Application by 24/7 Customer, Inc (No 2) [2017] NSWSC 1708

Supreme Court New South Wales

Medium Neutral Citation: Application by 24/7 Customer, Inc (No 2) [2017] NSWSC 1708 Hearing dates: 7 December 2017 Date of orders: 07 December 2017 Decision date: 07 December 2017 Jurisdiction: Common Law Before: Schmidt J Decision: Orders sought made. Catchwords: EVIDENCE – Evidence on Commission Act 1995 (NSW) – ex parte application – subpoena – short service – orders sought made Legislation Cited: Evidence on Commission Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Application of Computer Sciences Corporation, under the Evidence on Commission Act 1995 [2017] NSWSC 810 British American Tobacco and Australia Services Limited v Eubanks (2004) 60 NSWLR 483; [2004] NSWCA 158 Category: Procedural and other rulings Parties: 24/7 Customer, Inc (Plaintiff) Representation: Counsel: Dr RCA Higgins (Plaintiff)

Solicitors: Corrs Chambers Westgarth (Plaintiff) File Number(s): 2017/352952 Publication restriction: Nil

EX TEMPORE Judgment 1. HER HONOUR: On 23 November 2017 I made, on an ex parte application, orders under ss 32 and 33 of the Evidence on Commission Act 1995 (NSW), to permit evidence on oath to be obtained in this state from Ms Parkin, a former employee of Singtel Optus Pty Ltd, pursuant to a request issued on 31 October 2017 by the Hon. Kandis A. Westmore, a US Magistrate Judge of the United States District Court for the Northern District of California, United States of America. 2. The reasons for making those orders were published in Application by 24/7 Customer Inc [2017] NSWSC 1609. Further orders are now sought consequential on those made on 23 November, in order to facilitate the taking of evidence pursuant to the request, which is scheduled to take place on 11 December 2017, or as soon as practicable thereafter. 3. The order, firstly, provides for Mr Justin Gleeson SC to be appointed to administer and conduct the examination of Ms Parkin, pursuant to and in accordance with the examination request. It further grants the plaintiff leave to issue a subpoena, in terms which appear in MFI 2, requiring Ms Parkin to give the proposed evidence, together with an order for short service. 4. The application comes forward in circumstances where it appears that while, as a result of communications between the plaintiff, Ms Parkin and her former employer, Singtel Optus, there was no objection by either of them to the proposed examination, Ms Parkin, who is now legally represented, has come to raise an objection. 5. The application is supported by affidavits sworn on 1 December 2017 by Mr Guest, as to service of various documents, including the orders I earlier made, and the reasons which I earlier published: There is also an affidavit of Mr Pagent, the solicitor on the record for the plaintiff, as to various communications about the proposed examination which he has had with Mr Gleeson, the parties in the US proceedings, Ms Parkin and Optus, as a result of which it was understood that there was no difficulty about the proposed examination, or issue of a subpoena. 6. The application is also supported by an affidavit sworn by Ms Bell, another of the plaintiff's solicitors, who has day-to-day carriage of the matter. Annexed to that affidavit are various email communications with Ms Parkin and her solicitor, which disclose that in the last day or so an objection to the examination has been forthcoming from Ms Parkin. It appears, from reading that material, that the basis of Ms Parkin's objection is her view that she does not have relevant evidence to give about the matter the subject of the proceedings in the United States. 7. Ms Parkin in her emails foreshadowed that her legal representative would appear today, to oppose the making of the orders which are sought. There has been no such appearance, and no further communication either from Ms Parkin or her solicitor. In those circumstances it must be inferred that Ms Parkin has decided not to pursue the course which she foreshadowed yesterday. Under the Uniform Civil Procedure Rules 2005 (NSW) it was open to Ms Parkin to challenge the orders which the Court earlier made. There has been no such application, and she has not appeared today to oppose the further orders which are sought. 8. Given the matters discussed in the November judgment, for reasons there explained, I am satisfied that the further application for orders which comes forward from the plaintiff do complement those already made. 9. Orders of that kind have been made in other proceedings of this kind: see British American Tobacco Australia Services Limited v Eubanks (2004) 60 NSWLR 483; [2004] NSWCA 158. 10. In Application of Computer Sciences Corporation, under the Evidence on Commission Act 1995 [2017] NSWSC 810, N Adams J dealt with a similar application, in circumstances where her Honour was satisfied that there was evidence to confirm that there was no objection on behalf of the proposed examinees in that case being subpoenaed to give evidence in those proceedings. Her Honour accordingly made similar orders to those which are sought here. 11. The circumstances here, of course, are different. Orders have already been made by the Court in terms which appear in the November judgment. As there has been no step taken, either by Ms Parkin or her former employer Optus, to set those orders aside, and while, on the materials before the Court, it would appear that at least yesterday, Ms Parkin did object to the issue of a subpoena and giving the evidence which has been ordered, she has taken no steps either to make an application to the Court to have the earlier orders set aside, or to appear today to oppose the making of the further orders sought and the issuing of the foreshadowed subpoena. 12. In all of those circumstances I am satisfied that the orders proposed are ones which the Court can justly make, consistently with the requirements of the provisions of the Evidence on Commission Act discussed in the November judgment. 13. For those reasons I make the orders sought.