Alphapharm Pty Ltd v Minister of Human Services & Health

[1996] FCA 1171

IN THE FEDERAL COURT OF AUSTRALIA  )
  )
NEW SOUTH WALES DISTRICT REGISTRY  ) No. NG 621 of 1994
  )
GENERAL DIVISION  )

BETWEEN:               ALPHAPHARM PTY LIMITED

Applicant

AND:  MINISTER OF HUMAN SERVICES
  AND HEALTH and OTHERS

Respondent

Coram :          Davies J
Place :            Sydney
Dated : 17 December 1996

MINUTES OF ORDER

Motion dismissed.  Costs in the Cause.

NOTE :Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules

IN THE FEDERAL COURT OF AUSTRALIA                   )
  )
NEW SOUTH WALES DISTRICT REGISTRY                  )
  )          No NG 621 of 1994
GENERAL DIVISION  )

BETWEEN :  ALPHAPHARM PTY LIMITED

Applicant

AND :  MINISTER OF HUMAN SERVICES
  AND HEALTH and OTHERS

Respondent

Coram :          Davies J
Place : Sydney
Dated : 17 December 1996

REASONS FOR JUDGMENT

This application seeks an order for further discovery.  The matter arises in relation to paragraph 68 of the statement of claim which alleges that, in about early 1993, the applicant was advised by Mr Allen Brindell, Executive Officer of the Factor (f) Secretariat of 16 Phamaceutical Benefits Pricing Authority ("the PBPA"), that there was no hurry for the applicant to lodge its Phase II factor (f) application and that, in reliance on that advice, the applicant did not lodge its application until August 1993.  It is alleged that the representation was made at a time when there had been a change in the funding situation and when it was known that the PBPA might not be able to favourably grant all applications made to it which met the criteria for the scheme.  The order sought is that
the respondents give discovery of documents relating to any representations made by the respondents, their agents or officers to any applicant for participation in Phase II of the Factor (f) scheme that there was no need to hurry in lodging their applications or that time was not otherwise of the essence in the lodging of their applications or otherwise relating to the time for lodgment of applications.

The motion is brought on information that has come to hand though a judgment of Whitlam J which shows that a Miss Cox made a representation of the type alleged to have been made by Mr Brindell, but made it back in September of 1992.  It does not seem to me, however, that there would be any purpose in going through the files of the respondent to determine whether any such representations were made.  So far as is shown, the representation made by Miss Cox in September 1992 would have been a correct representation of the position.  It is alleged that, from December 1992 to February 1993, the position changed so that the PBPA was unable to make a grant to every applicant who lodged an application meeting the criteria and came to that position through a shortage of funds. 

The question thus arises as to whether it would be desirable to obtain discovery of documents which might show representations during some relevant period.  Mr White, counsel for the applicant, put the case primarily on the basis of similar fact evidence saying that if other representations were made, they may be relevant to the allegation made in paragraph 68 of the statement of claim, which is an allegation denied by the respondents.

If there was to be similar fact evidence, it would have to deal with the position at about the time when Mr Brindell made his representation, which is said to be in February 1993.  There is, however, at this stage no indication that the step of going through the documents once again, even for January or February 1993, would disclose any representation to applicants that there was no need to hurry in lodging their applications or that time was not otherwise of the essence in the lodging of their applications, which is the form of the order sought.  Moreover, the remainder of the order sought is rather wider, and is not based on a similar fact basis. 

The documents have already been inspected and discovered in accordance with orders made.  It seems to me, on balance, that it would not be likely that anything beneficial in the way of similar fact evidence would arise from a further search of the documents.  As to the second element of the orders sought, "otherwise relating to the time for lodgment of applications", this seems to me to be a claim which is much wider than anything that has been made up to this point of time.

Courts are now limiting their orders for discovery because it has been found that, if orders are made for the discovery of all the relevant documents, the results do not have a beneficial result taking into account the cost involved.  The cost is burdensome to litigants, the discovery is time consuming and the time and cost of discovery are tending to overwhelm litigation.  Throughout all the common law countries, courts are now restricting the orders that they make with respect to discovery.  Many of the continental countries, of course, do not grant the wide orders of discovery that in the past years we have done and, if they make orders for discovery, these tend to be limited.  They take the
view that, if someone has a case, they should bring it on the material that they have.  In past years, the common law countries have taken a very much wider view of that.  But the results have tended to overwhelm litigation, so all courts now are restricting their orders. 

I do not have, in the present case, a sufficient feeling that there would be a beneficial result or that the point is so important that I should make any further order as to discovery.  It seems to me that the applicant has an allegation which essentially arises out of an oral conversation and that the matter can properly be dealt with on the oral evidence.  So for that reason I will refuse the order.

I will order that the costs in the application be costs in the cause.

I certify that this and the preceding
3 pages are a true copy of the
reasons for judgment herein of
his Honour Justice Davies.

Associate :          

Date :     17 December 1996  

Counsel for the applicant :  R.W. White  

Solicitors for the applicant :            Mallesons Stephen Jacques

Counsel for the respondent :            S.J. Gageler

Solicitor for the respondent :  Australian Government Solicitor

Date of hearing :               17 December 1996

Date of judgment : 17 December 1996