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[2013] FCA 339
Federal Court of Australia
2013-03-08
North J
Original judgment source is linked above.
REASONS FOR JUDGMENT 1 Two issues have been raised before the Court. The applicant in the proceedings, Bupa Australia Pty Ltd (Bupa) sought access to redacted parts of two documents. The first respondent in the proceedings, iSelect Limited (iSelect) raised a preliminary issue, namely, that Bupa's application be dealt with by a judge, other than the docket judge.
the documents in question 2 The redacted parts of the two documents sought for inspection by Bupa relate, not to the underlying action, but to an interlocutory application which has been brought by Bupa. The documents were discovered by iSelect specifically for the purposes of the interlocutory application. 3 In that interlocutory application, Bupa alleges that part of iSelect's cross claim be dismissed as an abuse of process. The part of iSelect's cross claim to which Bupa's abuse of process application relates makes allegations against Bupa of misleading and deceptive conduct by operators employed at a call centre run by Bupa. Relevantly, the cross claim alleges that operators in the call centre made a number of misrepresentations, particularly about the way iSelect conducts its business. The foundation of the abuse of process application appears to be that evidence of representations made by Bupa employees was obtained by solicitors representing iSelect ringing the call centre and not revealing that they were gathering evidence in the litigation. 4 iSelect contends that the redacted parts of the two documents are irrelevant to the abuse of process application. 5 One document is a file note of a meeting held on 18 July 2012 between officers of iSelect and officers of the Australian Competition and Consumer Commission (ACCC). The unredacted portion of the file note discloses that the meeting concerned the conduct of companies in the private health insurance market and refers to a draft complaint of the conduct about which iSelect was concerned. 6 The other document is a draft letter of complaint dated July 2012 referred to in the file note. The letter was not given to the ACCC, but presumably represents what was told to the ACCC in the meeting between iSelect and the ACCC. The unredacted section of this letter includes a paragraph headed "Improper conduct by Bupa call centre staff" and is directly relevant to the allegations made by iSelect in the cross claim. It is probably tangentially relevant to the abuse of process application.
preliminary issue 7 The first question is whether a judge other than the trial judge or the judge who is to hear the abuse of process application should hear Bupa's application for inspection of the redacted parts of the two documents. 8 The basis for iSelect's concern was that if the trial judge or the judge who is to hear the abuse of process application saw the unredacted parts of the documents, the judge might be disqualified for apprehended bias. This concern arose from the fact that the meeting with the ACCC involved senior officers of that organisation who expressed views in the meeting about the lawfulness of iSelect's conduct. 9 The contents of the documents provide no reason why the judge to hear either the abuse of process application or the trial would be embarrassed or compromised by seeing the two documents in unredacted form. 10 Judges of the Court regularly consider and rule upon the views of regulators. The fact that regulators, even senior officers of regulatory organisations, have expressed such views does not mean a reasonable person would conclude that the judge hearing such views might not bring an unbiased mind to the resolution of the case. 11 It is undesirable for parties to seek a hearing by another judge when there is no reasonable basis for a view that the circumstances might give rise to an apprehended bias application. In this case, there is no foundation for the conclusion that viewing the unredacted portions could give rise to anything but a fanciful application for recusal based on apprehended bias. 12 However, the matter is before the Court as presently constituted, and the application should be disposed in the most efficient way possible. For this reason alone, iSelect's application that a judge other than the docket judge hear Bupa's application for inspection of the redacted documents should be allowed. It would be inefficient to return the matter to the docket judge where the issues in contention are clear cut. This is, however, not to condone what was a misconceived application by iSelect.
Inspection of redacted parts of documents 13 The second question is whether Bupa's external lawyers should be permitted to inspect the redacted parts of the two documents. 14 The question is to be determined by balancing the interests of the parties against each other and determining whether it is in the interests of justice that inspection be permitted. 15 The matters referred to in the redacted parts of the two documents are not relevant to the abuse of process application. Nothing in the redacted portions of the documents is necessary in order to understand or give context to the unredacted portions. Consequently, the external lawyers should not be permitted to inspect the redacted portions of the documents. This is determinative of the application for inspection. Several further factors support this conclusion. 16 The documents relate to a meeting which was agreed between the ACCC and iSelect as being "in strict confidence." The application for access should be scrutinised with a high degree of care given that the meeting between a regulator and a participant in the private health insurance industry concerned the alleged conduct of another operator in that industry. 17 Additionally, Bupa's application for inspection of the redacted parts arises in the context of discovery made specifically for the abuse of process application. There is a reason for taking a strict view about the limits of inspection in aid of an interlocutory application. 18 Another consideration which confirms, but is not determinative of the conclusion that Bupa's application to inspect should be refused, is that, on a preliminary assessment, the abuse of process application rests on an extremely flimsy basis. It is appropriate in determining the balance between the parties, to make some assessment of the strength of the claim and the asserted basis of it. Indeed, on a preliminary view based on the submissions made in the course of this application, it would not be surprising if the abuse of process application would fail and Bupa were ordered to pay indemnity costs. The fanciful nature of its abuse of process application was demonstrated when counsel for Bupa sought to draw an analogy between the circumstances of this case and the notorious circumstances in Ashby v Commonwealth of Australia (No 4) [2012] FCA 1411. 19 Bupa's application to inspect the redacted portions of the two documents should be refused. I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.
Bupa Australia Pty Ltd
iSelect Limited