Lombardo v Dermatology and Cosmetic Surgery Services Pty Ltd (discovery ruling)
[2025] VSC 230
•1 May 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GROUP PROCEEDINGS LIST
S ECI 2022 00739
BETWEEN:
| TINA LOMABRDO & ORS (according to the attached Schedule) | Plaintiffs |
| v | |
| DERMATOLOGY AND COSMETIC SURGERY SERVICES PTY LTD (ACN 055 927 618) & ORS (according to the attached Schedule) | Defendants |
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JUDGE: | Goulden AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 February 2025, 26 February 2025 |
DATE OF RULING: | 1 May 2025 |
CASE MAY BE CITED AS: | Lombardo v Dermatology and Cosmetic Surgery Services Pty Ltd (discovery ruling) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 230 |
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PRACTICE AND PROCEDURE – Discovery of documents by category in group proceeding – Whether certain categories should be ordered to be discovered – Relevance as the touchstone – Orders for discovery in group proceedings extend to discovery of documents relevant to common issues raised on the pleadings – s 55 of the Civil Procedure Act 2010.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiffs | C Truong KC A Mackenzie | Maddens Lawyers |
| For the First Defendant | P Over | L A Warren Lawyers |
| For the Second Defendant | A McClelland KC A Christophersen | Kennedys Lawyers |
| For the Third to Sixth Defendants | M McLay | Gilchrist Connell |
| For the Eighth Defendant | D Bongiorno | Colin Biggers & Paisley Lawyers |
TABLE OF CONTENTS
Proceeding background
Principles relating to discovery
Agreed categories
Disputed categories of documents sought by the defendants by way of discovery from the plaintiffs
Category 5
Categories 7, 8, 9 and 10 – inclusion of TikTok
Categories 2 and 3
Disputed categories of documents sought by the plaintiffs by way of discovery from the defendants (or some of them)
Disputed category 2B
Disputed category 3
Disputed categories 4, 7 and 10
Disputed categories 11 to 15 – financial records of DCSS
Disputed category 25 – mobile phone records
Disputed category 26
Disputed category 27
Disputed category 28
Disposition
ANNEXURE A
ANNEXURE B
HER HONOUR:
This proceeding comes before me for the hearing of a discovery dispute having been referred by Keogh J by paragraph 12 of his orders made 12 December 2024.[1] His Honour’s orders re-established[2] a process for the exchange of categories of documents for discovery by the parties and for a process of conferral to occur prior to any residual disputes being brought before the Court for determination.
[1]Order of Justice Keogh in Tina Lombardo & Ors v Dermatology and Cosmetic Surgery Services Pty Ltd (ACN 055 927 618) & Ors (Supreme Court, S ECI 2022 00739, 12 December 2024), [12].
[2]A similar process had been ordered to occur in early 2024 but was overtaken by pleadings disputes and so discovery was delayed.
Shortly prior to the hearing, the parties provided joint schedules identifying the agreed and disputed categories of documents for discovery by the plaintiffs and the defendants, or some of them, respectively. During the course of the hearing, which proceeded over two sitting days, the categories as identified in the joint schedules changed to reflect areas of agreement reached between hearings as well as some emerging areas of disagreement in respect of previously agreed categories.
Proceeding background
To better understand the issues in dispute in the proceeding, a brief summary of the proceeding and the claims agitated by the plaintiffs is necessary.
Four plaintiffs bring a representative proceeding pursuant to Part 4A of the Supreme Court Act 1986 (Vic). The proceeding relates to cosmetic surgery procedures performed on the plaintiffs and group members at various cosmetic surgery clinics. The first defendant (‘DCSS’) operated the clinics. The second defendant (‘Lanzer’) is a medical practitioner who provided cosmetic surgery services at the clinics as well as being a director and an officer of DCSS. The third to sixth defendants, referred to as the other cosmetic doctor defendants (‘OCDDs’), are also medical practitioners who provided cosmetic surgery services at the clinics.[3] The seventh defendant is also a medical practitioner who provided cosmetic surgery services, however, the plaintiffs’ claims against him are to be discontinued.[4] The eighth defendant (‘Wainstein’) is a psychologist who provided psychology services to some patients on referral by medical practitioners employed at the clinics.
[3]The fourth defendant is deceased and orders have been made appointing Jacqueline and Tony Darbyshire to represent his estate.
[4]By reason of the application made by the plaintiffs to discontinue against the seventh defendant, the seventh defendant was excused from compliance with Keogh J’s orders regarding discovery made on 12 December 2024.
Despite the time that has passed since the proceeding commenced, the pleadings have only recently closed and they remain the subject of some disputation. In particular, the ruling of Forbes J in Lombardo v Dermatology and Cosmetic Surgery Services Pty Ltd (Summary Dismissal and Pleadings)[5] (‘Second Pleading Ruling’) is the subject of an application for leave to appeal by Lanzer and the OCDDs.
[5][2024] VSC 608 (‘Second Pleading Ruling’).
In the Amended Statement of Claim (‘ASOC’) filed on November 2024, the plaintiffs identify four causes of action, being:
(a)a claim of misleading or deceptive conduct under Schedule 2 of the Competition and Consumer Act 2010 (Cth) (‘ACL’), namely breach of ss 18, 29 and 34, for which the plaintiffs seek damages under s 236(1) of the ACL (‘Misleading Conduct claim’);
(b)a claim for breach of the statutory guarantees under ss 60 and 61 of the ACL for which the plaintiffs seek damages under s 267 of the ACL (‘Statutory Guarantee claim’);
(c)a claim in negligence; and
(d)a claim for breach of contract.
The plaintiffs’ case in the Misleading Conduct claim is broadly that the defendants:
by their promotion of themselves on the Lanzer Website, on social media and in standard contractual documentation, wrongly induced the plaintiffs and other group members into believing that Lanzer and the [OCDDs] were specialist surgeons with qualified surgical training, were plastic surgeons and were otherwise pre-eminent and excellent in their provision of these services, causing them to pay fees for, and suffer distress and disappointment from, cosmetic surgery.
The plaintiffs allege that the standard-form documentation formed part of a system, defined as the DCSS Sales System, which the defendants used to promote themselves publicly to patients, including the plaintiffs and the group members. The plaintiffs allege that the various representations complained of were made in the standard form documentation issued in accordance with the DCSS Sales System, on the Lanzer Website[6] and also on social media.
[6]As defined at ASOC [14], being the website >
Each of DCSS, Lanzer, the OCDDs and Wainstein has filed an amended defence in response to the ASOC.
Principles relating to discovery
While in most cases discovery is to be made in accordance with Order 29 of the Supreme Court (General Civil Procedure) Rules 2015 the Court has an overriding discretion under s 55(1) of the Civil Procedure Act 2010 (‘CPA’) to ‘give any directions in relation to discovery that it considers necessary or appropriate’. The Court can use this discretion to dispense with general discovery and to instead order discovery by category.
In determining whether to make orders under s 55(2) of the CPA, the Court is to have regard to the overarching purpose to facilitate ‘the just, efficient, timely and cost effective resolution of the real issues in dispute’.[7] The Court must similarly have regard to the overarching purpose when making orders in group proceedings such as this under Part 4A of the Supreme Court Act. [8] Any order concerning discovery in this group proceeding should, therefore, be directed to finding the most efficient, effective and economical management of the discovery exercise, bearing in mind the nature and complexity of the trial, and proportionality.[9]
[7]Agnello v Heritage Care Pty Ltd (No 2) (2023) 72 VR 143 (‘Agnello’), [20]; Green v GrainCorp Oilseed Pty Ltd [2024] VSC 273, [15].
[8]National Australia Bank v Pathway Investments (2012) 265 FLR 247, 259 [56] (Bell AJA, Bongiorno and Harper JJA agreeing).
[9]Liesfield v SPI Electricity Pty Ltd (Ruling No 1) (2013) 43 VR 493 at 500, [25].
Relevance is the touchstone. There is no basis to order production of documents that are not relevant.[10] The notion of relevance requires that the documents ‘relate to a question or fact in issue on pleadings between parties,’[11] which principle holds in group proceedings. The Court’s focus is on the central issues as best as they can be discerned from the pleadings at this stage of the litigation.[12]
[10]Cargill Australia Ltd v Viterra Malt Pty Ltd (No 9) [2018] VSC 433, [40].
[11]Agnello, [31].
[12]Volunteer Fire Brigades Victoria v CFA (Discovery Ruling) [2016] VSC 573–, [34].
At the initial trial in a group proceeding, the Court will determine issues of liability and quantum relevant to the plaintiffs, and it will also determine ‘common issues’, that is, questions of fact or law in the proceeding that are common as between the plaintiffs and group members.[13] The plaintiffs have identified in the ASOC the common questions of fact and law they allege are relevant for determination at an initial trial in respect of the plaintiffs and group members. The defendants each deny that the proposed common questions raise any substantial common question of fact or law. Orders for discovery in group proceedings may extend to documents relevant not solely to the claims of the plaintiffs but to those relevant to common issues that are raised on the pleadings and that will be determined at the initial trial.[14]
[13]Supreme Court of Victoria, Practice Note SC Gen 10: Conduct of Group Proceedings (Class Actions), 13 October 2020, [4.4], [15].
[14]Agnello. See also Fostif Pty Ltd v Campbells Cash & Carry Pty Ltd (2005) 63 NSWLR 203, 257–258 [269]–[271]; Bogan & Anor v The Estate of Peter John Smedley, Deceased & Ors [2022] VSC 645.
Agreed categories
Subject to one exception, described below, as a result of their conferral the parties have agreed to make discovery of documents in their possession identified in the joint schedules provided to the Court and described as ‘agreed’ categories. I will accordingly make orders under s 55(2) of the CPA for the discovery by the plaintiffs and defendants respectively of the documents falling within each of the ‘agreed’ categories.
The exception flagged is this: after the discovery dispute had been partly heard, DCSS indicated that it did not agree to the terms of ‘agreed’ category 14 for discovery by the defendants. By this category, the plaintiffs seek discovery from the defendants of ‘documents constituting directions or instructions given by Lanzer and/or DCSS to any one or more of the [OCDDs] about the use of social media and/or photographs and/or videos of patients taken during consultations and procedures for the purposes of social media.’ DCSS objects on the basis of relevance to the words ‘about the use of social media and/or'.[15] DCSS does not object to the balance of the category because, in relation to the allegation of negligence in ASOC [136], the plaintiffs particularise the use of a video of the first plaintiff on social media. However, DCSS submits there is nothing else in the ASOC by way of allegation against DCSS and/or Lanzer to the effect that they directed or instructed the OCDDs in their use of social media. In particular:
(a)there is no allegation that either DCSS or Lanzer was involved in directing the OCDDs’ use of social media in respect of the operation of the DCSS Sales System;
(b)in so far as the plaintiffs allege that DCSS and/or Lanzer made the various representations on the internet or on social media, they allege that they did so using the Lanzer Website and on Lanzer’s Instagram and TikTok accounts; they do not allege that any representations were made by DCSS and/or Lanzer on the OCDDs’ own social media accounts;
(c)in so far as the plaintiffs allege the OCDDs themselves made representations on the internet or on social media, they allege they did so using their own social media accounts and there is no allegation that either DCSS or Lanzer was involved in that conduct;
(d)in so far as the plaintiffs allege that the OCDDs were knowingly involved in the making of the various representations on the internet or social media, they allege that the representations were made on the Lanzer Website and on Lanzer’s Instagram and TikTok accounts, and not on any of the OCDDs’ own social media accounts.
[15]Transcript of Proceedings, Tina Lombardo & Ors v Dermatology And Cosmetic Surgery Services Pty Ltd (ACN 055 927 618) (Supreme Court of Victoria, S ECI 2022 00739, Goulden AsJ, 14, 26 February 2025) (‘Transcript’) T104.22 – T105.19.
In response to the DCSS submissions, the plaintiffs say that social media is at the forefront of every category and that the OCDDs say they did ‘everything as employees.’[16] However, having reviewed the OCDDs’ amended defences in relation to each of the allegations relating to their use of their own social media accounts, none of them says in response to those allegations that their conduct in posting on their own social media accounts was conduct as employees or on instructions or at the direction of DCSS or Lanzer. Therefore, there is no issue to which documents constituting directions or instructions to the OCDDs on the use of their social media is relevant. I will order that there be discovery by the defendants of documents falling within agreed category 14 but with those words objected to by DCSS omitted.
[16]Transcript T106.4 - T106.5.
Disputed categories of documents sought by the defendants by way of discovery from the plaintiffs
The categories of documents proposed by the defendants for discovery by the plaintiffs that remained in dispute following the parties’ conferrals are:
(a)category 5; and
(b)categories 7, 8, 9 and 10,[17] but only in so far as the plaintiffs object to the defendants’ removal, after the dispute had been partly heard, of the words ‘or Tik-Tok’ from each category.
[17]In the joint schedule of documents sought on discovery from the plaintiffs provided at 4:25PM on 25 February 2024, the plaintiffs have noted ‘Agreed subject to the inclusion of TikTok’ in respect of Category 6. However, I have treated this as an error as Category 6 does not identify any social media platforms in the terms of the category. I have, accordingly, treated Category 6 as agreed.
Category 5
By category 5 (as it evolved), the defendants seek discovery from the plaintiffs of:
(i)Any data capable of being extracted from each plaintiff’s social media accounts that refers or relates to interactions or communications with cosmetic or plastic surgery providers (other than interactions or communications between a plaintiff and a defendant) in the period January 2019 to January 2023.
(ii)Any communications in each plaintiff’s email or social media accounts between that plaintiff and any cosmetic or plastic surgery provider (other than the defendants) in the period January 2019 to January 2023.
Lanzer re-formulated this category into the two subcategories to address concerns raised by the Court with the initial drafting during the first day’s hearing. The plaintiffs maintain their objection to sub-category (i) in the reformulated version on the grounds that it is too broad and oppressive, and because the word ‘interactions’ is vague and imprecise, having the potential to capture fleeting and inconsequential or irrelevant interactions such as a ‘like’ or an emoji. The plaintiffs say that they broadly accept sub-category (ii), save that it should be amended to read:
(ii)Any communications in each plaintiff’s email or social media accounts between that plaintiff and any cosmetic or plastic surgery provider (other than the defendants) in the period January 2019 to January 2023 relating to a potential cosmetic or plastic surgery procedure.
The effect of the plaintiffs’ proposed amendments to sub-category (ii) is to confine the communications caught by the category to those passing between each plaintiff and a cosmetic or plastic surgery provider and only to the extent they relate to a cosmetic or plastic surgery procedure. The defendants do not cavil with those changes.
Lanzer (with whom the other defendants concur) submits that sub-category (i) is not oppressive, and would capture documents materially relevant to their defence of the proceeding. Lanzer submits that downloading data from Instagram is not a complex procedure, that the sub-category is confined to a particular date range, and determining whether an account is held by a cosmetic or plastic surgery provider necessitates only a quick examination of each account, which would be no more onerous than the making of any ‘reasonable search’. The defendants say that the plaintiffs make two specific allegations about their states of mind which make these documents, even a mere ‘like’ or an ‘emoji’, relevant. Those allegations are:
(a)first, the plaintiffs’ allegation that, but for the defendants’ representations including the social media posts, they would never have entered into the relevant cosmetic surgery contracts or maintained their consent to surgery; and
(b)second, the plaintiffs’ claim for Dillon[18] type damages for distress and disappointment, that is, their claim to damages to compensate them for the difference between what they expected the procedures to achieve and what they in fact achieved.
The defendants say, therefore, that the state of mind of each plaintiff will be a hotly contested issue at trial, and that to exclude other possible causes of their reliance or their expectations about cosmetic or plastic surgery outcomes as evidenced by their interactions with other cosmetic surgery providers on social media would be to exclude highly material evidence from the Court’s consideration.
[18]Baltic Shipping Co v Dillon (1993) 176 CLR 344 (‘Dillion’).
I agree with the plaintiffs that sub-category (i) is too broad. It calls for ‘data capable of being extracted from each plaintiff’s social media accounts’, and so is not limited to any particular social media platforms, such as Instagram, but may, on its terms, encompass other social media such as Facebook or X. What test must the plaintiffs apply to determine whether data is ‘capable of being extracted’ – do they attempt the download data themselves or must they engage a forensic specialist to utilise specialised techniques? The word ‘interactions’ as used in the sub-category is vague and imprecise; it requires the plaintiffs to determine what constitutes an interaction for the purposes of complying with the sub-category. For example, does it include the use of a ‘thumbs up’ emoji as a comment on a cosmetic surgery provider’s social media post; does it include a ‘thumbs up’ emoji given in reply to another person’s comment on a cosmetic surgery provider’s original post? There is, furthermore, no subject matter restriction that applies to the interaction. For example, the interactions are not limited to interactions about cosmetic surgery procedures of a type similar to or the same as those undertaken by any of the plaintiffs, nor, moreover, are they even just limited to interactions in relation to cosmetic surgery procedures. This means that one of the plaintiffs might have to discover an Instagram post by a cosmetic surgery provider where that plaintiff has ‘interacted’ by posting a ‘smiley face’ emoji, even if it does not relate to any cosmetic or plastic surgery procedure, or where it relates to one, but not one that the plaintiffs had performed by any one of the defendants. Such documents could not reasonably be said to be material, let alone highly material, to the Court’s consideration of the plaintiffs’ states of mind for their reliance case or for their Dillon damages claims. I hold concerns too about how the plaintiffs are to identify another social media user as ‘a cosmetic or plastic surgery provider’, which serves to broaden the already broad terms of sub-category (i). However, the plaintiffs appear content to accept that formulation as it is used in their reformulated and agreed version of sub-category (ii).
I am satisfied that sub-category (i) will require the production of documents with no, or at best, tenuous relevance to the issues in dispute in the proceeding. The discovery review exercise that is called for, spanning a 4 year period and any social media accounts of the respective plaintiffs, looking for ‘interactions’ with unspecified cosmetic or plastic surgery providers about anything is completely disproportionate. I will not order that the plaintiffs make discovery in accordance with category 5(i). Given the defendants do not cavil with the plaintiffs’ amendments to proposed sub-category (ii), I will, however, order that the plaintiffs make discovery in accordance with category 5(ii).
Categories 7, 8, 9 and 10 – inclusion of TikTok
Originally, these four categories sought discovery of documents evidencing each plaintiff’s access to various Instagram and TikTok accounts associated with the various defendants. After the dispute was partly heard, the defendants proposed amending these categories so as not to require the plaintiffs to make discovery of documents evidencing their accessing TikTok accounts. Although the plaintiffs are willing to make discovery in accordance with the categories including TikTok, there is little utility in ordering them to do so given none of them alleges that they ever accessed the defendants’ TikTok accounts and so presumably they will produce nothing. To the extent the plaintiffs are concerned that the Court will only order discovery by the defendants of TikTok records if there is some mutuality in the discovery, such that the plaintiffs also discover their TikTok records, they need not be. The concept of mutuality has no part to play in the determination of what is relevant and discoverable by the parties to a proceeding.
I will accordingly, order that the plaintiffs make discovery of the documents in Categories 7, 8 , 9 and 10 in the form proposed by Lanzer (and agreed to by the other defendants).
Categories 2 and 3
The plaintiffs agreed to proposed categories 2 and 3 but made submissions regarding what they consider to be in their ‘possession’[19] for the purposes of making discovery. In the case of Psalidis v Norwich Union Life Australia Ltd ,[20] Cavanough J considered the right of a patient to request access to medical records under the Health Records Act 2001, finding that all of the limitations which apply to the rights of a patient under that Act meant the records were not within the patient’s ‘power’, and accordingly there was no obligation to request them for the purposes of complying with a disclosure order. The plaintiffs refer to Psalidis to foreshadow to the defendants that their agreement to disclose documents in their possession within the terms of categories 2 and 3 does not also mean they intend to make requests to access their medical records or Medicare treatment summaries, as they regard them as beyond their power. It is premature for the Court to determine whether the plaintiffs are correct in adopting that position; that question being appropriate to determine only if and when an allegation is made that there has been a failure to discharge the discovery obligation by failing to make such requests for access, which argument may never be forthcoming.
Disputed categories of documents sought by the plaintiffs by way of discovery from the defendants (or some of them)
[19]Rule 29.01 of the Supreme Court (General Civil Procedure) Rules defines ‘possession’ for the purposes of Order 29 as being ‘possession, custody, or power.’
[20][2009] VR 123 (‘Psalidis’).
Disputed category 2B
This category evolved during the course of the first hearing day. The parties agreed to the terms of related disputed category 2A. Discovery under disputed category 2B is not only sought by the plaintiffs as against the defendants, but it is also sought by the OCDDs against DCSS and Lanzer.
The category seeks disclosure of documents evidencing directions, instructions or advice given by Lanzer and/or employees or agents of DCSS to any one or more of the OCDDs in respect of the matters pleaded in the particulars set out at ASOC [10] in the period between March 2018 and 24 January 2022. Relevantly, ASOC [10] states:
Each of the [OCDDs] was directed and advised by Lanzer in the provision of cosmetic surgery services to the Plaintiffs and Group Members.
The particulars to ASOC [10] identify a range of directions allegedly given including to comply with policies and procedures established by DCSS, to use systems supplied by DCSS, to disclose complaints made against DCSS, to disclose events and circumstances which might give rise to claims against DCSS, to disclose their sick leave requirements and to make available their records for audit and inspection by DCSS. In ASOC [11], the plaintiffs rely on the matters alleged in ASOC [10] to allege that each of the OCDDs was therefore an employee or agent of DCSS and, alternatively, Lanzer.
Each of DCSS and Lanzer deny the allegations in ASOC [10] in so far as they relate to them.[21] DCSS and Lanzer also deny the plaintiffs’ consequential allegations that the OCDDs were employees or agents of DCSS or Lanzer.[22] In their amended defences in response to allegations regarding their conduct, the OCDDs say their conduct was within the scope of their employment.[23] The plaintiffs submit, therefore, that a central issue for determination by the Court in the proceeding, and one to which the documents sought by the category are relevant, will be whether, in doing various things, the OCDDs were acting within the scope of their employment and/or on the advice, instructions and directions of DCSS and/or Lanzer.
[21]First Defendant’s Amended Defence filed on 23 December 2024 (‘DCSS Amended Defence’) [10]; Second Defendant’s Defence to Amended Statement of Claim filed 20 December 2024 (‘Lanzer Amended Defence’) [10].
[22]DCSS Amended Defence [11]; Lanzer Amended Defence [11].
[23]Third Defendant’s Defence to the Further Amended Statement of Claim filed on 24 December 2024 [21], [41(a)], [86], [96(d)], [102(b)(ii)(A)], [102(b)(ii)(C)], [102(b)(ii)(D)]; Fourth Defendant’s Defence to the Further Amended Statement of Claim filed on 20 January 2025 [9(a)], [9(c)], [10], [11], [86(c)], [87(c)], [102]; Fifth Defendant’s Defence to the Amended Statement of Claim filed on 24 December 2024 [9], [10], [11], [26(a)], [31(a)(i)], [86], [87(c)], [96(c)], [102(c)(ii)]; Sixth Defendant’s Defence to the Further Amended Statement of Claim filed on 24 December 2024 [9], [10], [11], [86], [87(c)], [102(c)(ii)].
DCSS and Lanzer contend that the allegations in ASOC [10] go nowhere, because the plaintiffs only rely on the allegations in ASOC [10] in articulating a claim against Dr Wong at ASOC [100] and the proceeding against him is discontinued. They submit, therefore, that the question of whether Lanzer gave instructions or directions to any of the OCDDs is irrelevant. They also submit that it would be contrary to the CPA to require discovery in respect of this irrelevant issue utilising such a broad category which demands an open-ended search for documents.
Each of the OCDDs admit the allegations in ASOC [10]. Counsel for the OCDDs described as ‘strained or pedantic’[24] the description, on behalf of Lanzer, of the allegation in ASOC [10] as going nowhere. He contends that the allegation that the OCDDs acted in accordance with the directions and instructions of DCSS and Lanzer flows throughout the pleading, that the OCDDs defend the claim on the basis that they were employees and under the direction and control of DCSS and Lanzer, and the category is relevant. Unusually, the plaintiffs embrace the submissions of the OCDDs.
[24]Transcript T148.28.
I am satisfied that whether or not advice, directions or instructions were given to the OCDDs by Lanzer and/or DCSS and acted upon by them is an issue in the proceeding as between the plaintiffs and the defendants, raised by amongst other paragraphs, ASOC [10] and [11], and justifies the discovery category. The reference to ASOC [10] in the wording of the category is not intended to provide justification for the category by reference to the issue raised by that paragraph alone. Rather the way in which the category is expressed is intended to limit the scope of the documents to be searched for and produced in response to the category to those evidencing advice, directions, or instructions given in relation to the matters particularised in ASOC [10]. The disputed category is further limited to documents created within a specified time period. I do not consider the searches required to locate potentially responsive documents will be open-ended. Although the category terms were ultimately those terms put forward by the OCDDs after amendments were made to refine the earlier version of category 2 proposed by the plaintiffs, the documents within the terms of disputed category 2B are sought by the plaintiffs from all defendants and can properly be made the subject of a discovery order.
Disputed category 3
By disputed category 3, the plaintiffs seek documents evidencing or referring to decisions about the content published on the Lanzer Website during the period between February 2020 and November 2021. Again, this category is opposed by Lanzer and DCSS, who seek to confine the category to documents about the ownership of the Lanzer Website. The OCDDs seek discovery of a reformulated version of the plaintiffs’ original category 3, in two parts, one seeking documents relevant to ownership, and the other seeking documents relating to the instructions and/or directions provided to the OCDDs by Lanzer and/or DCSS as to the content to be published on the website. The OCDDs submit that, if the second part of their reformulated category is ordered, then there is no need for disputed category 26.
The plaintiffs allege that DCSS and Lanzer published the Lanzer Website.[25] DCSS admits there is a website but otherwise denies the allegation,[26] while in his amended defence, Lanzer says that DCSS published the Lanzer Website and otherwise does not admit the allegation.[27] The plaintiffs submit, therefore, that there is an issue in dispute in the proceeding about who published the website. They submit that ownership of the Lanzer Website is not in issue, such that neither of the defendants’ reformulations which refer to ownership records should be ordered. The plaintiffs submit that the question of who is responsible for the content that was published on the Lanzer Website is relevant to their Misleading Conduct claim, and that question is not answered by determining ownership, but rather by reference to documents which record the decisions that were made, and by whom they were made, regarding the publication of content. In this way, they say also that the second part of the OCDDs’ reformulated category is too narrow, because it only seeks documents that record instructions or directions given to the OCDDs as to the content to be published, which may not record the actual decision which precedes those instructions about that content and who made it.
[25]ASOC [86(a)].
[26]DCSS Amended Defence [86(a)].
[27]Lanzer Amended Defence [86(a)].
Lanzer and DCSS submit that general communications about the content to be published on the website will not reveal who is responsible because of the dual capacities of Lanzer as a director and controlling mind of DCSS and also his capacity as a medical practitioner. They contend that a document that shows that Lanzer approved the contents of the website would be equally consistent with DCSS publishing the website, or with Lanzer publishing the website. That is, they say, such documents can have no bearing on the legal characterisation of who published the website. Despite conceding that a board minute which records formally a decision of the directors of DCSS to publish content on the Lanzer Website would have a bearing on the issue, Lanzer and DCSS say that seeking documents generally about the decisions made and which would not bear on the issue is not proportionate and not consistent with the overarching purpose.
The OCDDs’ reformulation of disputed category 3 is narrower than that sought by the plaintiffs. Given it is the plaintiffs who make application for discovery from the defendants in relation to issues in dispute as between them, and given responsibility for the publication of content on the Lanzer Website is an issue raised on the pleadings, I have confined my consideration to the plaintiffs’ proposed wording. I am satisfied that the issue is raised, and I do not consider that it would be disproportionate to require discovery of the documents sought which are relevant to that issue merely because some, or even many, of the documents that might be produced may ultimately not be probative. I will, accordingly, order discovery in accordance with the plaintiffs’ formulation of disputed category 3.
Disputed categories 4, 7 and 10
Each of disputed categories 4, 7 and 10,[28] relates to a different defendant, being Lanzer, the third and the fifth defendant respectively. The plaintiffs’ originally proposed categories 4, 7 and 10 were re-formulated to reflect a proposal by the second defendant, albeit with an extension to the time period (which has been agreed).[29] Categories 7 and 10 need to be amended to refer to the correct paragraphs of the ASOC relevant to the allegations against each of the relevant defendants.[30] There remain two areas of dispute in relation to these reformulated categories 4, 7 and 10, namely:
(a)the plaintiffs seek production not only of posts on the Instagram accounts of Lanzer and the third and fifth defendants, but also of posts on their TikTok accounts; and
(b)neither of the third and fifth defendants accepts the terms of sub-paragraph (d) to the proposed categories.
[28]These categories were numbered differently in earlier versions of the joint schedules provided to the Court. In particular, what has become disputed categories 4, 7 and 10 were numbered as disputed categories 4 to 12 in the joint schedules identifying the documents sought on discovery from the defendants provided at 5:30PM on 11 February 2025 and at 2:15PM on 14 February 2025. With the reformulation, several category numbers are no longer used and the substance of each category that is pressed has changed substantially.
[29]Transcript T135.15–T135.19.
[30]Categories 7(a), 7(c), 10(a) and 10(c) each refer to particulars at paragraph [94] of the ASOC, whereas, the correct reference is to paragraph [95] of the ASOC.
During the course of the second sitting day, the plaintiffs and the defendants (including Lanzer who originally proposed it, and DCSS) agreed to ‘park’ further consideration of sub-paragraph (d) of each category to allow further discussion between them. Regrettably, no refinements to proposed sub-paragraph (d) could be agreed, and so this part of each of the disputed categories remains objected to.
The defendants maintained that none of the plaintiffs allege that they looked at any TikTok accounts, and so the contents of those accounts are not relevant to any issue in dispute in relation to their claims. The plaintiffs concede that none of the four named plaintiffs accessed the TikTok accounts of any of the defendants, however, they submit that some of the Instagram posts that were seen by the plaintiffs were ‘reposted’ from the relevant TikTok accounts. They also submit that the contents of both TikTok and Instagram accounts are relevant to the common issues for determination at the initial trial.
In my view, these disputed categories ought not be limited in their scope to the contents of the relevant defendants’ Instagram accounts only, but ought extend to their TikTok accounts too. I am satisfied that, as they have particularised at ASOC [97], [98] and [103] of the ASOC, two of the plaintiffs saw posts on the defendants’ Instagram account that were reposted from TikTok and bore the TikTok logo. To the extent some or all of the Instagram posts of the relevant defendants are not able to be recovered, the alleged misrepresentations relied upon by these two plaintiffs may be able to be proved by reference to the original contents of the TikTok posts. In addition, in the ASOC, the plaintiffs allege that various representations were made to the plaintiffs and group members on these social media platforms. Whether and how the representations were made is relevant to the issues, including common issues, raised in the ASOC.
I otherwise accept the submissions, originally made by the third and fifth defendants, that sub-category (d) of each of the disputed categories 4, 7 and 10, in using the words ‘otherwise relevant to’, lacks the necessary specificity to enable objective determination of what responds to the sub-category. I will, accordingly, order discovery in accordance with disputed categories 4, 7 and 10, save that those categories will not include sub-category (d).
Lanzer and the OCDDs foreshadow making an objection before the trial judge to the plaintiffs being permitted to inspect the documents discovered in respect of these disputed categories pending the outcome of their appeal against the Second Pleading Ruling. Having not yet been made, that objection is beyond the scope of my discovery determination. The OCDDs also reserve their position in respect of category 7 in relation to production ‘pending further consideration of the regulatory conditions imposed upon the third defendant’s use of social media and/or in respect of compliance with any applicable regulatory guidelines by the third defendant.’[31] They likewise reserve their position in respect of category 10 in relation to compliance with regulatory guidelines by the fifth defendant. Those reservations do not prevent the Court making the orders, with any issues as to production held over for determination at a later time.
[31]See joint schedule identifying documents sought on discovery from the defendants sent to the Court on 25 February 2025 at 4:25pm, column headed ‘Third to Sixth Defendants’ response’ to disputed category 7.
Disputed categories 11 to 15 – financial records of DCSS
By disputed categories 11 to 15,[32] the plaintiffs seek discovery by DCSS and Lanzer of various financial records dated between January 2020 and 9 March 2022. The financial records sought are DCSS’s balance sheets, profit and loss statements, cash flow statements and budgets. The OCDDs and Wainstein adopt a neutral position as the categories do not call for any discovery by them.
[32]Disputed category 14 is a duplicate of disputed category 11. These categories were also numbered differently in earlier versions of the joint schedules provided to the Court. In particular, what has become disputed categories 11 to 15 were numbered as disputed categories 13 to 17 in the joint schedules identifying the documents sought on discovery from the defendants provided at 5:30PM on 11 February 2025 and at 2:15PM on 14 February 2025,but the substance of each category is unchanged.
The plaintiffs submit that the financial records are relevant to several issues in dispute between the plaintiffs and the defendants. Firstly, they submit they are relevant to establishing that DCSS and Lanzer engaged ‘in trade or commerce’,[33] and more particularly, that the representations alleged were made in trade or commerce for the purposes of their Misleading Conduct claim. The plaintiffs submit the documents are also relevant to whether each of DCSS and Lanzer was a ‘supplier’ within the meaning of the ACL, and for the purposes of the Statutory Guarantee claim.[34] Subject to complaints about the form of the pleading, these allegations are, respectively, not admitted and denied by DCSS, and are each denied by Lanzer. Related allegations are made against the OCDDs, each of whom deny they were engaged in trade or commerce or were a supplier. The plaintiffs also submit that the documents may also be relevant to the claims made by the plaintiffs in negligence for exemplary damages.
[33]ASOC [3(b)], [6(d)].
[34]ASOC [3(e)], [6(e)], [111].
DCSS and Lanzer oppose the financial documents categories, arguing the financial records will show no more than that DCSS was engaged in a business of providing cosmetic surgery services, an allegation that is accepted.[35] They rely on the decision in Concrete Constructions (NSW) Pty Ltd v Nelson,[36] which established that it is not enough in a misleading conduct claim to establish that the conduct was generally associated with the trading activities of a corporation. Relying on that authority, they say the question whether the alleged conduct was engaged in by them ‘in trade or commerce’ is a more nuanced one – that is, whether the representations are in trade or commerce made in furtherance of the business for instance, or whether they have a non-commercial character such as the provision of medical advice. They submit this more nuanced question, properly considered, will not be answered by looking at a balance sheet or other financial document of the type sought. They also submit that the category is oppressive, calling for ‘every document evidencing DCSS’s economic activity over the relevant period…’.[37] They make no submissions in answer to the plaintiffs’ submissions that the documents are relevant to the question of whether each was a supplier under the ACL, nor as to their relevance to the issue of exemplary damages.
[35]Transcript T139.22–T139.31, T141.6–T141.9. See joint schedules identifying the documents sought on discovery from the defendants provided to the Court on 11 and 14 February 2025, disputed category 13, column entitled ‘Second defendants’ position’ where it is stated ‘there is no dispute that DCSS was engaged in a business between January 2020 and 9 March 2022 (and to the extent that is unclear…the second defendant admits that fact). DCSS was clearly a trading business.’
[36](1990) 169 CLR 594.
[37]See joint schedules identifying the documents sought on discovery from the defendants provided to the Court on 11 and 14 February 2025, disputed category 13, column entitled ‘Second defendants’ position’.
I am satisfied the financial documents sought by these disputed categories are relevant to issues in dispute in the proceeding. The financial documents are relevant to establishing that some or all of the alleged representations were made in connection with an aspect or element of the activities of DCSS, as revealed by its financial records, which bear a trading or commercial character. In the case of Hi-Rise Access Pty Ltd v Standards Australia Limited,[38] documents evidencing the financial position of Standards Australia, including its sources of revenue, were considered by the Court in reaching the conclusion that the alleged misleading statements were not made by Standards Australia ‘in trade or commerce’. The financial documents will also be relevant to establishing whether any of the defendants, and which of them, was a ‘supplier’ of services for the purposes of the Statutory Guarantee claim. I am also satisfied that the financial documents may be relevant to the exemplary damages claim.
[38][2017] FCA 604.
Given the limited time period over which the financial documents are sought, I do not accept that it is oppressive to require production of them. The plaintiffs do not, by the terms of the proposed categories, seek ‘every document evidencing DCSS’s economic activity over the relevant period’ as is contended by DCSS and Lanzer. The categories do not contemplate the production of underlying financial records, such as journals, receipts or invoices. Instead, they only seek end of period balance sheets, profit and loss and cash flow statements, together with budgets. The number of such periods will depend on how the accounts were prepared and at what intervals, but even if the accounts were prepared monthly over a two year period, I do not consider it to be an oppressive request.
Disputed category 25 – mobile phone records
By disputed category 25,[39] the plaintiffs seek to obtain documents from DCSS and Lanzer relevant to demonstrating that the ‘Personal Line to Lanzer Representation’[40] was misleading or deceptive or likely to mislead or deceive.[41] The OCDDs take a neutral position regarding this disputed category. Attempts to refine this category through additional conferral subsequent to the discovery disputes hearings were not successful.
[39]This category was numbered differently in earlier versions of the joint schedules provided to the Court. In particular what has become disputed category 25 was numbered as disputed category 27 in the joint schedules identifying the documents sought on discovery from the defendants provided at 5:30PM on 11 February 2025 and at 2:15PM on 14 February 2025, but the substance of the category is unchanged.
[40]ASOC [88(c)].
[41]ASOC [91].
DCSS and Lanzer object to this category on the basis that it is vague, and would lead to discovery that is disproportionate. In particular, they make the point that documents ‘evidencing’ calls to Lanzer’s personal mobile would extend beyond mobile phone bills to potentially include file notes of calls received on that number, voicemail recordings, and other messages, emails or notes containing a reference to a telephone call. They raise the difficulty of determining whether such calls have been made by a group member, and whether any record of them contains medical information relating to patients who may not have authorised the disclosure. They also contend that there is no phone number identified.
The plaintiffs accept that the present formulation of the category is extremely broad, however, they insist that they wish to obtain at least the phone billing records, which they submit are relevant, and that they don’t know what phone number or numbers were held out to patients to enable them to contact Lanzer as that is a matter peculiarly within the knowledge of DCSS and Lanzer.
Whilst DCSS and Lanzer must know what phone number or numbers were held out as being the number or numbers upon which Lanzer could be contacted, and whilst that information ought be disclosed by them to the plaintiffs having regard to their obligations under the CPA, I otherwise accept that the category, as presently drafted, is vague and is likely to be oppressive in its operation. There are presumably ways to re-draft the category to better target the documents the plaintiffs seek and to avoid some of the issues raised by DCSS and Lanzer, however, that is a task for the plaintiffs. It is not for the Court to substitute its view as to what the plaintiffs seek and how best to achieve it through the re-drafting of the category. I will not order discovery in accordance with disputed category 25 as presently drafted.
Disputed category 26
By disputed category 26,[42] the plaintiffs seek documents evidencing or referring to information that any one or more of the OCDDs provided to Lanzer or any other employee, servant or agent of DCSS, for the purposes of publication of that information on the Lanzer Website such that it appeared on the website during the period between February 2020 and 24 January 2022. This category is resisted by all defendants, however, the OCDDs contend that the category is unnecessary if their approach to disputed category 3 is accepted. Given I have found that their formulation of disputed category 3 will not be ordered, I will treat disputed category 26 as resisted by the OCDDs.
[42]This category was numbered differently in earlier versions of the joint schedules provided to the Court. In particular what has become disputed category 26 was numbered as disputed category 28 in the joint schedules identifying the documents sought on discovery from the defendants provided at 5:30PM on 11 February 2025 and at 2:15PM on 14 February 2025, but the substance of the category is unchanged.
The plaintiffs submit that the category is intended to seek personal profile information and any other information provided by the OCDDs to DCSS and/or Lanzer for use on the Lanzer Website. They submit that such documents are relevant to establishing the OCDDs’ alleged knowing involvement in making the representations as alleged in the Misleading Conduct claim. They point to emails disclosed by the fifth defendant as part of his disclosure under s 26 of the CPA as demonstrating the relevance of those documents to the issue of the OCDDs’ accessorial liability. They also contend the documents will be relevant not just to the plaintiffs’ claims but to the common issues that will be dealt with at the initial trial.
Lanzer submits that the category is elliptical and it would be impossible to efficiently and reasonably ascertain what falls within it. He also submits that the category is not confined to the claims of the four plaintiffs. In addition, he submits that there is no allegation in the pleading that any of the OCDDs provided information for the purposes of publication on the website, and so the documents sought by this category are not relevant to any issue in dispute raised by the pleadings.
I accept the plaintiffs’ submissions that discovery of some of the documents they identified in their submissions as being documents they intended to be captured by disputed category 26 will be relevant to issues raised in the proceeding. However, in my view, the terms of the disputed category, using the formulation ‘evidencing or referring to information’, without limiting the type of information (such as to personal profile information or information concerning or connected with the alleged representations) are too broad and imprecise. In order to respond to the category, the defendants would likely need to undertake searches for documents and a review task that is unduly wide in its scope, burdensome and disproportionate. I will not order discovery in accordance with disputed category 26 as presently drafted.
Disputed category 27
By disputed category 27,[43] the plaintiffs seek documents evidencing the terms of employment or other engagement of employees or agents of DCSS (who sent one or more of the four documents identified therein to the plaintiffs) as those terms applied in the period between January 2020 until 24 January 2022. Lanzer and DCSS resist the category, whilst the OCDDs say it doesn’t affect them but they nevertheless endorse the position articulated on behalf of Lanzer.
[43]This category was numbered differently in earlier versions of the joint schedules provided to the Court. In particular, what has become disputed category 27 was numbered as disputed category 29 in the joint schedules identifying the documents sought on discovery from the defendants provided at 5:30PM on 11 February 2025 and at 2:15PM on 14 February 2025. With the exception of the deletion of proposed sub-category (e) from the joint schedule provided on 11 February, the substance of the disputed category is otherwise the same.
The plaintiffs submit the documents sought by the category are relevant because it is alleged that the employees or agents of DCSS who emailed one or more of the four identified documents to the plaintiffs sent those emails within the scope of their actual or apparent authority such that the conduct can be attributed to DCSS,[44] which allegations are denied by DCSS and Lanzer.
[44]ASOC [97(c)(ii)], [97(d)(ii)], [98(d)(ii)], [98(e)(ii)], [99(c)(ii)], [100(f)(i)].
Lanzer submits (which submission DCSS adopts) that neither of them, in their respective amended defences, deny that the individuals who sent the emails were employees of DCSS, rather, they deny that the conduct alleged ‘conveyed the representations.’[45] Lanzer submits, therefore, that documents evidencing the terms of employment of DCSS’s employees and agents are not in issue, and so the category should not be ordered.
[45]See joint schedule identifying the documents sought on discovery from the defendants provided to the Court on 14 February 2025, submissions of Second Defendant as set out in relation to disputed category 29. DCSS Amended Defence [97], [98], [99], [100]; Lanzer Amended Defence [97], [98], [99], [100].
I do not consider the relevant paragraphs of DCSS’s or Lanzer’s amended defence to be so clear that it ‘could not reasonably be said that DCSS denies that the individuals who sent the emails were employees’.[46] The denials in paragraphs [97] to [100] of each defence do not discriminate between the different allegations made in the sub-paragraphs of the ASOC to which they respond. Looking, for example at ASOC [97(c)(ii)], it is alleged that:
[46]See joint schedule identifying the documents sought on discovery from the defendants provided to the Court on 14 February 2025, submissions of Second Defendant as set out in relation to disputed category 29.
97.DCSS and Lanzer made the Representations to Lombardo by the following conduct:
…
c.on 5 February 2021, an employee or agent of DCSS emailed Lombardo the Post- Inquiry Email, and this conduct:
i.conveyed the Pre-Eminence and Excellent Service Representation as particularised below;
ii.was attributable to DCSS by operation of section 139B of the CCA, because the email was sent within the scope of the employee’s or agent’s actual or apparent authority;
iii.constituted a representation by Lanzer, because the email was sent pursuant to the DCSS Sales System which was under Lanzer’s ultimate control and direction;
…
The DCSS Amended Defence states:
97.It denies paragraph 97 so far as it relates to it and otherwise does not admit the allegation.
I accept that the denial in paragraph [97] of the DCSS Amended Defence is a denial that the conduct alleged by ASOC [97(c)] conveyed the representations as alleged in ASOC [97(c)(i)]. However, if that is so, it must also deny the allegation in ASOC [97(c)(ii)] that the conduct of the employees of DCSS is attributable to it because it was conduct within the scope of their actual or apparent authority, and in [97(c)(iii)] that it constituted a representation by Lanzer, being an email sent under his direction and control. Lanzer also submits that the interpretation of the denial for which he contends is ‘particularly obvious having regard to other paragraphs of the ASOC that are solely in relation to the sending of correspondence by employees and to which DCSS has admitted’, referring by way of example to ASOC [15], [20] and [25]. I accept that those paragraphs do provide examples of DCSS and Lanzer admitting that the identified persons were employees, servants or agents of DCSS, however, they do not contain equivalent allegations regarding any conduct of those employees or agents as being within the scope of their actual or apparent authority.
It is the denial that the alleged conduct was within the scope of their authority that puts in issue the terms of the employment or agency relationship. Unless the defendants can convince the plaintiffs that they do not in fact take issue with the allegation the plaintiffs rely upon to justify the discovery category, then as the pleadings stand, I am satisfied that it is in issue and properly the subject of a discovery order. In these circumstances, I will order that there be discovery in accordance with disputed category 27.
Disputed category 28
By disputed category 28,[47] the plaintiffs seek documents evidencing the terms of employment or other engagement of persons (other than the second to eighth defendants) who provided or were involved in the provision of cosmetic surgery services to the plaintiffs as those terms applied in the period between 18 March 2021 and 9 March 2022. Lanzer and DCSS resist the category, whilst the OCDDs say it doesn’t affect them but they nevertheless endorse the position articulated on behalf of Lanzer.
[47]This category was numbered differently in earlier versions of the joint schedules provided to the Court. In particular, what has become disputed category 28 was numbered as disputed category 30 in the joint schedules identifying the documents sought on discovery from the defendants provided at 5:30PM on 11 February 2025 and at 2:15PM on 14 February 2025, but the substance of the category is unchanged.
At ASOC [126], in respect of their negligence claim, the plaintiffs allege that DCSS owed a duty of care to patients:
a.to exercise the degree of reasonable care and skill to be expected of a medical practice and day hospital providing cosmetic surgery services in the provision of nursing or other non-medical practitioner health services to any patient to avoid injury, and
b. to exercise reasonable care and skill in the administration and management of the cosmetic surgery services provided by its servants or agents which included the Second to Seventh Defendants to avoid injury.[48]
In its amended defence, DCSS denies that it owed the duty alleged and says further to the effect that:
(a)it was Lanzer and the OCDDs who provided the services to the plaintiffs and each of them was not doing so within the scope of their employment or agency;
(b)DCSS did not independently provide cosmetic surgery services; and
(c)to the extent its staff provided documents to the plaintiffs or group members that contained medical advice, they did so as conduits for, and in accordance with the instructions and directions of one or more of Lanzer and the OCDDs.[49]
[48]ASOC [126(a)–(b)].
[49]DCSS Amended Defence [126], [17].
Whilst, as Lanzer and DCSS submit, the existence of the alleged duty is ultimately a question of law, the factual circumstances including the terms of the employment of any member of DCSS staff who was involved in providing the cosmetic surgery services or the documents to each of the plaintiffs will inform the consideration of who owed the duty and the nature and scope of such duty by reference to these allegations as raised in the ASOC and in the DCSS Amended Defence. I am, accordingly, satisfied that the category seeks documents relevant to an issue in dispute in the proceeding, and so discovery of documents within the terms of disputed category 28 will be ordered.
Disposition
Annexures A and B to this ruling identify the categories of documents to be discovered by the plaintiffs and the defendants respectively for the reasons that are identified above. For the purposes of making discovery in accordance with the ordered categories:
(a)the word ‘Documents’ takes its meaning from the Evidence Act 2008;
(b)all other capitalised terms take their meanings from the ASOC, or if not defined therein, from the defined terms used in this ruling;
(c)the parties need only make discovery of documents in their possession, as that word is defined in r 29.01(2) of the Rules;
(d)discovery shall be made by each party by serving an affidavit in Form 29B and that is compliant with r 29.04 of the Rules;
(e)the scope of the parties’ discovery obligations are limited in accordance with r 29.01.1(4) of the Rules.
I will order that the costs of and incidental to the discovery dispute be costs in the proceeding.
I request the parties provide a minute of order to give effect to this ruling.
ANNEXURE A
Documents to be discovered by the plaintiffs
No.
Category
Ruling reference
1
All Documents including email and electronic messages:
(a) in connection with the treatments sought and/or obtained by the plaintiffs in respect of procedures that are the subject of the proceeding;
(b) in respect of any alleged injuries (and treatment obtained for such injuries) arising from the procedures that are the subject of the proceeding, to date; and
(c) between the plaintiffs relating to the treatments received by them as patients of one or more of the defendants.
[14] – [16]
2
The plaintiffs’ medical records to the extent they disclose:
(a) cosmetic surgery prior to the procedures the subject of this proceeding;
(b) pre-existing or unrelated conditions, including psychological, which may have caused or contributed to the injury for which loss and damage is claimed;
(c) treatment for any injury, including psychological, alleged to have been caused by the procedures the subject of the proceeding; and
(d)pre-existing or unrelated conditions, either physical or psychological in nature, which may be an alternative cause of the Plaintiffs’ claimed loss and damage.
[14] – [16]
3
Medicare treatment summaries.
[14] – [16]
4
All Documents recording communications between the plaintiffs on the one hand and the defendants directly, including text message, social media direct messaging and email.
[14] – [16]
5
(i) Not used.
(ii) Any communications in each plaintiff’s email or social media accounts between that plaintiff and any cosmetic or plastic surgery provider (other than the defendants) in the period January 2019 to January 2023 relating to a potential cosmetic or plastic surgery procedure.
[18] – [22]
6
Video recordings, photographs and other records of the subject treatment (regardless of whether or not they were uploaded to social media).
[17]
7
Documents evidencing or referring to Lombardo’s accessing:
(a) Lanzer’s Instagram account;
(b) the Lanzer Website;
(c) Aronov’s Instagram account.
[23] – [24]
8
Documents evidencing or referring to Bonnici’s accessing:
(a) Lanzer’s Instagram account;
(b) the Lanzer Website;
(c) Aronov’s Instagram account;
(d) Wells’ Instagram account.
[23] – [24]
9
Documents evidencing or referring to Russell’s accessing the Lanzer Website.
[23] – [24]
10
Documents evidencing or referring to Morrison’s accessing:
(a) Lanzer’s Instagram account;
(b) the Lanzer Website.
[23] – [24]
11
All documents relating to claims for loss and damage, including:
(a) any patient records in connection with the alleged psychological injury;
(b) statements of accounts, profits and loss and tax returns relating to any loss of earnings and/or lost earning capacity;
(c) any quotes or records of consultations regarding remedial treatment.
[14] – [16]
ANNEXURE B
Documents to be discovered by the defendants (as applicable)
No.
Category
Ruling reference
1
Documents evidencing policies and procedures applicable to the performance of cosmetic surgery services supplied to each of the four plaintiffs.
[14] – [16]
2
Documents evidencing payments received by DCSS from Morrison between 13 August 2021 and 7 October 2021.
[14] – [16]
3
Documents evidencing the content on the Lanzer Website in the periods between February 2020 and November 2021.
[14] – [16]
4
Documents comprising, evidencing, referring to, including or containing photographs of Bonnici that were uploaded to any one or more Instagram accounts controlled by DCSS, Lanzer, Wells and/or Fallahi.
[14] – [16]
5
Documents comprising, evidencing, referring to, including or containing videos of Lombardo’s Surgery that were uploaded to any one or more Instagram accounts controlled by DCSS, Lanzer or Aronov.
[14] – [16]
6
Documents evidencing or referring to Lombardo’s accessing:
(a) Lanzer’s Instagram or TikTok accounts;
(b) the Lanzer Website;
(c) Aronov’s Instagram or TikTok accounts.
[14] – [16]
7
Documents evidencing or referring to Bonnici’s accessing:
(a) Lanzer’s Instagram or TikTok accounts;
(b) the Lanzer Website;
(c) Aronov’s Instagram or TikTok accounts;
(d) Wells’ Instagram or TikTok accounts.
[14] – [16]
8
Documents evidencing or referring to Russell’s accessing the Lanzer Website.
[14] – [16]
9
Documents evidencing or referring to Morrison’s accessing:
(a) Lanzer’s Instagram or TikTok accounts;
(b) the Lanzer Website.
[14] – [16]
10
Documents constituting, including or evidencing the terms on which DCSS and/or Lanzer employed and/or contracted with Lanzer, Wong or any of the OCDDs.
[14] – [16]
11
Documents evidencing payments made by DCSS and/or Lanzer to any one or more of Wong and the OCDDs (and, in the case of payments made by DCSS, to Lanzer) in respect of Cosmetic Surgery Services provided to any one or more of the Plaintiffs, and agreements to make such payments.
[14] – [16]
12
Documents evidencing payments received by DCSS and/or Lanzer in respect of Cosmetic Surgery Services provided to any one or more of the Plaintiffs, and agreements in respect of such payments.
[14] – [16]
13
Documents constituting, including or evidencing the terms on which DCSS and/or Lanzer employed or otherwise contracted with Wainstein in the period between 27 March 2018 and 9 March 2022 to perform Cosmetic Surgery Services in relation to the Plaintiffs.
[14] – [16]
14
Documents constituting directions or instructions given by Lanzer and/or DCSS to any one or more of the OCDDs about the use of photographs and/or videos of patients taken during consultations and procedures for the purposes of social media.
[14] – [16]
15
All documents created for the purposes of, or for the purposes of recording, Cosmetic Surgery Services provided to any one or more of the Plaintiffs, including documents evidencing:
(a) Post-inquiry emails;
(b) Standard advices;
(c) We Care Forms;
(d) Consent Forms.
[14] – [16]
16 (DC1)
Documents evidencing or referring to instructions or directions given to DCSS employees by any one or more of Lanzer, the OCDDs or Wong about the preparation or sending of emails to any one or more of the plaintiffs who had completed web-form inquiries via the Lanzer Website in the period between February 2020 and 24 January 2022.
[14] – [16]
17A (DC2A)
Documents created in the period between 15 June 2021 and 24 January 2022 constituting directions or instructions given by Lanzer and/or employees or agents of DCSS to any one or more of the OCDDs relating to their providing cosmetic surgery services to Lombardo, Bonnici, Russell or Morrison.
[26]
17B (DC2B)
Documents evidencing directions, instructions or advice given by Lanzer and/or employees or agents of DCSS to any one or more of the OCDDs in respect of the matters pleaded in the particulars set out at ASOC [10] in the period between March 2018 and 24 January 2022.
[26] – [31]
18 (DC3)
Documents evidencing or referring to decisions about the content published on the Lanzer Website during the period between February 2020 and November 2021.
[32] – [35]
19 (DC4)
Content or documents evidencing the content appearing on the Instagram account ‘@drlanzer’ and the TikTok account ‘@drlanzerandassociates’ in the period between January 2020 through to 24 January 2022 that:
(a) are the ‘examples of posts’ referred to at ASOC [94]; or
(b) contains the caption #plasticsurgery; or
(c) includes ‘before’ and ‘after’ photos or videos of patients (particulars to ASOC [94]).
[36] – [41]
20 (DC7)
Content or documents evidencing the content appearing on the Instagram account @drdanielaronov and the TikTok @dr.danielaronov account in the period between January 2020 through to 24 January 2022 that:
(a) are the ‘examples of posts’ referred to at ASOC [95]; or
(b) contains the caption #plasticsurgery; or
(c) includes ‘before’ and ‘after’ photos or videos of patients (particulars to ASOC [95]).
[36] – [41]
21 (DC10)
Content or documents evidencing the content appearing on the Instagram account @drryanwells in the period between January 2020 through to 24 January 2022 that:
(a) are the ‘examples of posts’ referred to at ASOC [95];
(b) contains the caption #plasticsurgery; or
(c) includes ‘before’ and ‘after’ photos or videos of patients (particulars to ASOC [95]).
[36] – [41]
22 (DC11)
Balance sheets for DCSS dated between January 2020 and 9 March 2022.
[42] – [46]
23 (DC12)
Profit and loss statements for DCSS dated between January 2020 and 9 March 2022.
[42] – [46]
24 (DC13)
Cash flow statements for DCSS dated between January 2020 and 9 March 2022.
[42] – [46]
25 (DC15)
Budgets for DCSS, or any parts of DCSS, dated between January 2020 and 9 March 2022.
[42] – [46]
26 (DC16)
Documents in the possession of Wainstein evidencing payments received by her in respect of her engagement by Lanzer and/or DCSS as alleged in [12(b)] of her defence.
This category has been agreed between plaintiffs and Wainstein, and was pressed against Wainstein only.
27 (DC17)
Documents evidencing or referring to the preparation of:
(a) Post-Inquiry Emails;
(b) Standard Advices;
(c) We Care Forms; and
(d) Consent Forms,
provided to the plaintiffs in the period between February 2020 and 24 January 2022.
[14] – [16]
28 (DC18)
Documents evidencing or referring to instructions or directions given to DCSS employees by any one or more of Lanzer, the OCDDs or Wong about the preparation of or the or sending of:
(a) Post-Inquiry Emails;
(b) Standard Advices;
(c) We Care Forms; and
(d) Consent Forms,
to the plaintiffs in the period between February 2020 and 24 January 2022.
[14] – [16]
29 (DC27)
Documents evidencing the terms of employment or other engagement of employees or agents of DCSS who sent any one of more of the following documents to Lombardo, Bonnici, Russell and/or Morrison as those terms applied in the period between January 2020 and 24 January 2022:
(a) Post-Inquiry Emails;
(b) Standard Advices;
(c) We Care Forms; and
(d) Consent Forms.
[55] – [60]
30 (DC28)
Documents evidencing the terms of employment or other engagement of persons (other than the second to eighth defendants) who provided, or were involved in the provision of, Cosmetic Surgery Services to Lombardo, Bonnici, Russell and/or Morrison as those terms applied in the period between 18 March 2021 and 9 March 2022.
[61] – [63]
SCHEDULE OF PARTIES
S ECI 2022 00739 BETWEEN: TINA LOMBARDO First Plaintiff TINA BONNICI Second Plaintiff SIMONE RUSSELL Third Plaintiff JULIE ROSE MORRISON Fourth Plaintiff - v - DERMATOLOGY AND COSMETIC SURGERY SERVICES PTY LTD (ACN 055 927 618) First Defendant DANIEL LANZER Second Defendant DANIEL ARONOV Third Defendant JACQUELINE DARBYSHIRE AND TONY DARBYSHIRE (ON BEHALF OF THE ESTATE OF THE LATE DANIEL DARBYSHIRE) Fourth Defendant RYAN WELLS Fifth Defendant ALIREZA FALLAHI Sixth Defendant CANDICE WAINSTEIN Eighth Defendant
0
11
0