FEDERAL COURT OF AUSTRALIA Bright v Femcare Ltd [2000] FCA 1394 KERRIE BRIGHT v FEMCARE LIMITED and ENDOVASIVE PTY LIMITED N 410 OF 1999 LEHANE J 20 SEPTEMBER 2000 SYDNEY IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 410 OF 1999 BETWEEN: KERRIE BRIGHT APPLICANT AND: FEMCARE LIMITED FIRST RESPONDENT ENDOVASIVE PTY LIMITED (ACN 061 512 132) SECOND RESPONDENT JUDGE: LEHANE J DATE OF ORDER: 20 SEPTEMBER 2000 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The Toowoomba Base Hospital produce documents in answer to the subpoena dated 7 July 2000 addressed to it, to the extent that the documents comprise correspondence, together with annexures, to and from doctors whose patients underwent Filshie clip sterilisation procedures, but need not produce any list prepared by the hospital of patients who underwent such procedures. 2. The legal advisers of the parties be permitted to inspect the documents so produced, subject to the following conditions: (i) the names and details of the patients who underwent the Filshie clip sterilisation procedures should not be disclosed to anyone other than the legal advisers of the parties; (ii) until further order of the Court, the documents may only be used in relation to the motions under s 33N of the Federal Court of Australia Act 1976 (Cth) which are listed for hearing on 6 and 7 November 2000; (iii) until further order of the Court, no party is to approach any patient or doctor, who is referred to in the documents, in connection with this litigation (though the parties may continue to have contact with any such patient or doctor with whom they have already made contact). 3. The applicant and Toowoomba Base Hospital each pay her or its own costs of today's hearing in relation to the subpoena addressed to the hospital. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY N 410 OF 1999 BETWEEN: KERRIE BRIGHT APPLICANT AND: FEMCARE LIMITED FIRST RESPONDENT ENDOVASIVE PTY LIMITED (ACN 061 512 132) SECOND RESPONDENT JUDGE: LEHANE J DATE: 20 SEPTEMBER 2000 PLACE: SYDNEY REASONS FOR JUDGMENT 1 The matter now before me is a subpoena for production addressed to the Toowoomba Base Hospital. The subpoena calls for production to the Court of documents falling within a number of categories, several of which correspond closely with categories called for in the subpoenas with which I dealt in the previous judgment delivered on 8 September 2000. 2 The hospital appeared by senior counsel. To the extent that the subpoena does not call for production of documents in classes extending beyond those covered by the subpoenas amended in accordance with my reasons of 8 September, it does not object to production or to the inspection by the parties of documents when produced. There is, however, included among the documents called for by the subpoena addressed to the hospital a further category expressed as follows: "Correspondence, together with annexures, to and from any doctors whose patients had Filshie sterilisation procedures, together with any internal list prepared by the hospital of patients who had Filshie sterilisation procedures at the hospital." 3 The hospital seeks to set aside that paragraph of the schedule to the subpoena, and, should I not set that paragraph aside, it resists an order making available any of those documents for inspection by the parties. 4 In taking that attitude, the hospital has some support in my reasons of 8 September. Although the hospital does not make any claim that the subpoena is oppressive, nevertheless it asserts, no doubt correctly, that the documents called for would disclose information in respect of which it has an obligation of confidence and, as I described it in my earlier reasons, information of a particularly personal kind. I expressed the view in my reasons of 8 September that it was very unlikely that, at this stage in the present proceeding, an order would be made permitting inspection of documents which would disclose information of the kind which the documents now in question would reveal. 5 Senior counsel for the applicant contends that Pt IVA of the Federal Court of Australia Act 1976 (Cth) gives him, or his client, the authority to obtain, by the process of subpoena, documents of a kind which would reveal details of procedures undergone by potential class members. For that proposition, he relies on observations of the Full Court in Femcare Limited v Bright (2000) 172 ALR 713, particularly at pars 96, 98 and 99. 6 Senior counsel adds that while, in relation to a particular group member, that authority may be terminated by the process of opting out, each person falling within the definition in the pleading of the represented group is to be taken, until the opportunity to opt out is afforded, to have given authority to the applicant to take the steps which she now seeks to take. It is, I think, plainly true that the applicant has, as matters stand, statutory authority to commence and prosecute this proceeding. It does not follow however, in my view, that she has the particular authority contended for or that, as a matter of discretion, the Court will necessarily, on the applicant's application, require production and inspection of highly confidential information concerning particular group members. 7 I adhere to the view that the Court will be particularly cautious in taking a step of that kind in circumstances where group members have not yet had the opportunity to opt out, indeed in many cases may not even know that this proceeding has been commenced with their statutory authority. The question is, I think, in essence a discretionary one, as I already foreshadowed. It is a discretion which, in the absence of evidence of oppression, arises probably rather at the stage where it is sought to have documents which have been produced on subpoena made available for inspection, rather than at the stage where a person to whom a subpoena is addressed seeks to have the subpoena, or part of it, set aside. That, I think, is implicit in the judgment of the New South Wales Court of Appeal in Waind v Hill [1978] 1 NSWLR 372. 8 The exercise of the discretion involves, I think, a balancing of the forensic use which might be made of the documents sought and the potential advantage to group members in that use against the considerable invasion of confidentiality, and of privacy, necessarily involved in disclosure of information about a procedure which a patient has undergone in a hospital. It is at that point that senior counsel for the applicant contends that, on the basis of information contained in documents which were tendered today, I should take a different view about production of the documents now called for than I expressed, at least tentatively, in my earlier reasons. 9 In broad terms, counsel submits that one of the issues on an application for an order under s 33N of the Federal Court of Australia Act (such an application has been foreshadowed and is to be heard on 6 and 7 November 2000) is likely to be the extent of commonality of issues in relation to the applicant and the various categories of group members. It has previously been foreshadowed that that will be an issue on such an application and I see no reason to doubt that it will play a substantial role in submissions when motions seeking orders under s 33N are heard. 10 It is then submitted that material, already revealed as a result of inspection of documents produced under other subpoenas, shows that there may well have been a significant number of applicators in use during relevant periods in a number of hospitals which were out of calibration, in some cases at least quite seriously so. There is evidence in the documents tendered of what is asserted to have been a reluctance on the part of some hospitals to notify patients who may have been at risk of having undergone a failed sterilisation procedure as a result of being operated upon using an applicator which was or may have been out of calibration. 11 The submission then proceeds to the proposition that the production for inspection, at least, of correspondence to and from doctors whose patients had Filshie sterilisation procedures may well indicate a connection between hospitals where applicators have been found to be out of calibration and patients whose operations have been unsuccessful. The present argument, of course, in that respect is limited to the particular hospital to which the present subpoena is addressed. 12 I think there is considerable force in what has been put by senior counsel and there is equally obvious force in the proposition that the applicant should not be unreasonably hampered in dealing with the foreshadowed motion seeking orders under s 33N. For that reason, I am inclined to think that it is appropriate to require production of the documents in question to the extent that they comprise correspondence, together with annexures, to and from doctors whose patients had Filshie sterilisation procedures. 13 Equally, I think it is appropriate that those documents be made available for inspection, but subject to conditions designed to ensure that the names and particulars of patients who underwent procedures will not be disclosed to any persons other than the legal advisers of the parties and that the use to which the documents or information in them is put is limited, until further order, to use in connection with the motions listed for hearing on 6 and 7 November 2000. 14 Until further order of the Court, no party is to approach any patient or doctor, who is referred to in the documents produced, in connection with this litigation. However, the orders giving effect to these reasons will not prevent any party from continuing discussions with any doctors – or, for that matter, patients – whose names may appear in the documents to be inspected, with whom that party is already in contact. 15 I am not, however, persuaded at this stage that the production of the list of patients is likely to provide any significant forensic benefit and accordingly I see no advantage in requiring the hospital to produce such a list. 16 It is appropriate that the hospital and the applicant each pay its or her own costs of today's hearing in relation to the subpoena addressed to that hospital. 17 [It was subsequently agreed that the following orders would give effect to these reasons:] 1. The Toowoomba Base Hospital produce documents in answer to the subpoena dated 7 July 2000 addressed to it, to the extent that the documents comprise correspondence, together with annexures, to and from doctors whose patients underwent Filshie clip sterilisation procedures, but need not produce any list prepared by the hospital of patients who underwent such procedures. 2. The legal advisers of the parties be permitted to inspect the documents so produced, subject to the following conditions: (i) the names and details of the patients who underwent the Filshie clip sterilisation procedures should not be disclosed to anyone other than the legal advisers of the parties; (ii) until further order of the Court, the documents may only be used in relation to the motions under s 33N of the Federal Court of Australia Act 1976 (Cth) which are listed for hearing on 6 and 7 November 2000; (iii) until further order of the Court, no party is to approach any patient or doctor, who is referred to in the documents, in connection with this litigation (though the parties may continue to have contact with any such patient or doctor with whom they have already made contact). 3. The applicant and Toowoomba Base Hospital each pay her or its own costs of today's hearing in relation to the subpoena addressed to the hospital. I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lehane. Associate: Dated: 3 October 2000 Counsel for the Applicant: A J L Bannon SC J Clarke Solicitor for the Applicant: Maurice Blackburn Cashman Counsel for Toowoomba Base Hospital: I G Harrison SC Solicitor for Toowoomba Base Hospital: Hunt & Hunt Date of Hearing: 20 September 2000 Date of Judgment: 20 September 2000