Cargill Australia Ltd v Viterra Malt Pty Ltd

Supreme Court of Victoria|2017-12-20|Before: ELLIOTT J

PRACTICE AND PROCEDURE - Discovery - Defendants seeking approval to commence proceeding for discovery pursuant to 28 USC s 1782 - Context in which application is made - Civil Procedure Act 2010 (Vic), s 7.

For the Plaintiff/Defendant by Counterclaim and the First and Second Third Parties

1 The defendants ("the Viterra Parties") seek the court's approval to make an application, under 28 United States Code, s 1782.[1] The proposed application, in the United States District Court, District of Minnesota ("the Proposed Foreign Proceeding"), is desired in order to obtain discovery relevant to the issues in this proceeding. The plaintiff, Cargill Australia Ltd ("Cargill Australia"), and the first and second third parties, Cargill, Incorporated ("Cargill, Inc") and Joe White Maltings Pty Ltd ("Joe White Maltings") (together with Cargill Australia, "the Cargill Parties"), oppose the application.

2 By summons filed 26 September 2017, approval of the Proposed Foreign Proceeding was initially sought by the Viterra Parties so that they might obtain production of documents and deposition testimony from 8 persons, being 4 current and 4 former executives of the Cargill Parties. On 5 December 2017, by leave, an additional person was added (collectively "the Executives").[2]

3 This is the second time the Viterra Parties have sought to obtain discovery in this manner. On a previous occasion, a proceeding was commenced by the Viterra Parties pursuant to the United States Code ("the Foreign Proceeding"), without notice to the court or the Cargill Parties. The Cargill Parties sought to prevent the prosecution of the Foreign Proceeding and, in response, retrospective approval was sought by the Viterra Parties ("the Earlier Applications"). The Viterra Parties' application was refused on 25 May 2017.[3] Further, an injunction was granted preventing the Viterra Parties from taking any steps in the Foreign Proceeding and requiring them to take steps to discontinue the Foreign Proceeding.[4] However, there was no restriction on the Viterra Parties making a further application in this court if they considered it appropriate.

4 For the reasons that follow, the application will be dismissed.

5 This proceeding has had an extensive and protracted history, having been commenced more than 3 years ago. There are very significant sums of money involved, and a large volume of discoverable documents.

6 I do not propose to go into any real detail about the history. Much of this was addressed in a judgment dealing with the Earlier Applications.[5]

7 That said, there are some issues addressed in the Earlier Applications that need to be revisited.

8 A relevant factor in determining the Earlier Applications was that, as at early May 2017, the Cargill Parties had expended approximately $3 million in costs and disbursements with respect to discovery and related issues. In relation to such matters, the Viterra Parties had incurred costs of approximately $4.1 million.[6] At the time these figures were brought to the attention of the court, the parties were put on notice that the court would closely monitor the extent to which costs were being incurred in relation to further interlocutory steps in this proceeding.[7]

9 The present application was to be heard, with 5 other applications, on 5 October 2017. Although the hearing of this application did not proceed on that day,[8] the other applications were dealt with. As part of this process, the court was informed that up to that point in time the Cargill Parties had spent approximately $3.9 million, and the Viterra Parties had spent approximately $5.3 million, with respect to discovery and related issues.

10 Leaving aside the costs incurred by the third parties,[9] the fact that approximately $9.2 million has been spent in this manner up to October this year is of considerable concern to the court. Even with claims in this proceeding exceeding $200 million, the court needs to be particularly vigilant with respect to any further interlocutory costs being incurred so as to ensure there is compliance with the overarching obligations under the Civil Procedure Act 2010 (Vic).[10]

11 As a result of this concern, on 5 October 2017, the parties were informed that no new interlocutory applications were to be made in this proceeding without leave of the court. This direction did not affect applications that were already on foot and yet to be determined.

12 Further, at the time of the Earlier Applications, the proceeding was listed for trial on 9 October 2017. This was a matter taken into account in refusing to approve the prosecution of the Foreign Proceeding then on foot.[11]

13 On 6 June 2017, the court was informed that all parties consented to the proposed trial date of 9 October 2017 being vacated. It was explained that, in light of further discovery requirements imposed on the Cargill Parties by orders of the court that day,[12] and an imminent application by the Viterra Parties for leave to appeal against the court's decision with respect to the Earlier Applications, it was simply not possible for the parties to be ready on 9 October 2017.

14 Faced with an agreed position between the key parties, the court, with some reluctance, vacated the trial date on the premise put. Very shortly after this, another case was allocated to be heard by me in October 2017. Then, contrary to the position stated previously, the Viterra Parties informed the court that they would not be seeking leave to appeal from the ruling with respect to the Earlier Applications. By that time, I was unable to relist this proceeding in October 2017. It has now been listed for trial on 7 May 2018.

15 Also on 6 June 2017, the court made orders upon an application by the Viterra Parties for further and better discovery.[13] On 18 August 2017, the time for the Cargill Parties to comply with the orders of 6 June 2017 was extended. After further complaints about the Cargill Parties' non-compliance, on 20 September 2017 the court ordered that Cargill, Inc make discovery and produce for inspection any relevant documents in the possession of the Executives (except for Patrick Bowe Jnr).

16 The present application first came on for hearing on 12 October 2017. At approximately 5.00 pm on 11 October 2017, the Viterra Parties served a further affidavit in support of the application. It consisted of 26 pages, with 329 pages of exhibits. Although no satisfactory explanation was given for the delay in filing this affidavit,[14] the Viterra Parties were allowed to rely on the affidavit as their then senior counsel stated its contents were very important to the outcome of the application. Naturally, the Cargill Parties required some time to respond. The necessary adjournment was granted.

17 During the course of the hearing on 12 October 2017, the court suggested that the most appropriate course might be to adjourn the application to 19 December 2017, so that the court could consider the necessity of further discovery after all witness statements had been filed and served.[15] Although the Viterra Parties agreed, this approach was rejected by the Cargill Parties and the matter was re-listed for hearing on 2 November 2017.

18 Also on 12 October 2017, issues relating to "Cargill's standard document retention practice" were raised. In an affidavit of documents sworn 1 September 2017 on behalf of the Cargill Parties, reference had been made to documents no longer in the Cargill Parties' possession by reason of the practice. On the court's own motion, an order was made requiring a full description of the practice to which reference had been made.

19 On 24 October 2017, the Cargill Parties informed the court that they wanted the matter listed urgently. In short, the Cargill Parties had changed their position and wanted the application adjourned to 19 December 2017. In response, the Viterra Parties also changed their position. When the matter came on for hearing on 25 October 2017, the Viterra Parties opposed an adjournment to 19 December 2017, stating that, if an adjournment were granted, it should not be for such an extended period. Ultimately, for reasons it is unnecessary to recite, the adjournment was granted.

20 In written submissions filed on 4 October 2017, the Viterra Parties submitted that it was "a fundamental principle" in an adversarial legal system that it is for a party, itself, to determine what evidence to obtain and present to the court by use of its own resources, provided always that the means adopted were lawful.[16]

21 As I understood it, this submission was tempered somewhat in oral submissions. The Viterra Parties accepted, correctly in my view, that any authorisation of the institution of a foreign proceeding could be properly accompanied by appropriate directions.[17]

22 The court was informed that, if approval were granted, the Viterra Parties would seek discovery in the Proposed Foreign Proceeding,[18] both documentary and oral, from the Executives because the position of each of them was critical to the outcome of this case. The Viterra Parties' principal affidavit set out, at length and by reference to documents already discovered in the proceeding, why it is that the Executives are important witnesses or potential witnesses.

23 Primarily, the reasons for seeking approval to commence the Proposed Foreign Proceeding related to the nature of this case, coupled with complaints the Viterra Parties have with respect to discovery in this proceeding, in particular with respect to the Executives. The reasons included the following:

(1) The Viterra Parties are defending fraud allegations.

(2) The Cargill Parties "document retention practice" has resulted in various documents in the possession of the Cargill Parties being destroyed.[19]

(3) The Cargill Parties have informed the court they have suffered "technical issues", which appear to have prevented full discovery.[20]

(4) The Viterra Parties have asked for confirmation that all documents in the Executives' personal possession have been reviewed for discovery and have received unsatisfactory responses.

(5) The Cargill Parties had taken a particular view with respect to relevance of certain documents, which view was incorrect in light of the rulings made by the court on 6 June 2017.

(6) The Cargill Parties' discovery of documents remains incomplete. Various complaints were made, the details of which are not necessary to list, concerning the adequacy of the Cargill Parties' discovery.[21]

24 In addition, the Viterra Parties submitted that, because the Executives were located in the United States, there could be no certainty that they would be available to give evidence at the trial. In particular, although an undertaking had been given to the court on 22 May 2017 on the hearing of the Earlier Applications, reflecting an intention to call the Executives as witnesses at trial,[22] the Viterra Parties had asked for confirmation that the Executives had agreed to co-operate, including travelling to Australia to give evidence at trial, and the Cargill Parties had declined to respond to this request. Things have moved on since the Viterra Parties filed their written submissions.[23]

25 Expert evidence was also led by affidavit from an attorney based in Chicago, Illinois. That affidavit set out various aspects of the law relating to the Proposed Foreign Proceeding and the relevant steps involved. The attorney expressed the opinion that it would take approximately 45 to 60 days from any approval by this court for the entire process to be completed in the United States (that is, the application for the issuing of the Proposed Foreign Proceeding, obtaining an order serving the Executives, obtaining documentary discovery and completing the depositions).

26 The Cargill Parties opposed any form of approval of the Proposed Foreign Proceeding. They submitted that, if the Viterra Parties had any issue with the Cargill Parties' discovery, the proper forum to ventilate these issues was in this court. Further, they contended that the earlier unchallenged[24] decision of the court not to approve the Foreign Proceeding previously instigated by the Viterra Parties meant that the bringing of this application was an abuse of process.[25]

27 Furthermore, the Cargill Parties submitted that to allow depositions to be taken would give the Viterra Parties a benefit not ordinarily available in the court; and that an Australian court had never endorsed the issue of a foreign proceeding for obtaining oral discovery by way of pre-trial depositions of likely witnesses.[26] Moreover, the Cargill Parties pointed out, correctly, that the principal case relied upon by the Viterra Parties, South Carolina Insurance Co v Assurantie Maatschappij De Zeven Provincien NV,[27] was not authority for the proposition that the House of Lords had permitted depositions in a foreign proceeding,[28] and that suggestions to the contrary were in error.[29]

28 On 10 October 2017, the Cargill Parties filed an affidavit in opposition to this application. That affidavit referred to an inquiry of the Cargill Parties, made by the court on 18 August 2017, as to whether the discovery of the Cargill Parties included documents in the personal possession of each of the Executives. The evidence of the solicitor with the conduct of the matter, Janet Whiting ("Whiting"), was that, as a result of this inquiry, she approached each of the Executives directly and asked them "if they had any documents in their personal possession (as distinct from in the possession of Cargill) that related to the Cargill/Viterra issues arising out of the acquisition of [Joe White Maltings]".

29 Further, on 14 and 15 September 2017, Whiting attended the Cargill Parties' offices in Minneapolis, Minnesota. On those days, Whiting:

(1) Inspected all the documents that were produced by the 8 of the Executives (then the subject of the application)[30] as a result of the request referred to above.

(2) Confirmed with each of those Executives that there were no further documents in their personal possession.

(3) Confirmed that each of those Executives would be required to provide evidence in the proceeding and that each of the Executives agreed to do so.

I personally inspected all the documents that had been provided. I ascertained what material needed to be discovered.

31 As a result of this process, the Cargill Parties have discovered only a subset of the documents produced by the 8 Executives in question.[31]

32 A further, far more substantial, affidavit of Whiting was filed in opposition on 8 December 2017. Much of this affidavit was directed to responding to an application by the Viterra Parties for orders requiring further and better discovery from the Cargill Parties.[32] In addition, an explanation was given as to why documents were automatically deleted from server mailboxes, home drives and computers in accordance with "Cargill's standard practice".[33] The explanation included reference to an "Exchange 2010 Litigation Feature", which caused documents that would otherwise be deleted to be retained with respect to persons known by the "Electronic Discovery Manager" to be involved in litigation.

33 With respect to what had previously been sworn by Whiting on 10 October 2017,[34] further evidence was given. It was suggested that in an attempt for brevity, Whiting may have "inadvertently created some confusion", and that, by this further affidavit, she sought to "clarify it". The evidence was that she spoke to the 8 Executives the subject of the application at the time and asked each of them to provide her "with any documents they had that related to the issues in dispute in the Cargill/Glencore proceedings" (being a reference to this proceeding).

34 After setting out various details with respect to the 8 Executives, including matters relevant to documents held by those Executives, Whiting continued:

In relation to my dealings with each of these individuals, the conversations we had were broader than requests for documents "in relation to the issues in dispute" in the Cargill/Glencore proceedings. The individuals addressed my questions in a broader way and dealt with all documents that they had (or didn't have) in relation to [Joe White Maltings].

35 In a significant development, during the course of the hearing of the application yesterday, the Cargill Parties expanded the undertaking previously given to the court.[35] The undertaking now given to the court is as follows:[36]

The Cargill Parties, by their counsel, undertake to call each of Ryan Engel, Matthew Evers, Peter Hawthorne, Lisa Jewison, Emery Koenig, Khai Le Binh, Marc Viers, Patrick Bowe Junior and Doug Eden [ie all the Executives] to give evidence at the trial of the proceeding listed for 7 May 2018, or, if any individual is not called to give evidence in chief, to make that person available for cross-examination.

36 In reply submissions, in response to the suggestion that the application was an abuse of process, the Viterra Parties submitted that the circumstances now pertaining were materially different. Reference was made to the subsequent disclosure of Cargill's "document retention practice", to the "significant technical issue" and the position of the Cargill Parties that, unless ordered to do so, no further discovery is now to be made. In addition, the Viterra Parties relied upon the time between this application and the commencement of the trial (in contrast to the more imminent date when the Earlier Applications were heard).[37] Moreover, reliance was placed upon the near completion of interlocutory steps in this jurisdiction.

37 Finally, the Viterra Parties submitted there was no delay in making the application in circumstances where there was a need to await the outcome of the domestic interlocutory processes. In this regard, the Viterra Parties noted no prejudice had been identified by the Cargill Parties.

38 In my opinion, the application made by the Viterra Parties is not an abuse of process, nor has it been unduly delayed. The previous ruling, by which the Earlier Foreign Proceeding was effectively brought to an end, substantially relied upon the fact that there were significant discovery issues outstanding in this proceeding that could be addressed in this jurisdiction. It was held that, in such circumstances, any such application for discovery in a foreign proceeding should not be made until the discovery process was largely exhausted in this jurisdiction.[38]

39 As the chronology set out above demonstrates,[39] shortly after such a position had been reached with respect to discovery in this proceeding, the application was made. Any suggestion of delay is without substance.

40 However, as noted above,[40] things have substantially moved on since the Viterra Parties filed the summons on 26 September 2017, pursuant to which this application is made. Of particular relevance is the certainty that now pertains to the availability of the Executives. In this regard, the Cargill Parties have provided to the court a list of all the witnesses they intend to call. More recently, the Cargill Parties have filed witness statements of each of the Executives (which are to stand as evidence in chief at trial).[41]

41 Further, and most significantly, the previous undertaking, given to the court on 22 May 2017,[42] has been expanded. As set out above,[43] instead of the undertaking being confined to expressing a present intention as to future conduct, the undertaking given to the court yesterday now guarantees that the Viterra Parties will have the ability to cross-examine each and every of the Executives who they wished to make the subject of discovery obligations through the Proposed Foreign Proceeding.

42 Accordingly, even though this case concerns allegations of fraudulent concealment on the part of the Viterra Parties, which necessarily enlivens the knowledge of all relevant witnesses of the Cargill Parties, there is no risk (beyond some, as yet, unforeseen event) that any potentially relevant witnesses on this issue will not be available for examination by the Viterra Parties. Either those witnesses are in Australia, and so can be the subject of subpoena if the Viterra Parties so choose, or they will be brought to court in accordance with the undertaking given by the Cargill Parties.

43 Thus, the commencement of the Foreign Proceeding to conduct depositions of the Executives would, in my view, cause an unnecessary procedural overlay and would not "be useful from a case management perspective".[44] In these circumstances, it is unnecessary to consider the broader question of whether depositions, in themselves, facilitate an unfair advantage to a party in this jurisdiction who is also the moving party in any foreign proceeding.[45]

44 As to the position concerning the discovery of documents by means of the Proposed Foreign Proceeding, the evidence in opposition provides extensive detail of the position of each of the Executives. In substance, upon an inquiry being made of each of them, they have informed the Cargill Parties' solicitors either that they have no documents that are relevant, or that any documents they have that are relevant have been provided to the Cargill Parties' solicitors. Accordingly, on its face, there would appear to be very little utility in the Proposed Foreign Proceeding for the purposes of documentary discovery. This position is not altered by any technical issues that may have been experienced with respect to electronic documents in the Cargill Parties' possession.[46]

45 Of course, the Viterra Parties are not required to accept the assurances of any of the Executives, or, for that matter, the Cargill Parties' solicitors. However, if so advised, the Viterra Parties may explore this issue during cross-examination at trial.[47]

46 In this regard, the Viterra Parties submitted that if it were revealed that documents were in the possession of any of the Executives and had not been discovered, this would give rise to significant disruption of the trial. It was contended that permitting the Proposed Foreign Proceeding would avoid any risk of this disruption.

47 I cannot agree. It is not unusual in the Commercial Court, on occasion, for a witness to refer to a document that has not been previously discovered. In the usual case, the document can be called for and produced, usually within 24 hours at most. This applies both to local witnesses and overseas witnesses.

48 Given the various means of communication available, and even allowing for the time differences applicable to Minnesota, it is likely that any such disruption, if it were to occur, would be minimal. In any event, any possible disruption is highly likely to be substantially less than the disruption that would be caused by the commencement of the Proposed Foreign Proceeding. In particular, when there are still further outstanding interlocutory issues to be determined, including the possible challenge to claims for privilege and an appeal from an earlier decision of the court,[48] it is imperative that the parties remain focussed on ensuring the matter proceeds to trial in an orderly manner on 7 May 2017.

49 To the extent that the conclusion I have reached interferes with the Viterra Parties' ability to determine for themselves what information they might obtain for the purposes of preparing their case, I have necessarily rejected the "fundamental principle" contended for.[49] However, for reasons explained, the Viterra Parties' position, from a practical point of view, will ultimately be only marginally different by reason of this ruling.

50 Although the above reasons determine the issues, it should not go without mention that, if I had not thought the position to be so clear in relation to the outcome of this application, I would have considered that the amount the parties have already expended on interlocutory steps weighs significantly against the orders being made, notwithstanding the seriousness of some of the allegations. In any event, I have not had to consider this issue for the purpose of determining the outcome of this proceeding. Further, it follows that, the extent to which this factor might have been inconsistent with the "fundamental principle" contended for, this also need not be considered.

51 For the above reasons, the application is dismissed.

Former employee of Cargill. Associate Vice President in Strategy and Business Development. Based in Minneapolis, Minnesota. Left in February 2015.

He was a member of the Tax and Restructuring Workstream, and the Legal and Regulatory Workstream.

Former employee of Cargill. From 2000 to 2015, he was President and Global Director of Cargill Malt.

Former employee of Cargill. He was "Reliability Excellence Leader" from October 2011 onwards in the malt division of the company. He left the company in September 2014.

Current employee of Cargill. He is Vice President of "Corporate Strategy & Development" for the company. In 2013, this team was known as "Strategy & Business Development".

Current employee of Cargill: "Regional Controller for North America".

During the JWM sale, she was Assistant Vice-President and Financial Controller at Cargill, Inc. She was a member of the Valuation and Synergies Workstream.

Former employee of Cargill. He retired in February 2016. At the time of his retirement, he was Vice Chairman and Chief Risk Officer of the company.

Current employee of Cargill Protein, a business group within Cargill, Inc. He is Business Development Manager. He was a project team leader of the Strategy and Business Development department at Cargill during the JWM sale.

Current Employee of Cargill: "Enterprise Risk Manager" for the "Food Ingredient and Bio-Industrial Enterprise" since September 2014.

From 2010, he was Global Commercial Manager of Cargill's malt business.

From 31 October 2013 to September 2014, he was Cargill's "Integration Manager" for the integration of Joe White Maltings.

He was Lead of the Commercial and Operations Workstream, Vice President of Cargill Malt and Commercial Manager at Cargill, Inc.

Current employee: "Business Development Manager" in the Cargill Starches and Sweeteners business unit, based in Minneapolis. At the relevant time (2013), he was summer intern for around ten weeks in the "Strategy Business and Development" department of Cargill.

He was a member of the Valuation and Synergies Workstream.

* In the order in which they are listed in the amended summons, the last of whom was added on 5 December 2017.

[1] 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 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 [her or his] testimony or statement or to produce a document or other thing in violation of any legally applicable privilege. (Emphasis added.)

[2] See the schedule to this judgment for a list of the Executives and their respective positions.

[3] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 2) [2017] VSC 283, [73]-[75].

[8] On 3 October 2017, Cargill sought a short adjournment in light of the volume of materials that had been filed in support of the application. That application was granted, and the application was listed for hearing on 12 October 2017.

[11] See Cargill Australia Ltd v Viterra Malt Pty Ltd (No 2) [2017] VSC 283, [69].

[13] Previously, the Cargill Parties had adopted the position that documents "concerning other malting businesses owned or operated by Cargill" were not relevant to the proceeding. On 6 June 2017, the court made orders which included the requirement for the Cargill Parties to make discovery of the following:

(1) All documents created between 1 June 2011 and 1 November 2013 which record or evidence the knowledge of any of the people referred to in paragraph 20(i)-(xiv) of the affidavit of Monique Lisa Carroll [a solicitor of the Viterra Parties] affirmed 1 June 2017 (which persons included all of the Executives except Patrick Bowe Jnr) of:

(a) The use of barley varieties that were not permitted by customer specifications, including but not limited to Hindmarsh, by any other malting business owned or operated by Cargill, Inc.

(b) The material inaccuracy of the certificates of analysis issued by any other malting business owned or operated by Cargill, Inc.

(c) The use of gibberellic acid in malt production by any other malting business owned or operated by Cargill, Inc, where such use was prohibited by the customer specifications.

(2) All documents created between 1 November 2013 and 31 October 2014 referring or relating to:

(a) Whether or not the malt produced by the business of Joe White Maltings under the plaintiff's ownership conformed to customer specifications, including entries from the barley intake records which record or evidence that off-spec or off-grade barley was purchased by Joe White Maltings under the plaintiff's ownership, including but not limited to the barley receivable book.

(b) The use of varieties of barley by Joe White Maltings under the plaintiff's ownership that were not permitted by customer specifications, including but not limited to Hindmarsh.

(c) The material inaccuracy of the certificates of analysis issued by Joe White Maltings under the plaintiff's ownership to customers.

(d) The use of gibberellic acid by Joe White Maltings under the plaintiff's ownership in malt production where such use was prohibited by the customer specifications.

(e) The modelling and analysis prepared by Mr Matthew Evers in relation to out of specification shipments and certificates of analysis procedures referred to in paragraphs 40 and 42 of the affidavit of Bryce David Evan Molasky Williams [a solicitor of the Viterra Parties] sworn 11 May 2017 and in the documents referred to there.

[14] Most of the matters the subject of the affidavit were not new and could have been the subject of an affidavit earlier.

[15] On 5 October 2017, in addition to ordering that no further interlocutory applications were to be made without leave of the court (see par 11 above), orders were made for the filing and serving of witness statements by Cargill Australia on 16 November 2017, by the Viterra Parties on 7 December 2017 and by the third parties on 14 December 2017. On 17 November 2017, these orders were vacated, and further orders were made for the filing of witness statements. In accordance with those orders, Cargill Australia has now filed and served its witness statements, but the Viterra Parties and the third parties are yet to provide their witness statements.

[16] See South Carolina Insurance Co v Assurantie Maatschappij De Zeven Provincien NV [1987] AC 24, 41G-42A (Lord Brandon, with whom Lords Bridge, Brightman, Mackay and Goff agreed). Cf Cargill Australia Ltd v Viterra Malt Pty Ltd (No 2) [2017] VSC 283, [67], [71]-[75], [80]; Yara Australia Pty Ltd v Oswal [2013] VSCA 337; (2013) 41 VR 302, 307-308 [12]-[15] (Redlich and Priest JJA and Macaulay AJA).

[17] See Jones v Treasury Wine Estates Ltd [2016] FCAFC 59; (2016) 241 FCR 111, 119 [48] (Gilmour, Foster and Beach JJ). See also italicised text of s 1782(a) in fn 1 above.

[18] The expert evidence filed by the Viterra Parties suggested that, if the application were approved and the Proposed Foreign Proceeding then commenced, it almost certainly would be successful.

[19] See pars 18 above and 32 below.

[20] On 7 July 2017, the Cargill Parties informed the court that there were technical issues being experienced with respect to the recovery of electronic documents and data when attempting to comply with orders for discovery made on 6 June 2017: see fn 13 above.

[21] To the extent that they were pursued, these issues have been dealt with separately in rulings given today: Cargill Australia Ltd v Viterra Malt Pty Ltd (No 4) [2017] VSC 797. Most of the Viterra Parties' complaints were either withdrawn or unsuccessful, but some complaints were well-founded and orders for further discovery were made.

[22] The Cargill Parties, by their counsel, undertook to the court that they would notify the Viterra Parties if they decided not to call as witnesses at the trial of this proceeding any of the Executives that had then been subpoenaed as a result of the Foreign Proceeding.

[23] See par 35 below.

[24] See par 14 above.

[25] See DA Christie Pty Ltd v Baker [1996] VicRp 89; (1996) 2 VR 582, 597.8-598.1 (Brooking JA), 602.5, 603.8-604.5, 606.2 (Hayne JA); cf at 611.6-612.5 (Charles JA, dissenting).

[26] In making this submission, reference was made to Lavecky v Visa Inc [2017] FCA 454, [11], [15] (Perram J); Jones v Treasury Wine Estates Ltd [2016] FCAFC 59; (2016) 241 FCR 111, 118 [44] (Gilmour, Foster and Beach JJ); Pathway Investments Pty Ltd v National Australia Bank Ltd (No 2) [2012] VSC 495, [8] (Pagone J); The Sentry Corporation v Peat Marwick Mitchell (1990) 54 FCR 463, 492-493 (Lockhart J, with whom Sweeney and Ryan JJ agreed).

[28] See at 34H, where counsel for the re-re-insurers accepted the stay insofar as it related to depositions. See also Cargill Australia Ltd v Viterra Malt Pty Ltd (No 2) [2017] VSC 283, [80].

[29] See Lavecky v Visa Inc [2017] FCA 454, [28].

[30] See par 2 above.

[31] See also the order made on 20 September 2017: par 15 above.

[32] See fn 21 above.

[33] See par 18 above.

[34] See par 28 above.

[35] See fn 22 above.

[36] It is implicit that the Cargill Parties were duly authorised by each of the Executives to give such an undertaking.

[37] See par 12 above.

[38] Cargill Australia Ltd v Viterra Malt Pty Ltd (No 2) [2017] VSC 283, [74]-[75].

[39] See pars 9-19 above.

[40] See pars 24 and 35 above.

[41] Subject to any ruling of the trial judge.

[42] See fn 22 above.

[43] See par 35 above.

[44] Cf Lavecky v Visa Inc [2017] FCA 454, [18] (Perram J).

[45] Cf Nokia Corporation v Interdigital Technology Corporation [2004] EWHC 2920, [26] (Pumfrey J); Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 4) [1996] FCA 1270; (1996) 64 FCR 61, 67E, 70G-71B (Lindgren J); The Sentry Corporation v Peat Marwick Mitchell & Co [1990] FCA 278; (1990) 24 FCR 463, 493.6 (Lockhart J, with whom Sweeney and Ryan JJ agreed); South Carolina Insurance Co v Assurantie Maatschappij De Zeven Provincien NV [1987] AC 24, 34G.

[46] See par 23(3) above. Whiting explained that the technical issues affected only Cargill's malt business in Australia; and so, "[f]or obvious reasons, the [technical issues] did not affect documents in the personal possession of the [Executives]".

[47] Subject to any direction from the trial judge.

[48] This is scheduled to be heard on 12 February 2018.

[49] See par 20 above.

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Cases Cited (6)