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[2025] VSC 182
General information, not legal advice.
Supreme Court of Victoria
2025-04-09
COSGRAVE J
Original judgment source is linked above.
PRACTICE AND PROCEDURE - Discovery of documents - Scope of discovery categories - Supreme Court (General Civil Procedure Rules) 2015 (Vic).
1 The plaintiff, Hydroganics Pty Ltd, is a licensed cultivator, producer and manufacturer of medicinal cannabis products. The defendant, Biortica Agrimed Pty Ltd, provides cultivation services for medicinal cannabis plants.
2 In 2022, the parties entered into a Cultivation Services Agreement ("Agreement"). The purpose of the Agreement was to enable the plaintiff to produce proprietary phenotypes of cannabis plants. To this end, the defendant was responsible for cultivating cannabis plants and delivering to the plaintiff for testing dried flower which met the requirements set out in the Agreement. The Agreement addressed the manner in which the defendant was to first cultivate the cannabis plants and then harvest, buck, dry and cure the resultant flowers.
3 In 2023, the Hop Latent Viroid disease ("HLVd") was detected in a crop of cannabis plants which was being cultivated at the defendant's facilities for the plaintiff. The plaintiff alleges that the infection arose as a result of the breach of contract, negligence and/or misleading or deceptive conduct by the defendant. The defendant contends that the HLVd infection arose from the plaintiff's seeds ("Seed Stock") and denies any liability. Alternatively, it claims that the plaintiff was contributorily negligent and the defendant should only be proportionately liable for any loss or damage.
4 The parties dispute the scope of the plaintiff's discovery obligations. The plaintiff contests a number of the defendant's proposed categories of discovery on the basis that they are either too broad, otiose, or not relevant to an issue in dispute.
5 The parties have produced a table which identifies the contested categories of discovery, the paragraphs of the amended statement of claim ("ASOC") and defence relied upon and a statement of each party's position together with a short supporting submission.0F[1] There were eight contested categories of discovery. Those which are unresolved are categories 1, 5, 6 (in part) and 8.
[a]ll documents in the Plaintiff's possession, power or control that record, evidence or relate to the origin, production, purchase, acquisition, location, movement, transfer, sale, importation, and delivery of the Seed Stock (as defined in sub-paragraph 4(a) of the Amended Statement of Claim filed 15 November 2024 (ASOC)), including but not limited to documents recording or otherwise evidencing ...
7 The plaintiff has agreed to discover documents relating to the "movement, transfer, importation and delivery of the Seed Stock". However, the plaintiff disputes the inclusion of the words "origin, production, purchase, acquisition [and] location" in the chapeau to category 1.
8 The plaintiff contends that category 1 ignores the defendant's acknowledgement that the Seed Stock was produced by, and sourced from, Umami Worldwide LLC ("Umami").1F[2]
9 The defendant submits that its admission as to the "true source" of the Seed Stock does not render category 1 irrelevant, because the source of the Seed Stock does not provide any answer as to how and when the Seed Stock became infected with HLVd. The defendant cites paragraphs 3(k) and 4 to 13 of its defence, where it pleaded that:
10 The plaintiff admitted in its Reply that the Seed Stock was produced and sourced from Umami in California. It also admitted that the phytosanitary certificates in respect of the Seed Stock did not warrant them to be free of HLVd.
11 In relation to the parties' attitudes to category 1, the plaintiff's formulation is too narrow and the defendant's formulation is too broad.
12 Documents relating to the "origin" and "production" of the Seed Stock could be relevant to the issue of whether the HLVd infection arose from the Seed Stock itself, prior to arriving at the defendant's facility (as alleged by the defendant) or whether it came about as a result of the defendant's actions or omissions (as alleged by the plaintiff). Therefore, my view is that those two words should be included in the category description.
13 I disagree with the defendant's assertion that "the source of the Seed Stock is not the only matter in issue". The disagreement arises because the defendant admits that the source of the Seed Stock is Umami in America - it produced the Seed Stock. This is not an issue in the case.
14 The plaintiff objects to the reference to "purchase, acquisition, [and] location" because it says that the only matter in issue is the defendant's allegation that the Seed Stock was the source of the infection (given the defendant's admission that Umami produced the Seed Stock). In my view, the matter is not that simple. The defence canvasses issues about the source of the infection and when it was contracted in circumstances where the defendant claims HLVd was not previously present at its facilities. As the details of the purchase of the Seed Stock might help elucidate the source of infection and therefore prove significant on the question of liability, "purchase" and "acquisition", although arguably repetitive, should remain in category 1.
15 The reference to "location" is ambiguous as it makes no reference to any particular time. Given the category already includes references to origin, purchase, movement and transfer of Seed Stock through particular countries, the reference to "location" is unnecessary.
16 The plaintiff submits that sub-categories (a) to (e) are either not necessary (as they are already included within the scope of the chapeau) or purport to extend beyond that scope, are untethered from it or seek patently irrelevant documents.
each sub-category identifies documents which concern a chain of custody of the Seed Stock from origin to receipt by the Defendant, including documents relating to government authorities and agencies, other third parties who handled the Seed Stock, protection of the Seed Stock from pathogens during transit and communications between related parties on the origin and manufacturing of the Seed Stock.2F[3]
18 The sub-categories expand the scope of the chapeau by including an additional level of detail. They are also, in parts, repetitive and overlap with the existing chapeau. Sub-category (a) is repetitive and overlaps with the chapeau. I regard it as an unwieldy introduction of additional scope. Sub-category (b) overlaps with the chapeau and with sub-category (a).
19 Sub-category (c) raises a matter of specific elements, namely, the steps, if any, taken to protect the Seed Stock from pathogens in transit. This sub-category is relevant.
20 Sub-category (d) refers to manufacturing, sourcing and selection of the Seed Stock. This extends beyond the chapeau. The other categories mentioned in (d) are already covered by the chapeau so sub-category (d) is unnecessary. Furthermore, as referred to earlier, I note that the defendant's justification for this sub-category is that these documents concern the chain of custody from the origin of the Seed Stock to its receipt by the plaintiff. However, the manufacturing, sourcing and selection of the Seed Stock does not relate to the chain of custody. To that extent, the rationale relied upon by the defendant is inapplicable.
21 Sub-category (e) is too broad and unconstrained. To be of any relevance, it would need to be re-drafted and restricted to relevant issues raised by the pleadings.
22 In summary, category 1 of the discovery which the plaintiff should give will be as follows:
All documents in the plaintiff's possession, custody or power which record, evidence or relate to the origin, production, purchase, acquisition, movement, transfer, importation and delivery of the Seed Stock (as defined in subparagraph 4(a) of the Amended Statement of Claim filed 15 November 2024 ("ASOC")) including but not limited to documents recording or otherwise evidencing the steps taken to protect the Seed Stock against any pathogens in transit between locations through which the seed stock was transported, being Spain, United States of America, Wales, England, Australia or any other country through which the Seed Stock was transported ("Recipient Countries").
All documents in the Plaintiff's possession, power or control that record or otherwise evidence the licensing or sale of the Seed Stock.
The relevant paragraphs of the pleadings were paragraphs 4(a) of the ASOC and paragraphs 8 to 13 of the defence.
24 The defendant says that it seeks production of a very limited number of documents which may be relevant to the question of the status of the Seed Stock and what testing was performed on the Seed Stock by agencies or third parties prior to the issuing of licences or authorisation to sell or import the Seed Stock into Australia. The defendant gave two examples. First, it said the phytosanitary certificate disclosed by the plaintiff demonstrates that the Seed Stock was certified in about September 2022 as having:
been inspected and/or tested according to appropriate official procedures and [is] considered to be free from the quarantine pests specified by the importing contracting party and to conform with the current phytosanitary requirements of the importing contracting party ...
Another example was the permit issued by the Department of Agriculture, Fisheries and Forestry in which there were conditions attached to the permit for the import of Seed Stock.
25 Given the nature of the allegations in the pleading, I understand why the defendant says that the possible testing of the Seed Stock might be relevant. But, to the extent that the defendant relies upon paragraphs 8 to 13 of its defence, those paragraphs do not raise any dispute about the licensing or sale of the Seed Stock by Umami. There is no dispute that Umami produced and sold the Seed Stock to the plaintiff. The case currently raises no issue about the licensing of the Seed Stock.
26 In these circumstances, I will not order discovery under category 5.
27 By category 6, the defendant seeks discovery as follows:
All internal communications, or communications with third parties, and documents within the Plaintiff's possession, power or control that record or evidence the identification of pathogens (including potential pathogens) in the Seed Stock, the Qualifying Flower (as defined in paragraph 4(c)(iv) of the ASOC) and/or any plants or plant material derived from the Seed Stock, including any cuttings, rooted cuttings, samples, clones, and motherstock (Plant Material), including but not limited to documents recording or evidencing ...
28 The defendant then included in this category a group of sub-categories in respect of which it sought discovery. The relevant pleadings relied upon were paragraphs 4 and 18 to 20 of the ASOC and paragraphs 8 to 13 and 14 to 18 of the defence.
29 The plaintiff does not object to the chapeau, save for the reference to "communications" and to the "dried flower" which the agreement between the plaintiff and defendant anticipated the defendant would produce.3F[4] The plaintiff contended that the focus was on the identification of pathogens in the Seed Stock.
30 Indeed, the plaintiff, in its submissions, agreed to discover documents:
31 The plaintiff objects to the remaining sub-categories in category 6 which it says:
32 Sub-category (a) is not in dispute, because the plaintiff appeared to agree that it would give discovery of documents which record or evidence:
communications between the Plaintiff, Triffid and/or Umami regarding the health of, and observations on the health of, the Plant Material from visits to the Facility, and Plant Material taken from the Facility, by the Plaintiff, Triffid and/or Umami.
The plaintiff treated this as a standalone category, category 7, independent of category 6.
documents regarding or constituting processes, procedures, reports, screening, evaluations and/or tests conducted by, on behalf of, the plaintiff, Triffid and/or Umami into the health of the Seed Stock and/or plant material from visits to the Facility and Seed Stock and/or plant material taken by the plaintiff, Triffid, Umami and/or their agents from the Facility.
34 The plaintiff objects to this sub-category because it says that the processes and procedures, as distinct from the actual test results obtained, are not relevant. The defendant says that the process and procedures are important because they concern the efficacy of the tests undertaken.
35 In my opinion, the test results are plainly important. However, the processes and/or procedures of testing are also relevant in the context of claims by the defendant of contributory negligence and proportionate liability. Questions will likely arise, not only about what the plaintiff knew through the test results, but what it should have known. To that extent, the processes and procedures are relevant insofar as they concern the health of the seeds and/or plant material.
36 I regard the reference to "screening" as unclear and ambiguous and query its inclusion. It may be a term of art but this is not apparent from the material. But because the same word appears in sub-category (e) and the plaintiff raised no specific objection to it,5F[6] I infer that it understands its meaning. Accordingly, that term can remain in the proposed order.
37 The plaintiff contends that sub-category (c) merely repeats the chapeau and should be struck out. I do not accept this argument. The sub-category seeks not only documents which identify pathogens but those concerning potential pathogens or particular symptoms identified in the ASOC.
38 As to sub-category (d), if the plaintiff has already discovered phytosanitary certificates, then it should discover any additional certificates which it has not hitherto disclosed.
39 Sub-category (e) refers to the assessments of the Seed Stock and screening of the Seed Stock and plant material in the vegetative, flowering and post-harvest stages of the Seed Stock and plant material.
40 The plaintiff says that the assessment and screening of the plant material (other than so far as plant health was involved) is not disputed in the proceeding. It also says that references to assessments and screening of Seed Stock are nonsensical. It does not elaborate on the basis for this latter contention.
41 In my view, this sub-category is probably relevant and therefore discoverable. If there are no documents to discover regarding the assessment and screening of Seed Stock, so be it.
42 Sub-category (f) relates to communications regarding a letter from Chase Martin of Umami dated 11 March 2024. The plaintiff says it is unaware of a letter from Mr Martin dated 3 November 2024 and cannot comment on the proposed category. There is no letter of either date referred to in the pleading. On the material before me, such a letter is not plainly relevant and I would not order discovery under this sub-category.
43 Sub-category (g) concerns communications and documents regarding a letter from "Klean Bio" dated 24 September 2024. This letter is not referred to in the pleadings and is not plainly relevant. On the material before me I would not order discovery under this sub-category.
44 In relation to sub-category (h), the plaintiff has agreed to give discovery in connection with BVAQ and any Seed Stock purity assessments or tests conducted by BVAQ on the Seed Stock.
45 Category 8 seeks production of documents relating to the selection of phenotypes of the Seed Stock and plant material. The relevant pleadings are paragraphs 4 and 18 to 25 of the ASOC and paragraphs 14 to 18, 20, 35 to 42 and 53 to 57 of the defence. The chapeau refers to:
[a]ll documents in the Plaintiff's possession, power or control that record, evidence or relate to the selection of phenotypes of the Seed Stock and Plant Material, including but not limited to documents recording or evidencing ...
46 The litigation concerns both the existence of the HLVd infection in the cannabis which the defendant cultivated for the plaintiff and who was responsible for its presence in the material grown. As noted, the plaintiff contends that the defendant is liable for breaching its contract and its tortious duty to the plaintiff. The defendant says its facility was free of the HLVd infection before the planting and germination of the Seed Stock and that the Court should infer that the Seed Stock provided by Umami was infected.
47 From the arguments made by the parties, it appears that the defendant seeks to explore whether the plaintiff, Triffid and Umami were aware, or should have been aware, of observable features of the cultivated plants which evidenced HLVd infection. To that extent, the plaintiff's documents which address the selection criterion of plant health in this context would be discoverable. Where documents used for phenotype selection address other criteria, they are not relevant. There is no dispute about such other matters in the proceeding.
48 On the documents before me, I consider that there is a substantial overlap between categories 6 and 8 insofar as they relate to the question of plant health. Category 8 expands the discovery scope beyond this area and into the selection of phenotypes of the Seed Stock and plant material.6F[7] I am not currently satisfied that this is necessary or appropriate. It appears to be more of a general fishing expedition to gather whatever information is available about phenotype selection and phenohunting more broadly.
49 If the plaintiff has already discovered some documents about the phenohunt process, that may be pertinent. But on the papers before me, I cannot assume that such disclosure concerns matters beyond the health of the plant material. Accordingly, I will not order discovery under this category.
50 Subject to hearing from the parties, I propose to make the following order:
By 4:00pm on 28 April 2025, the plaintiff shall give the defendant discovery of documents in the plaintiff's possession, custody or power within the following categories:
1. All documents which record, evidence or relate to the origin, production, purchase, acquisition, movement, transfer, importation and delivery of the Seed Stock (as defined in subparagraph 4(a) of the Amended Statement of Claim filed 15 November 2024 ("ASOC")) including but not limited to documents recording or otherwise evidencing the steps taken to protect the Seed Stock against any pathogens in transit between locations through which the seed stock was transported to or from, being Spain, United States of America, Wales, England, Australia or any other country through which the Seed Stock was transported ("Recipient Countries").
2. All documents that record or otherwise evidence internal communications, or communications with third parties, relating to testing and testing results for pathogens in any facility, place of storage or mode of transport by air, sea or land used for the storage, testing, transportation, movement or delivery of the Seed Stock between:
(a) a month before the date that the Seed Stock came into contact with any such facility or vessel; and
(b) the date that the Seed Stock was no longer in contact with any such facility or vessel.
3. All documents that record or otherwise evidence reports and tests showing the presence of HLVd (as defined in paragraph 10 of the ASOC), or the suspected presence of HLVd, in any facility, place of storage or mode of transport by air, sea or land used for the storage, testing, transportation, movement or delivery of the Seed Stock.
4. All documents that record or otherwise evidence any of the steps outlined in paragraph 18 of the ASOC being taken in respect of the Seed Stock from its origin to delivery to the Facility (as defined in paragraph 4(b) of the ASOC), whether by the plaintiff, Umami, Triffid or any third party.
5. All documents that record or evidence the identification of pathogens (including potential pathogens) in the Seed Stock, the Qualifying Flower (as defined in paragraph 4(c)(iv) of the ASOC) and/or any plants or plant material derived from the Seed Stock, including any cuttings, rooted cuttings, samples, clones, and motherstock ("Plant Material"), including but not limited to documents recording or evidencing:
(a) documents regarding or constituting processes, procedures, reports, screening, evaluations and/or tests conducted by, on behalf of, the plaintiff, Triffid and/or Umami into the health of the Seed Stock and/or Plant Material from visits to the Facility and Seed Stock and/or Plant Material taken by the plaintiff, Triffid, Umami and/or their agent(s) from the Facility;
(b) documents regarding the identification of pathogens at the Facility, including documents regarding potential pathogens or symptoms identified in the particulars to paragraph 10 of the ASOC;
(c) phytosanitary certificates relating to the Seed Stock;
(d) assessments of the Seed Stock and screening of the Seed Stock and Plant Material in the vegetative, flowering and post-harvest stages of the Seed Stock and Plant Material; and
(e) communications and documents regarding BVAQ and any Seed Stock purity assessments or tests conducted by BVAQ on the Seed Stock.
6. Documents which record or evidence communications between the plaintiff, Triffid and/or Umami regarding the health of, and observations on the health of, the Plant Material from visits to the Facility, and Plant Material taken from the Facility, by the plaintiff, Triffid and/or Umami.
51 If the parties cannot agree upon the form of order giving effect to these reasons (including costs), they can file submissions limited to five pages by 4:00pm on 14 April 2025. Given that the current timetable will be affected by this order, the parties should seek to agree upon any reasonable extension to the existing orders.
HYDROGANICS PTY LTD (ACN 625 439 394) Plaintiff
BIORTICA AGRIMED LTD (ACN 637 553 621) Defendant
DEFENDANT'S PROPOSED CATEGORIES OF DISCOVERY FROM PLAINTIFF
All documents in the Plaintiff's possession, power or control that record, evidence or relate to the origin, production, purchase, acquisition, location, movement, transfer, sale, importation, and delivery of the Seed Stock (as defined in sub-paragraph 4(a) of the Amended Statement of Claim filed 15 November 2024 (ASOC)), including but not limited to documents recording or otherwise evidencing:
(a) 0Bcommunications, agreements, approvals, authorisations, licences, certifications, notes or memoranda with or from any third parties, including governmental authorities and agencies (Agencies), in Spain, the United States of America, Wales, England, Australia or any other country through which the Seed Stock was transported (Recipient Countries);
(b) 1Bagreements with any third parties and Agencies regarding the Seed Stock, its origin, production, location, movement, transfer, importation and delivery in, to or from any Recipient Countries;
(c) 2Bhow the Seed Stock was protected and what steps were taken to protect the Seed Stock against any pathogens in transit between locations through which the Seed Stock was transported to or from the Recipient Countries;
(d) 3Bcommunications between the Plaintiff, Umami Worldwide LLC (Umami), Triffid BioScience Pty Ltd (Triffid) and/or any third party regarding the origin, manufacturing, production, sourcing, selection and purchase by the Plaintiff of the Seed Stock; and
(e) 4Bcommunications and documents between the Plaintiff, Umami and/or Triffid from 2022 to date.
The proposed category is too broad and would require discovery of documents (if they exist) which are not relevant to any issue in the proceeding.
The only matter relating to the seeds which is in issue is the defendant's allegation that they were the source of the infection (noting that the allegation in ASOC [4(a)] concerns only a term of the Agreement and it is admitted that the Seed Stock was produced by and sourced from Umami in the USA (defence [6]; reply [4])).
The proposed elaborations in (a)-(e) would broaden the plaintiff's discovery obligation well beyond the actual category, as it is described in the chapeau. But if they were to be amended so as to be properly limited to that scope, they would then be otiose, so they can be deleted.
All documents in the Plaintiff's possession, power or control that record, evidence or relate to the movement, transfer, importation and delivery of the Seed Stock (as defined in sub-paragraph 4(a) of the Amended Statement of Claim filed 15 November 2024 (ASOC)).
The proposed category is not too broad; it is limited to documents relating only to the Seed Stock (as defined in the ASOC at para 4(a)).
The source of the Seed Stock is not the only matter in issue. The matters in paras [3(k)] and [4] to [13] of the Defence and Counterclaim (Defence) are in issue, including that HLVd was not prevalent in Australia when (or before) the Seed Stock was received in the Facility, the sourcing and purchase of the Seed Stock, the True Source of the Seed Stock (as defined in para 6 of the Defence), the prevalence of HLVd in California (where Umami is based and from where the Seed Stock originated), the transmissibility of HLVd in the Seed Stock, the facilities and vessels through which the Seed Stock moved and the allegation that the HLVd infection arose from the Seed Stock (Seed Stock Allegations).
The admission about the production and source of the Seed Stock does not limit this category or involve a concession as to the Seed Stock Allegations, which remain live issues in respect of which discovery should be provided.
The Plaintiff's proposed amendments would limit the scope of this Category significantly and only disclose documents identifying the whereabouts of the Seed Stock. Discovery of that kind would be unlikely to produce documents relevant to the real matters in dispute and would be unresponsive to the Seed Stock Allegations.
The sub-categories of documents proposed by the Defendant are directly relevant to Seed Stock Allegations and prepared not only to understand the whereabouts of the Seed Stock, but the various documents that could assist the Court in identifying the infected (or not) status of the Seed Stock prior to arriving at the Facility, potential other facilities or storage facilities/vessels in which the Seed Stock could have become infected, whether appropriate steps were taken to protect the Seed Stock from infection prior to arrival at the Facility, and the origin of the Seed Stock.
The documents sought are directly and immediately relevant to the material questions for the Court to answer at trial, namely; when and how did the Seed Stock become infected with HLVd?
The Defendant presses Category 1 as being both relevant and appropriately limited in scope.
All documents in the possession, power or control of the plaintiff that record or otherwise evidence internal communications, or communications with third parties, relating to testing and testing results for pathogens in any facility, place of storage or mode of transport by air, sea or land used for the storage, testing, transportation, movement or delivery of the Seed Stock between:
(a) a month before the date that the Seed Stock came into contact with any such facility or vessel; and
(b) the date that the Seed Stock was no longer in contact with any such facility or vessel.
The plaintiff was not involved in the importation (or other transport) of the Seed Stock. However, the category assumes that the plaintiff is nevertheless in a position to identify "any facility, place of storage or mode of transport by air, sea or land used for the storage, testing, transportation, movement or delivery of the Seed Stock".
The plaintiff does not object to the category on this understanding.
The Plaintiff not being in involved in the importation (or other transportation) of the Seed Stock does not mean that documents concerning those matters cannot be in the Plaintiff's possession, custody or control. Indeed, the disclosure of certain documents indicates that the Plaintiff is in fact in possession of documents responsive to this Category.
The Plaintiff contracted with Umami for the supply of the Seed Stock and has already disclosed a phytosanitary certificate demonstrating that it is in possession of documents responsive to this Category. It has also disclosed communications which demonstrate that it made requests of third parties to disclose documents relating to the testing of the Seed Stock.
To that end, the Plaintiff's comment that it was not involved in the importation (or transport) of the Seed Stock is irrelevant unless the Plaintiff establishes, by way of affidavit, that it does not have responsive documents in its possession, custody or control by reason of this non-involvement.
The Defendant presses Category 2 as being both relevant and sufficiently limited in scope.
All documents in the possession, power or control of the plaintiff that record or otherwise evidence reports and tests showing the presence of HLVd (as defined in paragraph [10] of the ASOC), or the suspected presence of HLVd, in any facility, place of storage or mode of transport by air, sea or land used for the storage, testing, transportation, movement or delivery of the Seed Stock
The plaintiff was not involved in the importation (or other transport) of the Seed Stock. However, the category assumes that the plaintiff is nevertheless in a position to identify "any facility, place of storage or mode of transport by air, sea or land used for the storage, testing, transportation, movement or delivery of the Seed Stock".
The plaintiff does not object to the category on this understanding.
The Defendant presses Category 3 as being both relevant and appropriately limited in scope.
All documents in the Plaintiff's possession, power or control that record or otherwise evidence any of the steps outlined in paragraph 18 of the ASOC being taken in respect of the Seed Stock from its origin to delivery to the Facility (as defined in paragraph 4(b) of the ASOC), whether by the Plaintiff, Umami, Triffid or any third party.
The proposed category is nonsensical in that the steps in ASOC [18] are inapposite to Seed Stock.
Further, the plaintiff was not involved in the importation (or other transport) of the Seed Stock.
The plaintiff does not object to the category on these understandings.
As above in Category 3 - hence the inclusion of the words '... Umami, Triffid or any third party'.
Further, some of the steps in para 18 of the ASOC can be taken in respect of Seed Stock, including for example, sterilisation of the Seed Stock and designated storage vessels in respect of the Seed Stock's transportation and movement quarantining the Seed Stock from other material.
The Defendant presses Category 4 as being both relevant and appropriately limited in scope.
All documents in the Plaintiff's possession, power or control that record or otherwise evidence the licensing or sale of the Seed Stock.
It is not in issue that the Seed Stock was produced by and sourced from Umami in the USA (defence [6]; reply [4])).
No issue as to the licensing and sale (presumably by Umami to the plaintiff) is raised by defence [8]-[13] or otherwise.
Category 5 seeks the production of what ought to be a very limited number of documents that may be relevant to the status of the Seed Stock and what testing was done on the Seed Stock by third parties or agencies prior to the issuing of licenses or authorisation to sell or import the Seed Stock into Australia.
For example, the phytosanitary certificate disclosed by the Plaintiff demonstrates that the Seed Stock was certified in about September 2022 as having 'been inspected and/or tested according to appropriate official procedures and [is] considered to be free from the quarantine pests specified by the importing contracting party and to conform with the current phytosanitary requirements of the importing contracting party...'.
Another example is in the permit issued by the Department of Agriculture, Fisheries and Forestry in which there are conditions attached to the permit for the import of the Seed Stock.
The Defendant presses Category 5 as being both relevant and appropriately limited in scope.
All internal communications, or communications with third parties, and documents within the Plaintiff's possession, power or control that record or evidence the identification of pathogens (including potential pathogens) in the Seed Stock, the Qualifying Flower (as defined in paragraph 4(c)(iv) of the ASOC) and/or any plants or plant material derived from the Seed Stock, including any cuttings, rooted cuttings, samples, clones, and motherstock (Plant Material), including but not limited to documents recording or evidencing:
(a) communications between the Plaintiff, Triffid and/or Umami regarding the health of, and observations on the health of, the Plant Material from visits to the Facility, and Plant Material taken from the Facility, by the Plaintiff, Triffid and/or Umami;
(b) documents regarding or constituting processes, procedures, reports, screening, evaluations and/or tests conducted by, on behalf of, the Plaintiff, Triffid and/or Umami into the health of the Seed Stock and/or Plant Material from visits to the Facility and Seed Stock and/or Plant Material taken by the Plaintiff, Triffid, Umami and/or their agent(s) from the Facility;
(c) documents regarding the identification of pathogens at the Facility, including documents regarding potential pathogens or symptoms identified in the particulars to paragraph [10] of the ASOC;
(d) phytosanitary certificates relating to the Seed Stock;
(e) assessments of the Seed Stock and screening of the Seed Stock and Plant Material in the vegetative, flowering, and post-harvest, and post-packaging stages of the Seed Stock and Plant Material;
(f) communications regarding the letter from Mr Chase Martin of Umami dated 11 March 2024 3 November 2024, including all requests made by the Plaintiff to Umami regarding HLVd testing at Umami's, or Umami's agent's, facilities and all responses from Umami;
(g) communications and documents regarding the letter from 'Klean Bio' dated 24 September 2024, including requests made by the Plaintiff and/or Umami to Klean Bio regarding HLVd testing in Klean Bio's facilities; and
(h) communications and documents regarding BVAQ and any Seed Stock purity assessments or tests conducted by BVAQ on the Seed Stock.
Save that the reference to dried flower which the Agreement anticipated would be produced by the defendant is inapposite, and that the references to "communications" are inapposite, the plaintiff does not object to the chapeau in this proposed category.
However, many of the purported elaborations would broaden the plaintiff's discovery obligation well beyond the actual category, as it is described in that chapeau which is referable expressly to "the identification of pathogens". Specifically:
(a) this extends beyond "the identification of pathogens". That said, the plaintiff accepts that the documents here described would be otherwise relevant and so would agree to this sub-category if properly drafted (ie, decoupled from the chapeau).
(b) the response in (a) above is repeated, save that documents regarding or constituting processes or procedures (as distinct from actual tests and results) are not relevant, and the reference in this context to "screening ... into the health of the Seed Stock and/or Plant Material" is nonsensical, and the plaintiff therefore objects to the retention of these terms.
(c) the plaintiff accepts that the documents here described would be relevant and would agree to this sub-category if properly drafted (ie, decoupled from the chapeau).
(d) it is not in issue that the phytosanitary certificates do not warrant the Seed Stock to be free of HLVd (defence [10]; reply [6]) and the plaintiff has already disclosed these documents pursuant to s 26 of the Civil Procedure Act. The sub-category is rejected.
(e) the assessment and screening of the Plant Material (other than so far as plant health was involved) is not the subject of any dispute in the proceeding. Further, the references to assessments, screening and post-packaging stages of Seed Stock are nonsensical. The sub-category is rejected.
(f) the plaintiff is unaware of any letter from Mr Chase Martin of Umami dated 3 November 2024 and so cannot comment on this proposed sub-category.
(g) This sub-category is not directed to the ascertainment of relevant documents but to seek to obtain communications about such documents.
(h) Agreed
Category 6 is limited in scope to the identification of pathogens in the Seed Stock and any derivatives of the Seed Stock.
Contrary to the statement that the 'purported elaborations would broaden' Category 6, the sub-paragraphs in Category 6 are all limited to documents relating to the identification of pathogens.
Adopting the same subparagraph numbering, the Defendant's responses are as follows:
(a) Communications regarding the 'health' and 'observations on the health of' the Plant material would necessarily include communications relating to the identification of pathogens - a pathogen is an organism that can cause disease in a host and by its definition relates to health characteristics associated to the Plant Material. This sub-category has been decoupled as proposed by the Plaintiff and now constitutes a new Category 7.
(b) The reply in (a) above is repeated. Further, the words 'processes', 'procedures' and 'screening' are both relevant and sensical. As to relevance, the types of processes, procedures and screening used is important as to the efficacy of any test results. For example, test results are unreliable when certain parts of the Plant Material are used in testing and the processes, procedures and screening used to obtain the results are material to the determination of the reliability of test results and directly relevant. As to 'screening', it ought to be construed in its ordinary sense, namely; a test or examination looking for conditions or risk markers associated to pathogens. The defendant presses this sub-category.
(c) The Plaintiff does not explain why this sub-category ought to be decoupled and presses it as a sub-category as being relevant and confined in scope.
(d) The phytosanitary certificates are relevant to the movement of the Seed Stock, the origins of the Seed Stock, the types of tests conducted on the Seed Stock and the types of regulation applicable in respect of the Seed Stock. They are referred to in the ASOC and ought to be discovered as a matter of course. If the Plaintiff is in possession of more phytosanitary certificates in relation to the Seed Stock, they ought to be discovered. The defendant presses this sub-category.
(e) The assessment and screening of the Plant Material is directly relevant to the question of when the Seed Stock (or Plant Material as the case may be) became infected with HLVd. The wording assessment and screening are self-explanatory and the defendant repeats sub-category (b) above. The words 'post-packaging' have been removed, but the defendant otherwise presses this sub-category.
(f) The plaintiff disclosed a letter from Chase Martin dated '3.11.2024' which, given that Umami is an American company, may mean 11 March 2024, rather than 3 November 2024. The defendant considers the response to this request to be deliberately obtuse, particularly given that the letter was disclosed as a critical document by the plaintiff. Further, the plaintiff ought to be able to 'comment on this proposed sub-category' given that it also seeks 'requests made by the Plaintiff to Umami regarding HLVd testing at Umami's, or Umami's agent's, facilities'. To that end, and subject to some minor amendments to the sub-category, this sub-category is pressed by the defendant as being both relevant and limited in scope.
(g) The letter and associated documents and communications are relevant to the efficacy of testing at Umami's facilities and ought to be disclosed as relevant. This sub-category is pressed by the plaintiff.
(h) Agreed.
Adopting the same subparagraph numbering, the Plaintiff's responses are as follows:
(f) The defendant having clarified the correct date of the subject letter, the plaintiff maintains its objection. This sub-category is not directed to the ascertainment of relevant documents but to seek to obtain communications about such documents.
Communications between the Plaintiff, Triffid and/or Umami regarding the health of, and observations on the health of, the Plant Material from visits to the Facility, and Plant Material taken from the Facility, by the Plaintiff, Triffid and/or Umami.
Defence, [14]-[18], [20], [35]-[42], [53]-[57]
All documents in the Plaintiff's possession, power or control that record, evidence or relate to the selection of phenotypes of the Seed Stock and Plant Material, including but not limited to documents recording or evidencing:
(a) communications and documents between the Plaintiff, Umami and/or Triffid from 2022 to date;
(b) documents prepared by the Plaintiff, Umami and/or Triffid from 2022 to date;
(c) photographs, reports, evaluations and phenofinder updates prepared or created by the Plaintiff, Umami and/or Triffid (and their agents);
(d) input into the pheno-hunting process by the Plaintiff, Umami and/or Triffid in relation to the Cultivation Services Agreement dated 12 July 2022 (as defined in paragraph [3] of the ASOC);
(e) agreements or engagements with any third parties regarding the Seed Stock, Plant Material and the phenohunting services related to the Seed stock and Plant Material; and
(f) the Plaintiff's, Umami's and/or Triffid's processes and procedures regarding pheno-hunting under the Cultivation Services Agreement.
The selection of phenotypes of the Plant Material (other than so far as this was done by reference to plant health) is not the subject of any dispute in the proceeding.
Still less relevant would be any documents describing the plaintiff's, Umami's or Triffid's processes and procedures, which would necessarily include their respective proprietary IP.
Further, the reference to "the selection of phenotypes of the Seed Stock" is nonsensical.
Documents concerning the health of the plants would be discovered under proposed sub-categories 6(a)-(c).
The selection of phenotypes and the documents requested in the sub-categories is directly relevant to the question of whether Triffid, Umami and/or the plaintiff ought to have been aware of observable traits regarding the contraction of HLVd, the measures used to control HLVd infections, the steps that ought to be taken upon suspecting plants were infected with HLVd and whether or not the defendant complied with its contractual obligations and its alleged obligations to take reasonable care. These matters are also relevant to questions of contributory negligence and proportionate liability pleaded in paragraphs 52 to 57 of the Defence.
For example, the plaintiff has already disclosed documents called 'PhenoFinder updates' which demonstrate selection methods and detailed evaluations into the Plant Material. Such evaluations are directly relevant to [52] to [57] of the Defence. Also, it is difficult to reconcile the Plaintiff's position that this category is not relevant when it disclosed documents regarding the Pheno hunt as being critical.
Reference to Triffid & Umami's intellectual property is not a reason as to why these documents ought not be discovered and, subject to any orders for confidentiality as may be necessary, those documents ought to be disclosed.
The defendant presses this category as being relevant.
All documents, including documents comprising internal communications and communications with third parties, in the Plaintiff's possession, power or control dated prior to February 2024 recording or otherwise evidencing the presence, or potential presence, of HLVd in Australia, including in the Facility.
All records of the Plaintiff in its possession, custody or control that record or otherwise demonstrate:
(a) where the Plant Material was stored between 19 October 2023 and 27 March 2024; and
(b) what other Plant Material was stored in close proximity to the Plant Material between 19 October 2023 and 27 March 2024.
All documents, including documents comprising internal communications and communications with third parties, in the Plaintiff's possession, power or control recording or otherwise evidencing any commercial use, or potential commercial use, or intended commercial use of the Seed Stock or Plant Material, including in relation to the negotiation, on-sale, supply, manufacture, production, or cultivation of the Seed Stock, Plant Material or any derivative goods and services of the Seed Stock or Plant Material.
All documents, including documents comprising internal communications and communications with third parties, in the Plaintiff's possession, power or control that record or otherwise evidence any third parties declining to treat with the Plaintiff as a result of the Seed Stock and/or Plant Material being infected with HLVd.
All documents and communications in the Plaintiff's possession, power or control recording or otherwise demonstrating tissue culture remediation services in respect of the Seed Stock and/or Plant Material infected with HLVd, including any communications or agreements with Umami, Triffid and/or any third party related to tissue culture remediation services.
All other documents on which the Plaintiff intends to rely at trial of this Proceeding.
[1] A copy of the table marked Annexure A is annexed to this judgment.
[4] I assume the first objection concerns the failure to refer to documents and the second objection reflects the point that the defendant failed to produce dried flower which complied with the Qualifying Flower requirements because there were deformities due to the virus.
[6] The plaintiff argues that the reference to screening the Seed Stock and/or plant material was nonsensical. In the context, this suggests that it is not the screening per se which is nonsensical, but the screening of the "Seed Stock and/or Plant Material".
[7] I note that the plaintiff argues that the reference to "the selection of phenotypes of the Seed Stock" is nonsensical. This is presumably due to the fact that the plaintiff was to select phenotypes of the cannabis plants which displayed the various traits it sought, rather than phenotypes of the seeds.
Hydroganics Pty Ltd
Biortica Agrimed Ltd [2025] VSC 182