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 Attachment "A" to the Letter of Request dated [ ] July 2017 Nature and purpose of the proceedings and summary of the facts (article 3, c) 1. The applicants in this civil proceeding before the Federal Court of Australia are Dr Benoy Berry and Global Secure Currency Limited. Both are based in the United Kingdom. The respondent, Innovia Security Pty Ltd (Innovia), is an Australian company in the business of manufacturing polymer substrate for banknote printing. 2. The proceedings were commenced by application and a statement of claim filed on 23 December 2013. 3. By the Second Further Amended Statement of Claim (SFASOC) dated 20 December 2016 (attached as Exhibit A) the applicants allege that they were deceived into terminating their agency agreement with Innovia, by which they had been appointed as Innovia's agent to market the polymer in Nigeria and certain other African territories. Because the SFASOC incorporates as particulars parts of the outline of evidence of Dr Berry, the outline is also provided (attached at Exhibit B). 4. In essence, the applicants allege that certain promises were made to them by Mr Chapman (for Innovia), which caused them to agree to terminate the agency agreement. 5. Innovia denies the allegations by its Defence to SFASOC dated 3 February 2017 (attached as Exhibit C). 6. Reasons for judgment of the Honourable Justice Rares delivered on 13 July 2017 (attached as Exhibit D). Attachment "B" to the Letter of Request dated [ ] July 2017 Evidence to be obtained or other judicial act to be performed (article 3, d) 1. The evidence to be obtained is the evidence of Hugh Brown (Brown), who was a former secondee of the respondent. 2. The general nature and subject matter of the examination of Brown and the nature of the questions to be put during the examinations are detailed in attachment "C" to the letter of request. Attachment "C" to the Letter of Request dated [ ] July 2017 Questions to be put to the person examined or statement of the subject-matter about which they are to be examined (article 3, f) 1. The general subject-matter of the examination include: (r) the nature of Mr Brown's role with the respondent; (s) the background to Mr Brown's dealings with the applicants; (t) the circumstances leading to the execution of the agency agreement between the applicants and the respondent (Agency Agreement); (u) the work undertaken by the applicants under the Agency Agreement; (v) the circumstances leading to the termination of the Agency Agreement; (w) other matters the subject of Mr Brown's outline of evidence dated 19 December 2016; and (x) if the trial judge, the Honourable Justice Rares, be appointed examiner pursuant to the Letter of Request, such other matters as may be raised in the examination that appear to his Honour to be relevant under the Law of Australia for the purpose of the proceedings. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT (REVISED FROM THE TRANSCRIPT) RARES J: 1 On 10 March 2017, I made orders, under s 7(1)(c) and 8 of the Foreign Evidence Act 1994 (Cth), that a letter of request be sent to the judicial authorities of the United Kingdom for the purposes of taking evidence from Peter Michael Chapman, a material witness in this proceeding, for the reasons I subsequently published on 13 March 2017: Berry v Innovia Security Pty Ltd (No 3) [2017] FCA 244. 2 The letter of request has been acted upon by the Queen's Bench Division of the High Court of Justice of England and Wales on 12 April 2017. The High Court, by the Senior Master, made an order that, pursuant to s 2 of the Evidence (Proceedings in Other Jurisdictions) Act 1975 (UK), evidence may be taken orally by examination from Mr Chapman by me in London commencing on 4 September 2017. The Senior Master indicated that the High Court would agree to the proposal, which was contained in the Chief Justice's letter of request, that I take final submissions, anticipated to take no more than a day, while the parties are in London because Mr Chapman was the final witness. 3 Subsequently, it has transpired that another witness whom the respondent, Innovia Security Pty Ltd, proposes to call, Hugh Brown, also a resident of the United Kingdom, has indicated that, on legal advice, he does not consider it prudent for him to travel to Australia. That is because he informed David Hope, the solicitor for Innovia, that he had been investigated by the Serious Fraud Office of the United Kingdom as part of its investigation into Innovia's dealings in Nigeria. The Serious Fraud Office told Mr Brown that it had found that there had been no wrongdoing him. 4 However, Mr Brown remains concerned that he might be subjected to questioning by the Australian Federal Police should he travel to Australia. That is because the Australian Federal Police has commenced a prosecution of Innovia's former chief executive officer, Myles Curtis, in relation to certain dealings in Asia in circumstances that occurred while Mr Brown was Innovia's global director of sales. Mr Brown informed Mr Hope that he did not wish to be drawn into another investigation, although he considered that possibility to be remote. 5 Mr Hope said, and Senior Counsel for both parties have acknowledged, that Mr Brown is a material witness for Innovia in the proceeding. 6 In those circumstances, Innovia seeks a further order that, while I will be sitting in London, pursuant to the letter of request and permission of the High Court of Justice to hear submissions, I should also take the evidence of Mr Brown. The parties anticipate that, were I to do so, the evidence from Mr Chapman and Mr Brown and submissions would still be able to be completed within the week commencing 4 September 2017 when the High Court of Justice has made available a court in the Royal Courts of Justice for me to take the evidence and submissions. 7 In those circumstances, and upon Innovia offering the same undertakings in respect of the evidence being taken from Mr Brown as it offered for Mr Chapman's evidence to be taken, I will make orders in a similar form in support of the issue of a letter of request for the taking of Mr Brown's evidence. I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Rares. Associate: Dated: 21 July 2017