In what circumstances can a subpoena be issued to a person in a foreign country? This question is examined by Edelman J in Titan Enterprises (Qld) Pty Ltd v Cross  FCA 890 (5 August 2016).
Titan Enterprises sought leave to serve international subpoenas on 4 international companies, namely Google Inc, Yahoo! Inc and Microsoft Corporation (all located in the United States), and Google Asia Pacific (incorporated in Singapore). The application was unopposed, although it was effectively ex parte.
Titan Enterprises brought proceedings against Mr Cross and Dr Harmon concerning a website allegedly operated by them called “Beware of Titan Garages”. The proceedings alleged infringement of copyright, infringement of trade marks, the tort of injurious falsehood, misleading and deceptive conduct, and false and misleading representations.
There was some doubt about whether Mr Cross’ name was a coincidence or a pseudonym. In any event his identity and location were not known. Despite an order for substituted service Mr Cross had not entered an appearance, or communicated with Titan Enterprises or the Court.
The purpose of the international subpoenas was not only to identify Mr Cross, but to gather evidence relevant to the proceedings.
Rule 10.44(1) of the Federal Court Rules relevantly provides as follows:
“A party may apply to the Court for leave to serve a document filed in or issued by the Court, other than an originating application, on a person in a foreign country in accordance with a convention, the Hague Convention or the law of the foreign country.
Note 1 The law of a foreign country may permit service through the diplomatic channel or service by a private agent — see Division 10.5. …”
The Hague Convention is the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters done at the Hague on 15 November 1965.
1. It was, and remains controversial whether a Court has power to grant leave to issue a subpoena to a person outside Australia (at ).
2. In an appropriate case leave can be granted, having regard to international law and comity, and the need to exercise care and restraint (at ). The need for compliance with international law and international comity is an extremely important consideration not merely for the power to grant leave but also for the exercise of any discretion to do so (at ). At a minimum, this requires that there should usually be evidence of communication, or substantial attempts at communication, with the proposed recipient of the subpoena (at ).
3. Common factors include (at ):
- the nature of the subpoena;
- the nature of the particular proceedings and (in the case of a subpoena to produce documents) the importance of the documents to the issues in those proceedings;
- the attitude of the subpoenaed party (if known or ascertainable);
- the foreign country involved; and
- the law in, and attitude of, the foreign country regarding foreign subpoenas and whether they impinge upon the country’s sovereignty.
4. The absence of the means to enforce a subpoena served on a foreign addressee is better viewed as a discretionary reason why a subpoena should not be issued or served on a foreign addressee, rather than a reason why it should be found that the court does not have the power to issue or grant leave to serve such a subpoena (at ). Where a subpoena is not capable of enforcement it may constitute “an empty threat, or the equivalent of a mere request couched in imperative terms” (at ).
5. Other discretionary factors will include whether or not the issuing party has exhausted all other avenues to obtain the documents sought (at ).
The subpoenas to Google and Google Asia Pacific
The subpoenas addressed to Google and Google Asia Pacific sought documents relating to a Google Adwords account that directed internet traffic to the “Beware of Titan Garages” website.
In response to a communication from the solicitors for Titan Enterprises, Google advised that the information requested related to the services provided by Google Asia Pacific, and explained the circumstances in which Google Asia Pacific would or may disclose information.
Leave to issue the subpoenas was not granted as:
- there was no adequate explanation for persisting with the subpoena addressed to Google;
- in relation to Google Asia Pacific, Singapore is not a signatory to the Hague Convention; thus service on an addressee in Singapore required service through diplomatic channels;
- in any event there had been no proper communication with Google Asia Pacific;
- the purpose of the subpoenas was not only to identify Mr Cross, but to gather evidence relevant to the proceedings, when the claim concerned activities engaged in within Australia, and did not involve any allegation against Google or Google Asia Pacific;
- other reasonable avenues had not been exhausted, including the Foreign Evidence Act 1994 (Cth), and the possibility of commencing proceedings in Singapore or the United States in aid of the legal proceedings in Australia.
The subpoena to Yahoo!
Leave to issue the subpoena to Yahoo! was not granted as, despite the subpoena being directed only at ascertaining the identity of Mr Cross, the solicitors for Titan Enterprises had not taken sufficient steps to ascertain the attitude of Yahoo!, and other possible avenues to obtain the documents had not been exhausted (at ).
The subpoena to Microsoft
Leave to issue the subpoena to Microsoft was not granted as the solicitors for Titan Enterprises had not taken sufficient steps to ascertain the attitude of Microsoft, and the documents were sought primarily to advance Titan Enterprises claim, rather than to ascertain the identity of Mr Cross (at -).
Closing remarks by Edelman J
Edelman J remarked (at ) that whilst there were factors in favour of the issue of the subpoenas:
- the subpoenas related only to documents concerning a very small, identifiable number of Australian citizens and which, if so confined, related to conduct originating in Australia;
- the number of documents was also limited;
- there was no suggestion that any of the potential recipients could be involved in the litigation;
- the solicitor for Titan Enterprises had given a personal undertaking as to costs as required by rules 10.51(3) and 10.64 FCR,
the power to issue the subpoenas and, if so, whether the discretion should be exercised, would depend on a consideration of all of the circumstances referred to above.