New South Wales Supreme Court CITATION : AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1272 HEARING DATE(S) : 25 September 2009 JURISDICTION : Equity Division Expedition List JUDGMENT OF : Brereton J EX TEMPORE JUDGMENT DATE : 25 September 2009 DECISION : Orders for discovery CATCHWORDS : PROCEDURE – Discovery – Discovery by category LEGISLATION CITED : (NSW) Uniform Civil Procedure Rules 2005, r 21.2 CATEGORY : Procedural and other rulings AMI Australia Holdings Pty Ltd (first plaintiff/respondent) Advanced Medical Institute Pty Ltd (second plaintiff/respondent) PARTIES : Fairfax Media Publications Pty Ltd (first defendant/applicant) Rita Almohty (second defendant) Kelly Burke (third defendant) Kate McClymont (fourth defendant) FILE NUMBER(S) : SC 3219/09 Dr E M Peden (plaintiffs/respondents) COUNSEL : Mr D R Sibtain w Mr M A Polden (first, third & fourth defendants/applicant) Mr R E Dubler SC w Mr E W Young (second defendant) Bruce Stewart Dimarco (plaintiffs/respondents) SOLICITORS : Johnson Winter & Slattery (first, third and fourth defendants/applicant) TressCox Lawyers (second defendant) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST BRERETON J Friday 25 September 2009 3219/09 AMI Australia Holdings Pty Limited v Fairfax Media Publishing Pty Limited JUDGMENT (ex tempore) 1 HIS HONOUR: Discoveries by categories is not a substitution for a subpoena. Being a process of discovery, it remains critical that what is discoverable relates to a fact in issue in the proceedings. It is for that reason that I have repeatedly said that categories for discovery should ordinarily be framed by reference to issues, or facts in issue, in the proceedings, and not by descriptions of the documents discovery of which is sought – although the latter course can sometimes be acceptable, where the description is plainly referable to a fact in issue in the proceedings. 2 It is not the function of discovery by categories to add to the burden of discovery, or to require discovery of documents that would not be discoverable were general discovery ordered. Part of the difficulty here is that, for example, categories 6 and 7 are not plainly linked to a fact in issue in the proceedings, and as originally framed would necessarily capture documents which are not relevant to a fact in issue, and would not be discoverable if general discovery had been ordered. 3 In these proceedings the essential facts in issue appear to be the truth, falsity or confidentiality of the subject matter of each of the particulars 1 to 5 in the list of further particulars. 4 With those principles in mind, I have come to the following conclusions so far as the various disputed categories are concerned. 5 Category 6 would plainly capture some documents which may well be relevant to the subject matter of particular 3, but would obviously also capture documents not relevant to the subject matter of particular 3 and its truth or falsity. That demonstrates that it goes beyond the proper scope of discovery, and is necessarily too wide. An attempt has been made to reformulate it. 6 While it should not be made any broader, I do not see why complaints by AMI patients which refer to, record or tend to evidence, representations of the type referred to in particular 3 would not be relevant and discoverable. Indeed, to the contrary, they plainly would be relevant, and discoverable under an order for general discovery. There is some evidence that discovering them would be a burdensome process. I do not doubt that it may be burdensome, as many discoverable obligations are; but balancing the interests of justice in ensuring that relevant information is available, the fact that this information is in the knowledge of the plaintiff but not the defendant, and that the burden can be limited by introducing a sampling procedure, it seems to me that discovery on a sample basis, restricted to patients whose surnames commence with a nominated letter of the alphabet, would reduce the burden and still provide useful information. 7 Category 7 is said to be relevant to particular 2, but in my view patient complaints of the type described in proposed category 7 are at best extremely tangential to the core of particular 2, and I do not think discovery in that category is warranted. 8 Category 8 – with the omission of subcategory A, which the defendants have conceded – is plainly relevant to the subject matter of particulars 2, 3 and 4. I am quite unable to accept the complaint of oppression in that respect, given that records are kept indexed by telephone extension number. It must be possible easily to identify three AMI doctors and three AMI coordinators and three AMI customer operators for that purpose. 9 Category 9 is now conceded, as is category 10A; and categories 10B and 10C are not pressed. 10 Accordingly: 1. Pursuant to the UCPR r 21.2, I order that the plaintiffs by 10 October 2009 give the defendants discovery of documents within the following classes: (a) Written complaints by AMI patients, during the period 1 July 2007 to date, which refer to, record or tend to evidence any representation made by AMI customer service operator to the effect that patients would get the best results when using AMI products for one to two years; (b) A sample of recordings for one entire day to be nominated by the first, third and fourth defendants in writing not later than 30 September 2009, whether utilising the plaintiff's electrodata call recorder or otherwise, of the telephone conversations taking place between (1) three AMI doctors and AMI patients and/or potential patients; (2) three AMI clinical coordinators and patients and/or potential patients; and (3) three AMI customer support operators and AMI patients and/or potential patients; (c) As per category 9 referred to in the letter of 18 September 2009 from Johnson, Winter & Slattery to Bruce Stewart Dimarco; (d) As per category 10A referred to in that letter; (e) All documents being, containing, recording, referring to or tending to evidence, scientific evidence relating to or referring to any increase in the efficacy of AMI products as a result of use by patients for a period of one to two years. 2. I direct that any such expert evidence be served by 9 October 2009. 3. Grant leave to the plaintiff and the first, third and fourth defendants to adduce at the hearing the evidence of one medical expert each on the question of whether use of the plaintiff's products over a period of one to two years enhances the results. 4. Any motions sought to be made returnable next Friday may be filed by Wednesday 30 September, and time for service is abridged to close of business 29 October 2009. 11 I extend time of service of the plaintiff's affidavit evidence to 30 September 2009, service of the defendant's affidavit evidence to 11 October 2009. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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