Clever Use of the Power to Order Pre-Action Discovery
The New South Wales Supreme Court has ordered Channel Nine to provide a draft story to a plaintiff…
For those interested in the legal reasoning of the Federal Court, the primary judge’s decision was overturned due to three errors, each of which would have been sufficient to vitiate the original decision.
Error 1: Public policy considerations
The primary judge did not make a cumulative assessment of the public policy considerations.
The considerations in favour of the proceedings being moved to California included:
On the other hand, in favour of the proceedings staying under the Federal Court’s jurisdiction:
On the balance, the Court considered that public policy considerations were in favour of the proceedings continuing under the Federal Court’s jurisdiction and there were strong reasons to refuse the grant of stay.
Interestingly, the Court did not consider it was sufficient to rely on the ACCC’s right to bring such action in Australia free of contractual restraint nor did the risk of fragmentation of litigation raise an issue of public policy.
Error 2: The disadvantage to Epic in proceeding in the US
The primary judge did not give sufficient weight to the disadvantage to Epic if the case proceeded in the US. These included that:
Error 3: Failure to properly consider the role of the local Apple subsidiary
The primary judge assessed that the Australian subsidiary’s role was merely ‘ornamental’, but this was not correct. The current proceeding involved claims under Australian laws (the CCA and ACL) against an Australian company (Apple Pty Ltd) which was not a party to the exclusive jurisdiction clause in respect of conduct undertaken in Australia affecting Australian consumers (the operation of the App Store).
Together, these points were sufficient for the Court to agree that the proceedings should continue in Australia, although it did make clear that there is no statutory mandate for proceedings such as these to be heard in Australia.
Forum non conveniens
For completeness, the Federal Court also confirmed that Australia was not a clearly inappropriate forum given that the cause of action relates to Australian competition law involving the Australian App Store, Australian users, and developers for that market, as well as an Australian entity.