Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587

Gloucester Shire Council v Fitch Ratings, Inc [2016] FCA 587

The notice to produce and subpoena were not set aside because Gloucester and CCMF established a legitimate forensic purpose: it was on the cards that documents recording communications between Fitch, Merrill Lynch and the Commonwealth Bank about intended or expected ratings could bear on issues in Fitch's summary judgment application, including whether Fitch authorised or permitted dissemination of the expected ratings, whether the applicants could establish reliance or indirect causation, and whether they had a valid claim with reasonable prospects. The requests were reasonably targeted, not fishing, and there was no evidence of oppression or undue burden.

Jurisdiction
Australia
Judgment Date
25 May 2016
Procedural Posture
Representative Proceeding Under Part IVA of the Federal Court of Australia Act 1976 (cth); Interlocutory Application to Set Aside a Notice to Produce and Subpoena / Interlocutory Application
Outcome
The first and third respondents' interlocutory application was dismissed with costs.
Legal Topics
['notice to Produce' 'subpoena' 'legitimate Forensic Purpose' 'summary Judgment' 'representative Proceedings' 'credit Ratings' 'synthetic Collateralised Debt Obligations' 'reliance and Indirect Causation']
['practice and Procedure' 'commercial and Corporations' 'corporations and Corporate Insolvency'] ['notice to Produce' 'subpoena' 'legitimate Forensic Purpose' 'summary Judgment' 'representative Proceedings' 'credit Ratings' 'synthetic Collateralised Debt Obligations' 'reliance and Indirect Causation']

Case Brief

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Procedural Posture

Representative Proceeding Under Part IVA of the Federal Court of Australia Act 1976 (cth); Interlocutory Application to Set Aside a Notice to Produce and Subpoena / Interlocutory Application

Legal Issues

  1. 1 ['Whether the notice to produce served on Fitch and subpoena served on the Commonwealth Bank of Australia should be set aside for lack of a legitimate forensic purpose.' "Whether it was on the cards that documents concerning communications between Fitch, Merrill Lynch and the Commonwealth Bank about intended or expected ratings would be relevant to, or throw light on, issues in Fitch's summary judgment application." 'Whether the notice to produce and subpoena amounted to fishing or were oppressive.']

Ratio Decidendi

The notice to produce and subpoena were not set aside because Gloucester and CCMF established a legitimate forensic purpose: it was on the cards that documents recording communications between Fitch, Merrill Lynch and the Commonwealth Bank about intended or expected ratings could bear on issues in Fitch's summary judgment application, including whether Fitch authorised or permitted dissemination of the expected ratings, whether the applicants could establish reliance or indirect causation, and whether they had a valid claim with reasonable prospects. The requests were reasonably targeted, not fishing, and there was no evidence of oppression or undue burden.

Court Disposition

The first and third respondents' interlocutory application was dismissed with costs.

Orders

  • ['The interlocutory application filed by the first and third respondents on 3 May 2016 seeking orders setting aside the notice to produce filed on 8 April 2016 and the subpoena to the Commonwealth Bank of Australia filed on 15 April 2016 be dismissed.' "The first and third respondents pay the applicants' costs of...