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 281Date 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 ApplicantJAMIE DUNSMORE
Second ApplicantAND: DEPUY INTERNATIONAL LTD
First RespondentJOHNSON & 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 ApplicantJAMIE DUNSMORE
Second ApplicantAND: DEPUY INTERNATIONAL LTD
First RespondentJOHNSON & JOHNSON MEDICAL PTY LIMITED
Second Respondent
JUDGE:
ROBERTSON J
DATE:
5 DECEMBER 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
Introduction
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.
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…
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- Case
- [2013] FCA 1304
- Decision Date
CaseChat Overview and Summary
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
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
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.