Case: The University of Western Australia v Gray (No 6) [2006] FCA 1656
Outcome: cited
The decision refusing the University's application was given on 1 December 2006: The University of Western Australia v Gray (No 6) [2006] FCA 1656. I noted in the reasons that Dr Gray did not contend that the material sought was irrelevant. He argued rather that it was of "tangential" relevance. It was not in issue that he treated patients during the relevant period but no issue about that treatment was raised on the pleadings. He maintained through his solicitors that it would be oppressive to require that he sort out and produce from the large number of documents in existence those which fell within the class the subject of the proposed order. I found the case advanced by the University for access to those records to be less than convincing. The class sought by its minute overreached in seeking a range of clinical data relevant to patients treated with an invention the subject of the proceedings. It was not limited to data flowing from such treatment. The description of records by reference to records of treatment with an "invention" would require judgments about what was meant by "invention". I also expressed reluctance about having the clinical data of individuals put in play in the proceedings without good reason. 7 The University has now adverted to discovery item 1804 which it had not previously raised in Court and seeks inspection of those documents. They may fall within, although they are not necessarily congruent with, the class of documents for which the University in effect sought additional discovery in October 2006. The question therefore is whether, clinical records having been discovered, the University is entitled to inspect them. 8 Order 15 relevantly provides: '1 After a directions hearing under Order 10, any party may, with the leave of the Court and within any period fixed by the Court for this purpose, by notice for discovery, in accordance with Form 21, filed and served on any other party, require any other party to give discovery of documents. 2(1) A party required to give discovery must do so within the time specified in the notice of discovery (not being less than 14 days after service of the notice of discovery on the party), or within such time as the Court or a Judge directs. 2(2) Unless the Court or a Judge orders otherwise, a party must give discovery by serving: (a) a list of documents required to be disclosed; and (b) an affidavit verifying the list. 3 Without limiting rule 3 or 7, the documents required to be disclosed are any of the following documents of which the party giving discovery is, after a reasonable search, aware at the time discovery is given: (a) documents on which the party relies; and (b) documents that adversely affect the party's own case; and (c) documents that adversely affect another party's case; and (d) documents that support another party's case. ... 6(1) A list of documents required by or under this Order shall, unless the Court otherwise orders, be in accordance with Form 22 and conform to the requirements of this rule. ... 6(7) A list of documents shall appoint a time within 7 days after service of the list when, and a place where, the documents in the list may be inspected. ... 10(1) Where a pleading or affidavit filed by a party refers to a document, any other party may, by notice to produce served on him require him to produce the document for inspection. (2) Where a notice to produce a document is served on a party under subrule (1), he shall, within 4 days after that service, serve on the party requiring production a notice: (a) appointing a time within 7 days after service of the notice under this subrule when, and a place where, the document may be inspected; (b) claiming that the document is privileged from production and sufficiently stating the grounds of the privilege; or (c) stating that the document is not in his possession, custody or power and stating to the best of his knowledge information and belief where the document is and in whose possession, custody or power it is. 11(1) Where: (a) it appears from a list of documents filed by a party under this Order that any document is in his possession, custody or power; ... the Court may, subject to any question of privilege which may arise, order the party: (d) to produce the document for inspection by any other party at a time and place specified in the order; or (e) to file and serve on any other party a copy of the whole or any part of the document, with or without an affidavit verifying the copy made by a person who has examined the document and the copy. (2) An affidavit made pursuant to an order under paragraph (1)(e) shall, unless the Court otherwise orders, state whether there are in the document copied any and, if so, what erasures, interlineations or alterations. ... 15 The Court shall not make an order under this Order for the filing or service of any list of documents or affidavit or other document or for the production of any document unless satisfied that the order is necessary at the time when the order is made.'