Berry v Innovia Security Pty Ltd (No 3) [2017] FCA 244

FEDERAL COURT OF AUSTRALIA

Berry v Innovia Security Pty Ltd (No 3) [2017] FCA 244 File number: NSD 2597 of 2013

Judge: RARES J

Date of judgment: 13 March 2017

Catchwords: EVIDENCE – application for letter of request to be sent to judicial authorities of the United Kingdom pursuant to s 7 of the Foreign Evidence Act 1994 (Cth) – where person is unwilling to come to Australia to give evidence – where person is able to give evidence material to issues to be tried – where interests of justice are served by granting the order – whether trial judge can be appointed to take the evidence of the person in London PRACTICE AND PROCEDURE – whether trial judge could hear final submissions in London – source of power of the Court to hear final submissions abroad – s 8(2) of the Foreign Evidence Act 1994 (Cth) – ss 47B and 48(1) of the Federal Court of Australia Act 1976 (Cth) PRACTICE AND PROCEDURE – costs requirement in [3.6] of the Federal Court Overseas Service and Evidence Practice Note (GPN-OSE) – whether respondent's undertaking to pay the Court's and applicants' costs and expenses of hearing in London creates apprehension of bias

Legislation: Federal Court of Australia Act 1976 (Cth) ss 12, 47B, 48 Foreign Evidence Act 1994 (Cth) ss 7, 8 Prevention of Corruption Act 1906 (UK) s 1 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. Opened for signature on 18 March 1970. 847 UNTS 241, art 9 (entered into force on 7 October 1972)

Cases cited: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Date of hearing: 16 February 2017