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)
ApplicantAND: ISELECT LIMITED (ACN 124 302 932)
First RespondentISELECT HEALTH PTY LTD (ACN 088 749 955)
Second RespondentDAMIEN MICHAEL TREVOR WALLER
Third RespondentMATTHEW ROSS MCCANN
Fourth RespondentAND BETWEEN: ISELECT LIMITED (ACN 124 302 932)
Cross-ClaimantISELECT HEALTH PTY LTD (ACN 088 749 955)
Cross-ClaimantAND: BUPA AUSTRALIA PTY LTD (ACN 000 057 590)
First Cross-RespondentRICHARD 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)
ApplicantAND: ISELECT LIMITED (ACN 124 302 932)
First RespondentISELECT HEALTH PTY LTD (ACN 088 749 955)
Second RespondentDAMIEN MICHAEL TREVOR WALLER
Third RespondentMATTHEW ROSS MCCANN
Fourth RespondentAND BETWEEN: ISELECT LIMITED (ACN 124 302 932)
Cross-ClaimantISELECT HEALTH PTY LTD (ACN 088 749 955)
Cross-ClaimantAND: BUPA AUSTRALIA PTY LTD (ACN 000 057 590)
First Cross-RespondentRICHARD BOWDEN
Second Cross-Respondent
JUDGE:
NORTH…
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- Case
- [2013] FCA 339
- Decision Date
CaseChat Overview and Summary
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
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Evidence Before The Court
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