Bupa Australia Pty Ltd v iSelect Limited - [2013] FCA 339

FEDERAL COURT OF AUSTRALIA
Bupa Australia Pty Ltd v iSelect Limited [2013] FCA 339

Citation: Bupa Australia Pty Ltd v iSelect Limited [2013] FCA 339

Parties:
BUPA AUSTRALIA PTY LTD (ACN 000 057 590) v ISELECT LIMITED (ACN 124 302 932), ISELECT HEALTH PTY LTD (ACN 088 749 955), DAMIEN MICHAEL TREVOR WALLER and MATTHEW ROSS MCCANN;

ISELECT LIMITED (ACN 124 302 932) and ISELECT HEALTH PTY LTD (ACN 088 749 955) v BUPA AUSTRALIA PTY LTD (ACN 000 057 590) and RICHARD BOWDEN

File number: VID 221 of 2012

Judge: NORTH J

Date of judgment: 8 March 2013

Cases cited: Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411

Date of hearing: 8 March 2013

Place: Melbourne

Division: GENERAL DIVISION

Category: No Catchwords

Number of paragraphs: 19

Counsel for the Applicant: Mr S R Senathirajah

Solicitor for the Applicant: King & Wood Mallesons

Counsel for the Respondents: Mr D Star

Solicitor for the Respondents: K & L Gates

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 221 of 2012

BETWEEN:
BUPA AUSTRALIA PTY LTD (ACN 000 057 590)
Applicant

AND:
ISELECT LIMITED (ACN 124 302 932)
First Respondent

ISELECT HEALTH PTY LTD (ACN 088 749 955)
Second Respondent

DAMIEN MICHAEL TREVOR WALLER
Third Respondent

MATTHEW ROSS MCCANN
Fourth Respondent

AND BETWEEN:
ISELECT LIMITED (ACN 124 302 932)
Cross-Claimant

ISELECT HEALTH PTY LTD (ACN 088 749 955)
Cross-Claimant

AND:
BUPA AUSTRALIA PTY LTD (ACN 000 057 590)
First Cross-Respondent

RICHARD BOWDEN
Second Cross-Respondent

JUDGE:

NORTH J

DATE OF ORDER:

8 MARCH 2013

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:
1.The application by iSelect Limited (iSelect) that a judge, other than the docket judge, hear the application referred to in paragraph 2 of these orders, is allowed.
2.The application by Bupa Australia Pty Ltd (Bupa) that its external lawyers and counsel be permitted to inspect the redacted parts of the documents discovered by iSelect for the purposes of the abuse of process application, being:
(a)a file note of a meeting between iSelect and the Australian Competition and Consumer Commission on 18 July 2012; and
(b)the draft complaint letter dated July 2012,
(Documents) is refused.

3.Each side bear their own costs of:
(a)the application by Bupa for permission to inspect the redacted parts of the Documents; and
(b)the application by iSelect that a judge, other than the docket judge, hear that application.

Note:Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 221 of 2012

BETWEEN:
BUPA AUSTRALIA PTY LTD (ACN 000 057 590)
Applicant

AND:
ISELECT LIMITED (ACN 124 302 932)
First Respondent

ISELECT HEALTH PTY LTD (ACN 088 749 955)
Second Respondent

DAMIEN MICHAEL TREVOR WALLER
Third Respondent

MATTHEW ROSS MCCANN
Fourth Respondent

AND BETWEEN:
ISELECT LIMITED (ACN 124 302 932)
Cross-Claimant

ISELECT HEALTH PTY LTD (ACN 088 749 955)
Cross-Claimant

AND:
BUPA AUSTRALIA PTY LTD (ACN 000 057 590)
First Cross-Respondent

RICHARD BOWDEN
Second Cross-Respondent

JUDGE:

NORTH…

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: [2013] FCA 339
Decision Date

CaseChat Overview and Summary

The case of Bupa Australia Pty Ltd v iSelect Limited [2013] FCA 339 involved an application by Bupa Australia Pty Ltd seeking access to redacted parts of two documents discovered by iSelect Limited. These documents were a file note of a meeting between iSelect and the Australian Competition and Consumer Commission on 18 July 2012, and a draft complaint letter dated July 2012. The application was made in the context of an interlocutory application by Bupa alleging that part of iSelect’s cross claim should be dismissed as an abuse of process. The central issue before the Court was whether Bupa's external lawyers and counsel should be permitted to inspect the redacted parts of these documents.

The Court first addressed the preliminary issue of whether Bupa’s application should be heard by a judge other than the docket judge. iSelect argued that the docket judge might be disqualified due to apprehended bias if they viewed the unredacted portions of the documents. The Court found that there was no reasonable basis for such a concern, as the documents did not indicate any reason why the judge might be biased. However, the Court allowed iSelect's application for the sake of efficiency, as the issues in contention were clear-cut.

The Court then turned to the main issue of whether Bupa’s external lawyers and counsel should be permitted to inspect the redacted parts of the documents. The Court concluded that the matters in the redacted portions were not relevant to the abuse of process application and were not necessary to understand or give context to the unredacted portions. Consequently, the Court refused Bupa's application for inspection. The Court noted that the documents related to a confidential meeting between iSelect and the ACCC and that Bupa's abuse of process application appeared to be extremely weak. The Court further emphasized that inspection of redacted parts of documents in the context of an interlocutory application should be strictly scrutinized.

In conclusion, the Court allowed iSelect’s application that a different judge hear Bupa’s application for inspection of the redacted documents but refused Bupa's application to inspect the redacted parts of the two documents. Each party was ordered to bear their own costs related to these applications.

Orders