Wellness Pty Ltd v Hamilton-Bond & Ors [2002] NSWSC 1259 | Case summary

4569/02 WELLNESS PTY LIMITED v IAN HAMILTON-BOND & 2 ORS JUDGMENT 1 HIS HONOUR: The plaintiff in this matter manufactures water filters. The defendants are also involved in the production of water filters, but of a different type. There were proceedings in this Court which resulted in a settlement whereby the defendants were restrained from publishing an advertisement that was similar to an advertisement which had appeared in the Byron Bay Echo on 20 August 2002, publishing material in similar terms to an information sheet that the defendants had published, using a trademark "Living Water" or any similar mark, and publishing a particular comparative table which was then on the website of the defendants, or any similar table making similar claims about the properties of the Wellness filters. 2 The information sheet that was the subject of the injunction set out, broadly, claims about the efficacy of the Wellness filter in removing certain substances from water. 3 In the course of those proceedings Wellness issued a subpoena to Richmond Water Laboratories. Pursuant to that subpoena there were two particular documents produced, which were analyses of the contents of filtered water which Richmond Water Laboratories had produced. That water had been filtered using a Wellness filter. 4 The application before the Court today is for an order granting leave to the plaintiff to make use of those documents produced on subpoena by Richmond Water Laboratories for three purposes. The first purpose is for submission to the Australian Competition and Consumer Commission for use in connection with an investigation which that body has started into some claims by Wellness concerning the efficacy of its product in certain respects. The test results are material which could bear upon that inquiry. 5 The second purpose for which leave to use the documents is sought is for submission to the Australian Competition and Consumer Commission for use in connection with a proposed complaint which the plaintiff wishes to make to that body concerning the conduct of the defendants in connection with the very matters which were the subject of the previous consent order. The intention of the plaintiff is to make a complaint that those various publications were themselves misleading. 6 The third purpose for which the plaintiff seeks to use the material is for publication to the general public. 7 The principles pursuant to which the Court acts in such a case are not in doubt. The Court has compulsive powers, which can require people who are strangers to litigation to produce to the Court documents, regardless of whether those documents are sensitive or confidential. The basis on which those documents are required to be produced to the Court is that they will be used for the purpose of the litigation, and only for that purpose, unless the Court grants leave for them to be used in some other way. 8 The test which the Court uses in deciding whether it will grant permission for the documents to be used in some other way, when (as here) the documents have not been read out in open court, is that the release of the documents will not be allowed save in special circumstances and when such use will not occasion injustice to the person who produced the documents under subpoena. See Crest Homes PLC v Marks [1987] 1 AC 829 at 860, Ampolex Limited v Perpetual Trustee Company (Canberra) Limited (1985) 18 ACSR 218 at 221, Holpitt v Varimu Pty Limited [1991] 103 ALR 684 at 686, and Sweetman v Australian Thoroughbred Pre-finance Pty Limited (Lockhart J unreported 23 July 1992 at 3). Deciding whether "special circumstances" have been made out involves a balancing exercise which takes into account the particular nature of the material produced, the policy underlying the implied undertaking, and any other relevant factors, and asks whether the needs of justice are better served by relieving from or maintaining the undertaking: Capital Television Group Limited v Northern Rivers Television Pty Limited (Bainton J, 4 September 1995, unreported); Woolworths Limited v Lawson [2002] NSWSC 985. 9 In the present case Richmond Water Laboratories has been asked for its attitude to use of the documents for purposes other than the litigation. It says that it does not own the documents, that its client paid the laboratory to conduct the analyses and therefore owns the results, and that "If you wish to publish the results you would need to gain permission from our client." 10 The "client" so referred to was one or other of the defendants in the previous proceedings. Those defendants are represented before me today. It seems to me that a proper application of principle would require me to decide whether special circumstances are made out to justify permitting the documents to be used for any or all of the purposes for which the plaintiff seeks to use them, and whether such use would occasion injustice to either Richmond Water Laboratories, or the defendants. 11 The defendants oppose the granting of the first order on the ground that there is no need for the documents to be sent to the ACCC because the ACCC has its own compulsive powers, under s 155 of the Trade Practices Act 1974 (Cth). I do not find that a particularly persuasive reason, because the ACCC needs to have some reason to believe that a particular document is in existence before there is occasion for it to use any of its compulsive powers. No submission was put by the defendants that the documents were ones of a type which the equity court would protect as being confidential information. That the documents were, prior to being subpoenaed, known only to a very limited group of people is not enough to establish that they contained confidential information. 12 In these circumstances any legitimate interest of the defendants in maintaining limited access to these particular results which it commissioned, is outweighed by the desirability of permitting the plaintiff to be able to defend itself concerning an allegation which the ACCC has made against it. It would not occasion an injustice to either the defendants, or Richmond Water Laboratories to allow the documents to be used for that purpose. 13 In coming to that view I bear in mind that it is only for good reason that a person who has had his or her documents subpoenaed for use in litigation should be required to have those documents used for some other purpose. It seems to me that defending oneself against a charge brought by an administrative body is such a good reason. Particularly is that so when the use that the court is permitting be made of the document is quite limited, and when there is no question of the court acting as the destroyer, rather than the protector, of confidentiality in the documents. 14 The second purpose is in a somewhat different category. I do not see that it is necessary for the plaintiff to be able to have access to these particular test results to be able to complain to the ACCC that statements which the defendants have made publicly are misleading. 15 Those complaints could be supported in many ways, and denying one possible means of supporting such a complaint does not prevent them from being made. I do not see that the denying to the plaintiff of one piece of evidence which might support such a complaint is sufficiently important to require the usual practice to be departed from. 16 I am not persuaded that it is appropriate to allow the documents to be published to the public as a whole. The evidence before me shows that the plaintiff and the defendants are vigorously battling each other in the commercial marketplace, each making allegations about the inadequacies of the other's product. 17 I do not see that there is any circumstance in that which justifies the usual limitations on the use which can be made of documents produced on subpoena being eroded. 18 I make an order in terms of paragraph 1A of the notice of motion. Save for that order, the notice of motion is dismissed. 19 The plaintiff submits it should be entitled to receive half its costs. I do not agree. The plaintiff would have needed to come to court in any event to have obtained a relaxation of the usual rule. This is not a case where the opposition of the defendant has occasioned the need for the plaintiff to come to court. There will be no order as to costs. **********

Wellness Pty Ltd v Hamilton-Bond & Ors

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