Case: Alphapharm Pty Limited v Eli Lilly Australia Pty Limited [1996] FCA 391
Outcome: followed
In support of its proposed redefinition of paragraphs 9 10 in the Minister's third Notice to Produce dated 22 August 2007, Telstra relied upon the decision of Lindgren J in Alphapharm Pty Limited v Eli Lilly Australia Pty Limited [1996] FCA 391 ('Alphapharm'). 41 Eli Lilly Australia Pty Limited apparently wrote a letter dated 16 April 1996 to pharmacists throughout Australia in relation to Alphapharm Pty Limited's anti-depressant drug 'Zactin' and Eli Lilly Australia Pty Limited's competing anti-depressant drug 'Prozac', which had been on the market for a much longer time than Zactin. Alphapharm Pty Limited complained to Eli Lilly Australia Pty Limited about the letter. Eli Lilly Australia Pty Limited's solicitors responded to the effect that their client had in its possession material which fully supported the allegations. This led Alphapharm Pty Limited to apply for an order pursuant to Order 15A rule 6 of the Rules for discovery by Eli Lilly Australia Pty Limited of such material so that Alphapharm Pty Limited would be able to decide whether to commence a proceeding in the Court against Eli Lilly Australia Pty Limited alleging that the letter was misleading or deceptive in contravention of s 52 of the Trade Practices Act 1974 (Cth). 42 In his reasons for judgment Lindgren J made certain observations concerning Order 15A rule 6 as follows: '1. Paragraphs 6 (a) and 6 (c) pose an objective test, the opening words "there is" in each paragraph signifying "there exists"; but the "insufficiency test" of para 6 (b) has both subjective and objective aspects. 2. Although I need not explore the subjective aspect fully, it seems clear that if the evidence went so far as to show that a particular applicant was already able to decide to commence a proceeding by, for example, showing that the applicant had in fact decided to do so, para 6 (b) would not be satisfied even though the information available did not satisfy the objective aspect of the insufficiency test referred to below. 3. The fact that a particular applicant genuinely feels unable, because of a lack of information, to decide to commence a proceeding does not, without more, satisfy para 6 (b); the objective aspect of the paragraph requires it to be shown as an objective fact that the applicant lacks "sufficient information to enable a decision to be made whether to commence a proceeding". 4. In my view, the objective aspect of para 6 (b) invokes a notion of "reasonable sufficiency", the question raised being whether it is reasonable that the applicant for an order be required to take its decision without having the information to become available from inspection of the document or documents of which discovery is sought. 5. If the insufficiency test is satisfied, a second question will arise, namely, whether the Court's discretion should be exercised in favour of the making of an order. 6. The questions posed by rule 6 and referred to above are to be answered in the context of an adversary system of forensic contest in which a proposed respondent is ordinarily entitled to withhold its evidence, certainly prior to the commencement of proceedings. 7. The questions are also to be answered in the light of the nature of the "cause of action" contemplated and the range of information potentially available in respect of a cause of action of that kind. 8. Contrary to a submission of Eli Lilly, in my opinion rule 6 is not necessarily rendered unavailable by the fact that the applicant already has available evidence establishing a prima facie case for the granting of relief. This is made clear by the reference in para (a) to the existence of "reasonable cause to believe that the applicant has ... the right to obtain relief ..." (emphasis supplied). It would impose an artificial constraint on rule 6 , not supported by its terms or purpose, to exclude, a priori , all cases in which the insufficiency of the information possessed by the applicant to enable a decision to be made whether to litigate is due to a matter of "defence" which would defeat the prima facie case. 9. Rule 6 does not provide a means by which an applicant will be enabled to have available to it every document which would assist it in deciding whether to litigate. If that were the intention, paras (a) and (c) would stand alone and the additional condition set out in para (b) would not be necessary. 10. Paragraph 6 (b) contemplates that after making all reasonable inquiries, the applicant has come up against a problem, namely, that it is lacking a piece of information or pieces of information reasonably necessary to enable it to decide whether to commence a proceeding.' 43 As I understood Telstra's submission, it contended that production of a document could be required if it showed that a decision had in fact been made by it to commence a proceeding against the Minister or the Commonwealth to obtain relief in the Court. It asserted that production could not be required of documents recording or referring to consideration by Telstra as to whether it should commence a legal challenge or legal proceedings, but it acknowledged that documents recording or referring to its ability to decide whether to commence such a challenge or proceedings would properly be amenable to a Notice to Produce calling for their production. 44 It seems to me that an assertion that a subpoena and/or a notice to produce should be set aside if it calls for the production of documents which do not answer the description of being 'relevant', involves a misconception as to what the proper function of a subpoena and/or notice to produce is. 57 Given the terms of Mr Smith's affidavit sworn 2 August 2007, upon which Telstra intends to rely on the hearing of its Amended Application under Order 15A rule 6 , I consider the documents identified in the said paragraphs to have sufficient apparent relevance to be amenable to a notice to produce at this stage. Senior counsel for Telstra was at pains to explain that much of what was contained in Mr Smith's affidavit was there simply to provide background and had only tangential relevance. This cri de coeur does not mean that the Minister may not challenge the factual background which is relevant to those issues which need to be addressed objectively and/or subjectively on the hearing of the Order 15A rule 6 application and to which Lindgren J made reference in Alphapharm . 58 As to the scope of the requirement imposed by the said paragraphs, it is appropriate to observe that the Minister's third Notice to Produce dated 22 August 2007 is significantly scaled down from the requirement sought to be imposed by the Minister's second Notice to Produce dated 17 August 2007. Plainly, the Minister has had regard to much of the material to which Mr Healy deposed in his affidavit sworn 20 August 2007 in narrowing down her requirement. In his affidavit sworn 20 August 2007 Mr Healy said, inter alia: '2 I am informed by Paul Smith, Business Development Manager employed by Telstra, and believe that: ... (b) having regard to the 12 categories of documents of which production is sought, in order to comply with the Notice, Telstra would be required to review a very large number of documents in Telstra's possession that refer or relate to the Broadband Connect Infrastructure Program ( Program ) to determine which of those documents fall within the terms of the Notice. The following facts are relevant: (i) Mr Smith has in his email mailbox approximately 2,200 emails, 1 to 2 boxes of hard copy documents and 200 electronic documents all of which relate to the Program; (ii) there were approximately 10 other Telstra employees who formed the core team responsible for developing Telstra's proposal in relation to the Program; (iii) there were approximately 60 other Telstra employees who had input into Telstra's proposal (not including members of the Telstra Executive Team who are considered below); (iv) The Telstra employees who had input into Telstra's proposal were located in offices in at least Sydney (4 buildings), Brisbane (2 buildings), Melbourne (3 buildings), Adelaide (1 building), Perth (1 building), Canberra (1 building) and Darwin (1 building); and (v) a number of the Telstra employees who had input into Telstra's proposal no longer work for Telstra; (c) in order to comply with category 1 of the Notice, Telstra would be required to review at least all documents in Telstra's possession held by: (i) the 4 Telstra employees who attended the Industry Briefing; (ii) the at least 13 additional Telstra employees who Mr Smith informed of the Industry Briefing; (iii) any other Telstra employees who were informed of the Industry Briefing, including by any of the persons referred to in (i) and (ii) above, that refer or relate to the Program from 27 September 2006 onwards to determine which documents record communications within Telstra "relating to" the Industry Briefing between Telstra and DCITA on 27 September 2006, or record "any decisions made by Telstra resulting from" that Briefing. This is necessary because: &#9679; of the breadth of the phrase "relating to" in sub-paragraph (a) of category 1; &#9679; category 1 is not limited to documents in the possession of certain persons within Telstra; and &#9679; category 1 is not limited to any date range other than being "after" 27 September 2006; (d) in order to comply with category 2 of the Notice, Telstra would be required to review all documents referring or relating to the Program which are in the possession of at least: (i) Mr Smith; (ii) the other Telstra employees who formed the core team responsible for developing Telstra's proposal in relation to the Program, from at least 21 September 2006 (when the Guidelines in relation to the Program were released) until at least 18 June 2007 when Telstra received the letter dated 18 June 2007 from the Respondent advising Telstra that its bid had been unsuccessful for reasons including coverage; and (e) in order to comply with category 8 of the Notice, Telstra would be required to review at least all documents in Telstra's possession held by: (i) Mr Smith; (ii) the at least 11 persons whom Mr Smith either immediately forwarded a copy of DCITA's letter of 18 June 2007 to, or discussed the letter with; (iii) the 3 Telstra employees Mr Smith is aware received a copy (other than directly from him) of DCITA's letter of 18 June 2007; (iv) any other Telstra employees who received a copy of, or were informed of the contents of, DCITA's letter of 18 June 2007, including by any of the persons referred to in (ii) and (iii) above, for the period from 18 June 2007 onwards to determine whether a document records "a consideration" by Telstra of DCITA's letter of 18 June 2007.' 59 It may be observed that the Minister's third Notice to Produce (Ex AM2) has introduced time frames limiting the documents, the production of which has been sought, and also confining the documents sought to ones recording communications and consideration at the level of what Mr Healy described as 'core team' members and/or members of Telstra's 'Executive Team' and above.