KC v Shiley Inc

[1997] FCA 978

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 633  of 1993

BETWEEN:

KC
FIRST APPLICANT

KS BY HER NEXT FRIEND KC
SECOND APPLICANT

KF BY HER NEXT FRIEND KC
THIRD APPLICANT

KL BY HER NEXT FRIEND KC
FOURTH APPLICANT

AND:

SHILEY INCORPORATED
FIRST RESPONDENT

PFIZER INCORPORATED
SECOND RESPONDENT

JUDGE:	TAMBERLIN J
DATE:	5 SEPTEMBER 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT EX-TEMPORE

On 14 August 1997 I delivered judgment on an application by the applicants for further and better discovery.  I directed the applicants to bring in Short Minutes to give effect to my reasons.  I have now been handed Short Minutes in relation to which a number of matters have been raised.  I will deal with them briefly.

In the draft Short Minutes advanced by the applicants there is a suggested proviso which is to apply to documents in relation to which any claim is made based on privilege, privacy, confidentiality or protective orders.  The proviso applies to paragraphs in the draft Short Minutes.

In relation to this proviso I am of the opinion that in the form presented, which requires the respondents to provide the specified information for each document covered by the proviso, it is too onerous.  However, I think it is appropriate to have a proviso in substantially the same terms.  The only alteration I would make is that the respondents are to specify the nature of the material said to be covered by the claim by reference to the date or time range and the topic or topics dealt with in the documents.  Otherwise, I would not propose to vary or omit any other part of that clause as presented.

Accordingly, sub-paragraph 1 to the proviso will read:

“specify the nature of the material said to be covered by the claim by reference to date or time range and topic or topics dealt with in the documents.”

In relation to the various other paragraphs where the respondents have suggested there be insertions which vary or omit the proviso, I do not accede to this request

In relation to paragraph 3 of the draft Short Minutes, an objection has been made on the basis that the relevant information is that in the employee's files and therefore the order ought to be confined to those files.  Given paragraph 2, which covers employee records, the respondents say that there is no need for paragraph 3.  In my view, this paragraph is not onerous and is appropriate.  The requirement is to specify the categories of information, it is not necessary to detail each piece of information on each employee.  The type of information should be described in relation to the employees involved in the manufacture of the KA valve. The requirement is to identify which categories are said to give rise to questions of personal privacy within the meaning of the Californian Constitution.  I think this is an appropriate order and I propose to make it.

In relation to paragraph 11 there is a reference to the production of all relevant documents, including depositions and video tape depositions, produced or provided in the Seaman and Dairyland litigation.  Having regard to the protective orders which have been made in the Californian litigation, I think that any permission in relation to the use or discovery of these documents should be first cleared with the Californian authorities or with any parties who have provided material which resulted in the making of such depositions.  Accordingly, I omit from paragraph 11 the words “including depositions and video tape depositions".

I should add that in relation to the depositions which are provided by witnesses produced by the respondents in those proceedings it does seem to me there is an argument to the effect that the evidence was generated or produced or proffered to the court by the respondents. However, this is a matter which may well be subject to authority in California and I do not propose to embark on an examination of that question.

In relation to paragraph 12, I cannot see that it adds anything to what is contained in paragraph 11 and accordingly I do not make that order.

Paragraph 14 requires the respondents to provide a list of the depositions from the Seaman and Dairyland litigation which they contend cannot be produced.  I think this is an appropriate order and I propose to make it.

In relation to paragraph 20 for reasons which I have raised in argument and which are apparent from my earlier decision I think it is appropriate that it be made perfectly clear that ongoing discovery is to be carried out and that there be an immediate review by the respondents of their discovery processes.  Accordingly, I will make orders in terms of paragraph 20, however the last sentence will be varied so that it reads:

“If any such documents exist their existence should be notified as soon as practicable to the applicants on an ongoing basis and they should be made available to the applicants on request.”

In relation to paragraph 21 which requires an affidavit to be filed and served by the respondents, setting out steps taken to comply with paragraph 20, I will make the order but vary the time to 28 days rather than 14.

I should add, in relation to other paragraphs where time has been fixed and where the paragraphs are opposed, I would vary the time to 28 days.  It seems to me, on examination, that paragraphs 3 and 14 are the only paragraphs which require such an adjustment, because the other paragraphs appear to have been agreed to.  Otherwise, I do not think there is any need to vary the times provided for in the draft Short Minutes.

They are my reasons and the orders which I propose to make.  I ask the applicants to bring in Short Minutes to finally settle those orders in accordance with those determinations.

I certify that this and the preceding three (3) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin

Associate:

Dated:             5 September 1997

Counsel for the Applicant:	Mr M L Williams
Solicitor for the Applicant:	Cashman & Partners
Counsel for the Respondent:	Mr J V Nicholas
Solicitor for the Respondent:	Freehill Hollingdale & Page
Date of Hearing:	5 September 1997
Date of Judgment:	5 September 1997