Turner v Bayer Australia Ltd (No 2)
[2021] VSC 877
•23 December 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GROUP PROCEEDINGS LIST
S ECI 2019 02916
| PATRICE SARAH TURNER | Plaintiff |
| v | |
| BAYER AUSTRALIA LTD (ACN 000 138 714) AND ORS | Defendants |
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JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF RULING: | 23 December 2021 |
CASE MAY BE CITED AS: | Turner v Bayer Australia Ltd (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 877 (First revision 6 November 2023) |
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PRACTICE AND PROCEDURE – Group proceeding – Discovery of documents – Redaction of confidential information – Undertakings and use of documents – Harman undertaking – Application for order compelling defendants to provide contact information to plaintiff for use disseminating opt-out notices – Whether use of contact information is for purposes of litigation – Australian Privacy Principles – Harman v Secretary of State for the Home Department [1983] 1 AC 280 – Supreme Court Act 1986 (Vic) ss 33X, 33Y, 33ZF – Capic v Ford Motor Company of Australia Limited (No 5) [2018] FCA 8 – Crown Resorts Limited v Zantran Pty Limited [2020] FCAFC 1.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | F Forsyth QC E Levine | Slater & Gordon |
| For the First, Second, Third, Fourth and Sixth Defendants | K Brazenor | Clayton Utz |
| For the Fifth Defendant | No appearance |
HIS HONOUR:
This group proceeding is brought by the plaintiff on behalf of persons who are alleged to have suffered injury as a result of the insertion of a contraceptive device known as the Essure device. The proceeding is brought against a number of companies alleged to have been involved in the design, development, manufacture or sponsorship of the Essure device.
The parties have been completing discovery in accordance with an agreed Document Management Protocol (‘DMP’). The first, third and fourth defendants (for convenience referred to in this ruling as the defendants) have redacted from 38 discovered documents (‘the discovered documents’) the names and contact details of some persons (‘the contact information’) who are likely to have had a procedure to insert an Essure device, and are therefore group members in the proceeding (‘the group members’).
The plaintiff has applied for orders that the defendants disclose unredacted copies of the discovered documents for the sole purpose of notifying the group members of the opt out process and notice approved in the proceeding. The defendants do not consent to the orders sought by the plaintiff, which they argue amount to a request to be released from the Harman[1] undertaking in respect of the discovered documents, and that there are no special circumstances that would justify the court exercising its discretion to dispense with the undertaking.
[1]Harman v Secretary of State for the Home Department [1983] 1 AC 280.
Background
Discovered documents
Documents have been discovered in the proceeding pursuant to the DMP. Clause 5(g) of the DMP provides that confidentiality may be claimed over any document containing confidential information, including but not limited to:
(a) patient health information;
(b) personal information; and
(c) commercially sensitive information.
Clause 5(b) of the DMP provides, amongst other things, that confidential documents should have the confidential sections redacted.
The discovered documents were produced by the defendants to the plaintiff with the contact information redacted.
Evidence
The parties relied on the following affidavits:
(a) Affidavit of Rory Walsh, solicitor for the plaintiff, affirmed 2 December 2021; and
(b) Affidavit of Gregory Williams, solicitor for the defendants, sworn 13 December 2021.
Mr Williams states that the discovered documents with the contact information redacted include:
(a) correspondence between Bayer Australia and the Therapeutic Goods Administration;
(b) legal correspondence (including, for example, from a solicitor acting for a patient who received the Essure device to a healthcare practitioner);
(c) email correspondence between Conceptus or Bayer and patients who received the STOP or Essure device;
(d) correspondence between health clinics or practitioners and patients;
(e) court documents filed in the South Australian Magistrates Court (Civil Division);
(f) correspondence between healthcare practitioners;
(g) tax invoices (including, for example, from Canberra Imaging Group); and
(h) lists of participants in clinical trials listed at the time of their follow up reviews.
Mr Williams states that all of the discovered documents contain some confidential patient information, including patient names, phone numbers and/or street or email addresses.
By her amended summons the plaintiff applies for an order that the defendants disclose to the plaintiff’s solicitors copies of the discovered documents without redactions. Mr Walsh states that if the application is allowed the plaintiff’s solicitors will ensure the group members identified in the documents are initially contacted solely to provide notice to them of the existence of the proceeding, and of the opt out orders including the Notice of Opt-Out.
Mr Williams identifies three particular issues in relation to the contact information and the plaintiff’s application. First, some contact information was provided by participants in clinical trials of the Essure device. Mr Williams says, from his experience, a written form of consent is obtained from patients who participate in clinical trials conducted in Australia, and that advice is usually obtained from an ethics committee in relation to the conduct of a clinical trial. Mr Williams identified the National Statement on Ethical Conduct in Research Involving Humans current at the relevant time, which he said included, in relation to consent:
The ethical and legal requirements of consent have two aspects: the provision of information and the capacity to make a voluntary choice.
And in relation to privacy:
An HREC [ethics committee] must be satisfied that, where a research proposal involves the collection, storage, disclosure or other use of personal information, the privacy of persons to whom that information relates is protected. In most situations, conformity to the IPPs [information privacy principles] provides an acceptable standard of protection.
Mr Williams provided examples of consent forms, one of which included the following in relation to privacy and confidentiality:
Your identity will be maintained as confidentially as is possible within the limits of the law.
…
No scientific reports by the investigator or the company will use any identities.
Internal videos may be taken through the hysteroscope. No identifiable pictures will be published without specific consent from you.
Second, Mr Williams says the Australian Privacy Principles (‘APPs’) apply to the defendants and are therefore relevant to the relief sought by the plaintiff. Mr Williams says Principle 6 (‘APP 6’) provides that an entity can only use or disclose personal information for a purpose for which it was collected, or a secondary purpose if an exception applies. Mr Williams says he understands that by reason of this principle the use of personal patient information proposed by the plaintiff would ordinarily be prohibited.
Third, Mr Williams says the majority of the relevant documents are dated between 2001 and 2007, and that given the age of the information it is likely to be outdated and of little utility.
Opt out process
By orders dated 28 September 2021, I approved an opt out process including distribution of a notice to be provided to potential group members notifying them of the commencement of the proceeding and group members’ right to opt out of the proceeding before a specified date. The opt out deadline for group members is 14 January 2022.
The opt out notice was ordered to be distributed to potential group members as follows:
(a) the plaintiff’s solicitors displaying the notice on its website;
(b) the plaintiff’s solicitors sending a copy of the notice to all group members for whom it had contact details via email or post; and
(c) the publication of an abridge notice in the Australian Financial Review, The Age, The Sydney Morning Herald, The Australian, The Daily Telegraph, The Advertiser, The West Australian, NT News, The Courier Mail, The Canberra Times and the Mercury.
Submissions
Plaintiff
The documents are discoverable. The plaintiff applies to have the court invoke its compulsory power to compel disclosure of the contact information and make orders as to the use of that compulsorily disclosed information. Further, if it is necessary, the court has power under s 33Y(2)(c) of the Supreme Court Act 1986 (Vic) (‘Act’) to direct a party to provide information relevant to the giving of an opt out notice under s 33X of the Act. Alternatively, s 33X(5) carries with it an implied grant to do whatever is necessary to make the exercise of that power effective, and s 33ZF of the Act authorises the court to make any appropriate or necessary order to ensure that justice is done in the proceeding.
Neither the Harman undertaking nor the APPs limit the court’s power to make the orders sought. The plaintiff’s use of the contact information for the sole purpose of giving the opt out notice to the group members is conduct for the purposes of the litigation and is not inconsistent with the Harman undertaking. There is the prospect the group members may then initiate and therefore consent to further contact in relation to the proceeding. The defendants have not articulated how the conduct could be characterised as being for a purpose extraneous to the proceeding.
APP 6 expressly allows for disclosure of personal information where it is required, authorised by or under a court order. In granting orders for disclosure of personal information for the purpose of notifying group members of a common fund application, Perram J observed in Capic v Ford Motor Company of Australia Limited (No 5) (‘Capic’):[2]
If the Court otherwise has the power to order production of the personal information in question, APP6 does not therefore prevent production under that order.
[2][2018] FCA 8 (‘Capic’) [18].
If it is necessary to dispense with the Harman undertaking, there are special circumstances which justify doing so in this case. First, the information sought and its proposed use is targeted and limited to contact for the sole purpose of notifying the group members. Second, the information sought may be an effective method of notifying the group members despite speculation by the defendants that the information is outdated or inaccurate because it was provided some time ago.
Third, it is not determinative that the documents sought are not public facing documents and the plaintiff does not propose that the contact information enter the public domain. There is no cogent evidence before the court from which to conclude that the clinical trial participants necessarily signed specific consent forms containing provisions regarding patient confidentiality. Further, there is no cogent evidence before the court that one or more of the defendants owe a contractual obligation of confidentiality to the patients in question. If such an obligation did exists, compliance with a court order to provide the contact information to the plaintiff would not constitute conduct in breach of contract or non-compliance with APP 6.
Fourth, the DMP does not prevent the plaintiff from applying to the court for an order requiring the defendant to produce discovered documents unredacted.
Fifth, the plaintiff seeks to use the contact information in a manner intimately connected with advancing the rights of group members in the proceeding, and the proposed use has the capacity to contribute to achieving justice by facilitating notification of the proceeding and the opt out process. The defendants’ concerns as to confidentiality and privacy will be appropriately managed by clear limits placed on the proposed use of the information.
Defendants
It is not clear that the plaintiff has invoked a proper power in support of her application. The plaintiff and her legal representatives are seeking to be released from the Harman (or implied) undertaking that binds them in respect of documents discovered by the defendants in this proceeding. It is not clear whether s 33Y(2) confers power on the Court to make an order dispensing with the implied undertaking. Section 33Y(2) empowers the Court to make orders in respect of an opt out notice, prepared pursuant to s 33X, directing a party to provide information relevant to the giving of the notice. The defendants have been unable to identify any cases in which s 33Y(2) (or its equivalent provisions in other jurisdictions) has been relied upon by an applicant seeking relief from their implied undertaking obligations.
For the plaintiff (and her legal representatives) to be released from their implied undertaking obligations, they must demonstrate that special circumstances exist that justify the Court’s exercise of its dispensing power.[3] The documents contain confidential personal patient information, pre-date the commencement of this proceeding and were produced to the plaintiff under compulsion. Around a third of the documents relate to patients participating in clinical trials involving the Essure device. Consent forms signed by patients participating in the clinical trials contained specific provisions regarding patient confidentiality. Those patients did not consent to the disclosure or use of their personal information by persons other than the direct recipients of those documents. The defendants owe a contractual obligation of confidentiality to these patients.
[3]Hearne v Street (2008) 235 CLR 125 [107] (‘Hearne’).
The APPs apply in respect of all the documents. Relevantly, APP 6 prohibits the use or disclosure of personal patient information absent the consent of the patients or the existence of an exception arising pursuant to APP 6.2.
The plaintiff in substance seeks access to personal information in order to use that information in a manner which is inconsistent with the terms on which it was provided by the group members. Further, the confidentiality obligation owed to group members who participate in clinical trials of the Essure device is not contrary to public policy, and is not void or unenforceable.[4] Accordingly, to the extent the contact information is protected by a contractual relationship of confidence, the plaintiff’s application must be dismissed.
[4]Crown Resorts Limited v Zantran Pty Limited [2020] FCAFC 1 [135] (Lee J) (‘Crown’).
Given the age of the patient contact information (between 14 and 20 years old), the documents are likely to be stale, inaccurate and of limited utility in contacting potential group members. Further, comprehensive measures have already been taken to inform potential group members of the proceeding including displaying the opt out notice on the plaintiff’s solicitors’ website and publishing the notice in various newspapers.
Pursuant to s 33Y(4) of the Act, the court must not order that notice be given personally to each group member unless it is satisfied that it is reasonably practicable, and not unduly expensive, to do so.
Authorities and principles
Section 33X of the Act governs when notice is to be given to group members in group proceedings. Section 33X(5) provides:
The Court may, at any stage, order that notice of any matter be given to a group member or group members.
Section 33Y of the Act provides for opt out notices and states:
(1) The form and content of a notice under section 33X must be approved by the Court.
(2) The Court must, by order, specify—
(a) who is to give the notice; and
(b) the manner in which the notice is to be given—
and the order may include provision—
(c) directing a party to provide information relevant to the giving of the notice; and
(d) relating to the costs of notice.
(3) An order under subsection (2) may require that notice be given by means of press advertisement, radio or television broadcast, or by any other means.
(4) The Court must not order that notice be given personally to each group member unless it is satisfied that it is reasonably practicable, and not unduly expensive, to do so.
Section 33ZF of the Act provides the court with a general power to make orders and states:
In any proceeding (including an appeal) conducted under this Part the Court may, of its own motion or on application by a party, make any order the Court thinks appropriate or necessary to ensure that justice is done in the proceeding.
Section 15 of the Privacy Act 1988 (Cth) (‘Privacy Act’) requires the defendants (as APP entities) not to do something which would breach the APPs:
An APP entity must not do an act, or engage in a practice, that breaches an Australian Privacy Principle.
The APPs apply to APP entities including the first and third defendant. APP 6 relates to the use or disclosure of personal information and provides:
6.1 If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose), the entity must not use or disclose the information for another purpose (the secondary purpose) unless:
(a) the individual has consented to the use or disclosure of the information; or
(b) subclause 6.2 or 6.3 applies in relation to the use or disclosure of the information.
…
6.2 This subclause applies in relation to the use or disclosure of personal information about an individual if:
…
(b) the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order; or
In Capic, the applicant applied for access to potential group member contact information that was managed by a non-party Austroads Ltd (’Austroads’) via the National Exchange of Vehicle and Driver Information System (‘NEVDIS’). The applicant sought access to the contact information for the purpose of notifying potential group members of the applicant’s application for a common fund order so that group members were provided with an opportunity to oppose the application should they wish to do so. In considering APP 6, Perram J held:
If the Court otherwise has the power to order production of the personal information in question, APP 6 does not therefore prevent production under that order. This then raises three questions: does the Court have the power to order the information to be produced; if it does, should it exercise that power; and, if so, on what conditions.[5]
[5]Capic (n 2) [17].
As to the court’s powers under the ss 33X(5) and 33ZF equivalents in the Federal Court of Australia Act 1976 (Cth), Perram J said:
I consider that grant of power carries with it an implied grant to do whatever is necessary to make the exercise of that power effective. That would include obtaining address information about class members from third parties. A similar source of power is s 33ZF(1) of the FCAA which authorises the Court to make any order ‘the Court thinks appropriate or necessary to ensure that justice is done in the proceeding’. A similar conclusion on the issue of power was reached by Foster J in Carter v Audi Australia Pty Ltd (No 2) [2017] FCA 1042 at [98]-[100].[6]
[6]Ibid [18].
In considering whether the court should exercise its powers under those provisions Perram J was required to decide whether the NEVDIS Participation Agreement which existed between Austroads and eight participating jurisdictions bound Austroads not to disclose the confidential information of a participant:
Cl 10.2 of the agreement on its face binds Austroads not to disclose the confidential information of a participant. I will assume that the information in question is, generally, of that nature. However, the expression ‘Confidential Information’ is defined in cl 1.1 of the agreement in a way which includes a carve-out for ‘information required by law to be disclosed’. Accordingly, once an order is made, cl 10.2 no longer binds Austroads not to disclose the information the subject of the order. Cl 12.2 also binds Austroads to comply with the Act. However, as I have explained, compliance with the Act does not prevent disclosure when there is a Court order. Reference was also made by Austroads to cls 13.1, 13.2, Schedule 2 and Schedule 5 of the agreement, but these do not in any way qualify what I have just said. No breach of contract will occur, therefore, in Austroads complying with this Court’s order.[7]
[7]Ibid [19].
As to confidentiality, his Honour said that it remained an important issue at a discretionary level that the confidentiality of the information should be preserved as far as possible, and that the parties were subject to an implied undertaking only to use information obtained by the court’s compulsory processes for the purposes of the litigation.[8] It seems implicit in the ruling that Perram J held the proposed use of the contact information to contact group members was not inconsistent with the Harman undertaking.
[8]Ibid [20]–[21].
In Hearne v Street, the court considered the extent of the implied or Harman undertaking. Hayne, Heydon and Crennan JJ stated:
Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence.[9]
[9]Hearne (n 3) [96] (citation omitted).
As to the circumstances justifying a party being released from the Harman undertaking Wilcox J in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd said:[10]
For “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the court’s discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
[10](1992) 38 FCR 217.
In Crown Resorts Limited v Zantran Pty Limited (‘Crown’),[11] the respondent to the appeal commenced a representative proceeding in which it alleged breach of Chinese law by the appellant’s employees of which the appellant had knowledge. Solicitors for the respondent wished to speak to employees of the appellant, all of whom were subject to express confidentiality clauses in favour of the appellant. The respondent applied for orders that the employees be relieved of any obligations of confidence for the purposes of conferring with its solicitors and providing an outline of evidence. The Court in Crown concluded that for the respondent to succeed on its application it was necessary for it to establish that the confidentiality obligation was void or unenforceable by reason of it interfering with the administration of justice,[12] or being contrary to public policy.[13] However, the Court also recognised that confidentiality obligations were subject to court orders compelling disclosure in the proceeding, even if those obligations were valid and enforceable,[14] and that the respondent could have applied to have the court invoke its compulsory power to compel disclosure by Crown or the employees of the information it sought.[15]
[11]Crown (n 4).
[12]Ibid [135] (Lee J).
[13]Ibid [60] (Allsop CJ).
[14]Ibid [7] (Allsop CJ), [82] (Lee J).
[15]Ibid [7], [60] (Allsop CJ), [82] (Lee J).
Analysis
I accept the plaintiff’s submissions, and will grant the orders sought in her amended summons.
The conclusion I have reached is consistent with the decision in Crown. The documents are discoverable. There is no doubt the court has power to compel discovery of the documents in unredacted form. This is so whether or not an obligation of confidence attaches to the contact information.[16]
[16]Mackay Sugar Co-operative Association Ltd v CSR Ltd (1996) 137 ALR 183; NAK Australia Pty Ltd v Starkey Consulting Pty Ltd [2008] NSWSC 1136 [4].
In any event, the evidence does not establish that an obligation of confidentiality is owed to the group members. However, the orders I will make are not inconsistent with an obligation of confidentiality that may be owed, for example, to clinical trial participants. Notification of the proceeding will alert the group members of the potential that their treatment or other personal information may be disclosed in the proceeding. The group members would then be in a position to take what steps they consider appropriate to protect a privilege or confidentiality which they assert attaches to that information. Unless contact is made with them the group members may not have that opportunity.
If it were necessary I would also conclude the court has power under s 33Y(2)(c) of the Act to direct the defendants to provide copies of the documents without the contact information redacted.
Consistent with the decision of Perram J in Capic, I conclude APP 6 does not prevent production of the discovered documents in unredacted form.
The plaintiff seeks to use the contact information for the specific and limited purpose of providing notice of the proceeding, and of the opt out orders, to group members. The plaintiff is not seeking to use the contact information to pursue its own interests in the proceeding against interests of a person who is owed an obligation of confidence as was the situation in Crown. There is a real benefit to notifying the group members about their rights in the proceeding. Using the contact information in that way is conduct for the purposes of the litigation, and is not inconsistent with the Harman undertaking that attaches to documents discovered in the proceeding. Disclosure of the contact information sought by the plaintiff for the purpose of notifying potential group members of the opt out process is consistent with the implied undertaking.
Once notified of the proceeding and the opt out orders, the group members will decide whether to have any further contact with any party in relation to the proceeding. There could be no objection to contact that is consented to by the group members.
Although no party has raised the issue, it is possible that information redacted from the relevant documents, or from other documents that have been discovered but not yet reviewed, extends beyond contact information and includes details of medical procedures performed or other medical information. Information of that nature may be privileged, and is more likely to be confidential to the person identified. The orders I will make are not intended to extend to personal medical treatment information of group members contained in any document discovered in the proceeding.
If it were necessary I would conclude that the plaintiff should be relieved of the Harman undertaking for the purpose of taking steps in accordance with the orders I will make. The purpose of this proceeding is to prosecute the rights of group members who have had the Essure device inserted and allege they have suffered injuries as a consequence. It is clearly appropriate that steps be taken to give the group members notice of the proceeding and of the opt out orders.
I do not accept there is a lack of utility in the orders sought by the plaintiff. While the age of the information divulged may mean that in some cases contact cannot be made with an identified group member, the fact that the contact information appears to include addresses, telephone numbers and email addresses increases the prospect of success.
The subject matter of the proceeding is of a very sensitive nature. It will be important that the manner in which contact is sought to be established takes account of that sensitivity, and the possible reaction by the group members to receiving unsolicited information about the proceeding. The plaintiff’s practitioners are experienced in common law group proceedings and will, I am sure, take into account the interests of the group members when attempting to make contact.
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