Case: News Corporation Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250
Outcome: applied
Dr Bell relies, in particular, upon the observations of Giles J in News Corporation Ltd v Lenfest Communications Inc (1996) 40 NSWLR 250 at 261. It is convenient to set out the relevant passage of Giles J judgment, which is as follows: But against them stands the compelling consideration that Lenfest is a foreign corporation, served out of Australia, over which the Court asserts jurisdiction only when it is sufficiently shown by News that (inter alia) the proceedings fall within one of the cases in Pt 10 , r 1A of the Supreme Court Rules . It is difficult to conceive of leave to serve a subpoena or a notice to produce upon such a foreign defendant who does nothing, that is, does not apply pursuant to Pt 11 r 8 (or Pt 10 , r 6A), in order to assist the plaintiff to establish the Court's jurisdiction. Whatever its strength, and whether or not its strength varies according to the circumstances, from the comity earlier discussed a foreign defendant served outside Australia should not lightly be subjected to the jurisdiction of this Court, but more importantly should not have imposed upon him one of the Court's compulsory processes in aid of establishing the jurisdiction itself. That position is not changed when, while contesting the jurisdiction, the defendant participates in the proceedings with a view to establishing the absence of jurisdiction. 8 It will be noted that Giles J drew attention to the consideration that a respondent seeking to challenge the jurisdiction of the court should not have imposed upon it one of the Court's compulsory processes in aid of establishing the jurisdiction. 9 The rule which Giles J considered in News was, in my view, not materially different from the rules of the Federal Court , and it seems to me that the principle stated by his Honour is one that I ought to follow. 10 The effect of so doing is that I do not consider that at this stage of the proceedings in which the jurisdiction is under challenge, the applicant can invoke the compulsory processes of the Court. The rules of the Federal Court provide that a notice to produce has the force and effect of a subpoena. Accordingly, the issue of a notice to produce must be considered as an attempt to invoke the Court's compulsory processes in the way discussed by Giles J in the News . 11 Mr Wood, who appears for the applicant, submitted that the decision of Giles J is distinguishable. He drew attention to what appears at 259 to 260 where his Honour observed that he did not think that Pt 36 rule 16 of the Supreme Court Rules should be read down and that it empowers the service of a notice to produce on a foreign party. However, I do not consider those observations of Giles J bear upon the issue before me this morning. 17 I propose to make an order in similar terms to that which was made by Giles J in the News . Accordingly I will order that the respondent is not obliged to produce the documents referred to in the notices to produce until further order of the Court. 18 I will also order that the applicant in the proceedings, Armacel Pty Limited, pay the costs of the notice of motion filed on 6 December 2007. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Jacobson. Associate: Dated: 7 December 2007 Counsel for the Applicant: C D Wood Solicitor for the Applicant: Lawmark Solicitors &amp; Notaries Counsel for the Respondent: A S Bell Solicitor for the Respondent: Minter Ellison Date of Hearing: 6 December 2007 Date of Judgment: 6 December 2007 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2007/1928.html