FEDERAL COURT OF AUSTRALIA
Walker v Newmont Australia Ltd [2010] FCA 298
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Citation: |
Walker v Newmont Australia Ltd [2010] FCA 298 |
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Parties: |
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File number: |
VID 732 of 2009 |
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Judge: |
GORDON J |
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Date of judgment: |
31 March 2010 |
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Legislation: |
Federal Court of Australia Act 1976 (Cth), s 23 |
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Cases cited: |
Arhill Pty Ltd v General Terminal Co Pty Ltd (1991) 23 NSWLR 545 BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725 Commonwealth Bank of Australia v White [1999] 2 VR 681 Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV (2007) 157 FCR 558 Fiduciary Ltd & Anor v Morningstar Research Pty Ltd & Ors (2004) 60 NSWLR 425 Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 581 Howard v National Bank of New Zealand (2002) 121 FCR 366 Laurie v Carroll (1958) 98 CLR 310 Maconochie v Risk (Unreported, Supreme Court of New South Wales Equity Division, Kearney J, 16 February 1989) National Commercial Bank v Wimborne (1979) 11 NSWLR 156 Re Dulles’ Settlement (No 2); Dulles v Vidler [1951] Ch 842 Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Care Co (1993) 46 FCR 428 Stemcor (Australasia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 Thermasorb Pty Limited v Rockdale Beef Pty Limited & Ors (2005) 190 FLR 71 Vertzyas v Singapore Airlines Pty Ltd (2000) 50 NSWLR 1 Walter v Freehills (2009) 258 ALR 67 PE Nygh & M Davies, Conflict of Laws in Australia (7th ed, 2002) |
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Date of hearing: |
25 March 2010 |
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Date of last submissions: |
30 March 2010 |
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Place: |
Melbourne |
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Division: |
GENERAL DIVISION |
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Category: |
Catchwords |
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Number of paragraphs: |
41 |
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Counsel for the Applicants: |
Mr S Anderson SC, Mr P Wallis and Mr DC Morgan |
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Solicitor for the Applicants: |
Holding Redlich |
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Counsel for CIBC World Markets Inc and CIBC Australia Ltd, non-parties: |
Mr P Liondas |
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Solicitors for CIBC World Markets Inc and CIBC Australia Ltd, non-parties: |
Mallesons Stephen Jaques |
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
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GENERAL DIVISION |
VID 732 of 2009 |
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DAVID ANTHONY WALKER First Applicant
DALKEITH RESOURCES PTY LTD (ACN 061 721 453) Second Applicant
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AND: |
NEWMONT AUSTRALIA LTD (ACN 009 295 765) Respondent
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JUDGE: |
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DATE OF ORDER: |
25 MARCH 2010 |
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WHERE MADE: |
MELBOURNE |
THE COURT DECLARES THAT:
1. CIBC World Markets Inc (CIBC WM) has submitted to the jurisdiction of the Court.
THE COURT ORDERS THAT:
2. By 4:00pm on 9 April 2010, CIBC WM produce to the Court any documents in the possession, custody or control of CIBC WM, including any documents located in Canada, that answer the description in the Schedule to the subpoena issued by the Court on 18 December 2009 and the Schedule to the subpoena issued by the Court on 10 February 2010.
3. The Notice of Motion filed by the Applicants on 9 March 2010 is otherwise dismissed.
4. The Notice of Motion filed by CIBC WM on 19 March 2010 is dismissed.
5. CIBC WM pay the Applicants’ costs of and incidental to the Notices of Motion referred to above.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
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IN THE FEDERAL COURT OF AUSTRALIA |
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VICTORIA DISTRICT REGISTRY |
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GENERAL DIVISION |
VID 732 of 2009 |
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BETWEEN: |
DAVID ANTHONY WALKER First Applicant
DALKEITH RESOURCES PTY LTD (ACN 061 721 453) Second Applicant
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AND: |
NEWMONT AUSTRALIA LTD (ACN 009 295 765) Respondent
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JUDGE: |
GORDON J |
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DATE: |
31 MARCH 2010 |
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PLACE: |
MELBOURNE |
REASONS FOR JUDGMENT
1. a declaration that CIBC World Markets Inc (CIBC WM) has submitted to the jurisdiction of the Court;
2. an order that CIBC WM produce to the Court any documents in the possession, custody or control of CIBC WM including any documents located in Canada which answer the description in the Schedule to the subpoena issued by the Court on 18 December 2009 (the First Subpoena) and the Schedule to the subpoena issued by the Court on 10 February 2010 (the Second Subpoena);
3. further or in the alternative, an order that CIBC WM take all reasonable steps available to it to obtain documents that answer the description in the Schedule to the First Subpoena and the Schedule to the Second Subpoena and which are in the possession, custody or control of the Canadian Imperial Bank of Commerce or any related entity to CIBC WM including any documents located in Canada;
4. further or in the alternative, an order that CIBC Australia Ltd (CIBC Australia)take all reasonable steps available to it to obtain documents that answer the description in the Schedule to the First Subpoena and the Schedule to the Second Subpoena and which are in the possession, custody or control of CIBC WM, the Canadian Imperial Bank of Commerce or any related entity to CIBC Australia including any documents located in Canada.
2 CIBC WM and CIBC Australia are non-parties. Both oppose the application and seek, by way of relief, orders that the First Subpoena and the Second Subpoena:
1. be set aside; or
2. be set aside in so far as it relates to documents located outside Australia.
In addition, CIBC WM seeks an order that the Applicants be restrained from seeking to enforce either the First Subpoena or the Second Subpoena.
3 Before turning to the substantive application, it is necessary to understand some of the factual context.
4 First, it is not in dispute between the Applicants and the First Respondent (Newmont) that in April 2008, Regis Resources Limited (Regis) engaged CIBC WM to undertake a capital raising to finance further exploration and technical studies to allow the completion of the feasibility study over the Duketon Gold Project (referred to in paragraph 45 of the Second Further Amended Statement of Claim filed on 25 March 2010 (SFASC) as the “Second 2008 Capital Raising”). A copy of the engagement letter dated 21 April 2008 was before the Court. The second paragraph of that letter states, in part, that:
[Regis] appoint CIBC [WM] and [CIBC WM] agree to act, on a best efforts basis, as [Regis’] private placement agent and sole bookrunner in respect of the Private Placement, on the terms and subject to the conditions set out below: …
5 The phrase “Private Placement” was defined in the opening paragraph of the engagement letter as the raising of “approximately C$30 million through the issue and sale of securities issued by [Regis] by way of a private placement”. The letter went on to state that the Private Placement would be exempt from the prospectus requirements under the applicable securities laws in each of the provinces of Canada, the United States and the United Kingdom. Further, the letter stated that within four months of the closing of the Private Placement, Regis would make all commercially reasonable efforts to have its common shares listed on the Toronto Stock Exchange.
6 Other facts and matters are also not in dispute between the Applicants and Newmont. First, that by an agreement entitled “Agreement relating to Shares in Newmont Duketon Pty Ltd” dated 14 December 2005 between, inter alia, Newmont and Regis, Newmont had a right to participate on a pro-rata basis in any future capital raising which Regis might undertake. Secondly, as a result of that agreement, Newmont had a right to participate in the Second 2008 Capital Raising on a pro-rata basis. Thirdly, in April 2008, Regis notified Newmont of its intention to raise equity capital by way of the Private Placement and offered Newmont the opportunity to participate in the Capital Raising on a pro-rata basis. Fourthly, Newmont subsequently responded to Regis advising that it wanted to undertake a technical review of the Duketon Gold Project in Regis’ offices in Perth. Fifthly, on 28 April 2008, Newmont told Regis that it would not take up its pro-rata entitlement in the Second 2008 Capital Raising (para 53A of the SFASC and paras 16 and 19 of Newmont’s Defence).
7 What follows is not agreed. The Applicants contend that in May 2008, CIBC WM advised Regis that potential investors in the Second 2008 Capital Raising would not invest on the terms then proposed and that amendments needed to be made to the terms of the Capital Raising. One of the changes the Applicants contend CIBC WM proposed was the removal of all debt on the Regis balance sheet (which then comprised a loan of approximately $3.2m plus interest) to the Second Applicant (Dalkeith) and for that debt to be removed by a conversion of the debt to equity: para 58 of the SFASC. The Applicants allege (and Newmont denies) that CIBC WM spoke to Newmont and discussed the response by potential investors: para 59 of the SFASC and para 21 of Newmont’s Defence.
8 The Applicants contend that the terms of the Second 2008 Capital Raising were amended: para 63 of the SFASC. The Applicants further contend that on or about 3 June 2008, Newmont represented to CIBC WM (in its capacity as agent for Regis and as joint manager of the Second 2008 Capital Raising) that:
1. it would support the Debt to Equity Conversion in the amount of $3.0m;
2. it would agree to a lock up of its shares for a period of between six and 12 months; and
3. it would agree not to call on its securities and guarantees over Regis assets for 12 months.
The SFASC defines this as the “Support Representation”. Newmont admits that on or about 28 April 2008 it advised Regis (not CIBC WM) that it would agree to the matters identified in sub-paragraphs two and three. Newmont otherwise denies each and every allegation of the Support Representation.
9 As noted, neither CIBC WM nor CIBC Australia is a party to these proceedings. CIBC Australia is a wholly owned subsidiary of CIBC Australia Holdings Ltd which, in turn, is a wholly owned subsidiary of the Canadian Imperial Bank of Commerce (CIBC). CIBC WM describes itself as the “wholesale banking arm” and a wholly owned subsidiary of CIBC. The head office of CIBC and CIBC WM is in Toronto, Canada.
10 On 18 December 2009, the Applicants sought and were granted leave of the Court to issue the First Subpoena to CIBC WM for production of documents. The First Subpoena was directed to the “Proper Officer” of CIBC WM at an address in Sydney, New South Wales. It was served at that address – the registered office of CIBC Australia. On 5 January 2010, Mark Darian-Smith of Mallesons Stephen Jaques (Mallesons) emailed the Applicants’ solicitors in the following terms:
We have received instructions from CIBC [WM] to assist them with a subpoena issued by you in proceeding VIC732/2009.
We note that the subpoena is returnable on 13 January 2010 at 2:15pm.
Our initial enquiry is directed to whether your client would be amenable to the subpoena being stood over for a further 7 days by consent to enable our client [to] speak to the relevant CIBC employees about what documents there are which might fall within the terms of the subpoena and to otherwise respond to the subpoena. We are instructed that the relevant person or persons are on leave until next week.
If you could obtain instructions please about whether an extension of time for responding to the subpoena can be agreed and come back to me, that would be greatly appreciated. We will of course assist with whatever arrangements may be needed with the Court to stand the subpoena over.
Our offices are closed until 11 January 2010 but I will be checking emails or you may contact me on my molbile (sic).
(Emphasis added).
11 On 12 January 2010, Mallesons Stephen Jacques wrote to an assistant in the Registrars Section of the Court (copied to the Applicants’ solicitors) as follows:
As discussed by telephone earlier today, we act for CIBC [WM] …
Our client has been served with a subpoena to produce documents issued on 18 December 2009 at the request of [the applicants]. The subpoena is returnable on 13 January 2010 at 2:15pm.
Whilst our client is in the process of making the necessary enquiries in response to the subpoena, those enquiries are not yet complete. This is because the personnel at CIBC [WM] with knowledge of the relevant matters have been on Christmas vacation, and only returned to work on 11 January 2010. In addition, our client is based in Canada and our client’s legal counsel are located in Toronto and Singapore. This has added to the difficulty of obtaining instructions over the Christmas vacation period.
However, we have this week been provided with our client’s Australian file which may contain documents responsive to the subpoena, and we are [i]n the process of reviewing that file and seeking instructions in relation to the documents contained therein. In addition, our client’s overseas legal counsel are making further enquiries to determine the existence of any other documents which may fall within the scope of the subpoena.
Accordingly, our client seeks an extension of time for compliance with the subpoena to 20 January 2010 at 2:15pm. We have spoken with the solicitors for the issuing parties (Holding Redlich), and we have been informed that the issuing parties neither consent to nor oppose such an extension being granted. We have requested that Holding Redlich seek instructions to confirm this in writing by letter to you.
If our client’s request for an extension is granted, we also seek that the orders be made on the papers without the need for an appearance.
Would you please contact Brad Holmes on (03) 9643 4394 once you have had an opportunity to consider this request.
Thank you for your assistance.
(Emphasis added).
12 The same day the Applicants’ solicitors responded as follows:
We refer to the letter from Mallesons … to you dated 12 January 2010 in relation to a subpoena to produce documents in the above matter returnable on 13 January 2010.
We note that Mallesons … have requested an extension of time for their client to comply with the subpoena until 20 January 2010.
As referred to in the letter from Mallesons … , we are instructed by our client neither to consent to nor oppose their client’s request for an extension of time of 7 days to comply with the subpoena. It appears to us from the letter from Mallesons … that their client is taking all reasonable steps to comply with the subpoena as soon as possible.
13 On 13 January 2010, a senior associate at Mallesons appeared on behalf of CIBC WM before Registrar Burns at the return of the First Subpoena. Registrar Burns made orders standing over the First Subpoena to 20 January 2010 and giving the Applicants leave to inspect, uplift and copy documents to be produced by CIBC WM on 20 January 2010.
14 On 20 January 2010, CIBC WM produced to the Court 11 documents in answer to the First Subpoena. Those documents were inspected, uplifted and copied by the Applicants’ solicitors. On 2 February 2010, the Applicants’ solicitors wrote to Mallesons as follows:
We refer to your telephone conversation with Kristin Watkins today.
On 20 January 2010, under cover of a letter from Mallesons …, your client produced to the Court documents in compliance with the subpoena issued on 18 December 2009 (the Subpoena). Included in the documents produced was a series of documents titled “Regis Resources Subscription Agreements for Units” (Subscription Agreements).
Only 4 pages of the Subscription Agreements were produce[d] to the court. However, page one of the Subscription Agreements refers to “terms and conditions set forth in the attached ‘Terms and Conditions of Subscriptions for Units’”. The Terms and Conditions referred to in the Subscription Agreements are covered by the Subpoena but have not been produced in response to it. We ask that they be produced to the court.
We invite your client to consider whether it has any further or other documents falling within the Subpoena given our comments above. Please advise us whether CIBC intends to produce to the court any further documents pursuant to the Subpoena.
15 On 9 February 2010, having received no response from Mallesons, the Applicants’ solicitors wrote again to Mallesons in the following terms:
We refer to our letter dated 2 February 2010 to … your Melbourne office.
We note that we have not received any response to that letter. For your information we repeat the comments set out in our letter dated 2 February 2010.
[COMMENTS REPEATED].
In addition to those comments as set out in our letter dated 2 February 2010, having now reviewed the documents provided pursuant to the Subpoena, together with documents provided from other sources in the Proceeding we consider that your client’s compliance with the Subpoena is incomplete. We have set out below … why we consider that CIBC [WM] has not fully complied with its obligations under the Subpoena. In doing so, we address each category set out in the Subpoena and our reasons why we consider your client is likely to have further documents which fall under these categories:
Category 1:
Paragraph one of the Schedule to the Subpoena requires CIBC to produce:
“All documents constituting, recording or referring to communications between CIBC World Markets Inc (including any related parties) (“CIBC”) and Newmont Australia Ltd or any other Newmont entity (“Newmont Entities”) in the period from 9 May 2008 to 5 June 2008 concerning:
(a) a capital raising (“Capital Raising”) in Regis Resources Ltd (“Regis”) that was undertaken between April and July 2008, and for which CIBC was the manager for Regis;”
We consider that the documents provided by CIBC to the Court do not comply with the Subpoena as CIBC have not provided complete documents and information pursuant to this category for the following reasons:
1. CIBC was one of the Agents of Regis engaged to assist Regis to raise approximately C$20 million through the issue and sale of securities issued by Regis by way of a Canadian private placement pursuant to letter of engagement dated 21 April 2008 (otherwise referred to as the Capital Raising);
2. As Agent, CIBC was required to assist in all aspects of the Capital Raising, including preparation of all documentation relating to the Capital Raising for potential investors, attending the “Roadshow” of Regis to promote the Capital Raising during May and June 2008 with potential investors (the Roadshow) and liaising generally with potential investors in the Capital Raising;
3. Newmont Australia, as Regis’s largest shareholder, had an entitlement to participate in any capital raising undertaken by Regis;
4. We therefore consider it highly unlikely that employees of CIBC had no contact with Newmont Australia or any other Newmont entity (Newmont) in relation to the Capital Raising in the relevant period. In fact we know that CIBC did have contact with Newmont. As set out in the materials provided pursuant to the Subpoena, Newmont executed a “Lock-up” Agreement with Regis dated 7 July 2008. This document was negotiated with CIBC’s assistance throughout the relevant period. Numerous versions of this document as a draft were circulated between CIBC and Regis, including in the period covered by paragraph 1 of the Subpoena, however no documents evidencing the drafts of this document have been provided pursuant to the Subpoena;
5. Further, we note that CIBC has not provided any email communication pursuant to the Subpoena. We are aware that CIBC as Agent for Regis engaged in email communication with Regis and therefore, it is highly likely that it engaged in email communication with potential investors including Newmont, pursuant to its mandate as Agent responsible for the Capital raising. Therefore, we were extremely surprised that no email communication where (sic) provided pursuant to the Subpoena.
Category 3:
Paragraph three of the Schedule to the Subpoena requires CIBC to produce:
“All documents in the period 9 May 2008 to 22 July 2008 evidencing, recording or referring to:
(a) CIBC’s knowledge that potential investors in the Capital Raising would not support the Capital Raising unless the terms were amended; and
(b) CIBC’s belief and / or opinion that the terms of the Capital Raising would need to be amended if it was to be successful.”
As set out above, in CIBC’s capacity as Agent of Regis for the Capital Raising, CIBC was responsible for the preparation of numerous documents relevant to the Capital Raising including: the Subscription Agreements, the various versions of the “Greensheet” which was a summary document setting out the core information relating to the Capital Raising, the Term Sheet and the presentations to potential investors on the Roadshow.
In the preparation of these documents CIBC had extensive contact via email with David Walker on behalf of Regis in order to finalise such documents so that they accurately reflected the needs and requirements of potential investors. Despite this, very limited documents and no such communications have been provided pursuant to the Subpoena falling within this category.
Further, we are aware that communications in relation to the terms of the Capital Raising did pass between CIBC and David Walker. For example we are aware of an email from Sam Lee of CIBC to David Walker on 19 May 2008 advising that CIBC had had discussion with potential investors in relation to the terms of the Capital Raising. Therefore, although such documents originating from CIBC and clearly falling within the scope of the Subpoena have been obtained from other sources, no such documents have been provided by CIBC pursuant to the Subpoena.
Category 4:
Paragraph four of the Schedule to the Subpoena requires CIBC to produce:
“All new investor agreements signed by investors in the Capital Raising”
We are instructed that approximately 20 new investors took part in the Capital Raising. Further, we are instructed that CIBC was responsible for distributing all Subscription Agreements as Agent for Regis.
As set out above only limited parts of some signed Subscription Agreements have been provided pursuant to the Subpoena. We therefore request that complete versions of the Subscription Agreements, including the Terms and Conditions referred to in the Subscription Agreements to be produced to the Court.
Further enquiries which CIBC should undertake
Given the comments set out above we invite CIBC to reconsider whether it has any further documents falling within the scope of the Subpoena. For your assistance we have identified the following CIBC employees who we are aware were involved in the Capital Raising and whose email accounts and files may be of assistance in locating document[s] relevant to the Subpoena:
· Mr Neil Johnson
· Mr Sam Lee
· Mr James Hyde
· Mr Joe Kostandoff
· Mr David Cobbold
Please advise us by 5pm on 11 February 2010, whether CIBC intends to provide to the Court any further documents pursuant to the Subpoena.
In the event that you do not provide us with a satisfactory response to this letter, we will take the necessary steps to ensure compliance with the Subpoena by CIBC, including if necessary bringing this letter to the attention of the Court.
16 On 9 February 2010, the position adopted by CIBC WM changed. Mallesons responded to the letter of 2 February 2010 as follows:
We refer to your letter to Mr Holmes of our office dated 2 February 2010.
In that letter you requested the ‘terms and conditions set forth in the attached “Terms and Conditions of Subscriptions for Units’” (“Terms and Conditions”) that were referred to in the Subscription Agreements produced by our clients pursuant to the subpoena issued on 18 December 2009 (“Subpoena”).
We have been instructed that:
· the Terms and Conditions are not located in Australia but are kept at CIBC’s head office in Toronto, Canada;
· CIBC does not intend to produce the Terms and Conditions to the Court as CIBC is under no legal obligation to produce the Terms and Conditions pursuant to the Subpoena; and
· CIBC will neither oppose nor consent to your clients seeking an order granting letters rogatory so that the production of the Terms and Conditions may be enforced within Canada.
We also acknowledge receipt of your letter of today’s date. We will need to obtain instructions from our client with regard to the issues raised in that letter, to the extent they haven’t been addressed in this letter.
17 On 11 February 2010, Mallesons wrote again stating:
We refer to your letter dated 9 February 2010.
We have been instructed that all documents existing within Australia and relevant to the categories of the subpoena issued on 18 December 2009 (“Subpoena”) have been produced.
Other documents that may be potentially relevant to the categories of the Subpoena are located in Toronto, Canada.
Your client may seek to compel the production of these documents by applying to the Court for an order to issue a letter of request to the appropriate Canadian court.
18 On 12 February 2010, the Applicants’ solicitors sent a further letter to Mallesons which stated:
We refer to:
· the subpoena dated 18 December 2009 and addressed to your client, CIBC World Markets Inc (“CIBC [WM]”);
· our letter of 9 February 2010; and
· your letters of 9 February 2010 and 11 February 2010.
In response to the subpoena, your clients produced a small amount of material and, by way of your letters of 9 and 11 February 2010, indicated that any other material relevant to the subpoena was located in Toronto, Canada and would not be produced.
With respect, we find it highly improbable that no further documents answering the subpoena are located in Australia. By our 9 February 2010 letter we drew your attention to the classes of documents we would expect your client to have in its possession. While we accept that some of those documents may be located in Canada or elsewhere, we do not understand why emails and hard copy files from the Sydney office of your client are no longer in Australia. In this respect we note that the day-to-day running of the Capital Raising referred to in the subpoena was undertaken for CIBC [WM] by Mr Sam Lee, an employee of CIBC then located in Sydney. There was also significant work performed by Mr Joe Kostandoff of CIBC’s equity capital markets group in Toronto. A number of other Australian CIBC employees were involved in the Capital Raising, including Mr Neil Johnson and Mr James Hyde, both of whom were also located in Sydney.
Further, each of Messers Lee, Johnson and Hyde had email correspondence with Regis Resources Ltd (“Regis”), and in particular its Managing Director, Mr Walker, during the period of the Capital Raising.
We are instructed that Messers Lee, Johnson and Hyde also communicated from Australia with then-current and prospective investors in Regis, including Newmont Australia Ltd. Many of these communications were wholly within Australia.
A number of documents that constitute correspondence between Regis and CIBC’s Sydney office, and would appear to be responsive to the subpoena, have already been discovered in this proceeding.
In these circumstances, we seek to understand how it is that no relevant emails sent from or received by CIBC’s Australian office remain in Australia. We also seek to understand why files that must have been kept by CIBC’s Sydney office are either not in Australia or contain no documents responsive to the subpoena.
As you would be aware, an issuing party of a subpoena is entitled to test the adequacy of the response to the subpoena including, in appropriate circumstances, by cross-examining an officer of the subpoenaed party in accordance with the procedure set out in Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306. Accordingly, we seek by return an explanation of the matters raised above. If no such explanation is forthcoming, we are instructed to bring on a motion compelling your client to give evidence on oath as to its response to the subpoena, evidence that may be tested in cross-examination.
You may be aware that the trial of this proceeding is listed to commence on 27 April 2010 and accordingly we seek a prompt response, absent which we will file the motion referred to above.
19 On 19 February 2010, not having received a response to the letter of 12 February 2010, the Applicants’ solicitors sent a further letter to Mallesons setting out the basis upon which the Applicants believed that further documents responding to the First Subpoena were likely to exist in Australia and seeking an affidavit sworn on behalf of CIBC WM in respect of the existence of such documents.
20 Mallesons responded on 23 February 2010 by attaching an affidavit of Neil Johnson, the managing director of CIBC Australia, dated 23 February 2010, which stated inter alia that documents responding to the First Subpoena were located in Canada and not in Australia. Mr Johnson also stated that he was employed by CIBC Australia, a wholly owned subsidiary of CIBC Australia Holdings Ltd, which in turn is a wholly owned subsidiary of the CIBC.
21 On 10 February 2010, the Court granted leave to the Applicants to serve the Second Subpoena on CIBC WM. Again, the Second Subpoena was directed to the “Proper Officer” of CIBC WM at the registered office of CIBC Australia. The Second Subpoena was “served” on 15 February 2010. A copy was also provided to Mr Darian-Smith of Mallesons.
22 On 3 March 2010, in response to the Second Subpoena, CIBC WM produced to the Victorian Registry of the Federal Court a CD containing 131 additional documents. The Applicants’ solicitors uplifted, inspected and copied those documents. The documents were described by the Applicants’ solicitor as consisting “of 131 emails (some including attachments) passing between various employees of CIBC in both Australia and Canada, and emails passing between CIBC employees in both Australia and Canada and third parties including David Walker [the first applicant], Newmont, investors and potential investors in the Second 2008 Capital Raising and the Bank of Montreal … a joint agent in the Second 2008 Capital Raising”. “CIBC” was defined to mean the Canadian Imperial Bank of Commerce.
ISSUES AND ANALYSIS
23 It is common ground that CIBC WM was not personally served with either the First Subpoena or the Second Subpoena. The subpoenas were served on the registered office of CIBC Australia. The issue is nevertheless whether, by its actions, CIBC WM has submitted to the jurisdiction of the Court and should otherwise complete its answer to the First and Second Subpoenas.
24 The applicable principles are well known. A foreign corporation is not subject to the jurisdiction of the Court in a personal action unless it is present (National Commercial Bank v Wimborne (1979) 11 NSWLR 156 at 165) or has voluntarily submitted or waived its right to object to the jurisdiction: Re Dulles’ Settlement (No 2); Dulles v Vidler [1951] Ch 842 at 847; Laurie v Carroll (1958) 98 CLR 310 at 336; Wimborne 11 NSWLR 156 at 165; Howard v National Bank of New Zealand (2002) 121 FCR 366 at [8]-[19]. Here, we are concerned with the latter circumstance – whether CIBC WM has “voluntarily submitted or waived its right to object to the jurisdiction”. I will, however, address each of the principles in turn.
“Presence in the jurisdiction”
25 A body corporate (as an artificial separate legal entity) has no physical presence. However, there are ways in which it can for legal purposes have a “presence” in a State. The test for “presence” within jurisdiction is well settled: Wimborne 11 NSWLR 156 at 165; Fiduciary Ltd & Anor v Morningstar Research Pty Ltd & Ors (2004) 60 NSWLR 425 at [28]; Commonwealth Bank of Australia v White [1999] 2 VR 681 at [30]; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 725 at 731-734. As Holland J said in Wimborne 11 NSWLR 156 at 165:
First, it must be carrying on its business here and this it can do only by an agent and will not be doing unless the agent has authority on behalf of the corporation to make contracts with persons … binding on the corporation. Secondly, the business must be carried on at some fixed and definite place within the State. Thirdly, the business must have continued for a sufficiently substantial period of time. The text writers are in agreement on these points: [CITATIONS OMITTED]. …
On the first point it is not enough to show that the foreign corporation has an agent here if he is a mere ministerial agent: Bowden Brothers & Co v Imperial Marine and Transport Insurance Co (1902) 2 SR (NSW) 257 at 262-263 … Allison v Independent Press Cable Association of Australasia (Ltd) (1911) 28 TLR 128; or is carrying on his own business and not that of the foreign corporation: Okura & Co Ltd v Forsbacka Jernverks Aktiebolag [1914] 1 KB 715 (per Buckley LJ at 718-719); …
26 Here, there is no evidence to suggest that CIBC WM has a “presence” in Australia. However, for the reasons below, CIBC WM has submitted to the jurisdiction of the Court.
Submitted or waived its right to object to jurisdiction
27 For a party to be taken to have submitted, or waived its right to object, to the jurisdiction, there must be at least words or conduct of such a nature in the proceedings that an inference can properly be drawn that the party alleged to have waived the objection does not intend to rely upon it: Wimborne 11 NSWLR 156 at 176 and the authorities cited; Howard 121 FCR 366 at [19] and the authorities cited and Brealey v Board of Management Royal Perth Hospital (1999) 21 WAR 79 at [38].
28 CIBC WM is not a party to the proceeding and it was not served with the First or the Second Subpoena. However, by its words and actions, in my view the proper inference to be drawn is that CIBC WM has voluntarily submitted or waived its right to object to the jurisdiction. Without reservation or limitation, CIBC WM:
1. over a period of a number of weeks (at least from late December 2009 to early February 2010 – a period of almost 10 weeks), corresponded in writing with the Applicants’ solicitors on the contents of the subpoenas;
2. appeared in Court on 13 January 2010 and agreed to orders for CIBC WM to produce documents in answer to the First Subpoena by a specified date and for the parties to inspect, copy and uplift those documents;
3. on 20 January 2010 and 3 March 2010 produced to the Court documents totalling in excess of 130 documents and permitted the parties to the proceedings to inspect, copy and uplift those documents.
29 These were voluntary acts unequivocally evincing an intention to abandon or not assert a right to object to jurisdiction. Put another way, CIBC WM took steps which are only necessary or useful if the objection to jurisdiction has been waived or if the objection to jurisdiction was never entertained at all. As a result of its conduct, CIBC WM cannot now assert that it has not submitted to the jurisdiction. This case is similar to Maconochie v Risk (Unreported, Supreme Court of New South Wales Equity Division, Kearney J, 16 February 1989), a case concerning a subpoena for production on an overseas bank that Kearney J concluded had submitted to the jurisdiction of the Court. In that case, Kearney J stated:
[T]he Bank is estopped from asserting that it has not submitted to the jurisdiction in these proceedings to the extent of permitting the Bank to be amenable to a further subpoena issued in the same proceedings …
…
[It] appears that there has been no change in the relevant circumstances since the time when the previous subpoena was accepted by the Bank through its solicitors.
See also in the context of parties submitting to the jurisdiction of the Court, Thermasorb Pty Limited v Rockdale Beef Pty Limited & Ors (2005) 190 FLR 71 at [54] where Johnson J held once a party has submitted to the jurisdiction of the Court, they necessarily “authorise the court to exercise jurisdiction over him”; Laurie 98 CLR 310 at 334; Howard 121 FCR 366 at [14]- [19]; Vertzyas v Singapore Airlines Pty Ltd (2000) 50 NSWLR 1 at [93]-[107]; PE Nygh & M Davies, Conflict of Laws in Australia (7th ed, 2002) at [4.80].
30 As Drummond J said in Howard 121 FCR 366 at [19]:
The entry of an appearance by a respondent outside the jurisdiction has long been regarded as such an act of voluntary submission to the jurisdiction of the local court in the action in which the appearance is entered. But submission by a foreign respondent to the jurisdiction of the local court can take many other forms. It has long been the law that a respondent outside the jurisdiction can so act to give the local court jurisdiction over it which it would not otherwise have by waiving objection to jurisdiction, for example, by taking a step in the proceeding inconsistent with maintaining that objection – see Rein v Stein (1982) 1 QB 753; 66 LT 469 – even if it has not entered an appearance – see Boyle v Sacker (1888) 39 Ch D 249. By such an act of voluntary submission, the foreign respondent does all that is regarded as necessary to authorise the local court to exercise its jurisdiction in the particular matter over that respondent. In such cases, insistence on the applicant nevertheless applying to the Court for leave to serve outside the Commonwealth (when service has not in fact been effected) or for confirmation of service effected without prior leave can serve no purpose other than to pointlessly inflate the costs of the proceedings.
(Emphasis added).
31 It is not necessary to decide whether submission to the jurisdiction can be described as creating an “estoppel”: cf Maconochie. The critical conclusion is that here there has been unequivocal acceptance by CIBC WM of the jurisdiction of the Court. CIBC WM complied with at least three orders of the Court without applying to set aside the subpoenas. In my view, it is now too late for CIBC WM to suggest that it objects to jurisdiction. The belated suggestion by CIBC WM that it was in fact CIBC Australia that responded to the First Subpoena and the Second Subpoena is rejected. No step taken by or on behalf of CIBC WM was expressly or impliedly a step taken by CIBC Australia. Moreover, the contention that only documents located in Australia were being produced by CIBC WM was raised only after CIBC WM had submitted to the jurisdiction in relation to the First Subpoena (see [16] above).
32 The position now adopted by CIBC WM that it refuses to comply with either the First Subpoena or the Second Subpoena without an appropriate order of a Canadian Court or the consent of Regis, in my view, is a reversal in position which, in the absence of any proper explanation for that change, raises questions about CIBC WM’s conduct: cf Drummond J in Howard 121 FCR 366 at [18]. This is especially so when CIBC WM informed the Court that it would not oppose any application to issue a letter of request to an appropriate Canadian Court and asserted that, in the absence of an such an order, “CIBC WM [would] be denied the opportunity of seeking any protection to which it may be entitled in relation to obligations of confidence which CIBC WM may owe to other parties in relation to documents located in Canada”. Appropriate orders limiting inspection of documents produced in answer to the subpoenas can be framed by this Court in relation to obligations of confidence which CIBC WM may owe to other parties. In this context, CIBC WM produced a letter that its solicitors sent to Regis seeking its consent to CIBC WM producing documents in answer to the subpoena. Regis’ response to that letter was not in evidence. Instead, CIBC WM’s solicitors informed the Court that Regis had consented and it was seeking the instructions of its client. In my view, in the absence of a consent order that CIBC WM will produce the documents listed in the Schedule to the First Subpoena and the Schedule to the Second Subpoena by a specified date, the correspondence does not finally resolve the issues for CIBC WM. CIBC WM is said to be under a legal obligation not to disclose documents without the consent of the client (Regis) or unless compelled to do so by law. The first “hurdle” has been addressed. In relation to the second, CIBC WM is compelled to produce the documents by law – it has submitted to the jurisdiction of the Federal Court of Australia and that Court will order it to produce documents which answer the schedule of documents attached to the First Subpoena and to the Second Subpoena.
33 CIBC WM, however, submitted that there are other difficulties that would militate against the making of such an order. In particular, CIBC WM contends that even if it has “submitted to the jurisdiction” (which I consider it has), any order made by this Court against CIBC WM (a Canadian company and a non-party) would not be capable of enforcement in Canada. It referred the Court to the decision of Allsop J (as he then was) in Stemcor (Australasia) Pty Ltd v Oceanwave Line SA [2004] FCA 391 where he stated “Australian Courts cannot enforce compliance on pain of punishment. In the absence of enforcement procedures the order is an empty threat, or the equivalent of a mere request couched in imperative terms”: see [12] and the authorities cited. In Stemcor [2004] FCA 391, Allsop J was dealing with a subpoena which is a form of order. Here, CIBC WM contends the position is analogous – an order against a non-party.
34 At first blush the argument is attractive. It is true that the ability of an Australian Court to enforce compliance might be limited in circumstances involving a foreign corporation who has not submitted to the jurisdiction of the Court: see Walter v Freehills (2009) 258 ALR 67 at [95]; Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International NV (2007) 157 FCR 558 at [14]-[15]; Stemcor [2004] FCA 391 at [11]. Indeed, caution must be exercised serving subpoenas “in respect of conduct outside of the jurisdiction unless the utility of the subpoena is clear and the administration of justice cannot be advanced by other means”: see PE Nygh & M Davies, Conflict of Laws in Australia (7th ed, 2002) at [4.85] citing Arhill Pty Ltd v General Terminal Co Pty Ltd (1991) 23 NSWLR 545.
35 However, the circumstances in this case are different. CIBC WM is not “outside the jurisdiction”. As noted above, CIBC WM has submitted to the jurisdiction of the Court. In these circumstances, issues relating to enforcement of these orders are not an issue. More particularly, the questions of futility which fell for consideration in Stemcor [2004] FCA 391 (where there had been no prior submission to jurisdiction) do not arise. However, even if enforcement was a relevant issue on this application (and it is not), the Order is not an “empty threat”. As the Applicants submitted, the Court could deny CIBC WM the costs orders it would ordinarily be entitled to in respect of the steps it took to comply with the subpoenas (see Order 27 r 11 of the Federal Court Rules). Moreover, the powers of the Court to punish for contempt are not affected. Finally, if the Court ordered CIBC WM to pay the Applicants’ costs occasioned by a default by CIBC WM in complying with the Order, the Applicants may to seek to enforce that order against CIBC WM in Canada by the usual means available to a successful litigant in seeking to have orders enforced in Canada: see Order 37 r 4 of the Federal Court Rules. None of these steps involve or raise issues about the invasion of the sovereignty of the foreign state: cf Stemcor [2004] FCA 391 at [11].
Sabre Orders
36 In the alternative, the Applicants also sought what they described as Sabre orders. A Sabre order is often described as an order where a Court directs a party to a proceeding to take steps to obtain access to and discover documents in the possession of a third party where there is a real likelihood that the party to the proceeding would be given access to the documents upon request: see Sabre Corporation Pty Ltd v Russ Kalvin’s Hair Care Co (1993) 46 FCR 428 at 432. The Applicants acknowledge and accept that until now Sabre orders have only been made against a party to a proceeding. The Applicants submit that there is no reason in principle why a Sabre order should only be made against a party to the proceeding where the criteria for the making of such an order are otherwise satisfied. The cases (Sabre 46 FCR 428 and Gambro Pty Ltd v Fresenius Medical Care Australia Pty Ltd [2002] FCA 581 at [17]) identify s 23 of the Federal Court of Australia Act 1976 (Cth) (the FCA) as the source of power to make such an order against a party to a proceeding. Section 23 of the FCA provides:
The Court has power, in relation to matters in which it has jurisdiction, to make orders of such kinds, including interlocutory orders, and to issue, or direct the issue of, writs of such kinds, as the Court thinks appropriate.
37 The essential characteristic of a Sabre order is that it orders A to attempt to procure B to do something. It would not be appropriate (indeed it would be a contradiction in terms) to order A to attempt to answer a subpoena directed to A. Either the subpoena should be answered by the party to whom it is directed or it should not. No middle ground is available.
38 The Applicants also sought an order that CIBC Australia take all reasonable steps available to it to obtain the documents responding to the First Subpoena and the Second Subpoena that are in the possession of CIBC WM, the Canadian Imperial Bank of Commerce or any related entity to CIBC Australia, including any such documents located in Canada. That application should be dismissed. CIBC Australia is not a party to the proceeding and is not the subject of any process (whether by subpoena, application for third party discovery or otherwise) which would make it subject to the jurisdiction of the Court. Even if CIBC Australia was subject to the jurisdiction of the Court, the best the Applicants could hope for was a Sabre type order or an order requiring it to use its best endeavours to obtain the documents from CIBC WM. Such an order is unnecessary – I am prepared to make an order of that kind directly against CIBC WM.
Declarations, Orders and Costs
39 I will grant the Applicants a declaration that by reason of the facts and matters set out in paragraph [28] above, CIBC WM has submitted to the jurisdiction of the Court. I will also make Orders in the following terms:
1. By 4:00pm on 9 April 2010, CIBC WM produce to the Court any documents in the possession, custody or control of CIBC WM, including any documents located in Canada, that answer the description in the Schedule to the Subpoena issued by the Court on 18 December 2009 and the Schedule to the Subpoena issued by the Court on 10 February 2010.
2. The Notice of Motion filed by the Applicants on 9 March 2010 is otherwise dismissed.
3. The Notice of Motion filed by CIBC WM on 19 March 2010 is dismissed.
40 Contrary to the submissions of CIBC WM and CIBC Australia, it is not appropriate to order the Applicants to pay CIBC WM and CIBC Australia’s costs of appearing on the application for the orders. Costs should follow the event. CIBC WM should pay the Applicants’ costs of and incidental to the Notices of Motion referred to in paragraphs [39(2) and (3)] above. Given the issues raised and the material filed, no additional costs were incurred on the part of CIBC Australia.
41 Further, contrary to the submissions of CIBC WM, it is not appropriate for the Court now to make orders to ensure that CIBC WM are not out of pocket at all for their costs of complying with the subpoenas. Appropriate costs orders can and should be made at the return of the subpoenas: see [35] above.
|
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon. |
Associate:
Dated: 31 March 2010
