Bright v Femcare Ltd - [2000] FCA 1344

FEDERAL COURT OF AUSTRALIA
Bright v Femcare Ltd [2000] FCA 1344
PRACTICE AND PROCEDURE – representative proceeding under Pt IVA of the Federal Court of Australia Act 1976 (Cth) in which defences have not yet been filed, motions seeking orders under s 33N of the Act that the proceeding not continue as a representative proceeding have been foreshadowed, and opt out notices have not yet been given – subpoenas issued to ten public hospitals which are strangers to the litigation – application by the hospitals for orders setting aside the subpoenas in whole, or striking out certain paragraphs of each, or forbidding access to any documents produced in answer thereto – evidence that the process of identifying and extracting the documents for the purpose of complying with the subpoenas would be burdensome and time consuming for the hospitals – relevance, in determining whether the burden of complying with a subpoena issued to a stranger to a proceeding under Pt IVA is oppressive, that the stranger owes an obligation of confidence to other persons in respect of information contained in certain of the documents which the subpoena would require to be produced which would, at this particular stage of the proceeding, be protected by an order forbidding access to those documents – relevance of the fact that that information may be required to give appropriate opt out notices to class members – relevance of the fact that information contained in certain of the documents which the subpoena would require to be produced, other than that in respect of which the obligation of confidence exists, might be relevant to the determination of any motion seeking an order under s 33N
Federal Court of Australia Act 1976 (Cth), Pt IVA
Waind v Hill [1978] 1 NSWLR 372, distinguished
KERRIE BRIGHT v FEMCARE LIMITED and ENDOVASIVE PTY LIMITED
N 410 OF 1999
LEHANE J
8 SEPTEMBER 2000
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

N 410 OF 1999

BETWEEN:

KERRIE BRIGHT
APPLICANT

AND:

FEMCARE LIMITED
FIRST RESPONDENT

ENDOVASIVE PTY LIMITED
(ACN 061 512 132)
SECOND RESPONDENT

JUDGE:

LEHANE J

DATE OF ORDER:

8 SEPTEMBER 2000

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.Paragraphs 1.2, 1.3, 2.3, 3.5, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 4, 5 and 6 of the subpoenas issued by the applicant on 7 July 2000 to Hornsby Hospital, King George V Hospital, John Hunter Hospital, Pambula Hospital, Tweed Heads Hospital, Westmead Hospital, Nepean Hospital, Bowral District Hospital, Windsor Hospital and the Royal Hospital for Women (“the public hospitals”) be struck out, and that paragraph 2 of each subpoena be amended by omitting the words “In the following paragraphs” and replacing them with the words “In paragraph 3.”
2.The applicant serve on each of the public hospitals (by serving the solicitors who represented them at today’s hearing) a copy of these orders, and annex thereto a revised Schedule to the relevant subpoena, amended in accordance with these orders.
3.The applicant pay the public hospitals’ costs…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] FCA 1344
Decision Date: 8 SEPTEMBER 2000

CaseChat Overview and Summary

Bright v Femcare Ltd involved the applicant, Bright, who had issued subpoenas to various public hospitals seeking specific documents. The dispute centred around the validity and scope of these subpoenas, with the public hospitals challenging certain aspects of the subpoenas as overly broad or misdirected. The matter was heard in the Supreme Court.

The primary legal issue for the court was to determine whether the subpoenas issued by Bright were properly drafted and if the documents sought were relevant and necessary for the proceedings. The court also had to consider whether the subpoenas were overreaching in their demands, potentially imposing undue burden on the public hospitals. Additionally, the court needed to address whether the amendments proposed to the subpoenas were acceptable and if the costs associated with the motion should be borne by the applicant.

The court found that several paragraphs of the subpoenas were misdirected and overly broad, and as such, they were struck out. The court amended the subpoenas to ensure they correctly referenced the relevant paragraphs and reduced the scope of the document requests. The court ruled that Bright should bear the costs of the hospitals' motion, but limited the recoverable costs to half of the hearing expenses. The subpoenas were stood over to allow for the necessary amendments and to give the public hospitals time to produce the documents in accordance with the revised subpoenas. The court also granted the public hospitals the right to seek compensation for the cost of producing the documents and allowed for the parties to access the documents for photocopying purposes after a specified period.

The court's final orders included the striking out of specific paragraphs of the subpoenas, the amendment of the subpoenas to correct referencing errors, and the imposition of costs on Bright for the hospitals' motion. The subpoenas were to be stood over until a specified date to allow for document production under the amended subpoenas, with provisions for document access and potential compensation claims by the public hospitals.

Orders

Orders of the court

1. Paragraphs 1.2, 1.3, 2.3, 3.5, 3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 4, 5 and 6 of the subpoenas issued by the applicant on 7 July 2000 to Hornsby Hospital, King George V Hospital, John Hunter Hospital, Pambula Hospital, Tweed Heads Hospital, Westmead Hospital, Nepean Hospital, Bowral District Hospital, Windsor Hospital and the Royal Hospital for Women (“the public hospitals”) be struck out, and that paragraph 2 of each subpoena be amended by omitting the words “In the following paragraphs” and replacing them with the words “In paragraph 3.”

2. The applicant serve on each of the public hospitals (by serving the solicitors who represented them at today’s hearing) a copy of these orders, and annex thereto a revised Schedule to the relevant subpoena, amended in accordance with these orders.

3. The applicant pay the public hospitals’ costs of their motion dated 7 September 2000, but limited, as to the costs of the hearing of the motion, to 50 per cent of their costs of that hearing.

4. Each of the subpoenas addressed to the public hospitals be stood over until 10 October 2000 for production of documents, in the Registry, in accordance with the amended subpoenas.

5. The parties may have access to and uplift for the purposes of photocopying any documents produced by the public hospitals in answer to the amended subpoenas at the expiry of five business days from the time at which the documents are produced.

6. The public hospitals and the parties have liberty to apply to the Court on two days’ notice for the purpose of seeking orders in relation to any documents produced by the public hospitals in answer to the amended subpoenas.

7. The public hospitals have liberty to apply to the Court on two days’ notice for an order for compensation in respect of the cost of producing the documents in answer to the amended subpoenas.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

LEHANE J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LEHANE J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 410 OF 1999

BETWEEN:	KERRIE BRIGHT APPLICANT
AND:	FEMCARE LIMITED FIRST RESPONDENT ENDOVASIVE PTY LIMITED (ACN 061 512 132) SECOND RESPONDENT
JUDGE:	LEHANE J
DATE OF ORDER:	8 SEPTEMBER 2000
WHERE MADE:	SYDNEY