Cassidy & Anor v Medical Benefits Fund of Aust Ltd & Anor [2001] FCA 700

FEDERAL COURT OF AUSTRALIA

Cassidy & Anor v Medical Benefits Fund of Aust Ltd & Anor

[2001] FCA 700

DISCOVERY – discovery sought by Australian Securities and Investments Commission of certain membership records of MBF in aid of claim that MBF had engaged in misleading or deceptive conduct in advertising waiver of time limits for payment of benefits to new members in contravention of s 12DA(1) of the Australian Securities and Investments Commission Act 1989 (Cth) – whether giving of discovery would be unduly onerous taking into account the significance of the discovery to the proceedings – admissibility and significance of evidence of persons that they were deceived or misled by the conduct complained of discussed – whether Federal Court Practice Note 14 relevant to the making of an order of discovery.

Australian Securities and Investments Commission Act 1989 (Cth) ss 12DA(1), 12GD(1), 12GM(3)

ACCC v Optell Pty Ltd (1998) ATPR 41-640 cited

Happy Landings Pty Ltd v Magazine Promotions Australia Pty Ltd (1984) ATPR 40-459 cited

Mulley v Manifold (1959)103 CLR 341 considered.

Miller's Annotated Trade Practices Act 2000 21st ed.

Cassidy & Anor v Medical Benefits Fund of Aust Ltd & Anor

N 99 OF 2001

HILL J 12 JUNE 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 99 OF 2001

BETWEEN: BRIAN CASSIDY

FIRST APPLICANT

AUSTRALIAN SECURITIES AND INVESTMENTS COMMISSION

SECOND APPLICANT

AND: MEDICAL BENEFITS FUND OF AUSTRALIA LTD

(ACN 000 057 590)

FIRST RESPONDENT

JOHN BEVINS PTY LTD

(ACN 002 003 572)

SECOND RESPONDENT

JUDGE: HILL J

DATE OF ORDER: 12 JUNE 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The first respondent discover all records of membership applications of persons who have made any complaints which relate to the television or other advertising referred to in the application and statement of claim. 2. Leave be given to Mr Cassidy, ASIC or a representative of ASIC to approach any of the persons who made complaints of the kind referred to in order 1 for the purpose of obtaining statements or affidavits of those persons for use in the present proceedings. 3. Mr Cassidy pay the first respondent's costs of the amended motion, not being costs already ordered and excluding the costs of the adjourned hearing on 7 June 2001.