we-do-IT Pty Ltd v we-do-IT-Inc [Delaware]
[2023] VSC 611
•10 October 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMERCIAL COURT
ARBITRATION LIST
S ECI 2023 04658
| we-do-IT Pty Ltd (ACN 071 972 891) | Applicant |
| v | |
| we-do-IT-Inc (Delaware filing no: 4863566) | Respondent |
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JUDGE: | Croft J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 October 2023 |
DATE OF JUDGMENT: | 10 October 2023 |
DATE OF PUBLICATION OF REASONS | 20 October 2023 |
CASE MAY BE CITED AS: | we-do-IT Pty Ltd v we-do-IT-Inc [Delaware] |
MEDIUM NEUTRAL CITATION: | [2023] VSC 611 |
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ARBITRATION — Leave to issue a subpoena — Principles — Court’s role in assisting and supporting arbitral processes — Court must be satisfied of compliance with relevant section and rule and reasonableness of subpoena — Court will not ‘second guess’ arbitrator’s ruling where documents relevant to issues in proceeding and subpoena sought to be issued for legitimate forensic purpose — Leave granted on return of application — Section 23 of the International Arbitration Act 1974 (Cth).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P Wallis KC and Mr J Page | K&L Gates |
| For the Respondent | Mr C Juebner KC and Ms A Hando | Russell Kennedy Lawyers |
HIS HONOUR:
Introduction
By originating application for issue of subpoenas filed 6 October 2023, the Applicant, we‑do‑IT Pty Ltd, seeks an order for the issue of subpoenas under s 23(3) of the International Arbitration Act 1974 (Cth) (‘IAA’) requiring the following people (‘the Addressees’) to produce documents.
(a) Shiva Naga Surya Ganesh Kondreddi;
(b) Adam Jameson;
(c) Nagamani Meda;
(d) Sri Prasad Seetala;
(e) Shivaparvathi Varanasi;
(f) Emily Kate Allen;
(g) Prashanth Kumar Ponugoti;
(h) Michael Boyd Daly;
(i) Lisa Turner;
(j) Annabelle Louise Slocombe;
(k) Ronald Simbulan;
(l) Intrinsic Global Communications Pty Ltd (ACN 650 006 787); and
(m) Harsha Teja Sundara.
we‑do‑IT‑Inc (Delaware filing no: 4863566) is the Respondent in arbitral proceedings brought by the Applicant. The seat of the arbitration is Melbourne and the arbitrator is Mr A Monichino KC (‘the Arbitrator’).
The dispute the subject of the arbitration arises out of a contract between an Australian company (the Applicant) and a United States company (the Respondent), dated 1 February 2022 (‘the Agreement’). At the relevant time, both entities were members of a company group involved in the provision of information technology services.[1] Under the Agreement, the Applicant was to provide certain services and human resources to the Respondent. The Agreement also contained terms relating to ‘non‑solicitation’ by either party in relation to resources of the other party, as well as terms governing the use of confidential information received by each party.
[1]Confidential Affidavit of Patrick Sands dated 6 October 2023, [7].
Submissions
The Applicant contends that the Respondent, without authority, used the Australian Employee Information and the Indian Employee Information[2] to approach and solicit employees from the Applicant and certain related companies within the we‑do‑IT company group.[3] Alternatively, the Applicant submits that since at least 29 September 2022, the Respondent, without authority, disclosed this information to Intrinsic Communications Private Limited and Intrinsic Global Communications Pty Ltd (together ‘IGC’) in order to enable these companies to approach and solicit the same employees.[4] The Applicant alleges that this constituted use of Confidential Information[5] in breach of the Agreement.[6]
[2]As defined in the Applicant’s Further Amended Statement of Case at 1.
[3]Applicant’s Outline of Submissions, [8].
[4]Applicant’s Outline of Submissions, [9].
[5]As defined by the Agreement.
[6]Applicant’s Outline of Submissions, [10].
The Applicant further alleges that, sometime prior to the termination of the Agreement, the Respondent approached and solicited certain employees to leave their employment and commence employment with the Respondent or one of its associated companies. The Applicant claims that it is presently unable to particularise when or how this conduct occurred.[7]
[7]Applicant’s Outline of Submissions, [11].
The Respondent, in its Further Amended Defence, makes certain admissions with respect to the approach of some employees, including the approach of nine identified employees prior to the termination of the Agreement, whilst denying other allegations.[8] The Respondent says that its officers and employees communicated on several occasions with representatives of IGC via Microsoft Teams who, shortly afterwards, ran a recruitment drive in which the Respondent had no involvement.[9]
[8]Defendants’ Further Amended Statement of Defence dated 4 September 2023.
[9]Defendants’ Further Amended Statement of Defence dated 4 September 2023, [26](e) and (f).
The Applicant submits that these elements of the Respondent’s Further Amended Defence raise important factual issues relevant to both breach and loss and damage. These include the content of the discussions with the Applicant’s employees, the details of the approaches, the reasons for the approaches of certain employees and not others, the extent to which any further approaches were made, the documents provided to the employees and the person providing them, and the content and timing of the discussions between the Respondent and IGC in relation to the employees.[10]
[10]Applicant’s Outline of Submissions, [16].
The Applicant submits that, as the Arbitrator found, these matters were not satisfactorily answered by the discovery provided by the Respondent in the arbitration, and that the Addressees may reasonably be expected to have additional relevant documents in their possession and reasonably be expected to give relevant evidence in respect of these issues at the arbitral hearing.[11]
[11]Applicant’s Outline of Submissions, [18].
The Addressees are variously former employees of the Applicant who are currently employed with IGC or the Respondent, as well as Intrinsic Global Communications Pty Ltd (ACN 650 006 787) and its director, Harsha Teja Sundara.[12]
[12]Applicant’s Outline of Submissions, [17].
Legislative regime
Section 23 of the IAA provides as follows:
(1)A party to arbitral proceedings commenced in reliance on an arbitration agreement may apply to a court to issue a subpoena under subsection (3).
(2)However, this may only be done with the permission of the arbitral tribunal conducting the arbitral proceedings.
(3)The court may, for the purposes of the arbitral proceedings, issue a subpoena requiring a person to do either or both of the following:
(a)to attend for examination before the arbitral tribunal;
(b)to produce to the arbitral tribunal the documents specified in the subpoena.
(4)A person must not be compelled under any subpoena issued under subsection (3) to answer any question or produce any document which that person could not be compelled to answer or produce in a proceeding before that court.
(5)The court must not issue a subpoena under subsection (3) to a person who is not a party to the arbitral proceedings unless the court is satisfied that it is reasonable in all the circumstances to issue it to the person.
(6)Nothing in this section limits Article 27 of the Model Law.
Subpoenas relating to international commercial arbitration are regulated by r 9.06 of the Supreme Court (Miscellaneous Civil Proceedings) Rules2018 (Vic) (‘the Arbitration Rules’), which provides as follows:
(1)An application for the issue of a subpoena under section 23(3) of the International Arbitration Act shall be in Form 2–9D.
(2) The application shall be accompanied by—
(a) a draft subpoena in accordance with paragraph (3); and
(b) an affidavit stating the following—
(i)the names of the parties to the arbitration;
(ii)the name of the arbitrator or the names of the arbitrators constituting the arbitral tribunal conducting the arbitration;
(iii)the place where the arbitration is being conducted;
(iv)the nature of the arbitration;
(v)the terms of the permission given by the arbitral tribunal for the application;
(vi)the conduct money (if appropriate) to be paid to the addressee; and
(vii)the witness expenses payable to the addressee.
(3) For the purposes of paragraph (2)(a), the draft subpoena shall be—
(a)for a subpoena to attend for examination before an arbitral tribunal—in Form 2–9E;
(b)for a subpoena to produce to the arbitral tribunal the documents mentioned in the subpoena—in Form 2–9F; or
(c)for a subpoena to attend for examination and produce documents—in Form 2–9G.
(4) The Court may—
(a)fix an amount that represents the reasonable loss and expense the addressee will incur in complying with the subpoena; and
(b)direct that the amount be paid by the applicant to the addressee before or after the addressee complies with the subpoena.
(5)An amount fixed under paragraph (4) may be in addition to any conduct money or witness expenses referred to in paragraph (2)(b).
(6)A subpoena shall be—
(a)for a subpoena to attend for examination before an arbitral tribunal—in Form 2–9E;
(b)for a subpoena to produce to the arbitral tribunal the documents mentioned in the subpoena—in Form 2–9F; or
(c)for a subpoena to attend for examination and produce documents—in Form 2–9G.
(7)A person served with a subpoena shall comply with the subpoena in accordance with its terms.
(8)Order 42 of Chapter I applies so far as is practicable to a subpoena referred to in this Rule.
Evidence
In compliance with sub‑r 9.06(2)(b) of the Arbitration Rules, the application was accompanied by an affidavit affirmed by the solicitor for the Applicant who deposed as to the matters required under this sub‑rule.
The affidavit exhibited the ruling of the Arbitrator dated 4 October 2023, which gave permission to the Applicant to make this application. The ruling gave a brief description of the arbitral proceedings, and the basis for the Arbitrator’s conclusion that the documents sought by the Applicant and set out in the schedule to his ruling:
(a) are relevant to the issues in the arbitral proceedings;
(b) serve a legitimate forensic purpose; and
(c) are not available to the Applicant other than pursuant to a subpoena.
The documents referred to in the form of the proposed subpoena provided to the Court were as follows:
1.All Documents recording any communication between you and any one of the following:
(a)Mr Justin Eldridge;
(b)Ms Jennifer Aboaf;
(c) any other employee, director or purported representative of we‑do‑IT Inc. (Delaware filing no: 4863566) (US Co), excluding Russell Kennedy Lawyers;
(d)any employee, director or purported representative of IGC as defined below; or
(e)any other employee of or contractor to we‑do‑IT Right Shoring Pty Ltd (Right Shoring) or we‑do‑IT Pty Ltd (ACN 071 972 891) (Aust Co)
in the period 1 August 2022 to present (Relevant Period) concerning:
(f)you ceasing employment with or ceasing to provide services to Right Shoring or Aust Co;
(g)you or any entity or business controlled by you commencing employment with or providing services to US Co other than through Right Shoring or Aust Co; or
(h)you or any entity or business controlled by you commencing employment with or providing services to IGC.
2.All Documents recording any communication between you and any of the following:
(a)any other employee of or contractor to Right Shoring or Aust Co (Other Australian Resources);
(b)any other employee of or contractor to we‑do‑IT (India) Pvt Ltd (India Co);
(c)any other employee, director or purported representative of US Co, excluding Russell Kennedy Lawyers;
(d)any employee, director or purported representative of IGC,
in the Relevant Period concerning:
(e)you ceasing employment with or ceasing to provide services to Right Shoring or Aust Co;
(f)you or any entity or business controlled by you commencing employment with or providing services to US Co or IGC other than through Right Shoring or Aust Co;
(g)any of the Other Australian Resources ceasing employment with or ceasing to provide services to Right Shoring or Aust Co;
(h)any of the Other Australian Resources commencing employment with or providing services to IGC or directly to US Co other than through Right Shoring or Aust Co;
(i)any employees or contractors of India Co ceasing employment with or ceasing to provide services to India Co or Aust Co; or
(j)any employees or contractors of India Co. commencing employment with or providing services to IGC or US Co other than through India Co or Aust Co.[13]
[13]The proposed subpoenas also provided various defined terms, including:
In this Schedule, document means any record of information, and includes, but is not limited to, the following:
(a)hard copy documents, such as hand‑written notes, file notes, diary entries or other records;
(b) electronic documents, such as:
a.text messages, such as SMS or WhatsApp, LinkedIn or similar;
b.emails;
c.chat logs or notes from electronic conference platforms, such as Microsoft Teams, Zoom or Webex or similar;
d.electronic notes, file notes or other documents.
In this Schedule, IGC means:
(a) Intrinsic Global Communications Private Limited Registration number 151452, an entity with business operations in Hyderabad, India, incorporated on 14 May 2021; and
(b)Intrinsic Global Communications Pty Ltd ACN 650 006 787, an entity with business operations in Australia.
In this Schedule, between you includes communications to which you are a party, and is not confined to communications initiated by you or sent directly to you.
Principles
The proper approach of the Court to applications of this nature was explained by Croft J in Aurecon Australasia Pty Ltd v BMD Constructions Pty Ltd[14] as follows (in the context of granting an application under s 27A of the Commercial Arbitration Act 2011):
[14](2017) 52 VR 267; and see Delphi Petroleum Inc v Derin Shipping & Trading Ltd (1993) 73 FTR 241; Alinta Sales Pty Ltd v Woodside Energy Ltd [2008] WASC 304 (Beech J); ASADA v 34 Players and One Support Person [2014] VSC 635.
In Delphi Petroleum Inc v Derin Shipping & Trading Ltd Denault J of the Federal Court of Canada (Trial Division), in the context of court assistance in the compulsory taking of evidence from a former employee of a party, said:
An inquiry into the reasons for the request is likely not necessary because the request issues from the arbitral tribunal itself or has the approval of the arbitral tribunal, and the role of the court is merely to exercise for the arbitral tribunal the compulsion power which the arbitral tribunal may not have.[15]
[15]Delphi Petroleum Inc v Derin Shipping & Trading Ltd (1993) 73 FTR 241 at [10].
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However, in my view it is not appropriate to extend its logic to the present circumstances to preclude an enquiry by this Court into the reasonableness of the issue of the subpoena. While a degree of deference to the position taken by the arbitral tribunal is vital, it is clear from the case law that the Court does not act as a mere ‘rubber stamp’ in issuing subpoenas in support of arbitral proceedings. As I said in ASADA v 34 Players and One Support Person:
Having regard to the international provenance of the Act, particularly the provisions of the Model Law, it is, in my view, clearly inappropriate for the court, in an application under s 27A of [the CAA] by a party to obtain subpoenas, to embark upon a process which would, in effect, ‘second guess’ the arbitral tribunal which has already given permission for the application to obtain a subpoena under these provisions.[16] It is quite clear from the provenance of this legislation, internationally and domestically, that the emphasis sought to be achieved by the legislature is court assistance and support for arbitral processes, and not ‘heavy handed’ intervention or, in effect, duplication of the functions of the arbitral tribunal. Long gone are the evils of the case stated procedure under the Victorian Arbitration Act and its equivalents in other jurisdictions. Since the Commercial Arbitration Act in Victoria, the trend in legislative developments and court decisions has been to constrain merits appeals and the consequent cost and delay that flows from duplication of the proceedings in this process. This is not to say, however, that a provision such as s 27A of [the CAA] is to be treated lightly by the courts. The sanctions for a breach of a court issued subpoena are potentially very serious indeed. Consequently, the basis upon which these powers are sought to be invoked must be established to the satisfaction of the court. Nevertheless, this process should, naturally, occur as expeditiously and cost effectively as possible; but it must be balanced against the seriousness associated with subpoenas and their possible breach.[17]
The policy underlying the Court’s abstention from enquiry into the merits of arbitral decisions is that the parties have by consent subjected themselves to the jurisdiction of the arbitrator by their conclusion of an arbitration agreement. The same policy considerations do not, however, justify an exercise of the Court’s coercive powers against non‑parties without enquiry into the reasonableness of the use of such powers. Non‑parties are strangers to the arbitration agreement, and they should be no more exposed to answering subpoenas in arbitration than they are in litigation, especially since arbitral examination is not under the immediate supervision of the Court.
In any event, it is inherent in the scheme which the CAA establishes, especially in s 27 which implicitly confirms an independent discretion in the Court for the purpose of assisting the arbitration process, that there must be some enquiry by the Court into the reasonableness of the issue of the subpoena. Thus it is not sufficient that there is ‘merely’ an arbitral tribunal in support of the subpoena application, requesting or approving the issue of such a subpoena. Thus, in addition to the express requirements under s 27A of the CAA, there must be evidence of reasonable grounds for the issue of the subpoena against the addressee.[18]
[16]See Alinta Sales Pty Ltd v Woodside Energy Ltd [2008] WASC 304 (Beech J).
[17][2014] VSC 635 at [63].
[18](2017) 52 VR 267 at 268–270, [5]–[7].
In summary, in determining an application under s 23(3) of the IAA, the Court must be satisfied of compliance with the relevant section and rule, and that it is reasonable for the subpoena to be issued. It does not merely ‘rubber stamp’ the application. However, the Court will attribute a degree of deference to the fact that permission has been given by the arbitral tribunal and will not usually ‘second guess’ the tribunal’s ruling that:
(a) the documents the subject of a proposed subpoena are relevant to the issues in the proceeding; and
(b) the subpoena is being issued for a legitimate forensic purpose.
Procedure
In the usual case, there is no practical or legal requirement for an applicant to serve the other parties to the arbitration or the addressees with the application, or to otherwise give them an opportunity to dispute the applicant’s right to issue the subpoena.
Practically, in the usual case, for the Court to entertain such a dispute between the parties would only serve to add to the cost of and delay in the conduct of the arbitration. The facilitation of such a collateral dispute by the Court would not be consistent with ‘the emphasis sought to be achieved by the legislature [being] court assistance and support for arbitral processes’.[19] Of course, under r 42.04 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’), a party or any person having a sufficient interest may apply to set aside the subpoena.
[19]Chief Executive Officer of Australian Sports Anti‑Doping Authority Australian Football League (ASADA) v 34 Players and One Support Person [2014] VSC 635, [63] (Croft J). See also Commercial Arbitration Act 2011 (Vic) ss 1AA, 1AC; International Arbitration Act 1974 (Cth) ss 2D, 39.
Legally, the Arbitration Rules provide that ord 42 of ch 1 of the Rules should apply ‘so far as is practicable’.[20] Order 42 of the Rules does not require, and it is not the practice for, notice to be given to other parties prior to the issue of a subpoena. In fact, there is less reason to put other parties or the addressees on notice in an application for leave to issue a subpoena in arbitration proceedings because the tribunal has already considered the matter and given permission. As noted in the previous paragraph, under the Rules, a party or any person having a sufficient interest may apply to set aside the subpoena, but are not usually given the opportunity to oppose the issue of the subpoena.
[20]Supreme Court (Miscellaneous Civil Proceedings) Rules2018 (Vic) r 9.06(8).
Accordingly, for the purpose of minimising cost and delay in the arbitral process, it will usually be appropriate for the Court to determine the application for leave to issue the subpoena ex parte on the papers. Of course, nothing I have said is intended to suggest there is a limitation on the discretion of the Court, in an appropriate case, to require notice of the application to be given.
Conclusion
After reading the affidavit in support and the ruling of the Arbitrator, I am satisfied of compliance with the relevant section and rule, and that it is reasonable for the subpoenas to be issued. In the present application the Applicant and Respondent did appear at the brief hearing of the matter and facilitated its disposition by agreement on the form of orders sought to be made.
Orders
I therefore order as follows:
1.Pursuant to s 23(3) of the IAA, the Applicant is granted leave to issue subpoenas to attend for examination and to produce documents, in the form annexed to the orders dated 10 October 2023 (‘the Orders’), to each of the following:
a.Shiva Naga Surya Ganesh Kondreddi;
b.Adam Jameson;
c.Nagamani Meda;
d.Sri Prasad Seetala;
e.Shivaparvathi Varanasi;
f.Emily Kate Allen;
g.Prashanth Kumar Ponugoti;
h.Michael Boyd Daly;
i.Lisa Turner;
j.Annabelle Louise Slocombe;
k.Ronald Simbulan;
l.Intrinsic Global Communications Pty Ltd (ACN 650 006 787); and
m.Harsha Teja Sundara.
2.At the time of service of the subpoenas, each addressee is to be:
a.served with an authenticated copy of the Orders; and
b.provided or tendered conduct money, as defined in r 42.01 of the Rules, in the amount of $100.
3.The Applicant pay the reasonable witness expenses incurred by each addressee in complying with the subpoenas.
4.The costs of this application, the costs of and incidental to the subpoena, and the amounts payable under paragraph 3 of the Orders, are costs reserved in the Arbitration.
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