Louis Dreyfus Company B.V. (f/k/a Louis Dreyfus Commodities B.V.) v Glencore Ltd

Hearing dates: 16 April 2025

Date of orders: 16 April 2025

Decision date: 24 April 2025

Jurisdiction: Equity - Commercial List

Before: Peden J

Decision: At [46]

Catchwords: PRIVATE INTERNATIONAL LAW — letter of request — application for orders giving effect to letter of request issued by District Court of the Southern District of New York for the examination of and production of documents by an Australian resident — whether orders sought for improper collateral purpose — whether letter of request impermissibly seeks pre-trial discovery
EVIDENCE — evidence on commission — consideration of s 33(6) Evidence on Commission Act 1995 (NSW) — meaning of “particular documents specified in the order” — whether permissible to order production of categories of documents in pursuance of letter of request

Legislation Cited: Commodity Exchange Act, 7 U.S.C §§ 1
Evidence on Commission Act 1995 (NSW), ss 32, 33
Evidence (Proceedings in Other Jurisdictions) Act 1975 (UK)
Foreign Tribunals Evidence Act 1856 19 and 20 Vic c 113
Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 847 UNTS 241
Sherman Antitrust Act of 1890, 15 U.S.C. § 1-38

Cases Cited: Application by the Attorney General of New South Wales [2020] NSWSC 1007
Application by the Attorney General of NSW [2021] NSWSC 857
Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2017] NSWSC 810
Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2019] NSWSC 77
Application of Forsyth; Re Cordova v Philips Roxane Laboratories Inc (1984) 2 NSWLR 327
Attorney General in and for the State of NSW [2012] NSWSC 341
British American Tobacco Australia Services Ltd v Eubanks (2004) 60 NSWLR 483
Fairfax Financial Holdings Limited [2011] NSWSC 223
Nanotech Industrial Solutions Inc v Nanoteko Pty Ltd [2020] NSWSC 1285
Re Application of Monier Inc (2009) 76 NSWLR 158
Re Asbestos Insurance Coverage Cases [1985] 1 All ER 71
Re Jan L (Judge of the Fairfax County Virginia Circuit Court, United States of America) Brodie [2013] NSWSC 793
Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547
Sykes v Richardson (2007) 70 NSWLR 66

Category: Principal judgment

Parties: Louis Dreyfus Company B.V. (f/k/a Louis Dreyfus Commodities B.V.) (First Plaintiff)
Allenberg Cotton Co. (Second Plaintiff)
Louis Dreyfus Company Holding Inc. (f/k/a LDC Holdings Inc.) (Third Plaintiff)
Term Commodities Inc. (Fourth Plaintiff)
Louis Dreyfus Company LLC (f/k/a Louis Dreyfus
Commodities LLC) (Fifth Plaintiff)
Joseph Nicosia (Sixth Plaintiff)
Glencore Ltd. (First Defendant)
Viterra B.V. (f/k/a Glencore Grain B.V.) (Second Defendant)
Mark Allen (Third Defendant)

Representation: Counsel:
E Hyde (Plaintiffs)
D Cook SC / A Flick (Third Defendant)
Solicitors:
Addisons (Plaintiffs)
Piper Alderman (Third Defendant)

File Number(s): 2025/140437

Publication restriction: Nil

JUDGMENT

1. The plaintiffs, Louis Dreyfus Company BV and five associated entities (together, LDC) sought orders under s 33 Evidence on Commission Act 1995 (NSW) to give effect to a letter of request from the District Court of the Southern District of New York in the United States of America issued on 31 March 2025, concerning the production of documents by and examination of Mr Mark Allen, who is resident in Australia.

2. The District Court’s letter of request was issued in relation to proceedings brought by Glencore Ltd and Viterra BV (together, Glencore) against LDC in that Court, in which it is alleged that LDC manipulated the cotton futures exchange market from March to July 2011 in contravention of the Commodity Exchange Act, 7 U.S.C §§ 1 and s 2 Sherman Antitrust Act of 1890, 15 U.S.C. § 1-38 (Sherman Act), causing Glencore to sustain trading losses.

3. Glencore was joined as the first and second defendants to these proceedings. It did not appear nor make any submissions about the orders sought.

4. Mr Allen was joined as the third defendant. He opposed the orders sought, as explained below.

5. On 16 April 2025, I made orders for Mr Allen to be examined and to produce a limited range of documents. These are my reasons for making those orders.

Background

6. Glencore is a trader of commodities and commodity futures. Its head cotton trader from November 2009 was Mr Allen, who, in addition to trading futures in a personal capacity, oversaw Glencore’s cotton trading activity.

7. LDC markets and trades commodities on an international basis and was a leading global cotton merchant at the relevant time.

8. Mr Allen represents a group of commodity traders and himself in a class action against LDC for trading losses said to have been suffered as a result of LDC’s alleged market manipulation. Glencore opted out of the class, and on 22 December 2023 commenced its own claim against LDC, making similar allegations to those in the class action.

9. Both Glencore and the class allege that LDC “squeezed” the cotton futures market by taking control of a large quantity of deliverable cotton, causing prices to artificially inflate and deliverable supply to restrict, resulting in short sellers having to liquidate their positions at prices greater than what physical cotton could be sold for in the cash market.

10. LDC contends that its trades were “based on a commercial need for cotton and were not taken with manipulative intent”, and that its positions in the relevant futures contracts were “bona fide hedges for legitimate commercial sales of physical cotton”. Part of its defence is that Glencore did not suffer injury, because Glencore engaged in irresponsible market behaviour by failing to prudently plan for delivery of cotton upon expiry of the relevant futures contracts. According to LDC, Mr Allen is the key fact witness in this regard because he “orchestrated the trading strategy that resulted in [Glencore’s] significant losses”.

11. By the time Glencore opted out, the class action had been on foot for over 10 years. Extensive discovery had been undertaken, during which Mr Allen was deposed for around seven hours in December 2015. The class was certified on 17 February 2022 and Mr Allen was approved as the class representative.

12. Discovery was to be completed in the Glencore Action by 25 October 2024.

13. In September 2024, LDC moved the US Court to issue the letter of request. Mr Allen sought to be heard as amicus to oppose the letter being issued. A hearing was held on 20 November 2024 to deal with that issue, among others, and on 19 March 2025, the US Court ordered that the letter be granted, giving LDC 39 days to depose Mr Allen. However, the letter of request was not signed by Magistrate Judge Willis until 31 March 2025. On 1 April 2025, her Honour ordered that the deadline set in the 19 March 2025 order be extended by seven days “due to an unforeseen delay by the Court in signing and affixing the official court seal to” the letter of request. It was common ground between the parties that the deadline to depose Mr Allen under the orders made by Magistrate Judge Willis was 5 May 2025.

14. One other matter of procedural history, which assumes particular significance in Mr Allen’s arguments here, is that on 17 March 2025, LDC requested a status conference in the US Court to seek permission to file a motion to “decertify” the class and disqualify Mr Allen from being the sole class representative.

Relevant statutory provisions

15. Part 4 of the Act deals with requests to the Supreme Court for taking evidence for the purpose of foreign civil or commercial proceedings. It enacts the provisions of the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters 1970 847 UNTS 241 as a law of New South Wales.

16. The provisions of Part 4 apply if, upon application being made to it, this Court is satisfied of the following matters set out in ss 32(1)(a) and (b) so that an order can be made for evidence to be obtained in NSW for the foreign proceedings:

17. 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

18. 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.

19. Part 4 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”: s 32(2). Although contravention of s 2 Sherman Act amounts to a felony, I am satisfied that the Glencore Action is civil, rather than criminal, in nature: see Sykes v Richardson (2007) 70 NSWLR 66.

20. Subject to the satisfaction of the conditions in s 32, this Court has a discretion under s 33 as to whether orders should be made. Section 33 relevantly provides:

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

(1) The Supreme 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.

(2) An order under this section may require a specified person to take such steps as the Court may consider appropriate for that purpose.

(3) Without limiting the generality of subsections (1) and (2), an order under this section may, in particular, make provision as follows—

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

(b) for the production of documents…

…

(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…

19. General principles about the application of ss 32 and 33 are found in the reasons of Spigelman CJ (with whom Handley and Bryson JJA agreed) in British American Tobacco Australia Services Ltd v Eubanks (2004) 60 NSWLR 483 (British American Tobacco). It is accepted that this Court, on the hearing of an application such as this, is acting in respect of the request because comity requires this Court to assist foreign courts to give effect to civil litigation taking place before those courts. Provided the legislative requirements are satisfied, the request should be given effect, to the fullest extent possible.

20. English case law also assumes particular significance in this area. In British American Tobacco, Spigelman CJ said that English case law in relation to the Convention should generally be followed in Australia, having regard to the “general principle that an international treaty of this character should be interpreted, where possible, in an internationally uniform way” and in light of the fact that the Act follows the terminology in the Evidence (Proceedings in Other Jurisdictions) Act 1975 (UK): at [41]; see also [20].

Satisfaction of section 32 requirements

21. Mr Allen opposed the orders sought by LDC primarily on the basis that they were sought for an improper collateral purpose, allegedly to obtain material to use in a future motion in the class action to disqualify Mr Allen from being class representative and to decertify the class. According to Mr Allen, the purpose of the application was not to obtain evidence for the purposes of the Glencore action and, for that reason, the requirement in s 32(1)(b) was not satisfied and this Court is unable to make the orders sought.

22. I do not accept the evidence leads to the conclusion that LDC had the alleged motive. In any event, that submission distracts from determining whether the requirements of s 32 are satisfied.

23. If the evidence to which the application relates “is to be obtained for the purposes of proceedings which … have been instituted before the requesting court” (s 32(1)(b)), then this Court has power to make orders, regardless of whether the evidence may be used (or sought to be used) for another purpose in the future.

24. As explained by Clarke J in Application of Forsyth; Re Cordova v Philips Roxane Laboratories Inc (1984) 2 NSWLR 327 (Forsyth) at 333, provided that the evidence is sought for use, or possible use, at trial, the Court has power to make orders “notwithstanding that there is another, and dominant, purpose for which the evidence is required”. His Honour continued to observe that:

[U]nless one can say that the evidence is required only for an impermissible use and is not required for use, or possible use, at the trial then the applicant has … discharged the onus of establishing that the foreign court is ‘desirous of obtaining the testimony’ …[If the evidence to be used] is immediately relevant to the issue between the parties to the litigation, then the court's jurisdiction is established. This would be so even if the party wished to subject the evidence to another and impermissible use.

25. Mr Allen’s senior counsel sought to distinguish Forsyth on the basis that it dealt with predecessor legislation (the Foreign Tribunals Evidence Act 1856 19 and 20 Vic c 113), which required the Court to be satisfied that the foreign court or tribunal was “desirous of obtaining the testimony … of any witness”.

26. The distinction between the predecessor legislation and the Act is one of terminology, not substance. The question is still whether the evidence is sought to be obtained for use in the foreign proceedings in question. Looking at the substance of the matter, as Clarke J did in Forsyth, plainly that is the case here. The evidence to be obtained from Mr Allen will be relevant to the issues in the Glencore action. LDC is entitled to obtain such evidence as it may wish to use at the trial in those proceedings. That is sufficient to enliven the Court’s jurisdiction to make orders under s 33.

27. In any event, if LDC attempts to use the evidence obtained from Mr Allen for another purpose in future, that will be a matter for determination by the US Court rather than this Court on the present application. The US Court has already deferred “its decision on the potential use of any discovery obtained from Mr Allen’s deposition testimony until after the conclusion of such deposition”.

28. In the circumstances, I am satisfied that the requirements of s 32(1) are met because

29. the Court is in receipt of a letter of request from the US Court, and the application before the Court is in pursuance of that request; and

30. the evidence to which the application relates is to be obtained for the purposes of proceedings which have been instituted before the requesting court (the Glencore Action).

Discretionary matters

29. As a matter said to influence the exercise of my discretion to make orders under s 33, Mr Allen raised the fact that the letter of request does not attach Annexures A and B (being the questions to be put to Mr Allen and the list of documents to be inspected). That does not present any impediment to this Court giving effect to the letter of request, in circumstances where the content of the intended annexures is clear: see eg Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2017] NSWSC 810 at [28] (N Adams J) (Computer Sciences).

30. I am satisfied that it is appropriate for orders to be made for Mr Allen to be examined, subject to what follows.

Documents

31. Insofar as LDC sought orders for the production of documents, Mr Allen contended that the letter of request (and LDC’s present application) impermissibly sought pre-trial discovery and falls foul of s 33(6)(b), because it would require Mr Allen to produce categories of documents rather than “particular documents specified in the order”.

32. Mr Allen’s counsel submitted that the prevailing interpretation of s 33(6)(b) is that “particular documents specified in the order” means “individual documents separately described” and not classes or categories of documents, such that this Court could not order the production of categories of documents: Rio Tinto Zinc Corporation v Westinghouse Electric Corporation [1978] AC 547 (Westinghouse) at 635 (Lord Diplock); Re Application of Monier Inc (2009) 76 NSWLR 158 (Monier) at [27]-[28], [32] (Matthews AJ).

33. That was the interpretation preferred by Lord Diplock in Westinghouse in relation to s 2(4) of the Evidence (Proceedings in Other Jurisdictions) Act 1975 (UK), which was, in terms, almost entirely identical to s 33(6) here.

34. In Re Asbestos Insurance Coverage Cases [1985] 1 All ER 71 at 721, Lord Fraser, in a speech, with which the other Lords agreed, considered that in Westinghouse, Lord Diplock did not intend to “rule out a compendious description of several documents provided that the exact document in each case is clearly indicated”, and provided that the documents in question were “actual documents, about which there is evidence which has satisfied the judge that they exist, or at least that they did exist, and that they are likely to be in the respondents’ possession”.

35. The approach in Westinghouse and Re Asbestos Insurance Coverage Cases was followed, after careful consideration, by Mathews AJ in Monier. There, her Honour was dealing with an application to set aside a subpoena for the production of categories of documents that had been issued following a letter of request issued by a United States court. After referring to Westinghouse and Re Asbestos Insurance Coverage Cases, and noting the weight to be given to British case law in view of the reasons of Spigelman CJ in British American Tobacco, her Honour concluded (at [27]-[28]) that any documents to be produced under s 33(6)(b) must be “particular documents specified in the order”, which means “individual documents separately described”.

36. Those authorities were more recently considered by Black J in Application of Computer Sciences Corporation under the Evidence on Commission Act 1995 (NSW) [2019] NSWSC 77. It was put to his Honour that the Court should hold that those authorities “no longer assist in the application of s 33(6) of the Act, where there has been a substantial change in the frequency, volume and flexibility of communications since Westinghouse was decided”: at [37]. His Honour noted that British decisions had “required particularity in the identification of documents to be produced under a letter of request” and at [38], concluded it was appropriate as a trial judge to follow Westinghouse and Monier.

37. LDC’s counsel similarly submitted that I should not follow the approach taken in Westinghouse and Monier, which has been followed in this Court numerous times: see Fairfax Financial Holdings Limited [2011] NSWSC 223 at [38] (Hall J); Attorney General in and for the State of NSW [2012] NSWSC 341 at [27] (Hislop J); Application by the Attorney General of NSW [2021] NSWSC 857 at [4] (Hamill J) .

38. Instead, LDC’s counsel referred to a number of decisions of this Court in suggesting there was a “divergence” in the approach of trial judges as to whether production of “categories of documents” could be ordered under s 33(6): see eg Re Jan L (Judge of the Fairfax County Virginia Circuit Court, United States of America) Brodie [2013] NSWSC 793 (Slattery J); Application by the Attorney General of New South Wales [2020] NSWSC 1007 (Campbell J); Nanotech Industrial Solutions Inc v Nanoteko Pty Ltd [2020] NSWSC 1285 (Rothman J).

39. I do not accept that those decisions reflect a “divergence” in the interpretation of s 33(6) in the sense that they depart from Westinghouse and Monier. The Court on those occasions was not assisted by any argument in relation to Monier and Westinghous**e and the decisions were all given on an ex parte or ex tempore basis, or on the papers.

40. In Computer Sciences, which was another case referred to by LDC, N Adams J was satisfied that the documents sought were described with “sufficient particularity” for s 33(6) in light of Westinghouse. I do not accept that decision demonstrates a “divergence”. Rather, it demonstrates the proper application of s 33(6).

41. I should follow Monier in circumstances where I do not consider it to be plainly wrong.

42. The effect of this conclusion is that s 33(6) would preclude the making of orders for the production of most of the categories sought by LDC. In any event, LDC’s counsel accepted that many of the categories sought were so broad as to be impermissible if they were included in a subpoena.

43. The only documents described with sufficient particularity for orders to be made for their production are those relating to Mr Allen’s employment with Glencore and the termination of that employment (being his employment contract, notices of his termination, and reviews of his performance during the relevant period).

44. While this Court cannot substitute different categories of documents for those requested by the overseas court, it can limit the scope of documents sought in a letter of request to comply with the requirements of the Act: Monier at [31]; British American Tobacco at [89].

45. Therefore, I made orders for the production of those documents and for Mr Allen to be examined, with restrictions on the topics of examination to accord with my conclusion as to the scope of the documents that Mr Allen should produce.

Orders

46. For those reasons, I made the following orders:

47. Order that, pursuant to sections 32 and 33 of the Evidence on Commission Act 1995 (NSW), at a time and date to be agreed between the parties prior to 5 May 2025, the Third Defendant attend the offices of Addisons at Level 10, 2 Park Street, Sydney in the State of New South Wales for him to be examined as a witness for not more than 4 hours (excluding breaks).

48. Order that, pursuant to section 33 of the Act, failing agreement by the parties on the identity of an appropriate examiner by 12pm on 22 April 2025, the parties are to forthwith approach the President of the New South Wales Bar Association to appoint an available barrister of good standing as examiner pursuant to rule 24.3 of the Uniform Civil Procedure Rules 2005 (NSW).

49. Order that, pursuant to section 33 of the Act, the Plaintiffs comply with rule 24.7 of the UCPR.

50. Order that, pursuant to section 33 of the Act, the examiner administer an oath or affirmation at the commencement of the examination.

51. Order that, pursuant to section 33 of the Act, the examination of the Third Defendant be videotaped and transcribed and that such video tapes and transcripts be signed and certified as correct and authenticated by the examiner and forwarded to the Honourable Jennifer E. Willis of the District Court of the Southern District of New York in the United States of America within 14 days of the completion of the examination.

52. Order that, pursuant to section 33 of the Act, the examination, oral examination (including cross-examination and re-examination, either in person or by video conference) of the Third Defendant be permitted to be conducted by the United States of America counsel for the parties in Case Number 1:23-cv-11125 GLENCORE LTD. & ANOR v LOUIS DREYFUS COMPANY B.V. (f/k/a LOUIS DREYFUS COMMODITIES B.V.) & ORS pending before the District Court of the Southern District of New York in the United States of America on the topics set out in Annexure A to these orders.

53. Order that, pursuant to section 33 of the Act, within 15 days prior to the date of the examination (or such other time that may be agreed between the parties), the Third Defendant produce to the Plaintiffs’ solicitors Addisons at Level 10, 2 Park Street, Sydney in the State of New South Wales those documents falling with the categories set out in Annexure B to these orders which are within his possession, custody or power.

54. Liberty to apply on 24 hours’ notice.

**********

Annexures A and B (97893, pdf)