In the matter of CF Industries Sales LLC [2026] QSC 17 (24 February 2026)

[1] The applicants are suppliers of ammonium nitrate in the market for that product in North America ("the market"). They are engaged in legal proceedings against Orica International Pte Ltd ("Orica") and Nelson Brothers ("Nelson Brothers") in the 19th Judicial Circuit Court Illinois ("the US Court"). Those proceedings ("the US Proceedings") arise out of purchase agreements for ammonium nitrate between Orica, Nelson Brothers and the applicants. The US Proceedings involve a controversy as to whether Orica and Nelson Brothers violated the agreements and conspired to manipulate the market in contravention of US antitrust laws.

[2] In December 2025, the applicants applied to the US Court for the issuance of letters of request under The Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 A47UNTS 231 ("the Convention"). On 18 December 2025, the US Court issued a letter of request to this Court requesting that Mr Darryl Cuzzubbo and Mr Henry Cunningham be deposed orally on the topics and terms set out in the request ("the letter of request"). Mr Cuzzubbo is a former employee of Orica. Mr Cunningham was a junior employee of the consultants McKinsey & Co ("McKinsey") from February 2017 to August 2020. McKinsey is not a party to the US Proceedings. Messrs Cunningham and Cuzzubbo were given leave to appear in this proceeding.

[3] In this proceeding, the applicants have applied for orders pursuant to ss 36 and 37 of the Evidence Act 1977 (Qld) ("the Evidence Act"). The orders sought are to the effect that:

(a) the applicants have leave to issue subpoenas to give evidence to Mr Cunningham and Mr Cuzzubbo;

(b) on 5 and 6 March 2026, Mr Cuzzubbo and Mr Cunningham be separately examined, in person or by video link, by US Counsel in the US Proceedings before a member of the Queensland Bar, Mr Ananian-Cooper, on various topics, in accordance with the special methods or procedures set out in s 13 of the letter of request.

The statutory scheme implementing Australia's obligations under the Convention

[4] Part 3 Division 3 of the Evidence Act provides for a procedure by which parties engaged in civil proceedings in foreign jurisdictions can obtain evidence for the purpose of those proceedings. These provisions are part of a national statutory scheme comprising a coordinated suite of state and territory legislation enacted to implement Australia's obligations under the Convention_._

[5] Sections 36 and 37 the Evidence Act provides as follows:

"36 Application to Supreme Court to obtain evidence for civil proceedings in another jurisdiction

Where an application by way of originating summons is made to the Supreme Court or a judge thereof for an order for evidence to be obtained in the State, and the court or judge is satisfied -

(a) that the application is made in pursuance of a request issued by or on behalf of a court or tribunal (the requesting court) exercising jurisdiction in a State or Territory of the Commonwealth other than Queensland or in an overseas country; and

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

the court or judge shall have the powers conferred by the following provisions of this division.

37 Power of Supreme Court to give effect to application to obtain evidence

(1) The Supreme Court or a judge thereof on an application under section 36 shall have power by order to make such provision for obtaining evidence in the State as may appear to be appropriate for the purpose of giving effect to the request in pursuance of which the application is made, and any such order may require a person specified therein to take such steps as the court or judge may consider appropriate for that purpose.

(2) Without prejudice to the generality of subsection (1), an order under this section may make provision -

(a) for the examination of witnesses, either orally or in writing; and

(b) for the production of documents; and

(c) for the inspection, photographing, preservation, custody or detention of any property; and

(d) for the taking of samples of any property and the carrying out of any experiments on or with any property; and

(e) for the medical examination of any person.

(3) An order under this section shall not require any particular steps to be taken unless they are steps which can be required to be taken by way of obtaining evidence for the purposes of civil proceedings in the Supreme Court (whether or not proceedings of the same description as those to which the application for the order relates), but this subsection shall not preclude the making of an order requiring a person to give testimony (either orally or in writing) otherwise than on oath where this is asked for by the requesting court.

(4) An order under this section shall 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 or power; or

(b) to produce any documents other than particular documents specified in the order as being documents appearing to the court making the order to be, or to be likely to be, in the person's possession or power.

(5) A person who, by virtue of an order under this section, is required to attend at any place shall be entitled to the like conduct money and payment for expenses and loss of time as on attendance as a witness in civil proceedings before the Supreme Court.

(6) An order under this section may be enforced in the same manner as if it were an order made by the Supreme Court or a judge thereof in proceedings pending in the Supreme Court or before the judge."

[6] As will be apparent, s 36 confers jurisdiction to grant an application for "evidence" to be obtained in Queensland if this Court is satisfied that "the evidence to which the application relates is to be obtained for the purposes of civil proceedings which either have been instituted before the requesting court or whose institution before that court is contemplated".[1] Where the requirements in s 36 are satisfied, this Court has the powers conferred by, inter alia, s 37.[2] Section 37 confers a discretionary power to make such provision for obtaining evidence in Queensland "as may appear to be appropriate for the purpose of giving effect to the request" and any such order may require a person to take such steps as the Court "may consider appropriate for that purpose".[3]

[7] Two initial matters require consideration in the context of the jurisdictional question posed by s 36.

[8] First, the word "evidence" as it appears in s 36 should be accepted as having a settled meaning which contemplates evidence for use in the foreign trial. The New South Wales equivalent of s 36 was considered by the New South Wales Court of Appeal in British American Tobacco Australia Services Limited v Eubanks for the United States of America.[4] After noting that the term "evidence" had not been defined in the Convention,[5] Spigelman CJ[6] cited English authorities which distinguished between the obtaining of evidence for use in a trial and the obtaining of evidence which might lead to the procurement of evidence.[7] The importance of that distinction is emphasised by Article 23 of the Convention which distinguishes between evidence and discovery.[8] Article 23 materially states that at the time of signature, ratification or accession, a Contracting State "might declare that it will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law Countries".[9] The Australian Declaration under Article 23 stated that Australia will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery of documents as known in Common Law Countries. Spigelman CJ also referenced commentary which characterised the use of the word "evidence" in the Convention as "material to prove or disprove facts in issue" and which distinguished such material from "material which may lead to the discovery of evidence".[10] The Chief Justice observed that this distinction was "well made"[11] and was based to a substantial extent on the English authorities.[12] Ultimately, the Chief Justice reasoned that the history of the Australian statutory scheme indicated that the English case law, which distinguished between obtaining information as distinct from obtaining evidence for use at trial, should be followed in Australia.[13] Hence, the term "evidence" as it appears in s 36 of the Evidence Act should be interpreted as referring to evidence for use in the foreign trial.

[9] Second, there is a question of law as to whether, when s 36 refers to "for the purposes of civil proceedings", that expression countenances a dual purpose for seeking the testimony or whether the request, to found jurisdiction, must not in any way permit any purpose other than seeking evidence for use in the trial. The former construction has been adopted in authorities which concerned predecessor legislation to s 36 which required the Court to be satisfied that the foreign court or tribunal was "desirous of obtaining the testimony ... of any witness".[14] More recently that construction has been preferred in relation to statutory language identical to s 36.[15] The latter construction appears to have been countenanced in State of Washington v Johnson[16].

[10] I prefer the first construction. I agree with the observations of Peden J in Louis Dreyfus Company BV v Glencore Ltd[17] to the effect that the distinction between the language of the predecessor legislation and s 36 is one of terminology, not substance. Ultimately the question remains whether the evidence is sought to be obtained for use in the foreign proceedings. I intend to follow the approach of Clarke J in Application of Forsyth; Re Cordova v Phillips Roxane Laboratories Inc[18] to the question of jurisdiction. On that approach, jurisdiction exists provided that obtaining the evidence for use or possible use at the trial is a purpose of the request, notwithstanding that there may be another, more dominant, purpose of the request. That approach is consistent with the approach of White J of this Court in Re Cochran Consulting Inc v UWATEC USA Inc.[19] The identification of the purpose as being obtaining the evidence "for use or possible use at the trial" is also consistent with the language of s 36(b) which speaks in terms of civil proceedings which "either have been instituted before the requesting court or whose institution before that court is contemplated".

[11] The authorities make it clear that I should decide the question of purpose by looking at the substance of the matter.[20] On the facts of Forsyth, Clarke J was prepared to recognise jurisdiction as existing for two reasons. The first reason was that unless it could be said that the evidence was required only for an impermissible use and was not required for use or possible use at the foreign trial, then the applicant had discharged the onus in relation to the jurisdictional question. The second reason was that because of the wide-ranging nature of discovery in American courts, in virtually every case involving a letter of request from those courts there would be a dual purpose for seeking the testimony. Clarke J considered that to deny jurisdiction on the basis of a requirement that there be only one purpose, would deny the statutory scheme of any real effect with regard to proceedings in American courts.

Principles relevant to the consideration of letters of request

[12] In British American Tabacco[21], Spigelman CJ referred to statements of principle by Burnton J in Gredd v Arpad Busson,[22] which the Chief Justice said 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 Incorporated & Ors., a decision of the Court of Appeal of 30th July 1997.

(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 the Westinghouse case [1978] AC 547, 644-645 and in turn by Sir Richard Scott V.C. at p.1169 of First American Corporation.

(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 inquiry into relevance by the English court is to be found at para.14 of the judgment of the Court of Appeal in the Genira Trade & Finance case and at p.1165 of the judgment the Vice-Chancellor in First American, 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 section 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."

The letter of request and the evidence as a whole

[14] The letter of request issued on 18 December 2025. It was preceded by two hearings. The first on 11 December 2025 and the second on 18 December 2025.

(a) the US Court posed this question to the applicants' lawyer, Mr Morrison:

"But is it your understanding that based on what I ask them to do or what discovery I allow, the Australian Court would or could honour that request and say, well, okay we'll allow an American-type deposition? Is there anyone who wants to chime in on ... that ... issue? Because I have no idea";

(b) Mr Morrison could not directly answer that question. He would later submit to the US Court that the "scope and length issues" were "better decided by the Australian courts". He referred to the proposed witnesses and submitted:

"They will have an opportunity to have representation in Australia and an Australian lawyer or barrister or whatever, saying wait a minute. These might be American rules but this is Australia. It seems to me that that should be ... do I know that that's what happens? No, I'm speculating but that would seem more common sense than this Court trying to forecast what an Australian Court might do ..."

(c) Mr Collins, who appeared on behalf of Orica, had earlier said:

"My best information, your Honour, is that I think if you were to look at these requests, these requests are overly broad under US discovery rules and under the rules that you have set for the parties in this case and in the United States. And so even by that standard, I think if we were just to apply that standard, that there would be a concern about sending these to Australia where there aren't US depositions"

(d) the US Court gave Mr Collins "a period of time to contemplate what you want to do".

[16] At the 18 December 2025 hearing, Mr Collins appeared on behalf of Orica, Ms Kalisky and Mr Morrison appeared on behalf of the applicants and Mr Folkman appeared as an expert on the Convention briefed by the applicants.

(a) Mr Morrison submitted that he "[didn't] know that anybody has standing right now to object to scope or duration of these depositions". He described the proposed depositions as "the trial testimony" and submitted that three hours would not be sufficient to take that testimony.

(b) The US Court asked Mr Morrison this question:

"What is your understanding of anybody's right to go to the Australian Court and argue issues concerning scope and duration and things like that? Is that something they can or cannot do, do you know?"

(c) Mr Morrison deferred to Mr Folkman.

(d) The US Court then posed this question to Mr Folkman:

"Mr Folkman ... if you could just tell me your understanding of what you know. If I issue these letters, they will basically ask the Australian Judge to allow an American-style deposition. The Australian judge, I assume could say no or .. and can parties come in and argue that, well, judge you should limit the discovery in this fashion? What's your understanding of the ability to get in front of an Australian judge and argue those points?"

"... I'm not an Australian lawyer ... But my general understanding and my understanding in Australia specifically is that, yes, parties have whatever rights they have under Australian law to approach the Australian judge and ask to not have the letters be executed at all or to ask that they be limited or whatever remedies are available to them under Australian law. In other words, your letter, assuming you issue it, is not an order to anybody to do anything. It's just a request to the Australian authorities and the parties have whatever rights they do have"

"Our understanding is that under Article 23 of the Hague .. Australia is a party to the Hague .. and under Article 23, it has taken the position that it doesn't allow pre-trial discovery, like in the US. So, what it looks at and what the comity test and discretion test for you in issuing the letter of request should look at is how specific are the requests and how relevant is the testimony not to discovery but to trial? And so whether CF calls these evidence deps under Illinois Law or discovery deps under Illinois Law is not really the test. It's actually the substance of the request ... So we certainly think that they are objectionable. It doesn't mean you have to decide all of the objections. You could have the Australian courts decide some of the objections"

(g) The US Court posed this scenario to Mr Collins:

"But if, hypothetically, the Australian court allows an American-style evidence deposition without any express limitations to scope, you would have notice of that. You'd be there. You would be able to assert whatever objections you wanted to for the record put on the record; and then ultimately, that testimony may or may not come in based on, you know, your objections"

(h) Mr Collins replied "that's certainly a possibility of how it could go"

(i) Mr Collins then submitted:

"And it boils down to essentially everything which I think the Court has an independent duty to look at that and decide whether that's what you want to send, understanding that Australia's position is there is no pre-trial broad discovery. So, I'll leave it at that your Honour".

"So I will go ahead and issue the letters I think, you know, at the deposition you will be able to raise whatever objections. They are still going to answer the questions, but you will be at least able to raise those objections. I'm not going to let some McKinsey guy come in and testify as if he's some expert on [ammonium nitrate] in North America. So they may ask some questions about it, but at this point I'm not going to put further guardrails on the topic. Australian Court may. People ... you may object in the Australian Court. You will be able to object during the course of the deposition, and some or none or all of their testimony may ultimately come in. So I will grant their motion without further limitations."

[18] The letter of request is drafted in a format comprising a table addressed to various subject matters and topics.

[19] The materially relevant content of the letter of request may be set out as follows:

Civil action by certain Orica and Nelson Brothers entities for declaratory and injunctive relief and damages alleging breach of contract. The CF entities have asserted counterclaims and third-party claims for violations of the Illinois Antitrust Act, fraud, deceptive business practices, and breach of contract.

The claim is that certain Orica and Nelson Brothers entities were party to two long-term purchase agreements for the purchase of ammonium nitrate from CF. Orica and Nelson Brothers claim that they have not violated the purchase agreements and seek a declaratory judgment to that effect, and argue that DF has sought to impose requirements on Orica and Nelson Brothers or to modify the contract terms impermissibly, including for example by imposing a "ratability" requirement requiring Orica and Nelson Brothers to purchase the goods in equal monthly installments, restrictions on Orica and Nelson Brothers' right to resell the product purchased from CF, and restrictions on Orica and Nelson Brothers' right to purchase from other suppliers. Orica and Nelson Brothers also allege CF failed to provide sufficient notice for a 2021 plant outage.

CF also asserts counterclaims. The bases of the counterclaims are that Orica and Nelson Brothers conspired to manipulate the North American market for ammonium nitrate in order to reduce supply and increase pricing, including by, for example, use of a side agreement to coordinate the quantities of the goods that they would order from CF, another side agreement to reduce Orica's production of ammonium nitrate so both Orica and Nelson Brothers could purchase more from CF and block CF from competing and selling to others, and misrepresenting their demand to CF in order to force CF to shut down its plant while purchasing the goods from competitors in violation of exclusivity provisions in the purchase agreements. CF also alleges Orica and Nelson Brothers improperly resold CF's product for arbitrage profits. CF alleges these and other violations violate the antitrust laws, breach the contracts between CF and Orica and Nelson Brothers, and also constitute fraud.

Orica and Nelson Brothers (counterclaim defendants and the third-party defendants generally deny the allegations of the counterclaim and third-party claim.

One of the witnesses was associated with McKinsey & Co., the consulting firm. According to the allegations in the Counterclaim, Orica hired McKinsey as a consultant in connection with their alleged violations of antitrust law and other alleged wrongful conduct.

The Requesting Authority has issued letters of request to the authorities in several other states of Australia at the same time as this letter is issued. In total, the letters seek the testimony of eight witnesses throughout Australia.

Evidence to be obtained or other judicial act to be performed (Art.3(d))

As outlined in Item 9, each of the witnesses has 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.

Identity and address of persons to be examined (Art. 3(e))

Henry Cunningham (former McKinsey employee) Unit 5314, 197 King Arthur Terrace

Mr Cunningham was an analyst at McKinsey & Co. from 2017 - 2020. He was a key point of contact for Orica's consulting engagement with McKinsey, which involved discussion of strategies that CF alleges are anti-competitive. Specifically, a presentation developed during the McKinsey engagement advised Orica to consider solving oversupply issues in the North American ammonium nitrate market by inducing competitors to exit the market, thereby forcing market price corrections. CF alleges that Orica and Nelson Brothers implemented this strategy, including by preventing CF from competing in the market and forcing CF to turn down its production. Records produced in the litigation demonstrate that Mr. Cunningham had a senior role in executing the McKinsey consulting engagement and developing related work product, including an extensive number of documents sent, received, or drafted by Mr. Cunningham.

Mr. Cuzzubbo was the Chief Manufacturing Officer for Orica's global business from 2019-2021. Mr. Cuzzubbo's role included overall responsibility for Orica's AN manufacturing operation, including at its Carseland plant in Canada/ CF alleges Orica and Nelson Brothers conspired to reduce oversupply in the North American ammonium nitrate market, including by turning down production of AN at the Carseland facility in order io increase the amount of AN they elected to buy from CF, thereby triggering exclusivity contractual provisions and blocking CF from competing in the market. Mr. Cuzzubbo was also the "Executive Sponsor" for the McKinsey engagement (along with Orica's former Chief Development Officer, Adam Hall). which involved discussion of strategies that CF alleges are anti-competitive. Specifically, a presentation developed during the McKinsey engagement advised Orica to consider solving oversupply issues in the North American Ammonium nitrate market by inducing competitors to exit the market, thereby forcing market price corrections. CF alleges that Orica and Nelson Brothers implemented this strategy, including by preventing CF from competing in the market and forcing CF to turn down its production. Records produced in the litigation demonstrate that Mr. Cuzzubbo was involved in an array of issues relevant to the litigation.

Questions to be put to the persons to be examined, or statements of the subject matter about which they are to be examined (Art. 3(f))

Schedule 1 provides a list of the topics on which the witness is to be questioned. The Court has reviewed the list of topics and finds that they relate to the subject-matter of the lawsuit and call for evidence that may be material to the case.

Special methods or procedures to be followed (Arts 3(i) and 9)

The Requesting Authority requests that the following special methods or procedures be followed, to the extent not incompatible with the law of Australia or impossible of performance by reason of Australian internal practice or procedure:

1. The US counsel for the parties should be permitted to put questions to the witness directly.
2. Counsel for CF should be permitted to question the witness first, and they should be permitted to ask leading questions. Counsel for Orica and/or Nelson Brothers should then be permitted to question the witness. Orica and/or Nelson Brothers' examination shall be limited in scope by the defendants' examination and topics for the deposition, set forth in Schedule 1. Counsel for CF may then re-examine the witness, but the scope of the examination must be limited to the scope of Orica and/or Nelson Brothers' examination.
3. Counsel for the party not conducting the questioning may object to the form of a question, but the objection must be brief and non-argumentative. The testimony should be taken subject to the objection. All objections, and all motions to strike, are reserved until the time of trial, and the Requesting Authority will, at or before the time of trial, rule on objections and motions to strike.
4. The witness may be presented by counsel. Counsel for the witness may object to questions on the grounds that they call for information that the witness has a privilege not to provide, under the law of Illinois or under the applicable law of Australia. In such a case, the witness's counsel may instruct the witness not to answer the question. The witness may in that case refuse to answer the question.
5. The testimony should be transcribed verbatim. Counsel for CF will be responsible for engaging and paying the fees of a qualified stenographer. The testimony should also be recorded by audiovisual means and counsel for CF will be responsible for engaging and paying the fees of a qualified videographer.
6. The testimony need not take place in court and may take place in the offices of the Australian lawyers for the parties or another mutually agreeable location before an examiner appointed by the Australian court. The examiner will administer the oath or affirmation to the witness and conduct the examination in accordance with such powers as are conferred upon them by the Australia Court or otherwise in accordance with applicable Australian law.
7. No time limit should be imposed on the questioning.
8. While the Requesting Authority anticipates that the US counsel for CF will travel to Australia to examine the witness in person, particularly if the Australian court is able to authorize the depositions in time to allow the examinations to take place at or near the time the counsel plan to be in Australia to examine other witnesses who are willing to appear voluntarily (from January 19, 2026 - January 30, 2026), in case that is not possible, the Requesting Authority requests that the US counsel be permitted the option to attend the examinations remotely via Zoom, Teams, or another suitable videoconferencing platform, and to exhibit documents to the witness via electronic means.

[20] Schedule 1 to the letter of request is in the following terms:

Mr. Cunningham will be examined about his involvement in the 2020 McKinsey consulting engagement, including his communications or interactions relating to the consulting engagement; the output generated in connection with the consulting engagement; his understanding or knowledge of Orica's business related to Ammonium Nitrate ("AN") and commercial explosives; his understanding or knowledge of CF, including Orica and/or Nelson Brothers' business relationships with CF; his knowledge of the markets for AN and commercial explosives in North America; and his involvement in or awareness of other McKinsey consulting engagements with Orica or Nelson Brothers involving the North American AN or commercial explosives markets; documents in his custodial files and/or documents otherwise produced in this litigation that relate to him; and testimony that relates to him taken during other deposition(s) taken in this case.

Mr Cuzzubbo will be examined regarding his educational and employment background and associated training; his employment history, including his various roles and responsibilities throughout his tenure at Orica and elsewhere; his background, experience, involvement in, and knowledge of the North American AN and commercial explosives markets, as well as Orica's role or actions in those markets; his involvement in McKinsey consulting engagements, and any related output; CF generally, including matters relating to the CF AN Purchase Agreements; Nelson Brothers generally; documents in his custodial files and/or documents otherwise produced in this litigation that relate to him; and testimony that relates to him taken during other deposition(s) taken in this case."

[21] The applicant's originating application helpfully distilled these topics for examination (annexure A being the topics for the examination of Mr Cunningham and annexure B being the topics for examination of Mr Cuzzubbo).

[22] The topics for examination of Mr Cunningham are:

(a) His involvement in the 2020 McKinsey consulting engagement including his communications or interactions relating to the consulting engagement;

(b) The output generated in connection with the consulting engagement;

(c) His understanding or knowledge of the business operated by Orica International Pte Ltd, Orica USA Inc, Orica Investments Pty Ltd and Orica Canada Inc (collectively "Orica") in relation to ammonium nitrate and commercial explosives;

(d) His understanding of CF Industries Sales, LLC and CF Industries Nitrogen, LLC (collectively "CF") including Orica and/or Nelson Brothers, LLC's and/or Nelson Brothers Inc's (collectively "Nelson Brothers") business relationships with CF;

(e) His knowledge of the markets for ammonium nitrate and commercial explosives in North America;

(f) His involvement in or awareness of other McKinsey consulting engagements with Orica or Nelson Brothers involving the North American ammonium nitrate or commercial explosives market;

(g) Documents in his custodial files and/or documents otherwise produced in the US Proceedings that relate to him; and

(h) Testimony that relates to him taken during other deposition(s) taken in the US Proceedings.

[23] The topics for examination of Mr Cuzzubbo are:

(a) His educational and employment background and associated training;

(b) His employment history including his various roles and responsibilities throughout his tenure at Orica International Pte Ltd, Orica USA Inc, Orica Investments Pty Ltd and Orica Canada Inc (collectively "Orica") and elsewhere;

(c) His background, experience, involvement in, and knowledge of the North American ammonium nitrate and commercial explosives market, as well as Orica's role or actions in those markets;

(d) His involvement in McKinsey consulting engagements and any related output;

(e) CF Industries Sales, LLC and CF Industries Nitrogen, LLC (collectively "CF") generally including matters relating to the CF AN Purchase Agreements

(f) Nelson Brothers, LLC and/or Nelson Brothers Inc generally;

(g) Documents in his custodial files and/or documents otherwise produced in the US Proceedings that relate to him; and

(h) Testimony that relates to him taken during other deposition(s) taken in the US Proceedings.

[24] On 18 December 2025, the US Court also made a series of case management orders which materially included the following orders:

"4. Except for the September 14 2026 trial date ... deadlines in the Court's June 17, 2025 revised Supreme Court Rule 218 Case Management Order are vacated, and the following deadlines are ordered:

a) March 13, 2026: confusion of fact discovery, including discovery fact depositions;

b) March 20, 2026: all parties shall file opening expert reports on claim and/or defences for which a party has the burden of proof;

c) May 8, 2026: all parties shall file rebuttal expert reports;

d) May 22, 2026: all parties shall file any and all as position motion including motions for summary judgment;

e) September 14, 2026: first day of trial."

[25] On the hearing of this application, the applicants relied upon an affidavit of Ms Giulitto, a partner in the law firm based in Chicago with the day-to-day conduct of the US Proceedings on behalf of the applicants. Ms Giulitto described the rules that govern the conduct of the US Proceedings in the US Court, being the Illinois Supreme Court Rules ("the US Rules").

[26] The following matters were established by Ms Giulitto's evidence about the US Rules:

(a) The US Rules provide for two different types of depositions namely "discovery" depositions and "evidence" depositions;

(b) Rule 202 relevantly provides:

"Any party may take the testimony of any party or person by 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";

(c) Rule 206 concerns discovery depositions and provides that the deponent in a discovery deposition may be examined regarding any matter subject to discovery and may be questioned "by any party as if under cross-examination";

(d) Rule 206(c)(2) concerns evidence depositions and provides that in an evidence deposition the examination and cross examination "shall be the same as though the deponent was testifying at the trial";

(e) Rule 212(a) specifies that discovery depositions are generally not admissible at trial but may be admissible for limited purposes such as impeaching the testimony of the deponent as a witness in the same manner and to the same extent as any inconsistent statement made by a witness.

(f) Rule 212(b) provides that evidence depositions are admissible for any purpose at trial if "the deponent is out of the county" and any part of an evidence depositions may be used for any purpose for which a discovery deposition may be used.

[27] Ms Giulitto deposed that the testimony that is sought from the witnesses the subject of the letter of request is to be regarded as comprising "evidence depositions" in that the testimony is intended for use as evidence at the trial of the US Proceedings. Ms Giulitto relevantly affirmed:

"It is the intention of [the applicants] that the testimony taken from witnesses Cuzzubbo and Cunningham be used subject to the US Court making rulings on admissibility as noted in the letter of request, for the purposes of evidence at the trial of the US Proceedings scheduled for September 2026. It is not intended by [the applicants], and it is not the purpose of the proposed depositions, that they be used for pre-trial discovery".

[28] Ms Giulitto made reference to the 18 December 2025 Orders which used the terms "fact discovery" and "discovery fact deposition" in paragraph 4(a). She gave evidence that in the course of the US Proceedings the parties have been conducting both discovery depositions and evidence depositions. She gave evidence that although evidence depositions were proceeding with discovery depositions, that did not change or alter the fact that the evidence depositions were for the purpose of securing testimony for the September 2026 trial in the US Proceedings.

[29] In relation to the position of Mr Cunningham and McKinsey, Ms Giulitto relevantly gave this evidence:

a) testimony is regularly taken from individuals via oral depositions (Individual Depositions);

b) testimony is regularly taken from corporations via means of Corporate Representative Depositions (Corporate Depositions);

c) it is common for both a Corporate Deposition to be taken from a corporation in addition to individual depositions been taken from individuals who may be current or former office holders or employees of the same corporation.

By reason of the matters deposed to ... based on my experience, a corporate deposition is not a substitute for an individual deposition and vice versa. Further, in my experience, whether and in what circumstances both the corporate deposition and individual depositions may be required and admitted or depend upon the matters in issue in any given proceeding as overseen by the presiding judge.

It remains the position of the [applicant] that, regardless of any corporate deposition by McKinsey, that Mr Cunningham be deposed individually in connection with the US Proceedings in accordance with the letter of request issued by the Illinois Court."

[30] As to the jurisdiction question posed by s 36, I am satisfied that the letter of request has a dual purpose, one purpose being to obtain testimony for use, or possible use, at the trial. The reasons for my conclusion in that regard are as follows. During the 18 December 2025 hearing, Mr Morrison made it plain in submissions to the US Court that the request was directed to "the trial testimony". That submission is consistent with paragraph 20 of the affidavit of Ms Giulitto in this proceeding going to the intention of the applicants. The letter of request, in terms, states that the parties "will be able to offer the transcript or audio-visual recording of the testimony at trial". That statement appears in a section of the letter of request (section 8(b)) directed to "Purpose of the evidence or judicial act sought". The examination is to be conducted by US Counsel for the parties in the Us Proceedings. Those matters, viewed collectively, are sufficient in my consideration to establish that, as a matter of substance, one purpose of the request, not necessarily the dominant purpose, is to obtain testimony for use, or possible use, at the trial. To adopt the language of Clarke J in Forsyth, on the material before this Court, it cannot be said that the testimony is required only for an impermissible use and is not required for use, or possible use, as evidence at the trial.

[31] The Court, possessed of jurisdiction, retains a discretion whether to exercise the power. Section 37 speaks in terms of an order for obtaining evidence in Queensland as "may appear to be appropriate for giving effect to the request". Clearly, although jurisdiction may have been established, the Court retains a discretion to reject a request where the orders sought are not orders which this Court can and should properly make. I have formed the conclusion that the orders sought are not orders which this Court can and should properly make. My reasons for that conclusion may be outlined as follows.

(a) The taking of evidence, to be fair and just, would need to proceed on the basis that a general determination of apparent relevance is not just required, but able to be made.[23] The topics the subject of the letter of request, are framed in the most general, wide-ranging terms. Mr Cunningham, for example, is to be examined about "his understanding or knowledge of the business operated by Orica in relation to ammonium nitrate and commercial explosives" and his involvement in or awareness of "other" McKinsey consulting engagements. Mr Cuzzubbo is to be examined about "CF generally" and "Nelson Brothers generally". These broad, unparticularised topics may be contrasted with the detailed and specific topics the subject of the request in British American Tobacco.[24] The topics in the letter of request, appear in a context where there is only very limited, high-level summaries of "the case" and "defence and counterclaim".[25] With limited information provided about the real issues in dispute, the letter of request countenances an examination by reference to substantively general topics. The real issues have not been identified and the topics have not been framed in a way which would enable apparent relevance to be assessed.

(b) The person conducting the examination of the witness, the witness and those representing the witness would be unable to ascertain the limits of proper questioning of the witness from the terms of any order of this Court. It would also be oppressive to require Mr Cunningham and Mr Cuzzobbo to prepare to give evidence and give evidence without proper identification and particularisation of the issues in the US proceedings and more precise and specific detail about each proposed topic of examination.

(c) That latter consideration is particularly important in circumstances where, amongst the description of the nature of the US Proceedings is the statement that the applicants have made claims of fraud. The letter of request includes no information resembling the usual particulars of fraud which this Court, as a matter of procedural fairness, would ordinarily demand in respect of serious allegations. The topics for examination and the high-level summaries of "the case" and "defence and counterclaim", are silent as to the involvement, if any is to be alleged, of Mr Cunningham or Mr Cuzzobbo in the alleged fraud. The extent to which their conduct, knowledge or understanding is said to be in issue or relevant to any allegation of fraud remains entirely unclear.

(d) The applicants have not sought to demonstrate, by reference to the topics, that the testimony is likely to be relevant to issues in the foreign proceedings and capable of being adduced at trial in support of those issues. That was a matter not substantively dealt with by the evidence of Ms Giulitto or by the submissions of the applicants' counsel on this application. That is not a criticism of counsel. The reality is that by reference to the letter of request, it is simply not possible to articulate the relevance of the proposed testimony on the topics to any issues in the US Proceedings.

(e) There are no meaningful safeguards or restrictions incorporated in the terms of the proposed order. That outcome appears to have been urged, or at least recommended, by submissions made to the US Court at the 11 December 2025 and 18 December 2025 hearings. During those hearings, the US Court was not asked to consider, and does not appear to have considered or identified, how testimony given in relation to each topic was likely to be relevant not to discovery but as evidence at the trial. In the result, the US Court appears to have impermissibly left it to this Court to decide "objections". However, the terms of the letter of request do not provide any sufficient or proper basis for this Court to make any assessment of apparent relevance. Nor should this Court rewrite the proposed topics. Any order made by this Court cannot depart substantially from the terms of the letter of request.

[32] In British American Tobacco, Spigelman CJ observed that a Court is not entitled to reject a request "unless it is not able to mould an order which the Court believes to be an 'appropriate' one for the purpose of giving effect to the request".[26] I have concluded that, in the circumstances of the present case, the Court is not able to mould an order which would be an appropriate one for the purpose of giving effect to the letter of request. I accept the submission made on behalf of Mr Cunningham to the effect that the letter of request could not be saved unless it was completely re-written.[27] Not only is it impermissible to re-write the letter of request, that task could only be undertaken with the benefit of the pleadings in the UC Proceedings or a thorough understanding of the issues in the US Proceedings. None of that information or material is available to this Court.

[33] There are further reasons which support the exercise of this Court's discretion to decline to make the orders sought.

[34] The objective circumstances suggest that, as matters presently stand, the possibility of the testimony being used in the trial is relatively remote. This factor has been recognised as relevant to the exercise of discretion.[28] The relevant objective circumstances appear to be that:

(a) the general language of the topics, untethered to the real issues in dispute in the US Proceedings, is highly suggestive that the dominant purpose of the request is to engage in a train of inquiry to facilitate the provision of disclosure or discovery;

(b) the examination is in fact proposed to occur at a time when disclosure or discovery is ongoing;

(c) the letter of request countenances leading questions, which is consistent with a discovery deposition;

(d) unlike the position in British American Tobacco,[29] the letter of request does not contain definitive language that the testimony will be used at the trial.

[35] In relation to Mr Cunningham, his proposed examination would also appear to be premature in circumstances where the Corporate Deposition of McKinsey is an ongoing matter.

[36] Finally, whilst I am conscious that comity requires this Court to view the letter of request benevolently, the evidence before this Court did not demonstrate that the US Court appreciated and took into account the differences between the US Rules and the procedural rules of this Court. Rather the US Court appears to have proceeded on the basis that any such differences could be addressed by this Court entertaining and deciding objections to the application for the orders. In these circumstances, the comity consideration whilst a matter of which I have taken account, is less prominent than it may otherwise have been,

1. The originating application filed 11 February 2026 is dismissed.
2. I will hear the parties as to costs.

[1] Evidence Act s 36(b).

[2] Ibid, s 36.

[3] Ibid s 37(1).

[4] [2004] NSWCA 158; (2004) 60 NSWLR 483.

[6] with whom Handley and Bryson JA agreed.

[14] By way of example see Application of Forsyth; Re Cordova v Phillips Roxane Laboratories Inc (1984) 2 NSWLR 327 at 333; Re Cochran Consulting Inc [1998] 2 Qd R 137 at 141.

[15] Louis Dreyfus Company BV v Glencore Ltd [2025] NSWSC 388 at [16] considering s 32(1)(a) and (b) of the Evidence on Commission Act 1995 (NSW).

[16] [2021] TASSC 65; (2021) 34 Tas R 110 at 115 [15].

[17] [2025] NSWSC 388 at [26].

[18] [1984] 2 NSWLR 327 at 333.

[19] [1998] 2 Qd R 137 at 141.

[21] [2004] NSWCA 158; (2004) 60 NSWLR 483 at [42].

[22] [2003] EWHC 3001 at [27].

[25] Refer to the letter of request sections 7(a) to (c)

[26] [2004] NSWCA 158; (2004) 60 NSWLR 483 at [88]

[28] Application of Forsyth; re Cordova v Phillips Roxane Laboratories Inc [1984] 2 NSWLR 327 at 336.

[29] [2004] NSWCA 158; (2004) 60 NSWLR 483 at [49] and [7] particularly the court order at 5A.