Stanford v DePuy International Ltd

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FEDERAL COURT OF AUSTRALIA

Stanford v DePuy International Ltd [2013] FCA 1304

Citation: Stanford v DePuy International Ltd [2013] FCA 1304
Parties: TAMMY MAREE STANFORD and JAMIE DUNSMORE v DEPUY INTERNATIONAL LTD and JOHNSON & JOHNSON MEDICAL PTY LIMITED
File number: NSD 213 of 2011
Judge: ROBERTSON J
Date of judgment: 5 December 2013
Catchwords: PRACTICE AND PROCEDURE – application for a statutory suppression order – whether order necessary to prevent prejudice to the proper administration of justice
Legislation: Federal Court of Australia Act 1976 (Cth) ss 37AA, 37AE, 37AF, 37AG
Cases cited: Hogan v Australian Crime Commission (2009) 177 FCR 205
Hogan v Australian Crime Commission (2010) 240 CLR 651
Regie Nationale des Usines Renault SA v Zhang (2002) 210 CLR 491
Ritz Hotel v Charles of the Ritz (1988) 15 NSWLR 158
Walker v W A Pickles Pty Ltd [1980] 2 NSWLR 281
Date of hearing: 2 December 2013
Place: Sydney
Division: GENERAL DIVISION
Category: Catchwords
Number of paragraphs: 100
Counsel for the First Applicant: Mr AJL Bannon SC with Mr NM Bender
Solicitor for the First Applicant: Maurice Blackburn
Counsel for the Respondents: Mr RA Dick SC with Ms D Bampton
Solicitor for the Respondents: Herbert Smith Freehills

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 213 of 2011
BETWEEN:

TAMMY MAREE STANFORD
First Applicant

JAMIE DUNSMORE
Second Applicant
AND:

DEPUY INTERNATIONAL LTD
First Respondent

JOHNSON & JOHNSON MEDICAL PTY LIMITED
Second Respondent

JUDGE:

ROBERTSON J

DATE OF ORDER:

5 DECEMBER 2013

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The first applicant’s interlocutory application filed on 15 October 2013 be dismissed with costs.

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


IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

NSD 213 of 2011
BETWEEN:

TAMMY MAREE STANFORD
First Applicant

JAMIE DUNSMORE
Second Applicant
AND:

DEPUY INTERNATIONAL LTD
First Respondent

JOHNSON & JOHNSON MEDICAL PTY LIMITED
Second Respondent

JUDGE:

ROBERTSON J

DATE:

5 DECEMBER 2013

PLACE:

SYDNEY

REASONS FOR JUDGMENT

Introduction

  1. I have before me an interlocutory application filed on 15 October 2013 on behalf of the first applicant seeking a suppression order on the ground stated in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth) in terms which reflect a consent order for protection of confidential documents or information in proceedings in the United States.

  2. The first applicant is not a party to those US proceedings. She seeks to obtain an order from the United States Court that she be given transcripts of depositions and exhibits to depositions of certain of the respondents’ witnesses in those proceedings in the United States but where the judge in those proceedings has indicated that he may not make such an order unless there were an order in this Court to the same effect as the consent order in the US proceedings.

    Background

  3. For the purposes of the present interlocutory application I proceed on the basis of the following…

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Details
Case
[2013] FCA 1304
Decision Date

CaseChat Overview and Summary

Stanford v DePuy International Ltd involved an application for a statutory suppression order by a party seeking to obtain documents in relation to US proceedings. The applicant, who was not a party to the US proceedings, sought access to certain documents used in the US proceedings, including depositions and exhibits. The applicant sought an order from the US court to obtain these documents, but the US judge indicated that such an order would not be made unless there was a corresponding order from the Australian court. The applicant then sought an interlocutory order from the Federal Court of Australia to protect the use and disclosure of certain protected documents and to ensure compliance with discovery orders made in the Australian proceedings.

The court had to determine whether the statutory power to make a suppression order was available and whether it should be exercised. The court considered whether the applicant's application in the US court interfered with the Australian court's processes or circumvented the discovery regime in place in the Australian proceedings. The court also considered whether the information sought by the applicant was discoverable by the respondents and whether the applicant's application in the US court would prejudice the proper administration of justice.

The court dismissed the applicant's interlocutory application, finding that the statutory power to make a suppression order was not available in the circumstances of the case. The court held that the applicant's application in the US court did not interfere with the Australian court's processes or circumvent the discovery regime in place in the Australian proceedings. The court also found that the information sought by the applicant was not presently discoverable by the respondents. The court held that making a suppression order would prejudice the proper administration of justice as it would facilitate the applicant's application in the US court, which was not a party to the Australian proceedings.

The court dismissed the applicant's interlocutory application with costs. The court did not consider it necessary to address the respondents' other main ground of opposition, which was that the applicant's application was an abuse of process. The court also did not consider whether the proper construction of the relevant statute was that it had no anticipatory operation.

Orders

Orders of the court

1. The first applicant’s interlocutory application filed on 15 October 2013 be dismissed with costs.

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

Background

Background to the litigation

The first applicant is not a party to those US proceedings. She seeks to obtain an order from the United States Court that she be given transcripts of depositions and exhibits to depositions of certain of the respondents’ witnesses in those proceedings in the United States but where the judge in those proceedings has indicated that he may not make such an order unless there were an order in this Court to the same effect as the consent order in the US proceedings.Background For the purposes of the present interlocutory application I proceed on the basis of the following background. The substantive proceedings are representative proceedings pursuant to Pt IVA of the Federal Court of Australia Act 1976. They are brought on behalf of persons who had surgery performed on them in Australia to implant ASR Implants. The ASR (Acetabular Hip System) is one of the two hip implant systems the subject of the representative proceedings in this Court. The first respondent, DePuy International Limited, manufactured and the second respondent, Johnson & Johnson Medical Pty Limited, distributed in Australia hip implants for use in hip implant surgery to replace damaged hip joints. There are also on foot other proceedings concerning the ASR Implants in the United States, several thousand of which are being case managed in multi-district litigation by Katz J in the United States District Court for the Northern District of Ohio entitled In Re DePuy Orthopaedics, Inc. ASR Hip Implants Products Liability Litigation (the US proceedings). The first applicant has made an application in the US proceedings for access to certain documents prepared for the purposes of or used within proceedings within the multi-district litigation. That application was made pursuant to s 1782 of title 28 of the United States Code. Some of the documents to which the first applicant seeks access are the subject of an order of confidentiality made by Katz J in the US proceedings on 2 June 2011 and amended on 22 November 2011. Those documents are referred to as “PROTECTED DOCUMENTS”. The interlocutory application in this Court seeks orders to protect the use and disclosure of the “PROTECTED DOCUMENTS” pursuant to s 37AF of the Federal Court of Australia Act 1976 (Cth) and an order that the first applicant comply with the orders for discovery made on 3 June 2011 and 3 April 2013 to the extent that those orders apply to the documents obtained by the first applicant pursuant to its s 1782 application. That is, if the first applicant obtains the documents under the first order, she seeks a further order that she will then be under discovery obligations in respect of those documents. The first applicant read two affidavits by Julian Klaus Schimmel, one affirmed on 15 October 2013 and the other on 13 November 2013. The respondents read two affidavits by Guy Fraser Gerard Narburgh, one affirmed on 6 November 2013 and the other on 27 November 2013. The deponents are solicitors. Mr Schimmel at [4] of his affidavit of 15 October 2013 states that the first applicant, by the interlocutory application, seeks that the Court make confidentiality orders in relation to certain documents to which the first applicant has sought access in the US proceedings.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In light of my conclusions I have not found it necessary to address the respondents’ other main ground of opposition which is that the first applicant’s application is an abuse of process, in part because the application was not being made for the purposes contemplated by s 37AG but instead to try and obtain an order under s 1782 to obtain the documents and in part because of the managed discovery process in this Court where, it was submitted, the first applicant was attempting to achieve discovery through an application in this Court for a suppression order. It is also unnecessary for me to consider whether the proper construction of s 37AF is that it has no anticipatory operation, that is, so that the words “obtained” and “produced” did not merely apply to the past, as contended for by the respondents, but should be understood as including “sought to be obtained” or “sought to be produced” as contended for by the first applicant.Conclusion For these reasons I dismiss the first applicant’s interlocutory order of 15 October 2013, with costs.

Ratio Decidendi

Legal Principle Established

The first applicant submitted that the s 1782 application did not interfere with this Court’s processes. It would not interfere with the parties’ preparation of these proceedings for trial. Because the orders sought by the s 1782 application were sought against a stranger to the litigation they did not circumvent or interfere with the discovery regime in place in the proceedings in this Court.Consideration In my opinion, although the processes of discovery in this Court provide an important background to the present application, it is not appropriate to address the questions which presently arise by asking whether or not the material the subject of the first applicant’s interlocutory application has been shown presently to be discoverable by the respondents. This seemed to be the issue to which much of the evidence on each side was directed. Instead the central question is whether in the circumstances of this case and on the evidence the Court could and should make orders, which would be interlocutory in nature, for the suppression of information sought to be obtained by the first applicant in her s 1728 proceedings in the US court. Looked at from one perspective, the purpose of the application is to facilitate the first applicant’s application in the US court where that court appears to be concerned that the order of confidentiality made between the parties to those proceedings would not bind the parties in this Court. Of course, the first applicant in this Court is not a party to the substantive proceedings in the US court. It may also be that the US court is concerned to some extent that there may be difficulty enforcing against the party making the s 1728 application, the first applicant in this Court, any confidentiality obligations imposed by the US court. A particular aspect of that last point may be that because the first applicant is a litigant in this Court, this Court may, either by making confidentiality orders or by not making those orders, permit the first applicant a use of the documents which is either less controlled than under the confidentiality order in the US court or is entirely uncontrolled. It may be thought to be a question of timing in the first instance in the sense that, if the US proceedings were not in the picture, circumstances could be imagined where this Court might make a temporary suppression or non-publication order so that, shortly after the making of that order, further evidence would be adduced and a fuller examination of whether or not and on what terms and conditions an order might be made. However, as I understand the present application, what is sought is an order to the same effect as the order of confidentiality in the US court. Is the statutory power to make a suppression order available and should it be exercised? What is known about the information? This can be seen from what is sought in the s 1782 application:Authorizing Petitioner to take discovery from the Respondent for use in… the “Australian Action”… by pursuing and serving a subpoena on the Respondent, substantially in the form attached hereto, the copies of the documents listed in the subpoena and on the schedule attached to the subpoena (namely the transcripts of and exhibits to depositions of persons listed in Schedule 1 to the subpoena and to the declaration of Julian Klaus Schimmel, dated July 11, 2013 filed concurrently with this Order to Show Cause.