Digital Cinema Network Pty Ltd v Omnilab Media Pty Limited

REASONS FOR JUDGMENT 1 This interlocutory skirmish started a long time ago. In short, the Applicant's solicitors sought, far too late, to have a revised letter of request issued to the Royal Courts of Justice in London in relation to the taking of evidence from a Mr Nicholas Zylberstein for the purposes of a hearing which is listed to commence in this Court on 28 October 2013 on an estimate of 20 days. I refused that application. 2 The hearing listed to commence on 28 October 2013 will deal with the question of damages (the Damages Hearing). Liability was determined on 16 May 2011 (Digital Cinema Network Pty Ltd v Omnilab Media Pty Limited (No 2) [2011] FCA 509). An appeal against the orders determining liability was dismissed on 19 December 2011 (Omnilab Media Pty Limited v Digital Cinema Network Pty Ltd (2011) 86 ACSR 674). The Damages Hearing has been listed for hearing since March 2013. It was originally listed for hearing on 15 April 2013 but was adjourned because, inter alia, a number of studio executives who the Applicant intended to call to give evidence were located overseas and despite an order being made in February 2011 under the Foreign Evidence Act 1994 (Cth) for them to give evidence in relation to liability, those executives had stated that they would not attend unless legally compelled to do so. 3 On 28 February 2013, further orders were made for letters of request to be issued pursuant to s 7(1)(c) of the Foreign Evidence Act 1994 (Cth) to the United States District Court, Central District of California for a Mr Zylberstein and Mr Levin to give evidence and to the Royal Courts of Justice, London for a Mr Aseme to give evidence at the Damages Hearing in April. That application by the Applicant had been opposed by the First and Second Respondents (the Omnilab Parties). 4 The Damages Hearing was adjourned on 27 March 2013. On 2 May 2013, the Applicant's solicitors sought an order that revised letters of request be issued to reflect the new hearing date. The Omnilab Parties again opposed the orders being made. Reasons for Judgment were published: Digital Cinema Network Pty Ltd v Omnilab Media Pty Limited [2013] FCA 497 (the May Reasons). The May Reasons addressed both the February and May Applications. 5 On 5 August 2013, the Court received a response (dated 24 July 2013) from the United States District Court that the Court had received the letters of request in relation to Mr Zylberstein and Mr Levin. That correspondence recorded, as was the fact, that both Mr Zylberstein and Mr Levin had given evidence earlier in the liability hearing and that the previous request was "in large part identical" with the current request. The United States District Court requested that the Applicant's counsel file the necessary application and proposed order in that Court, as the clerk of court was not in a position to conduct the depositions or determine which individuals were best suited to serve as special examiners for those depositions. 6 On 12 and 16 August 2013, the Applicant's solicitors were asked by the Court to provide the additional information requested by the United States District Court or at least address the issues raised. 7 On 19 August 2013, a Mr Davidson from the Applicant's solicitors contacted the Court by telephone advising that he would "follow up the Los Angeles firm that they engaged last time". 8 On 3 September 2013, the Court again reminded the Applicant's solicitors of the request made in August. The Applicant's solicitors did not respond. That remains the position. The questions raised by the United States District Court remain unanswered. 9 On Wednesday, 11 September 2013, Mr Hogan, a solicitor employed by the Applicant's solicitors wrote to the Court and the other parties: We refer to her Honour's orders dated 24 May 2013, which ordered that letters of request be sent to judicial authorities in the United States and United Kingdom in respect of obtaining evidence from Messrs Levin, Zylberstein and Aseme for this proceeding listed for trial on 28 October 2013. … Last week we were informed by our client's US attorney that Mr Zylberstein now works and resides in the UK. Accordingly, we request that further orders are issued and a revised letter of request sent to the Royal Courts of Justice in London. … (Emphasis added.) 10 On 19 September 2013, the Applicant's solicitors were told that the Orders would not be made and it was too late in the preparation stage given that the trial was listed to commence on 28 October 2013. 11 On 2 October 2013, Mr Hogan again wrote to the Court (and the other parties) in the following terms: … In light of the importance of Mr Zylberstein's evidence to the proceedings and the procedure already in place to receive the evidence of Mr Aseme from London, our client requests that the matter is determined either on the papers or before the Court. … we are instructed to file an Interlocutory Application and Affidavit in Support ... today. 12 Later the same day, the Omnilab Parties requested time to consider and, if necessary, respond to the Interlocutory Application. They requested until 4.00pm on 8 October on the basis that 7 October was a public holiday. The Applicant's solicitors response was: We do not agree that the Respondents should have until 8 October 2013 to consider their position. Given the logistical arrangements that need to be made for Mr Zylberstein to give evidence from London, an early determination is warranted. (Emphasis added.) 13 Later the same day, 2 October 2013, the Omnilab Parties responded: The [Omnilab Parties] will only need to be heard if her Honour determines to entertain the Applicant's application. Is the [Omnilab Parties] position that her Honour has already determined the issue on 19 September 2013 by not granting leave for a letter of request to be re-issued. We do not understand that there has been any change in circumstances since her Honour's decision was made. Accordingly, we do not think it appropriate that the Applicant make a fresh application to her Honour. If the Applicant is dissatisfied with her Honour's previous decision, the proper course is to seek leave to appeal. 14 The Court did not grant the Applicant leave to file the proposed Interlocutory Application and the Affidavit in Support. The Applicant was informed of that fact on 9 October 2013. 15 On 19 September 2013, the Applicant had requested the Court to exercise its discretion to re-issue a letter of request (more accurately, issue a new letter of request) to the Royal Courts of Justice in relation to Mr Zylberstein: see s 7(1)(c) of the Foreign Evidence Act 1994 (Cth). The Court refused to exercise that discretion. The matter has been listed for trial in October since no later than March 2013. Indeed, as we have seen, the Damages Hearing was adjourned in February, in part, because of this very issue. The logistical arrangements necessary not only from within the Court, but also within the Royal Courts of Justice in relation to taking evidence from an additional witness (here, Mr Zylberstein) are not straightforward. The application proceeded on an assumption not made out: that the necessary logistical arrangements could be made in the time available. Whether that is so is by no means clear. 16 Although the Applicant's solicitors say that they did not learn of Mr Zylberstein's relocation to London until September, it must be recalled that the Applicant's solicitors had by then failed, for some time, to respond to the Court's enquiries in relation to the request then extant in relation to Mr Zylberstein (and Mr Levin) to give evidence in California. Indeed, as already noted, that remains the position. 17 The application now made is made too late. The Applicant has had ample opportunity to prepare for the Damages Hearing. The Applicant had the benefit of an order which would have permitted it to obtain the evidence it says it needs from Mr Zylberstein but the Applicant took none of the steps which were required of it to give effect to the order. It is not appropriate for this Court now to make a further request of the Royal Courts of Justice in London for the taking of additional evidence which the Applicant has already had ample opportunity to obtain. 18 For those reasons, I do not consider that it is in the interests of justice to make an order under s 7(1)(c) of the Foreign Evidence Act 1994 (Cth). I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gordon.