Cargill Australia Ltd v Viterra Malt Pty Ltd

PRACTICE AND PROCEDURE - Discovery - Defendants commenced proceeding for discovery pursuant to 28 USC s 1782 without notice - Application for retrospective approval refused.

INJUNCTIONS - Anti-suit injunction - Application to prevent further steps being taken in foreign proceeding - Whether commencement of foreign proceeding consistent with obligations under Civil Procedure Act 2010 (Vic) - Whether foreign proceeding interferes with case management and the court's control over its own processes - Injunction granted.

1 The plaintiff, Cargill Australia Ltd ("Cargill Australia"), and the first and second third parties, Cargill, Incorporated and Joe White Maltings Pty Ltd (together with Cargill Australia, "the Cargill Parties") apply for orders to effectively prevent the defendants ("the Viterra Parties") from taking any further steps in a proceeding commenced by the Viterra Parties in the United States District Court, District of Minnesota ("the Foreign Proceeding").[1] The Cargill Parties also seek a mandatory injunction requiring the Viterra Parties to withdraw or discontinue the Foreign Proceeding.

2 The Foreign Proceeding was commenced on 26 April 2017. Without notice, an application was filed "for discovery pursuant to 28 USC s 1782",[2] by which the Viterra Parties sought production of documents (by 25 May 2017) and deposition testimony (between 13 and 22 June 2017) from 7 persons, being 4 current and 3 former executives of the Cargill Parties ("the Executives").[3] The following day, the application was granted by the United States District Court. Subpoenas were issued as a result.[4]

3 In essence, in the Foreign Proceeding the Viterra Parties seek documentary discovery and evidence by depositions (to be taken in Minneapolis, Minnesota) for the purposes of this proceeding. This proceeding is set down for trial on 9 October 2017, on an estimate of 6 weeks.

4 For the reasons that follow, the injunctive relief sought will be granted. Further, the court will not, now for then, approve the commencement of the Foreign Proceeding.

5 Before considering the merits of the Cargill Parties' application, the nature of this proceeding and its interlocutory history should be addressed.

6 For the purposes of this application, the case may be simply stated.[5] On 4 August 2013, Cargill Australia agreed to purchase a business, comprising certain "shares and the assets used in connection with" the business, from 1 of the Viterra Parties, or alternatively, all of the Viterra Parties, for the sum of $420 million ("the Purchase Agreement").

7 The Cargill Parties allege Cargill Australia entered into, and later settled, the Purchase Agreement in reliance upon certain representations, which they contend were, compendiously, misleading. This misleading conduct is alleged to have included a failure to disclose that malt was supplied routinely to customers of the business that did not comply with contractual requirements and specifications, without the customers' knowledge. This conduct is alleged to have been accompanied by the supply of certificates of analysis that misstated the results of analytical testing to suggest that the contractual requirements and specifications had been complied with ("the Viterra Practices"). It is further alleged that the Viterra Practices were recorded and endorsed by certain policies ("the Viterra Policies").

8 Putting it very broadly, the Cargill Parties make claims under the Competition and Consumer Act 2010 (Cth), contractual claims (including breach of warranty) and claims based on a breach of duty and deceit. The loss claimed is significant.

9 In their defence and amended counterclaim, the Viterra Parties do not admit the allegations concerning the Viterra Practices and the Viterra Policies or any knowledge of them, and otherwise, broadly speaking, deny the substantive allegations made. Reliance is also placed upon the due diligence carried out before the sale, and various disclaimers, acknowledgements, releases and limitations of liability. Allegations are also made against the Cargill Parties suggesting a want of care. Further, issues concerning proportionate liability are raised. Amongst other things, it is alleged various persons ("the Third Parties") are "concurrent wrongdoers" for the purposes of the Competition and Consumer Act and the Wrongs Act 1958 (Vic).[6]

10 For the purposes of this application, it is unnecessary to refer further to the allegations between the Viterra Parties and the Third Parties, or to the reply and defence to the defence and amended counterclaim.

11 The issues in this proceeding are complex and have given rise to a very large volume of discoverable documents. The parties, often co-operatively, have engaged in extensive interlocutory processes.

12 On 14 November 2014, orders were made by consent for the parties to confer in relation to any orders concerning further particulars and discovery. On 9 February 2015, the time for this conferral was extended by consent to 20 March 2015.

13 In March 2015, issues arose between the parties with respect to the pleadings. On 20 March 2015, orders were made by consent for the purpose of resolving those issues. The time for conferral with respect to discovery was not extended.

14 On 3 June 2015, some of the Third Parties filed summonses seeking orders for the defendants to produce insurance contracts and associated documents. On 12 June 2015, those issues were resolved by orders of the court. On the same day, the parties were ordered to agree upon the documents to be discovered and the means by which such discovery was to be provided. If no agreement could be reached by the specified time, the parties were required to file and serve lists of discoverable documents by 19 August 2015. The parties engaged in further conferral.

15 On 21 August 2015, orders were made for discovery to be in tranches, to be provided between 11 September 2015 and 30 October 2015. The discovery pursuant to this order was to be in compliance with a protocol for the exchange of documents and data ("the Discovery Protocol"), which had been agreed between the parties and formed part of the orders of the court.[7] The parties were also ordered to make documents available for inspection in tranches, the final tranche to be provided after 4 November 2015, subject to any claims for legal privilege.[8]

16 On 6 November 2015, it was ordered by consent that the parties provide 2 further tranches of discovery, with inspection to be completed after 3 February 2016, allowing the parties sufficient time to consider privilege issues.

17 On 5 February 2016, further discovery orders were made. The "Final Tranche" was ordered to be the subject of an affidavit of documents by 26 February 2016. Again, inspection was deferred for a short period to allow consideration of claims for privilege.

18 By mid-2016, the discovery process, ostensibly at least, was substantially advanced. Whilst there were still some significant discovery issues outstanding, the parties turned their attention further to the question of inspection and the resolution of outstanding privilege disputes.

19 To give some indication of the volume of documents involved, by July 2016, the Viterra Parties had discovered approximately 31,000 documents, approximately 16,700 of which were the subject of privilege claims and approximately 3,400 of which were the subject of confidentiality claims. Further, the Cargill Parties had discovered in excess of 33,000 documents, 1,170 of which were the subject of privilege claims.

20 At a directions hearing on 29 July 2016, the parties ventilated various means by which the extensive privilege disputes might be resolved. Orders were made with respect to these issues on that occasion, on 26 August 2016 and on 9 September 2016.

21 On 9 September 2016, the proceeding was referred to a judicial registrar so that privilege issues could be discussed on a without prejudice basis. These discussions were to involve not only attempts to resolve the privilege issues, but also the means by which any outstanding issues might be resolved in an efficient and cost-effective manner.

22 After this process was complete, the parties attended directions hearings in November 2016, which culminated in orders being made facilitating the appointment by the court of an independent barrister. Pursuant to the orders, the independent barrister was required to review sample documents to form a prima facie view on the claims for legal privilege with respect to each document; and then to indicate her opinion by recording it in the relevant column of a spreadsheet as "privileged", "not privileged", or "uncertain".[9] The independent barrister also conducted a review with respect to whether or not certain documents were duplicates. As part of this process, an order was made that her opinions would not be binding, but would be provided in order to assist the parties and the court to narrow the issues in dispute.

23 At the first of the November 2016 directions hearings dealing with issues of discovery, the Cargill Parties sought a date for the trial of the proceeding. Initially, there was some resistance from the Viterra Parties.

24 Given that the proceeding had been on foot for just over 2 years, the court was keen to set a trial date. Although no order was made, it was foreshadowed that it was likely that the proceeding would be fixed for trial on 9 October 2017.

25 On 14 December 2016, the independent barrister was ordered to provide her opinions by 16 January 2017. At this time, there were still significant discovery issues outstanding between the parties. Directions were made for the purpose of seeking to refine these outstanding issues. Further, as foreshadowed, the proceeding was set down for trial.

26 The orders setting down the proceeding for trial were the subject of some debate. Orders were made for witness statements at the behest of the parties. Whilst the parties' desired approach was adopted, I expressed reservations about whether witnesses giving evidence about their state of mind at a particular point of time should more properly be the subject of oral evidence. Further, at a previous directions hearing,[10] I stated that, if I were to order witness statements, in due course I would require the parties to identify the extent to which the evidence in those witness statements was agreed. I indicated that it was the court's position that contentious matters would still be required to be the subject of oral evidence. In particular, it was stated that issues "about who said what at a particular meeting ... [were] not going to be the subject of a written case; it would be the subject of an oral case".

27 Also on 14 December 2016, orders were made for the preparation of a "bundle of key documents" that each party intended to tender or be the subject of cross-examination. The orders required Cargill Australia to serve a chronological bundle of key documents by 3 April 2017, with time for the remaining parties to have their input in preparing a complete chronological bundle of documents. The process was ordered to be completed by 8 May 2017.

28 Although the court was directly involved in assisting the parties to identify and refine various issues, the parties requested that I not hear any application with respect to claims for privilege (as it is proposed I will be the trial judge). I acceded to that request and referred the questions for determination to Daly AsJ. Her Honour conducted a hearing with respect to those questions on 27 and 28 February 2017 and 1 March 2017, delivering her extensive reasons on 30 March 2017.[11] There has been no appeal from the ruling.

29 Meanwhile, further directions were being made as part of the interlocutory steps leading to trial, including with respect to further discovery issues which did not involve questions of privilege.

30 On 31 March 2017, I heard applications by the Cargill Parties and the Viterra Parties with respect to the opposing parties' discovery. Rulings were made on those issues on that day, together with consequential orders requiring the Cargill Parties and the Viterra Parties to take further interlocutory steps in the proceeding. Otherwise, the relevant summonses before the court were dismissed. There has been no appeal from these interlocutory rulings.

31 The affidavits relied upon for the purposes of the hearing on 31 March 2017 revealed (even further) to the court the extensive correspondence and disputation between the parties with respect to discovery. Upon the authenticated orders being sent to the parties on 3 April 2017, the court stated in the covering email as follows:

As a result of the numerous issues that have been raised with respect to discovery and production in this proceeding, his Honour requires that the Cargill Parties and the [Viterra Parties] provide to the court, by 4.00 pm on 26 April 2017, the amount of fees and disbursements that have been incurred by them with respect to discovery and related issues. In addition to the total amount, the information provided must include:

(1) The amount expended on the discovery of documents.

(2) The amount spent on interlocutory disputes, including all correspondence relating to such disputes.

32 The parties complied with this request.[12]

33 The next directions hearing was scheduled for 28 April 2017, but was adjourned by consent to 5 May 2017. The reason for the adjournment was explained in an email sent by the Cargill Parties' solicitors, which stated that the "parties have been in various communications regarding the progress of outstanding matters in this proceeding". It was suggested that, by reason of the conferral that had taken place, it would "be most efficient for all if the hearing [were] adjourned". The email, which was copied to representatives of all parties in the proceeding, made no reference to the Foreign Proceeding. With respect to the parties other than the Viterra Parties, this was because they were not aware that the Foreign Proceeding had been commenced.

34 At this point in time, there were no interlocutory applications on foot in this proceeding with respect to discovery or inspection.

35 On 2 May 2017, the Cargill Parties' solicitors became aware of the existence of the Foreign Proceeding. This notice was provided by Cargill Australia, upon it learning of the existence of the subpoenas that had been served in Minnesota. The following day, the Cargill Parties' solicitors sent a letter suggesting the Foreign Proceeding was, amongst other things, an abuse of process. In their response, on 4 May 2017, the Viterra Parties' solicitors confirmed they were aware of the Foreign Proceeding and rejected the criticisms made.

36 On 5 May 2017, a directions hearing took place. In light of the information provided by the Cargill Parties and the Viterra Parties in response to the court's email sent 3 April 2017, at the start of the directions hearing I stated as follows:

In light of the overarching purpose of the Civil Procedure Act[13] and the court's obligation to give effect to that purpose, it is necessary to say something about costs ...

Since this proceeding was commenced in October 2014, the Cargill Parties have, according to information provided recently, incurred approximately $3 million in costs and disbursements in respect of discovery and related issues. The [Viterra Parties] have incurred approximately $4.1 million in respect of costs and disbursements to deal with those issues.[14]

Accordingly, the parties should give careful consideration as to what steps are necessary to resolve the real issues in dispute before further costs are incurred with respect to discovery and related issues. And when thinking about these issues, the parties should be aware that there may be implications for costs recovery moving forward.

To be clear, these comments are not to be understood as a criticism of the parties, their solicitors or their counsel, but given the sums involved, the court has an obligation to raise these issues with the parties.

It is not necessary to comment at this stage as to whether the costs incurred are proportionate, given the quantum of damages claimed by various parties in this proceeding. However, the parties are clearly on notice with respect to this issue.

37 At the directions hearing on 5 May 2017, the Cargill Parties sought a date for the hearing of an application by them to prevent the further prosecution of the Foreign Proceeding.[15] The court offered the parties a hearing date the following week. Instead, the parties sought for the application to be heard on 15 May 2017. That request was acceded to. However, upon the later application of the Viterra Parties,[16] the hearing date was adjourned to 22 May 2017.[17]

38 Also on 5 May 2017, issues were raised with respect to compliance with the court's orders of 14 December 2016 and the requirement for a chronological bundle of documents to be prepared. Extensions of time were sought by the Viterra Parties and the Third Parties in light of the fact that the Cargill Parties' list of key documents contained 15,200 documents. Extensions of time were granted. Further, the parties were directed to consider s 50 of the Evidence Act 2008 (Vic) for the purpose of putting a "summary" before the court and reducing the volume of documents that would need to be tendered.

39 As may be seen from the chronology set out above, the interlocutory steps to date have been extensive. Such a protracted process is somewhat exceptional when compared to most other cases in the commercial court. However, given the complexity and quantum involved in the case, the court has allowed the process to occur.

C. Injunctive relief - legal principles and relevant legislation

40 It was not in dispute that the court has jurisdiction to grant an anti-suit injunction pursuant to either its inherent power to protect its own processes, or its equitable jurisdiction to restrain vexatious or oppressive conduct.[18]

41 Anti-suit injunctions have previously been granted in circumstances where an Australian litigant has sought to invoke the procedures under 28 USC s 1782. In 1 such case, Pathway Investments Pty Ltd v National Australia Bank Ltd (No 2),[19] reference was made[20] to the decision of Gummow J in National Mutual Holdings Pty Ltd v Sentry Corporation,[21] and in particular to the following passage:[22]

... one tendency manifest in the decisions which indicate what provides sufficient equity to found the injunction, is a concern with the protection of the integrity of the processes of the domestic court. The conduct of foreign proceedings which have a tendency to interfere with the due process of the domestic court may, in the circumstances of a particular case, generate the necessary equity to enjoin those foreign proceedings as vexatious or oppressive.[23]

42 Accordingly, there is no requirement for injunctive relief that the proceeding in the foreign jurisdiction be unlawful. The question is simply whether the use of that overseas process, in the particular circumstances of a case, "will have an impermissible tendency to interfere with the proceeding in this Court".[24]

43 The Civil Procedure Act 2010 (Vic) is relevant to the identification of the nature of the court's own processes. In particular, the following provisions are relevant:

7. Overarching purpose

(1) The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and costeffective resolution of the real issues in dispute.

(2) Without limiting how the overarching purpose is achieved, it may be achieved by -

(a) the determination of the proceeding by the court;

(b) agreement between the parties;

(c) any appropriate dispute resolution process -

(i) agreed to by the parties; or

(ii) ordered by the court.

8. Court to give effect to overarching purpose

(1) A court must seek to give effect to the overarching purpose in the exercise of any of its powers, or in the interpretation of those powers ...

1. Court's powers to further the overarching purpose

(1) In making any order or giving any direction in a civil proceeding, a court shall further the overarching purpose by having regard to the following objects -

(a) the just determination of the civil proceeding;

(b) the public interest in the early settlement of disputes by agreement between parties;

(c) the efficient conduct of the business of the court;

(d) the efficient use of judicial and administrative resources;

(e) minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for -

(i) the fair and just determination of the real issues in dispute; and

(ii) the preparation of the case for trial;

(f) the timely determination of the civil proceeding;

(g) dealing with a civil proceeding in a manner proportionate to -

(i) the complexity or importance of the issues in dispute; and

(ii) the amount in dispute.

(2) For the purposes of subsection (1), the court may have regard to the following matters -

(a) the extent to which the parties have complied with any mandatory or voluntary prelitigation processes;

(b) the extent to which the parties have used reasonable endeavours to resolve the dispute by agreement or to limit the issues in dispute;

(c) the degree of promptness with which the parties have conducted the proceeding, including the degree to which each party has been timely in undertaking interlocutory steps in relation to the proceeding;

(d) the degree to which any lack of promptness by a party in undertaking the proceeding has arisen from circumstances beyond the control of that party;

(e) the degree to which each person to whom the overarching obligations apply has complied with the overarching obligations in relation to the proceeding;

(f) any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court;

(g) the public importance of the issues in dispute and the desirability of a judicial determination of those issues;

(h) the extent to which the parties have had the benefit of legal advice and representation.

...

1. Overarching obligation to cooperate in the conduct of civil proceeding

A person to whom the overarching obligations apply must cooperate with the parties to a civil proceeding and the court in connection with the conduct of that proceeding.

...

1. Overarching obligation to ensure costs are reasonable and proportionate

A person to whom the overarching obligations apply must use reasonable endeavours to ensure that legal costs and other costs incurred in connection with the civil proceeding are reasonable and proportionate to -

(a) the complexity or importance of the issues in dispute; and

(b) the amount in dispute.

...

(1) A court may make any order or give any directions in relation to discovery that it considers necessary or appropriate.

(2) Without limiting subsection (1), a court may make any order or give any directions -

(a) requiring a party to make discovery to another party of -

(i) any documents within a class or classes specified in the order; or

(ii) one or more samples of documents within a class or classes, selected in any manner which the court specifies in the order;

(b) relieving a party from the obligation to provide discovery;

(c) limiting the obligation of discovery to -

(i) a class or classes of documents specified in the order; or

(ii) documents relating to one or more specified facts or issues in dispute; or

(iii) some or all of the issues set out in a statement of issues filed in the proceeding;

(d) that discovery occur in separate stages;

(e) requiring discovery of specified classes of documents prior to the close of pleadings;

(f) expanding a party's obligation to provide discovery;

(g) requiring a list of documents be indexed or arranged in a particular way;

(h) requiring discovery or inspection of documents to be provided by a specific time;

(i) as to which parties are to be provided with inspection of documents by another party;

(j) relieving a party of the obligation to provide an affidavit of documents;

(k) modifying or regulating discovery of documents in any other way the court thinks fit.

(3) A court may make any order or give any directions requiring a party discovering documents to -

(a) provide facilities for the inspection and copying of the documents, including copying and computerised facilities;

(b) make available a person who is able to -

(i) explain the way the documents are arranged; and

(ii) help locate and identify particular documents or classes of documents.

(4) A court may order or direct a party to pay to another party an amount specified or determined by, or in accordance with, the order or direction in relation to the costs of discovery in any manner considered appropriate by the court, including, but not limited to, payment in advance of an amount to the other party for some or all of the estimated costs of discovery.

(5) Without limiting any other power of a court to make costs orders, a court may order or direct that costs payable under an order or a direction under subsection (4) are recoverable as costs in the proceeding.

44 The Cargill Parties relied principally upon the following matters in seeking injunctive relief:

(1) The lack of prior notice to them and the court of the intention to commence the Foreign Proceeding.[25]

(2) The fact that this proceeding has been the subject of case management by the court from the outset.[26]

(3) The substantial discovery that has already been made by the Cargill Parties in this proceeding, including of documents of the nature sought in the Foreign Proceeding,[27] coupled with the failure of the Viterra Parties to pursue discovery in this proceeding.[28]

(4) A diversion of the resources of the Cargill Parties' Australian lawyers to the Foreign Proceeding in circumstances where the proceeding has been set down for trial.

(5) The possibility that the current trial date would need to be vacated if the Foreign Proceeding were allowed to continue.

46 The Viterra Parties originally contended they were under no obligation to notify either the court or the Cargill Parties before commencing the Foreign Proceeding. In support of this position, reliance was placed upon expert evidence before this court to the effect that it is the usual practice in the United States "to seek such orders [as were sought] ex parte". However, during the course of oral argument it was conceded, properly, that the court ought to have been informed of the Foreign Proceeding either before or at the time of its commencement.[29] In a judge managed case, such a position must flow, at the very least, from each party's obligation to co-operate with the court.[30] No law or usual practice in the United States affects this obligation.

47 Although the failure to give notice would not, of itself, be determinative of the outcome of this application, it was also conceded, again properly, that the failure to give notice was a factor to consider in the exercise of the court's discretion with respect to injunctive relief.

48 With that in mind, it is appropriate to outline what would generally occur if proper notice were given to the court.

49 The procedural steps for a commercial court proceeding are governed by the Civil Procedure Act, the Supreme Court (General Civil Procedure) Rules 2015 (Vic) and, amongst other practice notes, Practice Note SC CC 1. Both individually and collectively, the relevant regulatory provisions make it a matter for the court to determine what steps with respect to discovery are appropriate in a particular proceeding.[31] Further, in the commercial court, service of interrogatories is generally not permitted.[32]

50 Given this regime, ordinarily, parties in the position of the Viterra Parties would not be permitted to commence a process of discovery of the kind that was commenced by the Foreign Proceeding without the court being satisfied that such a proceeding was in accordance with the overarching purpose under the Civil Procedure Act. It follows that lack of notice was a material omission insofar as it had the effect of bypassing a critical procedural safeguard with respect to efficiency and the incurring of additional interlocutory costs.

51 For completeness, if, for any reason, the Viterra Parties had a concern about giving notice to the Cargill Parties before the Foreign Proceeding was commenced, the Viterra Parties could have approached the court ex parte. The court would then have been in a position to determine whether notice to the Cargill Parties was required. In any event, no such reason was the subject of any evidence or submissions.

52 As may be seen,[33] this proceeding has been the subject of extensive case management from the outset. Again, although this fact, of itself, is not determinative of the outcome of the application,[34] it is plainly relevant in determining whether or not there is a need for the court to protect its own processes.

53 Of particular significance in this case is the fact that the court had already demonstrated its concern about the amount of costs being incurred with respect to discovery.[35] Further, by late April 2017, the court was actively involved in seeking to ensure all necessary steps were being taken for the matter to proceed to trial on 9 October 2017.

54 In summary, failing to notify the court of an intention to seek discovery by way of a foreign proceeding, and effectively shutting out the court to the management of that process, was an affront to the overall case management of the proceeding.

1. Substantial discovery already made in this proceeding and the failure to exhaust this jurisdiction's processes

55 As already noted, there has been extensive discovery provided in this proceeding[36] and, at the time the Foreign Proceeding was commenced, there were no outstanding applications for discovery in this proceeding.[37]

56 Further, there is a substantial overlap between the documents sought in the Foreign Proceeding and contents of the documents already discovered in this proceeding,[38] albeit they may be, technically, different documents.[39] Indeed, to adopt the Viterra Parties' submissions,[40] "[a]lthough the bulk of the documents falling within the categories required to be produced should already have been discovered by Cargill Inc, there are likely to be further documents in the personal possession or control of the [Executives] ... There is no evidence as to what volume of documents the [Executives] may have that Cargill Inc has not discovered" (original emphasis).

57 More substantively, there has been a failure of the Viterra Parties to raise in this court some of the issues relied upon to justify the Foreign Proceeding.

58 By way of example, in February 2016, the Viterra Parties' solicitors raised an issue concerning the Cargill Parties' discovery failing to identify which of the Cargill Parties discovered each discovered document. Not only was this alleged to be in breach of the Discovery Protocol, but it was suggested that such an identification process was critical to the Viterra Parties' preparation.

59 After a chain of correspondence, on 27 May 2016, the Cargill Parties' solicitors refused to provide the details sought. On 31 May 2016, the Viterra Parties' solicitors alleged its clients' concerns had not been addressed and there had been no explanation for the failure to comply with the Discovery Protocol or some other means of addressing the prejudice faced. The matter was not pursued beyond this point in time. No application was made to the court in this regard.

60 Further, despite the extensive ongoing discovery disputes between the parties, at no time have the Cargill Parties raised any jurisdictional issues with respect to their resistance to some discovery requests. On the face of it, there has been nothing in the interlocutory history of this proceeding which has indicated that the documents sought (as opposed to the testimony) could not be provided pursuant to this court's processes (assuming such provision was appropriate).

61 Furthermore, in response to the Foreign Proceeding, the Cargill Parties have contended that 4 of the 7 classes of documents sought are not relevant to the proceeding. As a result of this contention and that these documents are in the possession of the Cargill Parties, the Viterra Parties have now made an application in this court, by summons filed 18 May 2017, for those documents to be discovered in this proceeding by the Cargill Parties. No such application had been made before this time. The existence of this application means that there are now 2 processes running in parallel seeking the same classes of documents. On no view could this be considered to be efficient or cost-effective.

62 The above examples are not exhaustive. But they demonstrate that the Viterra Parties, to some extent, have not sought to use this court's processes as they might have. Plainly, the Foreign Proceeding may have been more appropriate if the Viterra Parties had exhausted their rights in this jurisdiction and had failed to obtain documents of critical relevance to the issues in this case. That has simply not been demonstrated.

63 Finally, the Viterra Parties provided no explanation as to why they decided to wait until late April 2017 to commence the Foreign Proceeding. Indeed, no explanation was given on oath as to why it was commenced in the manner that it was and at this point in time. As the chronology set out above demonstrates,[41] issues with respect to discovery first arose in November 2014 and had been pursued by the parties in earnest, in conjunction with orders of the court, since mid 2015. There was no compelling reason proffered, or apparent, as to why the Foreign Proceeding could not have been commenced at an earlier point in time.

64 The current trial orders require the Cargill Parties to file and serve their witness statements by 4.00 pm on 21 June 2017.[42] The Cargill Parties have stated it is their present intention to call each of the Executives, but that their witness statements have not yet been prepared.[43] The Cargill Parties have also undertaken to inform the Viterra Parties forthwith if this intention changes with respect to any of the Executives.

65 The solicitor with the conduct of this proceeding on behalf of the Cargill Parties swore that the preparation of the Executives' witness statements will be significantly interfered with if each of the Executives are to be subject to the documentary and oral discovery processes the subject of the Foreign Proceeding. Considerable detail was provided as to the additional time that would be involved in complying with these additional processes. There is no reason to doubt this evidence. The Viterra Parties, themselves, contended that each of the Executives were important witnesses in the case. Given the volume of documents and the number of issues in the case, I expect considerable time will be required with each Executive for the purpose of drafting and finalising her or his witness statement, in addition to assisting each Executive with the additional processes required to comply with the Foreign Proceeding.[44]

66 Further, the Cargill Parties complain about the additional costs that will need to be incurred if the Foreign Proceeding is allowed to run its course. Evidence was given about the need for Australian lawyers to attend in Minneapolis to provide assistance. Although the Cargill Parties have attorneys in the United States, it was suggested that the involvement of Australian lawyers would be necessary given the long history and complexity of this proceeding.

67 In response to this submission, the Viterra Parties contended it was not necessary for the Cargill Parties' solicitors or attorneys to be involved in the Foreign Proceeding, as the Executives were capable of compliance without such assistance. It was further submitted that if the Cargill Parties chose to have legal representation for the Executives, it was a cost that was being incurred by their volition and not out of necessity. It was further submitted that, even if the costs were to be incurred and it was a "lot of money", such a circumstance did not amount to an interference with the processes of this court.[45]

68 In my view, it is unrealistic to suggest that the Cargill Parties, acting properly, would not assist the Executives by providing legal representation if the Foreign Proceeding were allowed to remain on foot. This must be particularly so with respect to the 4 Executives who remain current employees of Cargill Incorporated. Further, it is not correct to contend that costs being incurred as part of a legal process by an opposing party are not matters which go to the processes of the court. Even before the enactment of the Civil Procedure Act, the court's processes included an obligation on the court and the parties to ensure that procedural processes connected with a proceeding involve costs that are proportionate to the issues and amounts involved in a proceeding.[46] This is now enshrined in the Act.[47]

69 Further, the Cargill Parties contended if the Foreign Proceeding were allowed to continue it would "not be possible (or fair) for the current trial date to be maintained". On the evidence before the court on this application, I am not in a position to fully assess whether or not the current trial date would need to be adjourned in the event that the Foreign Proceeding were allowed to continue. It is sufficient for present purposes to find, as I do, that there is a real risk that the current trial date would need to be vacated. Further, it is appropriate in this context to note that the trial date has been fixed since December 2016. Given the history of this proceeding, subject to what the interests of justice might dictate in the future, it is likely that the overarching obligations will more readily be met if the trial date is maintained.[48]

70 As the matters set out above demonstrate, the processes of this court will be substantially interfered with if the Foreign Proceeding is not halted. The circumstances in which it was commenced were entirely inappropriate.

71 Whilst nothing stated in this ruling is to be taken to comment on the general appropriateness or otherwise of utilising discovery processes in a foreign jurisdiction as part of the preparation for trial in this jurisdiction, the relevant factors in this case are overwhelmingly in favour of the Cargill Parties. Without being exhaustive, those factors include the lack of notice, the timing, the extent of the discovery sought, the substantial overlap with the extensive discovery that has already been made in this proceeding and the failure to pursue avenues for further discovery in this proceeding.

72 Accordingly, in order to give effect to the overarching purpose,[49] the Viterra Parties must be prevented from taking further steps in the Foreign Proceeding and must be compelled to take all reasonable steps to have the Foreign Proceeding discontinued.

K. The Viterra Parties' application for court approval, now for then

73 In the alternative, the Viterra Parties move the court to approve the commencement of the Foreign Proceeding now, to have effect as at 26 April 2017. Although no formal application was made, in the written submissions, the following was stated:

Alternatively, if the court concludes that such approval was required, then the [Viterra Parties] seek that approval retrospectively.[50]

74 In my view, such an approval should not be given. Leaving aside any advantage that the Viterra Parties might have gained if they were able to obtain evidence on oath from the Executives before trial, presently there appears to be no material basis upon which the processes the subject of the Foreign Proceeding are required for the due administration of justice in accordance with the overarching obligations.

75 Again without being exhaustive, there appear to be methods of obtaining the documents, or a substantial number of the documents, by the processes of this court (assuming further discovery and inspection are appropriate). Further, the time required to comply with the steps to be taken in the Foreign Proceeding is significant. This intrusion would occur at a critical time in the preparation for trial in this proceeding. Furthermore, although no specific estimates are before the court, it is self-evident that very substantial costs will be incurred if the Foreign Proceeding processes are allowed to continue. Given the already very substantial costs incurred to date with respect to discovery,[51] the onus on the Viterra Parties to satisfy the court of the appropriateness of this alternative means of discovery comes into particular focus with respect to issues of proportionality. No submissions were made in this regard.[52]

76 In addition to the contentions set out in paragraph 44 above, the Cargill Parties also submitted that the Viterra Parties would gain an unfair advantage if the Executives were the subject of discovery by deposition process. Further, it was submitted that the Viterra Parties "acted without candour" in the materials they put before the United States District Court in order to obtain the relief they did.

77 In light of the conclusions set out above, it is unnecessary to address these contentions.

78 For completeness, reference is also made to the submissions of the Viterra Parties whereby they sought to distinguish the decisions of Pathway Investments Pty Ltd v National Australia Bank Ltd (No 2)[53] and Jones v Treasury Wine Estates Ltd.[54] The first point of distinction relied upon was that both those cases were class actions, whereas this proceeding is not. It was suggested that class actions more readily lend themselves to case management and accordingly the courts ought to take a stricter approach in those type of cases when compared to the present case. In response to this submission, it is sufficient to observe that this proceeding has been heavily case-managed and the fact that it is not a class action does not alter the appropriateness of the approach referred to above.[55]

79 Further, with respect to Pathway Investments Pty Ltd v National Australia Bank Ltd (No 2), the Viterra Parties contrasted the trial orders in that proceeding with the orders for witness statements in this proceeding.[56] Although witness statements have been ordered in this proceeding, it is still expected that significant aspects of the critical evidence will be given orally.[57] The distinction sought to be relied upon by the Viterra Parties is of no materiality.

80 Finally, the Viterra Parties relied upon the decision in South Carolina Insurance Co v Assurantie NV.[58] As a result of certain concessions made by the defendants, that case was only concerned with obtaining documentary discovery by a foreign process.[59] Further, the House of Lords found that the foreign discovery process would not interfere with the domestic court's interlocutory processes.[60] For the reasons set out above, in the circumstances of this case, the Civil Procedure Act requires a different conclusion.

81 For the reasons set out, injunctive relief will be granted substantially in the form sought by the Cargill Parties.

[2] Section 1782(a) of the United States Code provides, in part, as follows:

The District Court of the district in which a person resides or is found may order [her or him] to give [her or his] testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal, ... The order may be made pursuant to a letter rogatory issued, or request made, by a foreign or international tribunal or upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced, before a person appointed by the court. ... The order may prescribe the practice and procedure, which may be in whole or in part the practice and procedure of the foreign country or the international tribunal, for taking the testimony or statement or producing the document or other thing. To the extent that the order does not prescribe otherwise, the testimony or statement shall be taken, and the document or other thing produced, in accordance with the Federal Rules of Civil Procedure.

A person may not be compelled to give his testimony or statement or to produce a document or other thing in violation of any legally applicable privilege.

[3] By agreement, these dates are to be extended in light of this application.

[4] The subpoenas have been served on 5 of the Executives, 4 on 2 May 2017 and 1 on 3 May 2017.

[5] For a more extensive summary of the parties involved and the issues in this proceeding, see Cargill Australia Ltd v Viterra Malt Pty Ltd [2017] VSC 126, [2]-[28] (Daly AsJ).

[6] Reference is made to both s 87CB of the Competition and Consumer Act and s 24AE of the Wrongs Act.

[7] A copy of the Discovery Protocol is annexure A to these reasons.

[8] The reference to "claims for legal privilege" is a reference to any claim for privilege which might have been made under s 118 or s 119 of the Evidence Act 2008 (Vic).

[9] The independent barrister, Penny Neskovcin QC, attended court at the time of the making of the orders and acceded to the obligations imposed upon her.

[11] Cargill Australia Ltd v Viterra Malt Pty Ltd [2017] VSC 126.

[12] See par 36 below.

[13] Civil Procedure Act 2010 (Vic).

[14] These costs did not include any costs associated with the Foreign Proceeding.

[15] The Cargill Parties were ordered to file and serve any application within 7 days, and the Viterra Parties undertook to not take any further steps in the Foreign Proceeding until after the hearing and determination of this application.

[16] This application was opposed by the Cargill Parties. It is unnecessary to discuss the reasons for the adjournment application.

[17] On this occasion, the Viterra Parties also undertook to have the time for the documents to be produced in the Foreign Proceeding extended from 25 May 2017 to 8 June 2017.

[18] CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, 391.2-393.5 (Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ). See also Sunland Waterfront (BVI) Ltd v Prudentia Investments Pty Ltd [2013] VSCA 237, [438]-[442] (Warren CJ, Osborn JA and Macaulay AJA).

[19] [2012] VSC 495 (Pagone J).

[21] (1989) 22 FCR 209.

[23] This passage was referred to with approval in CSR Ltd v Cigna Insurance Australia Ltd (1997) 189 CLR 345, 392.1.

[24] Pathway Investments Pty Ltd v National Australia Bank Ltd (No 2) [2012] VSC 495, [6]. See also Jones v Treasury Wine Estates Ltd [2016] FCAFC 59; (2016) 241 FCR 111, 116-117 [31]-[38] (Gilmour, Foster and Beach JJ).

[25] See par 2 above.

[26] See pars 11-39 above.

[27] See pars 15-19 above and 56 below.

[28] See pars 30 and 34 above and 57-62 below.

[29] For completeness, notwithstanding the absence of notice to the court, as part of the application filed in the Foreign Proceeding it was stated by the Viterra Parties "there is no indication that the Victorian Supreme Court is 'unreceptive to judicial assistance from the United States courts'".

[30] Civil Procedure Act, s 20: see par 43 above.

[31] Civil Procedure Act, ss 54, 55 (see par 43 above); Supreme Court Rules, rr 29.01.1, 29.05.1, 29.05.2; Practice Note SC CC 1, [9.2], [9.3.1].

[33] See pars 11-39 above.

[34] See, for example, Jones v Treasury Wine Estates Ltd [2016] FCAFC 59; (2016) 241 FCR 111, 118 [47] (Gilmour, Foster and Beach JJ).

[35] See pars 31 and 36 above.

[36] See par 19 above.

[37] See par 34 above.

[38] On the evidence there was a discrepancy as to how many documents would overlap. Suffice to say, for the purposes of this application it was common ground the overlap would be in the order of approximately 3,000 documents.

[39] As to which, cf Supreme Court Rules, r 29.01.1(4).

[40] Written submissions, 15 May 2017, [18].

[41] See pars 11-39 above.

[42] These were originally ordered to be provided on 29 May 2017, but the time is to be extended by agreement.

[43] The Viterra Parties suggested it should be inferred that the Cargill Parties had failed to proof these witnesses. In my view, this is not established on the evidence. It was refuted by the Cargill Parties' reply submissions.

[44] Although there is no doubt some overlap with preparing the witness statements and assisting the Executives to prepare for the depositions and documentary discovery, these are quite distinct procedures and will involve a different level of preparation and involvement from solicitors.

[45] Cf South Carolina Insurance Co v Assurantie NV [1987] AC 24, 43F (Lord Brandon, with whom Lords Bridge, Brightman, Mackay and Goff agreed).

[46] Yara Australia Pty Ltd v Oswal [2013] VSCA 337; (2013) 41 VR 302, 309, [19] (Redlich and Priest JJA and Macaulay AJA), referring to Hargrave J in Director of Consumer Affairs Victoria v Scully (No 2) [2011] VSC 239, [22] (see also [21]) who, in turn, quoted from A Team Diamond Headquarters Pty Ltd v Main Road Property Group Pty Ltd [2009] VSCA 208; (2009) 25 VR 189, 193-194 [15] (Redlich JA and Beach AJA).

[47] Section 24: see par 43 above.

[48] In this regard, the Cargill Parties have foreshadowed amendments to the statement of claim. That application is not presently before the Court. The Viterra Parties have suggested that if leave were granted, an adjournment of the trial date would need to be ordered in any event. This is a matter for another day.

[49] Civil Procedure Act, s 8: see par 43 above.

[50] The form of order ultimately sought was as follows:

The Court approves, retrospectively, the [Viterra Parties] making application for orders under s 1782 of Title 28 of the United States Code seeking production of documents and deposition testimony from the following current and former executives of Cargill Inc. in the form of the application made on 26 April 2017 in the United States District Court for the District of Minnesota in case number 17-mc-0019 (RHK/HB):

(a) production of documents by former executives of Cargill Inc. Ryan Engle, Doug Eden and Emery Koenig;

(b) production of documents by current executives of Cargill Inc. Marc Viers, Lisa Jewison, Khai Le-Binh and Peter Hawthorne;

(c) deposition testimony from former executives of Cargill Inc. Ryan Engle, Doug Eden and Emery Koenig; and

(d) deposition testimony from current executives of Cargill Inc. Marc Viers, Lisa Jewison, Khai Le-Binh and Peter Hawthorne.

[51] See par 19 above.

[52] For a helpful, non-exhaustive, checklist of considerations likely to be relevant in this context, see Lavecky v Visa Inc [2017] FCA 454, [19] (Perram J).

[53] [2012] VSC 495.

[54] [2016] FCAFC 59; (2016) 241 FCR 111.

[55] Cf The Sentry Corporation v Peat Marwick Mitchell & Co [1990] FCA 278; (1990) 24 FCR 463, 493.6 (Lockhart J, with whom Ryan J agreed).

[56] At [9], Pagone J noted that the evidence in that case was to be given "viva voce and not by witness statement".

[57] See par 26 above.

[58] [1987] AC 24.