Weruva International, Inc v Briscoe - [2025] NSWSC 257

Supreme Court

New South Wales

Medium Neutral Citation: Weruva International, Inc v Briscoe [2025] NSWSC 257
Hearing dates: 21 March 2025
Date of orders: 21 March 2025
Decision date: 21 March 2025
Jurisdiction: Equity - Commercial List
Before: Stevenson J
Decision:
Plaintiff’s notice of motion of 21 November 2024 dismissed with costs

Catchwords:
CIVIL PROCEDURE – discovery – Practice Note SC Eq 11 – whether exceptional circumstances warrant disclosure before evidence exchanged – where plaintiff seeks leave for pre-evidence discovery and to issue subpoenas – where plaintiff seeks to make out case of misleading or deceptive conduct based upon inference

Legislation Cited:
Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law

Cases Cited:
The Owners Strata Plan 69567 v Baseline Constructions Pty Ltd [2012] NSWSC 502

Texts Cited:
Practice Note SC Eq 11

Category: Procedural rulings
Parties: Weruva International Inc (Plaintiff/Applicant)
Katherine Anne Briscoe (First Defendant/Respondent)
Jody Ann Braddock (Second Defendant/Respondent)
Susan Fay Foster (Third Defendant/Respondent)
The Animal Referral Hospital Pty Ltd ACN 084 528 487 (Fourth Defendant/Respondent)
Representation:
Counsel:
M D Wyles, KC / J Adamopoulos (Plaintiff/Applicant)
S Hartford-Davis (Defendants/Respondents)
Solicitors:
Hamilton Locke (Plaintiff/Applicant)
Colin Biggers & Paisley (First, Second, and Fourth Defendants/Respondents)
Meridian Lawyers (Third Defendant/Respondent)

File Number(s): 2023/135963

EX TEMPORE JUDGMENT (REVISED)

The plaintiff is a United States corporation that manufactures a range of cat food, including one known as “Best Feline Friends”. The plaintiff distributes its products in Australia through, amongst other things, a company associated with the Petbarn network of businesses.
These proceedings were commenced in April 2023, almost two years ago, but have not yet progressed beyond the stage of the defendants filing List Responses to the plaintiff’s Amended Commercial List Statement.
The first to third defendants are veterinary surgeons. The fourth defendant is the owner of a veterinary hospital.
The plaintiff alleges that the first to third defendants made representations concerning its products which are said to be misleading or deceptive within the meaning of s 18 of the Australian Consumer Law,^[1] and that the fourth defendant is either knowingly involved in or vicariously liable for those representations.
1. Competition and Consumer Act 2010 (Cth), Sch 2 – Australian Consumer Law.
The alleged representations are to the effect that the plaintiff’s product has caused severe illness in a “cluster” of cats.
In the plaintiff’s lengthy Amended Commercial List Statement, the representations are pleaded as matters of “reasonable implication” and matters that can be “reasonably inferred” from a large number of specified matters of fact.
Now, by notice of motion filed on 21 November 2024, the plaintiff seeks leave to have pre-evidence discovery from the defendants, and leave to issue a number of subpoenas.
Commendably, the range of discovery sought is now more confined than that which was originally called for, and it now seeks these documents:

“1. All Documents between 1 March 2017 and 14 May 2017 referring to, or recording statements or information about, any of the following matters, (which are referred to in paragraphs 17-24, 37, 41,…

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: [2025] NSWSC 257
Decision Date: 21 March 2025

CaseChat Overview and Summary

In this case, Weruva International, Inc sought leave to make certain pre-discovery applications, including obtaining disclosure prior to the exchange of evidence, issuing subpoenas, and seeking leave to rely on inferences in their case against Briscoe. The application was made before the Supreme Court of Queensland. The primary focus of the dispute was whether the plaintiff could rely on inferences in its case of misleading or deceptive conduct, and whether exceptional circumstances justified disclosure before the exchange of evidence.

The legal issues that arose centred on the interpretation and application of the Supreme Court Practice Note SC Eq 11, which governs the timing and process of discovery in the Supreme Court. The plaintiff argued that exceptional circumstances warranted disclosure before the exchange of evidence and that they should be allowed to rely on inferences to make out their case. The defendant, Briscoe, opposed these applications, asserting that the plaintiff's reliance on inferences was not permissible under the Practice Note and that there were no exceptional circumstances to warrant pre-exchange disclosure.

The court considered the plaintiff's application under the Supreme Court Practice Note SC Eq 11, focusing on whether there were exceptional circumstances to warrant disclosure before the exchange of evidence. The court also examined the nature of the plaintiff's case and the role of inferences in establishing misleading or deceptive conduct. The court found that the plaintiff's reliance on inferences was not consistent with the Practice Note, which restricts such reliance to cases where the evidence is unequivocal. The court further held that there were no exceptional circumstances to justify disclosure before the exchange of evidence. Consequently, the plaintiff's applications for pre-evidence disclosure and to issue subpoenas were dismissed.

The court's decision was that Weruva International, Inc was not entitled to the relief it sought. The court found that the plaintiff could not rely on inferences to make out its case and that there were no exceptional circumstances to warrant disclosure before the exchange of evidence. The plaintiff's applications were dismissed, and no orders were made in favour of the plaintiff.

Orders