FAIRFAX FINANCIAL HOLDINGS LIMITED & ANOR [2011] NSWSC 223

Supreme Court New South Wales

Medium Neutral Citation: FAIRFAX FINANCIAL HOLDINGS LIMITED & ANOR [2011] NSWSC 223 Hearing dates: 13, 14 January, 4, 18 February 2011 Decision date: 30 March 2011 Before: Hall J Decision: Orders made pursuant to s.32 of the Evidence on Commission Act 1995 (NSW). For details see paragraph [42] Catchwords: Request for documents and examination of overseas proceedings – request cannot be in the nature of discovery – whether request so broad as to amount to discovery – discovery underway in overseas proceedings – proceedings not in the nature of criminal proceedings – whether subpoena of sufficient particularity – must identify the individual document sought Legislation Cited: Evidence on Commission Act 1995 Cases Cited: British American Tobacco Aust Services Limited v Eubanks for the United States of America (2004) 60 NSWLR 483 Gredd v Arpad Busson [2003] EWHC 3001 Eubanks v Cannar [2003] NSWSC 1267 Category: Principal judgment Parties: FAIRFAX FINANCIAL HOLDINGS LIMITED & ANOR Representation: Counsel: P - J S Emmett Solicitors: P - Freehills File Number(s): 2011/12367

Judgment 1HALL J: The plaintiffs, Fairfax Holdings Limited and Crum & Forster Holdings Corp, make application to this Court for an order pursuant to s.32 of the Evidence on Commission Act 1995 (the "Act" ) for evidence to be obtained in this State. 2The application was made by summons dated 12 January 2011 in which orders were sought for the examination of Mr John Hempton and an order for the production of documents by Mr Hempton and by Platinum Asset Management Limited ( "Platinum" ). 3In support of the application, the plaintiffs relied on and read three affidavits of Mr Michael Bowe, Attorney, two sworn on 31 December 2010 (which have been respectively referred to as the "Bowe affidavit" and the "Confidentiality affidavit" ) together with an affidavit sworn on 4 January 2011. 4The plaintiffs commenced proceedings in the Superior Court of New Jersey, Morris County, New Jersey, United States of America on 26 July 2006. That Court is referred to as the "Requesting Court" in Mr Bowe's first-mentioned affidavit sworn 31 December 2010. 5In paragraph [10] of the Bowe affidavit, the nature of the proceedings are summarised. In short, the plaintiffs allege that a number of hedge funds, with the assistance of a number of financial advisers or other persons, embarked on an unlawful enterprise that involved taking short positions on securities in the plaintiffs and then spreading mis-information to deflate the value of those securities. The plaintiffs claim in the US proceedings that their loss and damage is over $6 billion. 6In this application, the plaintiffs have stated that they have obtained information which indicates Mr Hempton was involved in the enterprise in various ways as set out in the Bowe affidavit (at paragraph [15](b)-(h)) and that Platinum was involved in the way set out in that affidavit at [15](i)). 7The plaintiffs claimed that from approximately 2002 to approximately 2007 Mr Hampton was an analyst and later chief analyst in global financial stocks at Platinum. 8On the basis of documents contained in Confidential Exhibits MJB3 and MJB5 and the summary of information set out in paragraph 15 of the Bowe affidavit, the deponent states his belief that Mr Hempton and Platinum have, or are likely to have, in their respective possession, custody or power, the documents sought in the Letter of Request. 9On 8 January 2010, the Requesting Court made orders that the Letter of Request be issued ( the letter of request for international judicial assistance regarding Platinum Asset Management and John Hempton ). 10Paragraph 7 of the Letter of Request sets out details as to the nature and purpose of the proceedings , Summary of the Complaint and Summary of Defense and Counterclaims . It is there noted that "discovery has commenced in the proceeding and is on-going" and that the proceeding has, as at the date of the letter of request, not been listed for trial. 11In the Letter of Request (paragraph 10), the purpose of the evidence to be obtained is identified. There it is stated, inter alia, that the Requesting Judicial Authority (the Honorable Stephan Hansbury JSC, Superior Court of New Jersey, Law Division) considers that it is necessary for the purpose of justice and for the due determination of the matters in issue in the proceedings (particularly, the plaintiffs' common law conspiracy claim and RICO statute claims), that Mr John Hempton and Platinum be called upon to provide evidence for use at the trial of the proceedings.