In the matter of Mayne Pharma Group Limited

[2025] NSWSC 792

Supreme Court

New South Wales

Medium Neutral Citation:

In the matter of Mayne Pharma Group Limited [2025] NSWSC 792

Hearing dates:

14, 17 July 2025

Date of orders:

18 July 2025

Decision date:

21 July 2025

Jurisdiction:

Equity - Corporations List

Before:

Black J

Decision:

Ordered additional discovery in several categories; set aside subpoenas and set aside several paragraphs of a notice to produce

Catchwords:

CIVIL PROCEDURE — discovery — practice note SC Eq 11 – scope of proposed discovery categories – whether subpoenas should be set aside – whether several paragraphs of a notice to produce should be set aside

Legislation Cited:

- Civil Procedure Act 2005 (NSW), s 56

- Uniform Civil Procedure Rules 2005 (NSW), r 21.2

Cases Cited:

- Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analyst Group Pty Ltd [2012] NSWSC 393

- Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250

- City of Sydney v Streetscape Projects (Australia) Pty Ltd [2011] NSWSC 364

- Commissioner for Railways v Small (1938) 38 SR (NSW) 564

- Hancock v Rinehart [2014] NSWSC 658

- ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307

- Leighton International v Hodges [2012] NSWSC 458

- Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115

- Re Force Corp Pty Ltd (recs and mgrs apptd) (in liq) [2018] NSWSC 896

- Rinehart v Rinehart [2018] NSWSC 1102

- Sing Tel Optus Pty Ltd v Weston [2010] NSWSC 1491

- Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921

- The Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145

- Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620

Category:

Procedural rulings

Parties:

Mayne Pharma Group Ltd (Plaintiff/Cross-Defendant/Respondent to IP filed 11.7.25)
Cosette Pharmaceuticals, Inc. (First Defendant/Cross-Claimant/Applicant 1)
Cosette Australia Bidco Pty Ltd (Second Defendant/Applicant 2)

Representation:

Counsel:
R Dick SC / D Farinha / B Lambourne (Plaintiff/Cross-Defendant)
M Hodge KC / M Ellicott / C Beshara (Defendant/Cross-Claimant)

Solicitors:
Gilbert + Tobin (Plaintiff/Cross-Defendant)
Corrs Chambers Westgarth (Defendant/Cross-Claimant)

File Number(s):

2025/214319

JUDGMENT

Nature of the proceedings

1. By Originating Process filed on 4 June 2025, the Plaintiff, Mayne Pharma Group Ltd (“MPG”) seeks declarations that a notice of a material adverse change issued by the First Defendant, Cosette Pharmaceuticals, Inc. (“Cosette”) was not validly issued and that Cosette did not validly terminate a Scheme Implementation Deed (“SID”) dated 20 February 2025 by a purported termination notice sent by Cosette to MPG on 4 June 2025. The basis of that claim is in turn set out in MPG’s Concise Statement filed on 4 June 2025 and Cosette and the Second Defendant, Cosette Australia Bidco Pty Ltd (together, “Cosette Parties”) filed their Response to the Concise Statement on 13 June 2025. By its Cross-Summons filed on 13 June 2025, Cosette in turn seeks a declaration that it validly terminated the SID and seeks an order that MPG pay it a break fee pursuant to the SID and alternative relief, and it relies on its Cross-Claim Concise Statement also filed 13 June 2025 (“Cross-Claim Concise Statement”) in that regard. MPG filed a Response to the Cross-Claim Concise Statement on 20 June 2025 and Cosette filed a Reply to that Response on 27 June 2025. On 11 June 2025 I made consent orders that the parties provide standard discovery. This proceeding involves matters of commercial urgency and is listed for hearing for several days commencing on 9 September 2025.

2. Issues have arisen in respect of additional discovery sought by the Cosette Parties, subpoenas and notices to produce. I made several orders dealing with the position in respect of the discovery, subpoenas and notice to produce at the close of the hearing on 17 July 2025 and in chambers on 18 July 2025. These are my reasons for making those orders.

Cosette’s application for several further categories of discovery

3. By Interlocutory Process filed on 11 July 2025, the Cosette Parties sought an order under r 21.2 of the Uniform Civil Procedure Rules 2005 for discovery in some 35 categories, including several sub-categories, in a manner that was quite different to the order for standard discovery that was previously been made. As will emerge below, and was likely apparent from exchanges with Counsel at the first part of the hearing on 14 July 2025, I would not have made that order. Sensibly, by an Amended Interlocutory Process dated 16 July 2025, the Cosette Parties radically narrowed the scope of category-based discovery sought to seek only seven categories of documents, which I address below.

4. The Cosette Parties rely on the affidavit dated 10 July 2025 of Mr Michael Catchpoole in support of the original application and the narrowed application. Mr Catchpoole there acknowledged the previous order was for standard discovery and referred to correspondence between the parties in which the Cosette Parties expressed concerns as to the scope of MPG’s disclosure. Mr Catchpoole also referred to correspondence raising complaints as to claims for confidentiality and as to the status of metadata relating to several documents. Mr Catchpoole also advances criticisms of the adequacy of document production by MPG in response to the order for standard discovery. Mr Catchpoole also notes that he expects that the Cosette Parties will discover substantially more documents than MPG (and that has now occurred) but it is not apparent that anything turns upon the number of documents discovered by either party. In particular, it cannot be assumed that MPG should have discovered all documents referrable to the scheme, where the matters in issue in the proceedings do not relate to the scheme generally, but only to the issues raised in the proceedings. Mr Catchpoole also points to various documents which have been produced by MPG and other documents which may or may not exist and which have not been produced by MPG. The proposition that a document has not been produced does not, without more, establish either that it exists or was discoverable or that there is any deficiency in MPG’s discovery. Mr Catchpoole in turn contends that, by reference to the asserted inadequacy of MPG’s discovery, the Cosette Parties require orders that MPG make further discovery of the specified categories of documents, on the basis that they are necessary for the preparation of the Cosette Parties’ lay and expert evidence in the proceedings. The fundamental difficulty with that approach, put in that general way, is that it did not engage with the nature of the parties’ pleaded cases in this proceeding or the extent to which the categories are relevant to those pleaded cases.

5. By a second affidavit dated 14 July 2025, Mr Catchpoole addressed the documents discovered by the Cosette Parties and responded to aspects of Ms Alexandra Whitby’s affidavit dated 13 July 2025. Mr Catchpoole’s approach appears to be, in part, to identify references to matters in documents and then contend that other documents relating to those matters have not been produced by MPG on disclosure. However, that proposition is not to the point, where disclosure is required by reference to the matters in issue in the proceedings, rather than to permit the investigation of unpleaded matters which may attract a party’s attention in the existing disclosure.

6. MPG reads the affidavit dated 8 July 2025 of its solicitor, Ms Whitby, in respect of its interlocutory application and refers to issues as to commercial confidentiality, arising where MPG and Cosette are competitors in respect of the sale and distribution of women’s health and dermatology products. Ms Whitby also refers, on information and belief, to a concern that the sharing of confidential information could give rise to a contravention of U.S. anti-trust laws, if it does not take place on the terms of a specified confidentiality agreement. Those matters may be addressed by an appropriate confidentiality regime.

7. By a second affidavit dated 13 July 2025, Ms Whitby outlined the background to the proceedings and identified the allegations made by MPG that were said to give rise to a “Mayne Material Adverse Change” under the SID, arising from issues categorised as the “Q3 FY25 Sales Performance Matters”, a U.S. Food and Drug Administration (“FDA”) letter, an Australian Therapeutic Goods Administration (“TGA”) letter and proceedings brought by a third party (“TXMD”) against MPG which would require MPG to incur legal costs in responding to the claims there made. Ms Whitby in turn refers to MPG’s response to those matters. Ms Whitby also notes that Cosette’s second claim is that MPG breached a warranty under the SID on the basis that due diligence materials were not collated and prepared in good faith and with reasonable care in respect of the FY 25 6+6 Forecast (as defined). Ms Whitby also referred to Cosette’s third claim of misleading and deceptive conduct in respect of MPG’s underlying EBITDA for FY 25 and noted that MPG denies the factual allegations underlying those claims. Ms Whitby also addressed MPG’s discovery, the position in respect of confidentiality and responded to matters raised in Mr Catchpoole’s affidavit. An annexure to Ms Whitby’s second affidavit in turn referred to some 76 categories of documents sought by the Cosette Parties, across its then proposal for category-based disclosure, the categories sought by the two subpoenas and the three notices to produce; identified the extent of duplication in those categories; and pointed to categories of documents which had already been produced on disclosure by MPG in response.

8. MPG also reads the further affidavit dated 17 July 2025 of Ms Whitby, which referred to events after the hearing on 14 July 2025, described the discovery process undertaken by MPG and referred to aspects of the revised discovery categories proposed by the Cosette Parties.

9. Turning now to the applicable principles, Practice Note Supreme Court Equity 11 provides, in paragraph 5, that there will be no order for disclosure in proceedings in the Equity Division unless it is necessary for the resolution of the real issues in dispute in the proceedings. Paragraph 6 then provides that:

"Any application for an order for disclosure, consensual or otherwise, must be supported by an affidavit setting out:

the reason why disclosure is necessary for the resolution of the real issues in dispute in the proceedings;

the classes of documents in respect of which disclosure is sought; and

the likely cost of such disclosure."

10. The case law indicates the importance of that Practice Note in giving effect to the policies contemplated by s 56 of the Civil Procedure Act 2005 (NSW) and, in particular, the Court's obligation to promote the just, quick and cheap resolution of the real issues in dispute in the proceedings: Leighton International v Hodges [2012] NSWSC 458 at [4]–[7]; Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analyst Group Pty Ltd [2012] NSWSC 393. The Cosette Parties have now addressed the classes of discovery sought and the reasons it is sought, in evidence and submissions, and the costs of the narrowed further discovery that is now sought are not likely to be material by comparison with the costs of the proceedings as a whole.

11. Here, MPG has verified its standard discovery and the Cosette Parties application for further discovery must also be approached by reference to the principles noted by Brereton J in Hancock v Rinehart [2014] NSWSC 658 at [9], [22] (“Hancock v Rinehart”) as follows:

“Because, subject to some exceptions, an affidavit of discovery is ordinarily regarded as conclusive [Michael Wilson & Partners Ltd v Nicholls (2008) 74 NSWLR 218 at 227 [31]], an order for further and better discovery is made only if the court is persuaded that the discovery given is incomplete (which may appear from the pleadings, the affidavit of documents or documents referred to in it, or any other admission of the existence of a discoverable document), or that a party has misconceived the discovery obligation [Mulley v Manifold (1959) 103 CLR 341 at 343]. There must be “reasonable grounds for being fairly certain“ that “other relevant documents exist which ought to have been disclosed“ [British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] AC 709 at 714; Beecham Group Ltd v Bristol Myers Co [1979] VR 273 at 276]. A speculative possibility that a party has not disclosed a relevant document will not suffice [Martell v Victorian Coal Miners’ Association (1903) 9 ALR 231; Pendlebury v O’Neill (1911) 11 SR(NSW) 188; Kent Coal Concessions Ltd v Duguid [1910] AC 452; Dense Medium Separation Powders Pty Ltd v Gondwana Chemicals Pty Ltd [2010] NSWSC 1309, [47]]. …

As it seems to me, it is important to preserve the flexibility to order additional categories of discovery, and not too rigidly to confine it. This is because discovery is a very important element of the court’s armoury to elicit the truth, and the requirement of the rules that it be limited to specified classes is a restriction on the previous entitlement of a party to general discovery. The court should therefore be disposed to order additional discovery where, after the original order has been made, it is established that discovery of an additional class or classes of documents is necessary in the interests of a fair trial. Relevant discretionary considerations are, without being exclusive, likely to include whether new issues have emerged since the original order, and if so by which party they have been raised (it being more likely that discovery would be ordered in respect of new issues against a party who raises them, than at the request of a party who could have raised them earlier); whether documents produced under the original order point to a need for additional discovery, the stage and state of the proceedings, the extent and burden of the additional discovery, the importance of the issue in the case, and the forensic course of the proceedings (for example, where a deliberate decision had been made to limit the scope of the discovery sought at an earlier stage, the court would not likely permit that to be revisited in the absence of some material change of circumstances).”

12. By written submissions in respect of the Cosette Parties’ application, as initially formulated in respect of the numerous wider discovery categories, Mr Hodge, with whom Ms Ellicott and Mr Beshara appear for the Cosette Parties, sought to support the application for further disclosure, subpoenas and notices to produce by reference to “Cosette’s urgent need to have documents it requires to prepare its evidence and to have procedural fairness for the trial”. The proposition, put in that way, neglects the fact that the Cosette Parties’ entitlement to procedural fairness does not extend beyond a fair opportunity to advance its case in respect of the matters in issue in the proceedings.

13. Mr Hodge also submits that the Cosette Parties allege that MPG did not have reasonable basis for a forecast EBITDA for FY 25 provided by MPG to Cosette three days before the SID was executed. I also do not accept that the Cosette Parties’ case is so widely framed, where their claims are confined by the material facts that they plead, or possibly particularise, in support of that allegation and that allegation is not at large. In particular, Cosette is not entitled to disclosure, or to issue subpoenas or notices to produce, to seek to explore possible bases for that allegation, unless it has first identified material facts that put the relevant basis for challenge to the forecast in issue. For completeness, Mr Hodge’s initial submissions contained a schedule, in small print, which sought to support some 35 categories of documents for discovery. It seems to me that the breadth of those categories extended well beyond matters identified by the parties, whether by pleading of material facts or by particulars, in respect of their respective claims.

14. The dispute as to discovery has now narrowed, where (as I noted above) the Cosette Parties have narrowed the scope of category-based discovery sought to seek the following seven categories of documents:

“1.    For the period from 1 January 2025 to 20 February 2025, documents recording consideration of Mayne’s prescription data, co-pay card data, units shipped or gross sales for products in its Women’s Health and Dermatology portfolio for that period.

2.    For the period from 1 January 2025 to 30 June 2025, documents recording or discussing the reasons for the shortfall in Mayne’s gross sales in January and February 2025 across the Women’s Health and Dermatology portfolio.

3.    For the period from 28 January 2025 to 28 February 2025, documents recording discussion or consideration of, or proposed changes or revisions to, the FY25 6+6 EBITDA Forecast.

4.    For the period from 28 January 2025 to 28 February 2025, documents recording discussion or consideration of the likelihood of achieving the FY25 6+6 EBITDA Forecast.

5.    The mathematical forecasting models prepared for the purposes of preparing, and referenced in:

(a)    the FY25 3+9 Forecast;

(b)    the FY25 6+6 Forecast; and

(c)    the FY25 9+3 Forecast.

6.    The Q3 FY25 actual sales data, including IQVIA Xponent prescription data, that was included in the mathematical forecasting models used to produce the Q4 FY25 forecasts, as referred to in paragraphs 67 and 68 of the Cross-Claim Concise Statement.

7.    In relation to the TGA Letter:

(a)    documents evidencing, recording or discussing the actual or potential impact of the TGA Letter or Mayne’s response thereto on Mayne’s revenue, costs or earnings; and

(b)    all correspondence between Mayne and the TGA in relation to the TGA Letter.”

15. The Cosette Parties also proposed, at my invitation, a relatively narrow range of persons whose documents should be searched for the purpose of discovery, and MPG indicated that searches had already been undertaken in respect of the majority of those persons.

16. The Cosette Parties relied on further written submissions dated 17 July 2025 in respect of their narrowed categories of discovery and advanced several criticisms of the adequacy of MPG’s discovery processes, which it is not necessary to address further. The scope of the discovery dispute was ultimately crystallised by a schedule of revised discovery categories proposed by the Cosette Parties and marked up with MPG’s response which was provided to the Court at the hearing on 17 July 2025 and to which I refer below in dealing with the relevant categories.

17. I am satisfied that several specific categories of disclosure should be ordered, within the paragraphs noted below. I do not find that there was any inadequacy of the process undertaken by MPG to give standard discovery. Nonetheless, it seems to me, for the reasons set out below, the just, quick and cheap resolution of the real issues in dispute in the proceedings will be promoted by ordering discovery in several specific categories, in a way which should not expand the scope of standard discovery but will focus attention on discovery within those specific categories. Discovery orders of that character will promote certainty and the just resolution of the proceedings, even if no further documents are ultimately produced by MPG within those categories. I take this approach on the basis that MPG need not disclose further documents which have already been disclosed in the due diligence process or in standard discovery concerning these categories and all further disclosure will be limited to documents held by specified executives of MPG.

18. Turning now to the scope of the additional disclosure categories, MPG contends that documents within paragraphs 1 and 2 of the Cosette Parties’ revised discovery categories have already been produced, and that there is no reasonable basis to conclude that documents have not been produced which are relevant to facts in issue in paragraphs 117 and 118(d) of the Cross-Claim Concise Statement. I also bear in mind that paragraph 77 of the Cross-Claim Concise Statement advances a factual allegation of matters that are alleged to have led to adverse financial consequences for MPG. I am satisfied that, adopting the approach noted by Brereton J in Hancock v Rinehart at [22], specific disclosure should be ordered in these categories as to MPG’s sales performance in the specified period, where there is an issue in the proceedings as to these matters, but limited to documents held by specified executives of MPG as noted above.

15. As to paragraphs 3 and 4 of the Cosette Parties’ revised discovery categories, MPG contends that documents relating to the preparation of the spreadsheet underlying the FY 25 6 + 6 Forecast have been produced. I am satisfied that specific disclosure should be ordered in these categories where there is an allegation of breach of the due diligence materials relating to the FY 25 6+6 Forecast and the identification of available documents as to that matter is plainly relevant to that allegation, again limited to documents held by specified executives of MPG as noted above.

16. As to paragraph 5 of the Cosette parties revised discovery categories, MPG objects to production of mathematical forecasting models relating to the FY 25 3+9 Forecast and contends there is no identified issue as to that forecast. I accept that submission and will not order production as to that forecast. It seems to me that the FY 25 6+6 Forecast is in issue and the FY 25 9+3 Forecast is also in issue, because paragraph 69 of the Cross-Claim Concise Statement pleads the downward revision of the FY 25 6+6 Forecast to the FY 25 9+3 Forecast and alleges that the primary reason for that downward revision was MPG’s actual sales performance in Q3 FY 25. It appears that MPG has discovered the outputs of any relevant mathematical forecasting models, and the underlying models are discoverable on the same basis as their outputs. On that basis, I will order specific discovery of any mathematical forecasting models in respect of the FY 25 6+6 Forecast and the FY 25 9+3 Forecast. I recognise that, at the conclusion of the hearing on 17 July 2025, MPG observed that nothing may be discoverable within this category, on the basis that the relevant mathematical formula is maintained in a live and not a historical manner, so that the mathematical forecasting models underlying the FY 25 6+6 Forecast and the FY 25 9+3 Forecast no longer exist, having been continuously overwritten by ongoing forecasting. That can be addressed in responding to this category.

17. As to paragraph 6 of the Cosette parties revised discovery categories, MPG contends that documents relating to the preparation of the Q4 FY 25 forecasts are not relevant to facts in issue. MPG contends that it has produced relevant sales data and offers to produce sales data for March 2025 on a non-admissions basis. As I noted above, paragraph 69 of the Cross-Claim Concise Statement pleads the deterioration in the FY 25 9+3 Forecast, and I am satisfied that disclosure in this category should be ordered, although it may be that it will not extend further than the disclosure already made by way of standard discovery and the additional documents offered by MPG.

18. I am satisfied that disclosure in paragraph 7(a) of the Cosette Parties’ revised discovery categories should be made, so far as there is a specific pleading of the consequences of the TGA letter and MPG’s response to it on MPG’s revenue, costs or earnings; but I will not extend that disclosure to documents in category 7(b), where no relevant issue as to the suggested correspondence is raised by the pleading.

MPG’s application to set aside the subpoenas to Jefferies (Australia) Pty Ltd and Deloitte Corporate Finance Pty Ltd

23. By Amended Interlocutory Process dated 13 July 2025, MPG seeks orders setting aside subpoenas to produce issued at the request of Cosette to Jefferies (Australia) Pty Ltd (“Jefferies”) and Deloitte Corporate Finance Pty Ltd (“Deloitte”).

24. In her affidavit dated 8 July 2025 Ms Whitby also refers to the retainer of Jefferies to provide financial advisory services to MPG in respect of the scheme and to the service of the subpoena to produce issued at the request of Cosette to Jefferies. Ms Whitby refers to correspondence by MPG’s solicitors in response, indicating that the subpoena was directed in part to documents that would be discovered by MPG, pointing to confidentiality issues and also contending that a number of categories in that subpoena appear to be a “wide-ranging fishing expedition”. Ms Whitby also addressed the position in respect of the Deloitte subpoena issue and noted the same issues. Ms Whitby also referred to the overlap between the categories sought by Cosette in the subpoenas issued to Jefferies and Deloitte and the documents that would be discoverable by MPG. By her second affidavit dated 13 July 2025, Ms Whitby also refers to the scope of document production sought from Deloitte and Jefferies under the relevant subpoenas and the overlap with documents already contained in the data room relating to the scheme.

25. Jefferies also appeared, by leave, in respect of the subpoena issued to it and read the affidavit dated 14 July 2025 of its solicitor, Ms Victoria Eastwood, in respect of MPG’s application to set aside that subpoena. Ms Eastwood referred to correspondence in respect of the subpoena and pointed to the extent of documents which would potentially fall within the scope of the subpoena, applying search terms to several databases, being in excess of 80,000 documents from 30 June 2024 and 71,500 documents from 1 October 2024, although Ms Eastwood recognised the possibility that this would be reduced by exclusion of duplicate emails sent to multiple persons. Ms Eastwood also led evidence, on information and belief, of the likelihood that documents held by Jefferies would already have been shared with MPG, rather than being held by Jefferies alone.

26. In his affidavit dated 10 July 2025, Mr Catchpoole refers to the Jefferies subpoena and the Deloitte subpoena. Mr Catchpoole notes that the Deloitte subpoena seeks production of seven categories of documents related to the valuation exercise undertaken by Deloitte in preparing the independent expert report contained in the scheme booklet. That subpoena has the difficulty that it is not apparent that there is any challenge to the adequacy of that independent expert report in Cosette’s Cross-Claim, nor is the relationship of those categories to the matters in issue apparent. Mr Catchpoole also noted that the Jefferies subpoena seeks production of nine categories of documents relating to MPG’s financial forecasting and the financial impact of certain events on MPG’s financial performance, although he does not seek to link those categories with the allegations made in the proceedings, and refers to correspondence between the parties relating to a dispute as to those subpoenas. Mr Catchpoole in turn referred to limitations to which Cosette now proposes in the Jefferies and Deloitte subpoenas, including inserting time limits in several paragraphs of the Jefferies subpoena and not pressing one category within that subpoena, and not pressing several categories in the Deloitte subpoena. Those amendments highlight the extent of overreach in the subpoenas as issued.

27. Turning now to the applicable principles, in Spencer Motors Pty Ltd v LNC Industries Ltd [1982] 2 NSWLR 921, the Court referred to the leading decision in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 (“Commissioner for Railways v Small”) and observed that a subpoena should be held to be oppressive or an abuse of process if the production of the documents which it sought was excessively burdensome and the documents appeared not to be sufficiently relevant to the proceedings and identified the test of sufficient relevance as whether production was reasonably likely to add, in the end, in some way or another to the relevant evidence in the case. That test has frequently been applied in subsequent authorities and, in City of Sydney v Streetscape Projects (Australia) Pty Ltd [2011] NSWSC 364 (“Streetscape”), Einstein J referred, with reference to authority, to the need to identify a legitimate forensic purpose in respect of documents to which access is sought and that it is “on the cards” that the documents will materially assist a party’s case. His Honour further observed that a subpoena should be permitted where the Court formed the view that the material fell within the legitimate field of inquiry raised by the issue in context and was reasonably likely to add in the end in some way or another to the relevant evidence in the case.

28. In Re Force Corp Pty Ltd (recs and mgrs apptd) (in liq) [2018] NSWSC 896, Gleeson JA directed attention to the question in respect of a subpoena whether the documents sought to be produced had apparent relevance. That concept has been occasionally described by reference to whether it is “on the cards” that documents will assist with determining an identified issue, or alternatively whether those documents could “possibly throw light on” that issue. In Rinehart v Rinehart [2018] NSWSC 1102 at [43]ff, Ward CJ in Eq (as the President of the Court of Appeal then was) referred to the Court of Appeal’s decision in ICAP Australia Pty Ltd v BGC Partners (Australia) Pty Ltd [2009] NSWCA 307, observing that it must be shown that the documents would materially assist in an identified issue, or there is a reasonable basis beyond speculation that it is likely that they will do so. Her Honour there noted that what was required was reference to the particular issue, or identified issue, that the documents sought were reasonably expected to be likely to assist. Her Honour also referred to the concept of a “fishing expedition” and to the observations in Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250 at 254 , which defined that concept by reference to the position where a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any or not. In Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620 at [36]ff, Ward CJ in Eq in turn described a legitimate forensic purpose for a subpoena as requiring that it have “sufficient apparent connection to the issues in the case to justify their production”. Her Honour also noted that a subpoena would be objectionable if it was being used as part of a “fishing expedition” in the sense to which I have referred above. Mr Hodge also referred to The Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [65]–[80], [89] and [98] where the Court of Appeal accepted that a subpoena would be issued for a legitimate forensic purpose if the documents sought were “apparently relevant” to the issues in the proceedings, or if the documents sought to be produced by subpoena will, or on a reasonable basis beyond speculation that they will, materially assist on identified issues, including if they were capable of providing a legitimate basis for cross-examination or go to credit.

29. I also recognise that, as Mr Hodge pointed out, in Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 (“Portal Software”), Brereton J also referred to the parties’ entitlement to build an “evidentiary mosaic”, and suggested that the Court should not be “astute to find irrelevance at an early stage of proceedings”. However, that proposition does not exclude the need to identify a connection between the documents sought to be produced and the matters in issue in the proceeding. To put that proposition another way, while I accept that, as Mr Hodge contends, the parties may build up an “evidentiary mosaic”, such a mosaic is limited to the matters in issue and is not at large.

30. Mr Hodge also refers to the issue of an independent expert’s report by Deloitte in connection with the scheme which was included in the scheme booklet. I accept that, as Mr Hodge points out, it is apparent that Deloitte was provided with numerous documents by MPG relevant to MPG’s financial position and forecasting and that it undertook analysis of that material and likely engaged in communications with MPG’s representatives. However, the fact and content of that analysis or those communications are not in issue, and documents produced by Deloitte will not materially assist Cosette’s case as to matters that are not raised by the parties’ pleaded cases. Cosette has no entitlement, whether by subpoena or otherwise, to production of communications between MPG and Deloitte at large, where those communications are not shown to be directed to matters in issue in the proceedings. It seems to me that the Deloitte subpoena, as issued, extended well beyond that pleaded case; that is implicitly acknowledged by Cosette’s abandonment of substantial parts of it. I reach the same conclusion, on the same basis, in respect of the Jefferies’ subpoena which is, in any event, plainly oppressive to Jefferies given the evidence of the number of documents which potentially fall within it.

31. I am satisfied that both the Jefferies subpoena and the Deloitte subpoena are, applying the test in Commissioner for Railways v Small, oppressive and an abuse of process where the production of the documents sought would be excessively burdensome and the documents are not sufficiently relevant to the pleaded claims in the necessary sense. At the hearing on 17 July 2025, Mr Hodge did not seek to make further oral submissions in opposition to an order that the Deloitte subpoena and the Jefferies subpoena should be set aside, where the amendments that Cosette now seeks to make to them are so extensive that the amended subpoenas would have little resemblance to the subpoenas that were issued. It seems to me that such an order is properly made, where a process of issuing a very wide subpoena, putting the other party to the proceedings or the subpoenaed party to the cost of applying to set it aside, and only then narrowing that subpoena after it is challenged, undermines the just, quick and cheap resolution of the real issues in dispute in the proceedings.

MPG’s application to set aside two notices to produce dated 10 July 2025 issued by Cosette

32. By Amended Interlocutory Process dated 13 July 2025, MPG seeks orders setting aside two Notices to Produce served on 10 July 2025 by Cosette at 3.34pm and 9.07pm respectively. The first of the challenged notices to produce sought ten categories of commercial and financial information or data for the FY 2025 period. The second of the challenged notices to produce was directed to categories of documents relating to the marketing of MPG’s NEXTSTELLIS® product.

33. The Cosette Parties read an affidavit dated 14 July 2025 of Ms Katrina Sleiman, a solicitor acting for them, who observed that the notices to produce were directed to documents that are said to be required for the purpose of Cosette’s expert evidence. I am not substantially assisted by a claim that the experts require access to particular documents, where it is not linked with any identification of the matters in issue that the experts are addressing in respect of their requirement for those documents.

34. Turning now to the applicable principles, in Portal Software at [19]–[26], Brereton J noted that the Court has power to set aside a notice to produce, as an instance of its power to regulate its own processes and to prevent an abuse of process; that lack of relevance is a basis to set aside a notice to produce; and that a notice to produce can be supported if the relevant documents could “possibly throw light” on the issues in the substantive proceedings or that it is “on the cards” that they would do so. That test has been frequently applied subsequently; for example, Sing Tel Optus Pty Ltd v Weston [2010] NSWSC 1491 at [31] where Ward J (as the President of the Court of Appeal then was) pointed to the need to identify the matters in issue in the proceedings and to assess whether the notice to produce had a legitimate forensic purpose by reference to those matters. The Court will also have regard to the requirements of SC Eq Practice Note 11, at least by way of analogy, in dealing with notices to produce, and that it is not open to the parties to use the process of issuing notices to produce as an unregulated substitute for disclosure which would otherwise be regulated under SC Eq Practice Note 11.

35. The parties have now reached agreement as to the first of the challenged notices to produce, in ten paragraphs, to the effect that MPG will produce, in respect of each of paragraphs 1–8 and 10, a single document which it holds recording the information to which the category is directed. MPG has indicated that it does not prepare or maintain information in the form sought by the remaining category in paragraph 9. On that basis, there is no cause to set aside that notice to produce, on terms that the word "documents" in each of paragraphs 1–8 and 10 of that notice to produce be amended to read "a document", with the intent that multiple documents recording the same information need not be produced. Paragraph 9 of that notice to produce will remain unchanged but noting that MPG will respond that it holds no documents within that paragraph.

36. In respect of the second notice to produce, in eighteen paragraphs, I recognise that the Cosette Parties rely on an expert's request for the relevant documents. As I noted above, I am not significantly assisted by the fact that that expert has requested these documents, where it is not apparent what, if any, attention that expert has given to the scope of the matters in issue between the parties. The scope of disclosure in response to the notice to produce should properly be informed by what is in fact relevant to the matters in issue, as it emerges from the pleadings, rather than by an expert’s wish to investigate matters which may not be in issue.

37. MPG has, constructively, accepted that several of the categories sought should be produced, but has objected to several paragraphs of this notice to produce. Mr Hodge in turn draws attention to aspects of the Cross-Claim Concise Statement, and MPG's response to it, in supporting the relevant paragraphs of this notice to produce. He draws attention, particularly, to paragraphs 81 and 82 of the Cross-Claim Concise Statement, which refer to the sale of MPG’s NEXTSTELLIS® product and its significance as a contributor to MPG's earnings. Mr Hodge also draws attention to paragraph 84 of the Cross-Claim Concise Statement, which pleads that:

“[MPG's] earnings generated from sales of NEXTSTELLIS® are influenced by its ability to market the product, including by way of speaker programs, promotional materials, and promotional claims regarding the efficacy and safety profile of the drug.”

38. I bear in mind that, as Mr Hodge points out, MPG, under cover of an objection as to the form of that paragraph, points to various matters that will affect MPG's revenue from sales of NEXTSTELLIS® and otherwise denies the paragraph.

39. Mr Hodge then draws attention to the Cosette Parties’ pleading of the issue of a letter (“FDA Letter”) on 28 April 2025 from the FDA's Office of Prescription Drug Promotion, the content of that letter and the FDA's requirements as set out in that letter. Mr Hodge also draws attention to MPG's response (“Mayne FDA Letter Response”) which states that MPG will take several steps including ceasing use of certain promotional materials. Mr Hodge also draws attention to paragraph 97 of the Cross Claim Concise Statement, which pleads that "[i]n each of FY25, CY25, and the 12 month period from 28 April 2025, the FDA Letter and [MPG's] proposed response as outlined in the Mayne FDA Letter Response have had, or are reasonably expected to have" several identified effects, including material costs and expenditures, decline in sales and forecast both of the relevant product, an impact on the fundamental marketing message of the benefit of the product and other impacts.

40. I pause there to note that the Cosette Parties here plead the content of the FDA Letter and the Mayne FDA Letter Response which indicates the steps which MPG will take and the asserted consequence of the steps that MPG had advised the FDA that it will take, without any identification of any material facts comprising a causative route between the steps to be taken by MPG and the asserted impact of those steps. No doubt, it might be argued, for example, that a particular statement previously made by MPG is critical to users' attitude to NEXTSTELLIS®, that statement will no longer be made and the absence of that statement will have an adverse impact on sales of NEXTSTELLIS®. However, the Cosette Parties do not identify, by material facts or otherwise, such matters or how they contend that any causative link arises between what MPG will do and the asserted consequences of it doing it.

38. Mr Hodge advanced two justifications for the paragraphs in the notice to produce to which MPG objects, the first being their asserted relevance to establishing the effect of MPG's ceasing or changing the promotion of NEXTSTELLIS®, in the manner set out in the Mayne FDA Letter Response, and the second being directed to a matter raised by MPG in its Response to the Cross-Claim Concise Statement, namely an allegation that the FDA Letter was "Fairly Disclosed" (plainly adopting a defined term) in the due diligence material, or ought reasonably to have been expected to have arisen from matters disclosed in that material. The latter allegation is particularised by reference to correspondence from the FDA in 2022 and discussions between representatives of MPG and representatives of Cosette.

39. Turning now to the particular paragraphs of this notice to produce to which MPG takes objection, MPG objects to paragraph 4 which relates to Form 2253 documents submitted to the FDA between 2021 and 10 July 2025, which, Mr Hodge points out, are documents provided to the FDA in respect of promotional material. It seems to me that that paragraph, and several other paragraphs in the notice to produce, invert the proper approach to document production. Here, the Cosette Parties advance no allegation and plead no material facts in respect of these documents, their contents, or any impact of these documents or their contents upon any matter in issue. In those circumstances, there is no basis to now order disclosure of the documents, to allow the Cosette Parties to develop a presently unarticulated case which may or may not arise from them. This paragraph of the notice to produce has the character of a "fishing expedition" in the sense noted above.

40. Paragraph 5 of this notice to produce seeks revised marketing materials for NEXTSTELLIS® prepared in response to the correspondence from the FDA in 2022. That paragraph does not indicate a date range, although it is implicit that it is directed to the period from the receipt of that correspondence in 2022 until 2025. I am satisfied that paragraph should be set aside, where it would require searches for marketing materials over a three year period and where the Cosette Parties plead no material facts as to how earlier changes to marketing materials give rise to any adverse effect of MPG’s response to the 2025 FDA Letter, or affect whether disclosure (or Fair Disclosure, as defined) of relevant matters in due diligence. MPG also makes a consequential objection to the words "5 and" in paragraph 7 of the notice to produce and those words should also be set aside.

41. MPG also objects to paragraph 14 of the notice to produce which seeks documents evidencing or recording internal communications within MPG or another entity regarding internal regulatory reviews of compliance concerning these matters. That paragraph also inverts the proper approach to document production, where the Cosette Parties make no allegation as to the fact of, or the conduct of, any such internal reviews or any consequence of the conduct of those internal reviews, or any inadequacy in them, to bring any such reviews into issue in the proceedings. This paragraph should be set aside, where no matter in issue has been identified for which it relates.

42. Finally, paragraphs 15–18 of this notice to produce relate to documents evidencing surveys and market research, internal marketing strategies and planning for NEXTSTELLIS® between 2021 and 30 June 2025, evidencing sales and marketing spend, evidencing or recording the evolution of the sales and marketing strategy, and subcategories in that respect. As I noted above, the Cosette Parties do not here plead, for example, that MPG adopted any particular strategy between 2021 and 30m June 2025 and will no longer adopt that strategy following the receipt of the FDA letter, as distinct from simply pleading the content of that letter and the Mayne FDA Letter Response. They do not plead that any such identified change in an identified strategy would, by an identified factual path, have the consequences alleged in a conclusory way in paragraph 97 of the Cross Claim Concise Statement. In those circumstances, once again, it would reverse the proper approach to permit this category on the basis that a pleaded case might or might not follow from production of these documents. The relevance of the documents sought to be produced must be determined by reference to a case that now exists, not a case that might be put if access to the documents is first given, in a manner again constituting a fishing expedition.

Orders

46. For these reasons, I made orders in the course of the hearing on 17 July 2025 and further orders as agreed between the parties, as set out in the orders made in chambers on 18 July 2025.

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Decision last updated: 21 July 2025