Berry v Innovia Security Pty Ltd (No 4) [2017] FCA 811

FEDERAL COURT OF AUSTRALIA

Berry v Innovia Security Pty Ltd (No 4) [2017] FCA 811 File number: NSD 2597 of 2013

Judge: RARES J

Date of judgment: 13 July 2017

Legislation: Foreign Evidence Act 1994 (Cth) ss 7, 8 Evidence (Proceedings in Other Jurisdictions) Act 1975 (UK) s 2

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

Date of hearing: 13 July 2017

Registry: New South Wales

Division: General Division

National Practice Area: Commercial and Corporations

Sub-area: Commercial Contracts, Banking, Finance and Insurance

Category: No Catchwords

Number of paragraphs: 7

Counsel for the Applicants: Dr CS Ward SC

Solicitor for the Applicants: Marque Lawyers

Counsel for the Respondent: Mr N O'Bryan SC

Solicitor for the Respondent: Aitken Partners Pty Ltd

ORDERS NSD 2597 of 2013

BETWEEN: BENOY BERRY First Applicant

GLOBAL SECURE CURRENCY LIMITED (COMPANY NUMBER 05127761) Second Applicant

AND: INNOVIA SECURITY PTY LTD (FORMERLY KNOWN AS SECURENCY PTY LTD) ACN 072 353 452 Respondent

JUDGE: RARES J DATE OF ORDER: 13 JULY 2017

THE COURT NOTES THAT: 1. The Respondent, by its counsel, undertakes: (a) to be responsible for all expenses incurred by the Court, or by any person at the request of the Court, for the issuing and execution of the letter of request; (b) to pay the expenses of the trial judge in connection with his attendance in London, England to take the evidence of Hugh Brown (Mr Brown); (c) on being given notice of the amount of the expenses referred to in paragraphs (a) and (b) (or an estimate thereof), to pay the amount to the Registrar of the Court; (d) to pay the reasonable costs and incidental expenses, that would not have been incurred had Mr Brown given evidence in Sydney, of the Applicants' Australian legal representatives in connection with their participation in the taking of Mr Brown's evidence in London, England THE COURT ORDERS THAT: 2. Pursuant to sections 7(1)(c) and 8 of the Foreign Evidence Act 1994 (Cth), a letter of request, substantially in the form of Annexure A (including the cover letter), be sent to the judicial authorities of the United Kingdom: (e) by mail addressed to: The Senior Master For the attention of the Foreign Process Department Room E16 Royal Courts of Justice Strand London, WC2A 2LL United Kingdom (f) by email addressed to foreignprocess.rcj@hmcts.gsi.gov.uk. 3. The cost of the application made by the Respondent for orders under sections 7 and 8 of the Foreign Evidence Act 1994 (Cth) filed 6 July 2017, including all the costs and expenses paid by the Respondent pursuant to the undertaking noted in paragrah 1 above, be costs in the proceedings. 4. The Respondent has leave to file an amended defence to the second further amended statement of claim substantially in the form produced to the Court on 13 July 2017, on or before 24 July 2017. 5. On or before 28 July 2017, the Applicants' solicitor shall serve on the solicitor for the Respondent a list of documents that the Applicants intend to tender in evidence. 6. On or before 4 August 2017 the solicitor for the Respondent shall serve on the solicitor for the Applicants a list of the documents other than those specified in the list referred to in the preceding paragraph of this order which the Respondent intends to tender in evidence. 7. On or before 4 August 2017, after having conferred with the Respondent, the Applicants shall file with the Court and serve on the Respondent: (g) a Statement of Agreed Facts and Issues, with any issues in dispute to be identified by a different colour; and (h) a chronology of key events, with any events in dispute to be identified by a different colour. 8. On or before 4 August 2017 the Applicants shall serve on the Respondent a draft index for the proposed court book. The Respondent shall send a list of documents to be included or documents to be excluded from the proposed court book and all parties shall consult as to and agree upon the contents of the court book. 9. On or before 11 August 2017 the solicitor for the Applicants shall serve on the Respondent and file for the use of the Judge an agreed court book of documents, in both hard copy and electronic form, containing: (i) an index of the court book; (j) the current pleadings and particulars; (k) one copy only of each of the proposed exhibits arranged in chronological order, the book being paginated sequentially from and including its index. 10. The Applicants' solicitor shall have available at the hearing a copy of the court book of documents for the exclusive use of witnesses during their examination. 11. On or before 14 August 2017, the Applicants shall file with the Court and serve on the Respondent an outline of submissions: (l) which concisely summarises the Applicants' submissions in relation to each of the issues, as agreed between the parties and to be identified by subject headings, in the proceeding; (m) which cites the main authorities upon which the Applicants will rely; and (n) which does not exceed 10 pages of double spaced A4 paper. 12. On or before 21 August 2017 the Respondent shall file with the Court and serve on the Applicants an outline of submissions in response: (o) which concisely summarises the Respondent's submissions in relation to each of the issues, as agreed between the parties and to be identified by subject headings, in the proceeding; (p) which cites the main authorities upon which it will rely; and (q) which does not exceed 10 pages of double spaced A4 paper. 13. On or before 25 August 2017 the Applicants file with the Court and serve on the Respondent an outline of submissions in reply not exceeding 5 pages of double spaced A4 paper. 14. To the extent he costs of the hearing on 13 July 2017 are not related to paragraph 3, they are costs in the proceeding 15. Liberty to apply. URGENT ## July 2017 The Senior Master For the attention of the Foreign Process Department Room E16 Royal Courts of Justice Strand London, WC2A 2LL United Kingdom Dear Senior Master Letter of Request under the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters Please find enclosed a Letter of Request under the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters (Hague Convention). The Letter of Request has been issued so as to obtain the evidence of Hugh Brown (Mr Brown), who is understood to reside at Exeter House, Church Street, Ropley, Alresford SO24 0DP. The evidence of Mr Brown is relevant to a civil proceeding presently before the Federal Court of Australia, Sydney Registry: Berry & Anor v Innovia Security Pty Ltd (No. NSD 2597 of 2013). The proceeding is listed for trial before the Honourable Justice Rares commencing 28 August 2017. It is understood that Mr Brown will not voluntarily give evidence in the proceeding in Australia. Having regard to the importance of the evidence of Mr Brown in the Australian proceeding, the Letter of Request seeks that the trial judge of the Australian proceeding be appointed to take the evidence of Mr Brown in London. The trial judge and counsel for the parties are able to attend the taking of that evidence, in London, in the week commencing 4 September 2017. The Letter of Request seeks that Mr Brown be served with a subpoena (or other coercive process) to compel him to attend his examination (if possible, returnable on 4 September 2017) in London. Accordingly, it is request that the Letter of Request be considered urgently. Pursuant to a previous letter of request, the High Court of Justice, Queen's Bench Division has already issued proceeding no. CR 2017 No. 169 and made an order compelling Mr Peter Michael Chapman to attend the Royal Courts of Justice, London on 4 September 2017 and to appoint Justice Rares as examiner. The Letter of Request seeks that a similar order be made with respect to Mr Brown in that same proceeding. The lawyers for the Respondent will arrange for Mr Brown to be served with the order as soon as practicable after it has been made. The High Court of Justice has already kindly offered to make a court room and chambers available for Justice Rares in the week commencing 4 September 2017 for the purpose of examining Mr Chapman and hearing closing submissions and it is confirmed that the examination of Mr Brown would take place during the same week. Yours faithfully No. NSD 2597 of 2013 Federal Court of Australia District Registry: New South Wales Division: General BENOY BERRY First Applicant and GLOBAL SECURE CURRENCY LIMITED (COMPANY NUMBER 05 127 761) Second Applicant and INNOVIA SECURITY PTY LTD formally known as SECURENCY INTERNATIONAL PTY LTD (ACN 072 353 452) Respondent LETTER OF REQUEST Request for international judicial assistance pursuant to the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters 1. Sender The Honourable Chief Justice Allsop AO, Federal Court of Australia, Queens Square, Sydney, 2000, Australia 2. Central Authority of the Requested State The Senior Master, For the attention of the Foreign Process Section, Room E16, Royal Courts of Justice, Strand, London WC2A 2LL, England 3. Person to whom executed request is to be returned Federal Court of Australia, through the Secretary, Commonwealth Attorney General's Department 4. In conformity with article 3 of the Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil and Commercial Matters, the undersigned applicant has the honour to submit the following request: 5. Requesting judicial authority (article 3, a) Federal Court of Australia, New South Wales Registry, Level 17 Law Courts Building, Queens Square Sydney NSW 2000, Australia 6. To the competent authority of (article 3, a) United Kingdom 7. Names and addresses of the parties and their representatives (article 3, b) Applicants Benoy Berry and Global Secure Currency Limited C/- Marque Lawyers, Level 4, 343 George St, Sydney NSW 2000, Australia Respondent Innovia Security Pty Ltd C/- K&L Gates, Level 25 (South Tower), 525 Collins Street, Melbourne VIC 3000, Australia 8. Nature and purpose of the proceedings and summary of the facts (article 3, c) See Attachment "A" 9. Evidence to be obtained or other judicial act to be performed (article 3, d) See Attachment "B" 10. Identity and address of any person to be examined (article 3, f) Hugh Brown, Exeter House, Church Street, Ropley, Alresford SO24 0DP 11. Questions to be put to the persons to be examined or statement of the subject-matter about which they are to be examined (article 3, f) See Attachment "C" 12. Any requirement that the evidence be given on oath or affirmation and any special form to be used (article 3, h) It is requested that the evidence from the examinee be taken on oath or affirmation or otherwise in accordance with the judicial procedures of the requested State. 13. Special methods or procedure to be followed (articles 3, i and 9) It is requested that the Honourable Justice Rares of the Federal Court of Australia be appointed to act as the examiner. It is further requested that: • a transcript of the examination be reduced to writing; • all books, documents and things produced and referred to during the examination be duly marked for identification; • the transcript of the examination, including all books, documents and things marked for identification, should be signed by the judicial officer or judge's associate before whom the examination takes place • only if the Honourable Justice Rares is not appointed to act as examiner, the examination be video recorded and certified by the examiner. 14. Request for measures of compulsion (Article 10) It is requested that the examinee, Hugh Brown, be compelled, by subpoena (or other appropriate means) to attend his examination. Further, it is requested that the Respondent be permitted to arrange that such coercive process be served on Mr Brown as soon as practicable. 15. Request for notification of the time and place for the execution of the Request and identity and address of any person to be notified (article 7) Federal Court of Australia, through the New South Wales Registry Address as above. The parties' legal representatives: • Marque Lawyers, Level 4, 343 George St, Sydney NSW 2000, Australia • Aitken Partners, Level 28, 140 William Street, Melbourne VIC 3000, Australia As noted in the covering letter, it is requested that the examination be conducted, if possible, in the week commencing 4 September 2017. 16. Request for attendance or participation of judicial personnel of the requesting authority at the execution of the Letter of Request It is requested that the Honourable Justice Rares of the Federal Court of Australia be permitted to participate in the examination as examiner. 17. Specification of privilege or duty to refuse to give evidence under the law of the State of origin (article 11, b) Nil 18. The fees and costs incurred which are reimbursable under the second paragraph of article 14 or under article 26 of the Convention will be borne by The Respondent, Innovia Security Pty Ltd. A note of the fees and expenses payable in respect of the execution of the request should be made and returned to the requesting authority. 19. Date of request [ ] July 2017