LK Law Pty Ltd v Karas

O'SULLIVAN J: 1 There is an issue in this matter as to whether the fourth respondent, Mishcon de Reya, is carrying on business in Australia for the purposes of the Competition and Consumer Act 2010 (Cth). The authorities dealing with this question demonstrate that it is a fact-specific exercise. 2 On 1 November 2023, Registrar Parkyn made orders for discovery in which order 7 ordered that the fourth respondent was to produce to the applicants the categories of documents identified in annexure C to those orders of which copies of all documents identified as being in the control of the respondents and in respect of which privilege is not claimed. Annexure C required, at 1.5.4, documents setting out the matters worked on by a Mr Shmith for MDR (which was defined as Mr Shmith's MDR matters), including details of the name of the client and the matter description. At 1.5.5 of annexure C, documents evidencing the fees recorded on Mr Shmith's MDR matters by Mr Shmith and/or personnel of MDR were to be produced. Some 62 documents were produced on 5 February 2024. 3 On 13 March 2024, the applicants issued a Notice to Produce by reference to a number of MDR invoices in which it sought a copy of all time records, billing records and/or pre-billing records in connection with the invoices it identified in annexure A to the Notice to Produce, including records itemising the time entries recorded on the matter the subject of the invoice, the name of the person who recorded the time entry, the hourly rate charged by that person, the description of the work performed and the amount of the charge. 4 The fourth respondent seeks an order pursuant to r 1.34 of the Federal Court Rules 2011 (Cth) that the fourth respondent need not comply with the Notice to Produce. In Frigger v Trenfield (No 8) [2021] FCA 569 at [7] - [8], Jackson J dealt with some of the issues that might arise on a Notice to Produce and, in particular, any application for an order that the recipient be excused from complying with it. His Honour observed that in the context of Notices to Produce, the principles usually applied are similar to those that apply to applications to set aside a subpoena, one ground of which is that the documents sought in the notice are not relevant. With respect, I agree with his Honour's observations. 5 Ms Wells, who appears for the fourth respondent, submits that, amongst other things, Registrar Parkyn's order has been complied with. Ms Wells submits further that the documents are not relevant and still further that the Notice to Produce is oppressive. 6 Mr Roberts KC for the applicants in effect submits to the contrary. Without doing any disrespect to his argument, I accept there is some ambiguity in Registrar Parkyn's categories of orders made on 1 November 2023, but only because of the terms of the Notice to Produce, which seek documents underlying those categories. In any event, I am satisfied that the materials sought are reasonably likely to add to the relevant evidential material on the topic of whether or not the fourth respondent is carrying on business in Australia. 7 That is a fact-specific exercise and a fundamental point in terms of the applicants' cause of action against the fourth respondent under the relevant provisions of the Australian Consumer Law found at Schedule 2 to the Competition and Consumer Act 2010 (Cth). 8 The fourth respondent read, amongst other things, the third affidavit of Janet Elizabeth McDonald Tobin in support of their application and that affidavit has been ordered to be confidential. Ms Tobin's third affidavit says nothing about the exercise in producing the documents sought as being oppressive. In the circumstances, I decline to order that the fourth respondent be excused from complying with the Notice to Produce. 9 The costs of the argument today be reserved. I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice O'Sullivan.

SCHEDULE OF PARTIES SAD 222 of 2021 Respondents Fourth Respondent: MISCHON DE REYA LLP