Turner v Bayer Australia Ltd (No 6) - [2023] VSC 244

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) & ORS	Defendants

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	17, 20, 27 April 2023
DATE OF RULING:	10 May 2023
CASE MAY BE CITED AS:	Turner v Bayer Australia Ltd (No 6)
MEDIUM NEUTRAL CITATION:	[2023] VSC 244

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PRACTICE AND PROCEDURE — Court file — Release of documents used in trial to media — Documents containing personal data of natural persons residing in the European Union — Consideration of European Union data protection laws.

PRACTICE AND PROCEDURE — Application to amend defence — Withdrawal of pleading — Delay — Whether in the nature of admission — Reliance — Prejudice.

PRACTICE AND PROCEDURE — Application to amend lay witness statement — New evidence — Delay — Change of solicitors — Probative value — Prejudice.

PRACTICE AND PROCEDURE — Application to lead further factual evidence from expert witness — No new issue raised — Prejudice — Objections to expert witness report.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	F Forsyth KC with F Ryan SC, E Levine and M Guo	Slater & Gordon
For the Defendants	D Collins KC with K Brazenor, D Wong and J Teng	Clayton Utz
For the Media Parties	C Jankie, Senior Lawyer for the Australian Broadcasting Corporation S White, Editorial Counsel for Nine Network Australia Pty Ltd and The Age Company Pty Ltd

HIS HONOUR:

This representative proceeding is a product liability action concerning implanted permanent contraceptive medical devices identified collectively as the Essure device. The plaintiff brings the proceeding on behalf of all women who have had an Essure device implanted and suffered harm as a result. She claims damages for breach of the Australian Consumer Law[1] and Trade Practices Act 1974 (Cth), on the basis of allegations that the devices were not of acceptable quality and/or had a safety defect, and in negligence based on allegations of a defective design and failure to warn.
[1]Competition and Consumer Act 2010 (Cth), sch 2.

The trial of the proceeding commenced on 11 April 2023 and is estimated to run for 12 weeks.

Media organisations have sought access to transcript and some of the documents relied on by the parties at trial.

The second defendant, Bayer Aktiengesellschaft, is a corporation registered in Germany. The defendants have made discovery of documents that originated from Germany (‘EU documents’), some of which contain personal data of natural persons residing in the European Union (‘EU’), including names, job titles, signatures, business email addresses, street addresses and phone numbers, and personal email addresses, street addresses and phone numbers (‘EU data’). The defendants oppose the media having general access to transcript and EU documents used at trial because, they argue, the release of EU data would be a breach of applicable law of the European Parliament.

During oral argument it became clear that the defendants…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] VSC 244
Decision Date: 10 May 2023

CaseChat Overview and Summary

Turner v Bayer Australia Ltd (No 6) involved a dispute concerning the release of documents used in a trial to the media, with particular attention to the personal data of individuals residing in the European Union. The case was heard in the Federal Court of Australia, where issues concerning the applicability of European Union data protection laws to the Australian court process were considered.

The court was tasked with deciding whether documents containing personal data of EU residents could be released to the media without infringing on EU data protection laws. Additionally, the case required the court to determine if a late application to amend a defence, which involved the withdrawal of a pleading, could be allowed despite the delay, and whether such an amendment could be considered an admission by the party. The court also had to consider whether a late application to amend a lay witness statement, involving new evidence, was permissible due to the delay and the change of solicitors, and assess the probative value of the new evidence against the prejudice it might cause. Finally, the court needed to decide if an application to lead further factual evidence from an expert witness, which did not raise a new issue, could proceed despite objections to the expert witness report and the potential prejudice to the opposing party.

The court ruled that the release of documents to the media, which contained personal data of EU residents, could proceed only if strict measures were taken to ensure compliance with EU data protection laws. Regarding the amendment of the defence, the court found that the delay and the nature of the proposed amendment did not necessarily constitute an admission, and thus, the amendment was allowed. In the case of the lay witness statement, the court held that the delay and the change of solicitors did not automatically disqualify the amendment, but the court would consider the probative value of the new evidence against the potential prejudice. Lastly, the court decided that the application to lead further evidence from the expert witness could not proceed, as it did not introduce a new issue and the objections to the expert witness report, along with the potential prejudice, outweighed any benefit of the new evidence.

No final orders were explicitly stated in the summary provided, but the court's decisions would have directly impacted the conduct of the trial and the management of evidence in this case.

Orders