CF Industries Sales LLC v No Defendant

Category: Principal judgment

Parties: CF Industries Sales, LLC (Plaintiff)
CF Industries Nitrogen, LLC (Plaintiff)

Representation: Counsel:
T Boyle (Plaintiffs)
N Lennings (Proposed Subpoena Recipients)
Solicitors:
Dentons (Plaintiffs)
Quinn Emanuel Urquhart & Sullivan (Proposed Subpoena Recipients)

File Number(s): 2026/56667

JUDGMENT

1. HIS HONOUR: By way of a summons filed on 10 February 2026, the plaintiffs seek orders pursuant to s 33 of the Evidence on Commission Act 1995 (NSW) (“the Act”) for the oral examinations of two persons pursuant to a letter of request issued by the Nineteenth Judicial Circuit Court, Illinois in the United States of America (the US Court). The persons who the plaintiffs seek to examine, being Mr Tino Grabbert and Mr Timur Abenov, oppose the making of the orders.

2. The hearing of the summons took place on 20 February 2026. Timothy Boyle appeared for the plaintiffs. Nicholas Lennings sought leave to appear on behalf of Mr Grabbert and Mr Abenov. The plaintiffs did not oppose leave being granted and thus leave was granted to Mr Grabbert and Mr Abenov to appear. I will describe them as the examinees in this judgment.

3. The plaintiffs are parties to litigation being conducted in Illinois against Orica International Pte Limited (“Orica”) and Nelson Brothers, Inc (“Nelson Brothers”) (“the US proceedings”). The plaintiffs are suppliers of ammonium nitrate in the North American market. Orica and Nelson Brothers are purchasers of ammonium nitrate in that market. The US proceedings arise out of purchase agreements for ammonium nitrate between the plaintiffs, Orica and Nelson Brothers. The plaintiffs claim that Orica and Nelson Brothers conspired to manipulate the North American market for ammonium nitrate and seek orders and declarations that their conduct breached the purchase agreements and violated US anti-trust laws and constituted fraud.

4. The examinees were employees of McKinsey & Company, a firm of consultants (“McKinsey”). Although McKinsey is not a party, it is alleged that McKinsey provided consulting services to Orica, particularly relating to the market for the sale of ammonium nitrate and steps which might be taken in respect of that market, as well as the agreement with the plaintiffs. At least in part, it was the related conduct of Orica which gives rise to the allegations in the US proceedings. The examinees are both said to have worked with Orica on the matters the subject of the US proceedings. Mr Abenov was the primary project manager for Orica’s consulting engagement with McKinsey, which is said to have involved discussion of strategies which the plaintiffs allege were anti-competitive. Mr Grabbert was a partner at McKinsey during the period 2020–2025 and had previously worked in various roles at McKinsey since 2011. He is said to have been the primary client engagement officer for Orica’s consulting engagement with McKinsey and his role is said to have specifically involved strategies implemented by Orica which are said to have been anti-competitive.

5. Neither person still works at McKinsey and they both live in New South Wales. The plaintiffs seek to examine them, that is, in US legal jargon, to take a deposition from both of them. There appear to be a number of persons living in Australia from whom the plaintiffs are seeking deposition style examinations. Similar applications have been made in Queensland and Western Australia. Two days before publication of this judgment, Kelly J delivered judgment in the Queensland matter (see In the matter of CF Industries Sales LLC [2026] QSC 17 (“the CF Industries QSC Judgment”)). His Honour came to the same conclusion as I have as to the making of the orders sought, albeit for slightly different reasons.

6. Neither examinee opposes the orders sought on the basis that they are unavailable to be examined or that they cannot attend and be examined. The basis of the opposition is that the orders being sought are for an impermissible purpose, that is, in simple terms, the plaintiffs are seeking an order for a discovery deposition, rather than an evidence deposition. The examinees submit that requiring them to submit to such a discovery examination is not permissible under Australian law, such that the Court has no power to make the orders sought. Further, they submit that the Court would not exercise its discretion to make the orders for other reasons.

7. The plaintiffs submit that the purpose of the examinations is evidentiary rather than for discovery and that the examinees’ resistance on that basis is misplaced. Having regard to the submissions of the parties, this is the essential issue in dispute.

The orders sought

8. The plaintiffs seek a number of orders, including:

9. That leave be granted to issue subpoenas to attend to give evidence on both examinees;

10. An examiner, a member of the New South Wales Bar Association, be appointed as examiner pursuant to r 24.3 of the Uniform Civil Procedure Rules 2005 (NSW) (“the UCPR”);

11. The plaintiffs comply with r 24.7 of the UCPR;

12. The examiner to conduct the examination in person at the offices of the solicitor for the plaintiffs on 10 and 11 March 2026, or in the alternative, by audio-visual link;

13. The examination, including cross-examination and re-examination of the examinees, be conducted by US counsel for the parties in the US proceedings;

14. The evidence of the examinees be transcribed in writing and video recorded.

15. Annexed to the summons are schedules (Schedule A and Schedule B), setting out the topics on which the examination would take place.

16. The parties approached the hearing on the basis that the examinations are a form of deposition, being an approach well-known in the United States.

17. The examination would take place before an examiner and questioning of the examinees would be undertaken by a US legal representative on behalf of the plaintiffs. The examinees may be legally represented if they wish. Further, the other parties to the litigation may also attend.

18. The US proceedings are listed for hearing in September 2026.

The parties’ evidence

13. The plaintiffs relied upon a number of affidavits, including affidavits of Mr David McIntosh, their Australian solicitor, dated 5 February 2026; an affidavit of Ms Jessica Giulitto, one of the plaintiffs’ US attorneys, dated 19 February 2026; and an affidavit of Mr Donald Morrison, another US attorney, dated 19 February 2026.

14. The examinees relied upon affidavits of Mr Jason Gray, dated 17 and 19 February 2026, being the solicitor for the examinees.

15. The basis of the application is a Letter of Request to the Supreme Court of New South Wales issued by the Honourable Judge Daniel L Jasica of the Nineteenth Judicial Circuit Court of Illinois (“the Request”). The Request was issued in accordance with the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 (1972, 847 UNTS 241) (“the Hague Convention”). Included in the evidence are transcripts of the proceedings before Judge Jasica 18 December 2025 and 18 February 2026.

The nature of the application

16. This is an application pursuant to Pt 4 of the Act to give effect to the Request for international judicial assistance pursuant to the Hague Convention. Part 4 of the Act governs requests to the Court for the taking of evidence for the purposes of foreign civil or commercial proceedings.

17. Section 32 is the following terms:

“32 Application to the Supreme Court for assistance in obtaining evidence for proceedings in other court

(1) The following provisions of this Part apply if an application is made to the Supreme Court for an order for evidence to be obtained in the State and the Court is satisfied—

(a) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal exercising jurisdiction in a place outside the State, and

(b) that the evidence to which the application relates is to be obtained for the purposes of proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated.

(2) This Part does not apply in respect of proceedings relating to the commission of an offence or an alleged offence unless the requesting court is a court of a place in Australia or of New Zealand.”

18. Pursuant to s 33, the Court has power to make such provision for the obtaining of evidence in New South Wales as may appear to the Court to be appropriate. That power includes an order for the examination of witnesses either orally or in writing and for the production of documents. Although there is reference in the Request to documents (as one of the topics), the plaintiffs say that they are not seeking that the examinees produce documents.

19. This is because s 33(6) is in the following terms:

“33 Power of the Supreme Court to give effect to application for assistance

…

(6) An order under this section must not require a person—

(a) to state what documents relevant to the proceedings to which the application for the order relates are or have been in the person’s possession, custody or power, or

(b) to produce any documents other than particular documents specified in the order and appearing to the court making the order to be, or likely to be, in the person’s possession, custody or power.”

20. The Court thus may not order a person to attend for examination or produce documents by way of discovery of documents. Article 23 of the Hague Convention provides that Australia will not execute letters of request for the purposes of obtaining pre-trial discovery, which may include discovery by way of compulsory questioning (see British American Tobacco Australia Services Ltd v Eubanks (2004) 60 NSWLR 483, [2004] NSWCA 158 (“British American Tobacco”) at [25-27]). As was said in British American Tobacco, there is no logical basis for distinguishing between document discovery and oral examination before trial.

21. In this matter the plaintiffs seek oral examination of the examinees before trial and disavow any request for production of documents, despite there being a reference to production of documents in one of the topics identified in the summons.

22. The principles which are to be applied in exercising the discretion whether to make the orders were set out by Spigelman CJ (with whom Handley and Bryson JJA agreed) in British American Tobacco at [42], as follows (which I will describe as the 14 propositions):

“42 Burnton J, in Gredd v Arpad Busson ([[2003] EWHC 3001] at [27]), has summarised the English law in a manner that, in my opinion, should be adopted in Australia:

‘(1) Comity requires this court to view a letter of request issued by a foreign court for the purpose of civil proceedings before it benevolently. It is our pleasure and duty to assist those courts and the parties to them in arriving at a fair and just determination of their civil litigation where we can properly do so.

(2) Nonetheless when an application for an order under the Act is disputed, the High Court must determine whether the order sought is one which it can or should properly make.

(3) The issue whether the order sought is for an illegitimate investigation rather than to obtain evidence to be adduced at trial is to be determined principally by reference to the terms of the letter of request and of the proposed order of this court. However, the court will consider the evidence before it as a whole.

(4) Particularly pertinent will be the stage at which the order is sought and the extent to which the party seeking the order is able to demonstrate that the information sought is relevant to issues in the foreign proceedings in the sense of being capable of being adduced at trial in support of those issues.

(5) The fact that testimony is sought as part of the discovery process in the United States proceedings is not of itself decisive. The fact that it is sought at the discovery stage is an indication that what is sought is discovery. However, the High Court has power to make an order for such testimony to be taken if it is limited to evidence to be adduced at trial. The court has a discretion to refuse to make an order at that stage even for such evidence to be taken on the grounds that it is premature, for example, and that the deposition of the proposed witness will be more efficiently and shortly taken, involving less inconvenience or intrusion into matters confidential to him or to other third parties, if it is taken at a later stage.

(6) Statements in a letter of request to the effect that evidence is sought for use at trial are relevant but not conclusive. The letter of request must be viewed as a whole.

(7) This court will take into account anything in the evidence before it that indicates that the party that obtained the order for the letter of request appreciated and took into account the differences between United States and English procedural rules.

(8) Similarly, the court will take into account evidence that the US judge appreciated and took into account those differences. In this connection, this court appreciates that orders for the issue of letters of request are normally made by the US judge without any real scrutiny. The order is normally made in the terms sought by the applicant without any (or any significant) amendment and without the judge being informed of the significant differences between US federal procedure and those of these courts.

(9) The fact that the evidence sought is described in wide or general terms is not inconsistent with its being sought for the trial. There will be occasions where the subject matter of the testimony sought is so extensive as to preclude specification. However, where that is the case, the court in the exercise of its discretion may refuse to make an order on the basis that it would be oppressive to the witness to require him to prepare himself to give evidence and to require him to give evidence without identification of the matters to be addressed. See State of Minnesota v Philip Morris Inc, a decision of the Court of Appeal of 30th July 1997 (EWCA (Civ), 30 July 1997, unreported).

(10) The court will take into account any safeguards or restrictions incorporated in the terms of the proposed order. However, the order made by this court cannot depart substantially from the terms of the letter of request. The requirement of the statute is that the order of the court give effect to the letter of request. The limitation on the power of amendment of the terms of the deposition sought by the letter of request was referred to by Lord Fraser in Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 at 644–645 and in turn by Sir Richard Scott VC in First American Corporation v Sheikh Zayed Al-Nahyan [1999] 1 WLR 1154; [1998] 4 All ER 439 at 1169.

(11) Generally an order may be refused or set aside on the grounds that would lead this court to set aside a witness summons – oppression being one of those grounds.

(12) This Court will not in general seek to determine whether evidence sought here will be admissible under the law of the foreign court. However, doubts as to admissibility may be taken into account. Issues of relevance will be addressed by this Court, notwithstanding that relevance and admissibility may raise identical issues. An example of an enquiry into relevance by the English court is to be found at par 14 of the judgment of the Court of Appeal in Genira Trade & Finance Inc v CS First Boston and Standard Bank (London) Ltd [2001] EWCA Civ 1733 and in the judgment of the Vice-Chancellor in First American (at 1165), in which he said:

‘In my opinion, therefore, an English court must look at the issue of the relevance of the requested testimony, if it is raised, in broad terms, leaving to the foreign court, in all but the clearest cases, the decision as to whether particular answers, or answers on particular topics, would constitute relevant admissible evidence.’

(13) In determining whether an order offends the statutory prohibition in relation to discovery of documents, the court must address the terms of the order rather than the claimed intentions of the party seeking it. An order requiring the deponent to say whether he has any documents relevant to the foreign proceedings offends against s 2(4)(a). An order made requiring him to say whether he has had any communication relevant to the foreign proceedings, in my judgment, is similarly illegitimate since ‘communication’ includes a documentary communication and the order would require the deponent to state whether or not he has or had such a document. Put otherwise, such an order would circumvent the statutory prohibition and is not to be made for that reason.

(14) Similar principles must apply where what is sought is a deposition without any written documents. The person conducting the examination of the witness, the witness himself, those representing him and those representing the parties to the foreign litigation must be able to ascertain the limits of proper questioning of the witness from the terms of the order itself.”

23. The plaintiffs and the examinees rely on different parts of these principles for their own purposes.

The plaintiffs’ position

24. The plaintiffs’ position is that, in circumstances where a valid and appropriate request has been issued, this court would provide the judicial assistance necessary to facilitate the taking of the evidence.

25. They say that:

26. The evidence sought is relevant, having regard to the nature of the US proceedings;

27. The Court should look favourably and benevolently at such an application;

28. It is plain from the Request and surrounding documentation such as the transcripts of the hearings before Judge Jasica that the purpose of the examination is to obtain evidence, that is, the depositions are evidence depositions rather than discovery depositions; and

29. To the extent it is necessary for this Court to impose any limits on the examination that is within the Court’s discretion, and orders can be made to ensure that the process does not include any element of discovery.

The examinees’ position

26. The examinees identify two bases on which the Court should exercise its discretion not to make the orders sought, being that:

27. The Request has the dominant purpose of seeking pre-trial discovery and as such should be rejected;

28. Each of the topics identified in Schedule 1 of the Request fall outside the proper purpose, in that they are not permissible, relevant questions.

29. Further, in the alternative, the examinees submit that the Court should impose restrictions on the questioning, such as the time permitted and the form of the questioning that is not cross-examination. That is, despite the Request suggesting that leading questions should be permitted, the Court should not permit leading questions and not permit the plaintiffs to cross-examine the examinees.

30. The parties approached the matter on the basis that the issue for determination was whether the examination of the examinees might be viewed as for the purpose of evidence to be used at the trial in the US proceedings or for the purpose of pre-trial discovery, which would be an impermissible purpose.

Determination

29. The application is governed by Pt 4 of the Act.

30. Section 32 operates as a form of threshold or gateway provision, that is, the subsequent provisions apply “if an application is made to the Supreme Court for an order for evidence … and the Court is satisfied”. It follows that the application must be for an order for evidence to be obtained in the State and the Court must be satisfied of the matters set out in ss 32(1)(a) and 32(1)(b).

31. Section 33(1) then provides that the Court:

“… has power, if an application is made under section 32, by order to make such provision for obtaining evidence in the State as may appear to the Court to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made …”

32. That is, the Court, in the exercise of its discretion, has power to make such orders as may be appropriate. The types of orders are then set out in s 33(3) of the Act in a non-exhaustive fashion. As set out in s 33(6), an order cannot be made requiring a person to give pre-trial discovery.

33. Except for some disagreement between the parties as to whether the purpose of obtaining evidence must be the sole or dominant purpose, or just a purpose, there is little dispute between the parties as to the principles to be applied having regard to the 14 propositions identified in British American Tobacco at [42].

34. The source of the controversy as to purpose appears to be a decision of this Court in 1984, with reference to the Foreign Tribunals Evidence Act 1856 (UK) in Application of Forsyth; Re Cordova v Philips Roxane Laboratories Inc [1984] 2 NSWLR 327 at 330 (“Forsyth”). In reviewing that legislation, Clarke J accepted that even if the dominant purpose was not the obtaining of evidence, provided that the obtaining of evidence was a purpose, then that would suffice. His Honour held, at 333:

“In my view, there is power provided that the foreign court is desirous of obtaining the evidence for use, or possible use, at the trial notwithstanding that there is another, and dominant, purpose for which the evidence is required.”

35. That approach has not always been followed (see State of Washington v Johnson & Johnson (2021) 34 Tas R 110; [2021] TASSC 65 at [22] but the court has shied away from adopting too restrictive an approach to the threshold or gateway provisions of Pt 4 of the Act (see Canna**r v Eubanks [2003] NSWSC 802 at [152]-[167]).

36. In Louis Dreyfus Company B.V. (f/k/a Louis Dreyfus Commodities B.V.) v Glencore Ltd [2025] NSWSC 388, Peden J accepted that the possible subsequent use of the evidence for a collateral purpose did not disentitle the plaintiff to the orders sought, leaving that matter for later determination by the relevant overseas court. Although raised in Siabon Seet v No Defendant [2025] NSWSC 1362 at [60], Rigg J found it unnecessary to determine the issue.

37. Most recently in the CF Industries QSC Judgment, Kelly J followed Forsyth, accepting that s 33 of the Act could be satisfied even if there may be another more dominant purpose for the request (at [10]).

38. It is perhaps important to emphasise that the determination of whether the orders should be made involves firstly a satisfaction that the gateway provisions are satisfied and then a consideration of whether the discretion to make the orders should be exercised. As observed by Kelly J (at [11]), it is always necessary to look at the substance of the matter.

39. In my view, there is no warrant for introducing an additional layer or qualification into the gateway provisions (that is, a requirement for an express finding of dominant purpose) but if, in substance, the purpose of the examination is really to investigate whether there might be evidence or seek information that might lead to a train of enquiry (that is, a US-style discovery deposition), then it would be unlikely that the orders would be made. This is because the examination is being sought for an impermissible purpose, that is, one that is expressly excluded.

40. The requirement for a finding of dominant purpose is not referred to in British American Tobacco. Further, as observed in British American Tobacco (see proposition 3 at [42]), the court considers the matter having regard to the terms of the request and the orders sought.

41. This is the way that this matter has been contested. That is, is this a Request for the examination of witnesses for the purpose of taking evidence to be used at trial (an evidence deposition) or an examination for an impermissible purpose (that is, a US-style discovery deposition)?

42. Although it is not necessary to make a finding as to dominant purpose, in my view, the mere incidental obtaining of evidence to be used at trial pursuant to a request which on its face relates to discovery would not be consistent with the purpose of the legislation and the background to its implementation. In that regard, it is not necessary that I repeat the extensive analysis undertaken by Spigelman CJ in British American Tobacco at [20]-[41]. This analysis tends to support my approach.

43. The Court did not refer to the dominant purpose, but plainly distinguished between the purpose of obtaining evidence for use at trial and the impermissible purpose of pre-trial discovery.

44. Turning now to the specifics of the application, both parties relied on some of the 14 propositions set out in British American Tobacco for their own purposes. Both pointed to different aspects of the Request and Illinois law in aid of their submissions.

45. The examinees identified five reasons why the Court should conclude that the request has the purpose of seeking pre-trial discovery, as follows:

46. The request does not specify directly that the evidence the subject of the topics is for the purpose of eliciting evidence at the hearing;

47. The scope of the questions is extremely broad, and the examinees submit that each of the topics are themselves liable to be set aside for non-compliance with the Act;

48. The reason for the urgency for relief is expressed to be because of completion of fact discovery by 13 March 2026 in the US proceedings, that is, the examinees rely on the timetable and the case management orders made in the US proceedings to support the proposition that the depositions are really discovery depositions;

49. Rule 206(c)(1) of the Illinois Supreme Court Rules (“Illinois Rules”) provides that for a discovery deposition, the deponent may be cross-examined. As set out in the request, there was reference to leading questions being permitted;

50. In the US proceedings, the Court was urged and determined not to place guard rails on the request, rather, leaving it to this Court to determine the form of orders which should be made.

51. Both parties relied on the terms of the Request, consistent with the principle that whether an order should be made is to be determined principally by reference to the terms of a letter of request and the orders sought (proposition (3) at [42] of British American Tobacco).

52. The examinees relied upon the stage at which the order is sought (proposition 4 at [42] of British American Tobacco), as well as the fact that it is sought at the discovery stage (proposition (5)). Similarly, the examinees submitted that any statement in a request to the effect that evidence is sought for use at trial is relevant but not conclusive (proposition (6)).

53. Both parties also pointed to the transcript of hearings before Judge Jasica. Indeed, it is apparent from the transcripts that the orders for the issue of the Request were made by his Honour without any real scrutiny of its terms. As noted in proposition (8) at [42] of British American Tobacco, the order is normally made in the terms sought by the applicant, without any or any significant amendment and without the judge being informed of the significant difference between US civil procedure and that of the Supreme Court of New South Wales.

54. In this matter, his Honour made the point that he issued the Request in accordance with the terms proposed by the plaintiffs, and he would leave it to the Australian courts to determine whether the orders should be made in Australia having regard to the differences in the law.

The Request

50. The nature of the proceedings, which I have already summarised, is set out in Item 7(a) of the Request.

51. The case is then summarised in Item 7(b) of the Request. It is alleged that the plaintiffs have sought to impose requirements on Orica and Nelson Brothers, or modify the terms of long-term purchaser agreements, so as to impose restrictions and obligations on Orica and Nelson Brothers inconsistent with the terms of the agreements. The plaintiffs deny the allegations and pursue counter claims, alleging that Orica and Nelson Brothers conspired to manipulate the North American market for ammonium nitrate in order to reduce supply and increase pricing.

52. As set out in Item 7(d) of the Request, the witnesses are or were associated with McKinsey. It is asserted that Orica hired McKinsey as a consultant in connection with alleged violations of anti-trust law and other alleged wrongful conduct.

53. Item 8(a) of the Request refers to the evidence to be obtained which is specified as “the testimony of the witnesses named in Item 9”.

54. The purpose of the evidence or the judicial act sought is set out in Item 8(b). The purposes are:

“As outlined in Item 9, each of the witnesses have information that is material to the action. The Requesting Authority requests that the appropriate judicial authority in Australia order the witnesses to provide testimony in the interests of justice. The parties will be able to offer the transcript or audiovisual recording of the testimony at trial, subject to the Requesting Authority’s rulings before or at trial on the admissibility of the testimony under the Illinois Rules of Evidence.”

55. The Request specifies the persons to be examined. It seems from the summary that each of the examinees might have had some involvement, directly or indirectly, and might be able to provide information relevant to the proceedings. Schedule 1 of the Request sets out the list of topics on which the witness is to be questioned. The topics are broad. One of the topics is “documents in his custodial files and/or documents otherwise produced in this litigation that relate to him”. They are repeated in Schedule A and Schedule B to the summons, respectively. The plaintiffs did not press for that topic to be included as part of the examination.

56. Item 13 relates to “special methods or procedures to be followed”. The proposed special methods include that the “US counsel for the parties (meaning the plaintiffs as they are the only parties to the summons) should be permitted to put questions to the witness directly” and that counsel should be permitted to question the witness first and be permitted to ask leading questions. Further, where there would be a right to object to the form of question, the testimony should be taken subject to the objection. In addition to other procedural matters, it is specified that “[n]o time limit should be imposed on the questioning”.

57. In the relief claimed in the summons, orders are sought for the issue of subpoenas to attend to give evidence to Mr Grabbert and Mr Abenov to be served by 2 March 2026 and 3 March 2026, respectively, with the examination to take place on 10 and 11 March 2026.

The plaintiffs’ evidence

58. In her affidavit, Ms Giulitto refers to r 202 of the Illinois Rules, which provides for two types of depositions, being for the purpose of discovery or for use as evidence in the action. She said that the testimony is sought in this matter by way of evidence depositions as their purpose is intended for use as evidence in the trial of the US proceedings in September 2026. She says that it is the intention of the plaintiffs that testimony be taken, subject to the US Court making rulings on admissibility. It is not intended that they be used for pre-trial discovery.

59. Ms Giulitto relies on Item 8(b) of the Request. She refers specifically to the transcript of a hearing before Judge Jasica on 18 December 2025 in which counsel for the plaintiffs said that the depositions were evidence depositions, that is, trial testimony. The plaintiffs have not chosen to seek the issue of subpoenas for production of documents and substantial discovery has already been undertaken in connection with the US proceedings.

60. Ms Giulitto also suggests by way of argument that there is a difference between a corporate deposition and an individual deposition. She asserts that regardless of any corporate deposition put forward by McKinsey the examinees should be deposed individually in connection with the US proceedings.

61. The plaintiffs also relied upon an affidavit of Mr Morrison, another attorney acting for them in the US proceedings. Exhibited to his affidavit was the transcript of proceedings before Judge Jasica on 18 February 2026. The point of providing the transcript was somewhat self-serving. It seems that following argument in other courts in Australia, the plaintiffs returned to Judge Lasica seeking clarification of the bases upon which the letters of request were issued to the different Australian jurisdictions. Mr Morrison asked his Honour to amend the letters to specify that this was evidence testimony rather than a form of discovery. His Honour declined to do so, pointing out that he had issued the letters in the form requested and he was not going to make orders somehow prejudging what the Australian courts might do.

62. I should be cautious in placing too much weight on suggestions, statements and submissions made by lawyers representing the plaintiffs in the US proceedings, particularly in circumstances in which their evidence is really a response to arguments already made in a similar application elsewhere in Australia. Further, as observed in British American Tobacco at [42]:

“In determining whether an order offends the statutory prohibition in relation to discovery of documents, the court must address the terms of the order rather than the claimed intentions of the party seeking it.”

63. This rather renders the evidence of the US attorneys about their intentions to be of little weight.

64. My task is to consider the Request and the orders sought, including all of the information contained therein, having regard to the evidence. The Request arises from the US proceedings. The issue for determination as argued by the parties remains whether the proposed examinations are in the nature of evidence depositions or discovery depositions.

65. In the end, there are a number of key aspects to the Request and the evidence relied on by the parties that cause me not to be satisfied that the Request is for the purpose of taking evidence rather than an investigation or the seeking of information that might lead to a train of enquiry.

66. Firstly, the list of topics set out in the Request and in the annexures to the summons is extremely broad. The topics are identical for each examinee and would seem to cover all aspects of each examinees’ involvement in the consulting engagement and everything that each examinee did.

67. The topics include all of each examinees’ understanding and knowledge of the businesses of Orica, the plaintiffs and Nelson Brothers, as well as the knowledge of markets for ammonium nitrate and the examinees involvement in other McKinsey consulting engagements.

68. The topics do not nominate specific aspects of any particular work performed by the examinees or anything particularly done or said by any examinee which might properly be subject of examination in chief. The list of topics is so broad that it reads like a general investigation into all and any of the work undertaken by each examinee during the period of the McKinsey consulting engagement.

69. It is difficult to accept that all of the answers given to such enquiries could be relevant evidence as opposed to perhaps leading to some train of enquiry to other matters which might be relevant. The breadth and generality of the topics lead to an inference that the plaintiffs are seeking to examine the examinees for the purposes of investigating whether they may be able to give relevant evidence rather than being able to point to specific and relevant evidence that they anticipate the examinees would give if examined.

70. Secondly, the specification as to the procedures to be adopted as set out in the Request are intended to reflect Illinois law, with the examinees being able to object, but objection to be reserved for a later time. The proposed process of examination would involve the plaintiffs asking questions first and then the other parties being able to question the witness, followed by re-examination of the witness by the plaintiffs. In other words, the conventional common law way of examining a witness, except that the Request specifies that the plaintiffs be permitted to ask leading questions of the witnesses, that is, leading questions in examination in chief.

71. That of itself tends to suggest that the process is intended to be more of an investigation into the evidence they might be able to adduce, rather than the actual taking of evidence.

72. Rule 206(c)(2) of the Illinois Rules provides for an evidence deposition to be taken in the following way:

“In an evidence deposition the examination and cross-examination shall be the same as through the deponent were testifying at the trial.”

73. The proposed method of examining the examinees is not the same as if the examinees were testifying at the trial. That is because the plaintiffs have specified that they should be examined in chief by way of leading questions. That is neither consistent with Australian law, nor consistent with Illinois law. It is only consistent with what is permitted in a discovery deposition. The requirement that questioning be permitted by way of leading questions is an indication that the examination of these witnesses is very much part of a process of investigation as to whether they might have information available which might assist, rather than the taking of evidence for use at trial. Conventionally, in New South Wales law, that might be described as a form of “fishing expedition”, that is, questioning of a witness to determine what the witness knows, rather than questioning the witness by way of an examination in chief for the purposes of evidence. The fact that US counsel wishes to use leading questions is an indicator that counsel seeks to direct the witness towards the information as sought as a process of investigation or enquiry.

74. Thirdly, annexed to the affidavit of Ms Giulitto are extracts from the Illinois Rules. Rule 202 is in the following terms:

“Rule 202. Purposes for Which Depositions May be Taken in a Pending Action

Any party may take the testimony of any party or person by a deposition upon oral examination or written questions for the purpose of discovery or for use as evidence in the action. The notice, order, or stipulation to take a deposition shall specify whether the deposition is to be a discovery deposition or an evidence deposition. If both discovery and evidence depositions are desired of the same witness they shall be taken separately, unless the parties stipulate otherwise or the court orders otherwise upon notice and motion. If the evidence deposition of a witness is to be taken within 21 days of trial, a discovery deposition is not permitted unless the parties stipulate otherwise or the court orders otherwise upon notice and motion.”

75. Plainly, r 202 provides that any notice, order or stipulation to take a deposition shall specify whether that deposition shall be a discovery or evidence deposition and “In the absence of specification a deposition is a discovery deposition only.”

76. The plaintiffs, who must be taken to be familiar with these rules, did not specify in the Request that the depositions were to be evidence depositions. Further, the reference to “testimony of the witnesses” in the Request does not assist the plaintiffs because “testimony” is a term which is used with reference to both discovery and evidence depositions (see Illinois Rules, r 202),

77. Fourthly, the purpose of the Request is that “each of the witnesses have information that is material to the action”. Again, whilst different views might be taken, it appears that the plaintiffs are seeking information from the examinees so as to determine whether they may be able to adduce evidence from them.

78. The belated attempt to go back to Judge Jasica to have his Honour amend the Request to overcome arguments raised in other courts should be given no weight.

79. Fifthly, the stage at which the examinations are sought coincides with the case management orders made in the US Court in respect of discovery. It may be that the evidence adduced could be used at trial, but adopting proposition (4) at [42] of British American Tobacco, the stage at which the order is sought is particularly pertinent.

80. Sixthly, the US Court specifically declined to impose any safeguards or guard rails in the terms of the proposed order. As noted in proposition (10) at [42] of British American Tobacco, the requirement of the Act is that the order of the court give effect to the Request. This Court cannot depart substantially from the terms of the Request.

81. In the end, I agree with the examinees’ submissions. The terms of the Request and the orders sought suggest that the plaintiffs are seeking a form of discovery deposition, which is not a permissible purpose for an examination of witnesses. The subjective statements of the US attorneys that they are not must be given little weight. The failure to specify in the Request that they are seeking evidence depositions, the generality and breadth of the list of topics and the specification that questioning should be by way of leading questions (again inconsistent with the conventional way of obtaining oral evidence for use at trial) all suggest that the purpose of the examinations is not an evidence deposition. The fact that it is possible that evidence might emerge as part of the examinations is not sufficient.

82. The examinees also pursue an alternative argument, being that the topics are improper. It is not necessary that I consider that argument in detail, except to say that the Court is in a very difficult position to determine which particular topic might be relevant, or irrelevant, or which particular topic might be beyond the scope of permissible questioning having regard to the information available. No doubt the US proceedings are complex and substantial. I am provided with a summary of the nature of the proceedings and the parties’ positions. I have no real knowledge of the issues in dispute, whether any admissions have been made or the extent to which there are relevant documents already produced which might limit the scope of questioning or render certain topics irrelevant. I have already identified the broad nature of the topics as tending to suggest that the process is more one of enquiry rather than actually obtaining evidence to be used at trial, but it is another matter for me to determine what topic might be relevant and what might not be relevant, having regard to the information available.

83. My inability to determine what topics might be relevant and the court’s caution on refashioning letters of request are matters which would be of significance in the exercise of the discretion.

84. In the end, I accept the examinees’ submission that this is in substance an application for a discovery deposition rather than an evidence deposition. This is not permitted under New South Wales law and expressly precluded in the Act.

85. For the reasons I have outlined, I do not consider that the orders sought in the summons should be made.

Orders

86. I make the following order:

87. The summons is dismissed.

88. If any other orders are sought, I remind the parties that it will be necessary to make an application within 14 days.

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