call for all communications exchanged between DHL on the one hand and, on the other, any one of the applicants and any affiliated entities, agents or advisers, relating to A-Sashi Vitamins, Mark Christian and Mr Christian.

5. The fourth subpoena is addressed to Mr Christopher Freeland, the National Managing Partner of Baker & McKenzie. It calls for all documents relating to the briefing of Mr McEwen to investigate whether an employee of any of the applicants and of any affiliated entities, agents, or advisers, engaged in misconduct.

6. The interrogatories Mr Christian wishes to administer are directed to the applicants in these proceedings, and propose to obtain answers on the following matters: whether any of the applicants or their subsidiaries ever exchanged documents or met face to face with Arnet Pharmaceuticals (Arnet); whether any of the applicants have requested Arnet to supply any goods; whether any of the applicants have made any financial payment to Arnet; whether any of the applicants accepted delivery of goods from Arnet; whether any of the applicants exchanged documents or communication with DHL or met face to face with DHL in relation to A-Sashi Vitamins, Mark Christian or Mr Christian; whether any of the applicants made a complaint to the TGACC or CRP in relation to A-Sashi Vitamins products; the name and contact details of persons known to any of the applicants who have made a complaint to the TGACC or to the CRP in relation to A-Sashi Vitamins products; whether any of the applicants instructed Baker & McKenzie to instruct the barrister referred to in the second subpoena to investigate whether an employee of any of the applicants engaged in misconduct; the name of the employee of the applicants who was the subject of the investigation Baker & McKenzie instructed the barrister to undertake; whether there is a closing condition in any agreement relating to the applicants and the sale of the Powerbar and Musashi brands and related worldwide assets that requires these proceedings to be closed and, whether there is a closing condition which requires that order 3(3C) of the orders made by this Court on 17 October 2014 not be varied.

Purposes for which subpoenas and interrogatories are sought

1. In his affidavit of 3 December 2014, Mr Christian says that the purpose for which he seeks the documents described in the subpoenas, and the answers to the interrogatories, is to present “material facts to a person who holds a current practising certificate and to comply with order 5(d) made on 3 September 2014, ordering the merit of the cross-claim by the Respondent to be determined and certified that there are reasonable grounds for believing on the basis of provable facts and that the claims pleaded in the statement of cross-claim have reasonable prospects of success”.[1]

   [1] J. W. Christian affidavit, 03.12.14, [11]

2. Mr Christian has annexed to this affidavit an email from Kliger Partners sent to Mr Christian on 19 October 2014. That email states:[2]

   As indicated to you the other day, prior to signing off on a Cross-Claim, we need to be confident of the merits of the claim being brought or we risk falling foul of the wrath of the court and their orders which can be made against us personally. I am not pre-judging the merits of the claim, it is just that we need to be confident that there is merit in the claim.

   [2] J. W. Christian affidavit, 03.12.14, annexure “A”

3. Thus, the purpose for which Mr Christian seeks the documents described in the subpoenas, and the answers to the interrogatories he wishes to administer, is to provide material to a lawyer for the purpose of assisting the lawyer to determine whether the lawyer can certify there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law that Mr Christian has a viable cross-claim.

Should permission be given?

1. A subpoena may only be issued for a legitimate forensic purpose. That purpose is generally limited to bringing before a court documents that are apparently relevant to an issue in the proceedings. A subpoena cannot be issued for the purpose of “fishing” – that is, for the purpose of bringing documents before the court to permit the person on whose application the subpoena is issued to determine whether he or she has a claim.

2. The purpose for which Mr Christian seeks the subpoenas is not a legitimate forensic purpose. First, there is no issue before the Court to which the documents described in the proposed subpoenas are apparently relevant. The cross-claim Mr Christian says in his affidavit he wishes to assert is not a claim that is before the Court. A cross-claim by Mr Christian will only be before the Court if leave is given, after an application for such leave is made pursuant to the orders I made on 3 September 2014, and such application is supported by a draft cross-claim that has been certified by a legal practitioner to have reasonable prospects of success.

3. Second, it is apparent that Mr Christian seeks the documents described in the subpoenas for the purpose of enabling a lawyer to determine whether there may be facts on the basis of which the lawyer is able to frame a cross-claim which the lawyer will be able to certify has reasonable prospects of success. That is fishing.

4. Interrogatories are a species of discovery. Their purpose is to require the party to whom they are addressed to provide answers that are relevant to an issue in a case. This Court has power to permit a party to administer interrogatories, but only if the Court makes a declaration under s.45(1) of the Federal Circuit Court of Australia Act 1999 (Cth) (FCCA Act) that it is appropriate, in the interests of the administration of justice, to allow the interrogatories.

5. As I have already noted, the cross-claim Mr Christian says he wishes to assert is not before the Court. There is no issue before the Court, therefore, in relation to which the answers sought by the interrogatories Mr Christian seeks to administer are or can be relevant. Given there is no cross-claim before the Court, there is no proceeding in relation to which a declaration can be made under s.45(1) of the FCCA Act. Even if there were such a proceeding, given there is no cross-claim before the Court, I am not satisfied that it is appropriate, in the interests of the administration of justice, to allow Mr Christian to administer interrogatories.

Disposition

1. I propose to order that the subpoenas Mr Christian has filed be set aside. I also propose to declare that it is not appropriate, in the interests of the administration of justice, to allow Mr Christian to administer the interrogatories annexed to his affidavit. I will also order that Mr Christian file no subpoena without the prior leave of a Judge of this Court.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis

Associate: 

Date:  19 December 2014