Biota Holdings Ltd v Glaxo Group Ltd

[2006] VSC 71

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 2018 of 2004

BIOTA HOLDINGS LTD & ANOR	Plaintiffs
V
GLAXO GROUP LTD & ORS	Defendants

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JUDGE:	Whelan J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2006
DATE OF RULING:	13 February 2006
CASE MAY BE CITED AS:	Biota Holdings Ltd & Anor v Glaxo Group Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2006] VSC 71

PROCEDURE – discovery – removal of documents from foreign jurisdiction – Court’s power to issue letter of request to facilitate removal

Four Seasons Hotels Ltd v. Legacy Hotels Real Estate Investment Trust [2003] O.J. No. 1341

Westpac Banking Corporation v. Halabi Unreported, Supreme Court of New South Wales, 22 December 1987 
Elna Australia Pty Ltd v. International Computers (Aust) Pty Ltd (1987) 14 FCR 461

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Heath	Goldman Partners
For the Defendant	Mr P. Cash (solicitor)	Deacons

HIS HONOUR:

1. In this matter the defendants, Glaxo Group Ltd & others, seek an order for the issuing of a letter of request to facilitate an application they foreshadow in the Canadian state of Ontario for an order permitting the removal of documents. 

1. This proceeding involves allegations concerning conduct around the world and the defendants have been required to give discovery of discoverable documents in a number of foreign countries, one of which is Canada.

1. Mr Cash, the solicitor for the defendants, has explained to me that there is a problem in removing relevant discoverable documents from Ontario as a result of the provisions of the Business Records Protection Act of that Canadian jurisdiction.  This Act prohibits the removal of certain documents which are discoverable in this proceeding from Ontario.

1. Mr Cash has addressed me on the position in Canada.  As a result of his submissions, it seems that the problem can be overcome by a request from a foreign court to permit relevant documents to be removed, and a consequent order of the Ontario Superior Court of Justice to that effect (see Four Seasons Hotels Ltd v. Legacy Hotels Real Estate Investment Trust[1]).

   [1][2003] O.J. No. 1341

1. The question of this Court's jurisdiction to order the issue of a letter of request in these circumstances is not without difficulty. Mr Cash has relied upon s.9B(1)(c) of the Evidence Act 1958 and upon Order 41 of the Supreme Court Rules, and has referred me to a decision of Rogers J in Westpac Banking Corporation v. Halabi.[2]  He has also alerted me to a contrary view expressed by Gummow J in the case of Elna Australia Pty Ltd v. International Computers (Aust) Pty Ltd.[3] 

   [2]Unreported, Supreme Court of New South Wales, 22 December 1987 

   [3](1987) 14 FCR 461

1. In the alternative, Mr Cash has submitted that this would be an appropriate case for an order to be made under the Court's general powers of supervision of litigation, being Order 2 of Chapter II of the Supreme Court Rules, this being a Commercial List proceeding, and/or Order 34 of the Rules. 

1. I observe that there is no issue here of any non-party being directly or indirectly affected or compelled to produce documents.  The documents in question here are the defendants' own documents, or documents of their subsidiaries.

1. I have not heard any contrary argument on the matter, as Mr Heath, appearing on behalf of the plaintiffs, has had no submission to make on the application, other than to indicate that from the plaintiffs' point of view the terms of the proposed letter of request are appropriate.

1. In my view, an order for the issuing of a request should be made. 

1. I observe that in the modern context there is much to be said for the views expressed by Rogers J, but in the absence of argument I do not consider it appropriate to form a view as to whether Rogers J’s or Gummow J’s approach is correct.  This is because in any event it seems to me that the Court's general power to supervise the conduct of this proceeding is appropriately exercised by making an order for a letter of request in the terms suggested and for the purpose suggested in this particular case.

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