Australian Competition and Consumer Commission v Advance Medical Institute Pty Limited (Administrators Appointed) [2011] FCA 103 (31 January 2011)

Last Updated: 6 April 2011

FEDERAL COURT OF AUSTRALIA

Australian Competition and Consumer Commission v Advance Medical Institute Pty Limited (Administrators Appointed) [2011] FCA 103

Citation:		Australian Competition and Consumer Commission v Advanced Medical Institute Pty Limited (Administrators Appointed) [2011] FCA 103
Parties:		AUSTRALIAN COMPETITION AND CONSUMER COMMISSION v ADVANCED MEDICAL INSTITUTE PTY LIMITED (ADMINISTRATORS APPOINTED) (ACN 117 372 915) and AMI AUSTRALIA HOLDINGS PTY LIMITED (ADMINISTRATORS APPOINTED) (ACN 095 238 645) and JACOV VAISMAN AND BRIAN LONERGAN and JAMES VANDELEUR
File number:		VID 1113 of 2010
Judge:		NORTH J
Date of judgment:		31 January 2011
Date of hearing:	31 January 2011
Place:	Melbourne
Division:	GENERAL DIVISION
Category:	No catchwords
Number of paragraphs:	6
Counsel for the Applicant:	Mr J Burnside (with Ms L Nichols)
Solicitor for the Applicant:	Corrs Chambers Westgarth
Counsel for the First and Second Respondents:	Mr T Forbes
Solicitor for the First and Second Respondents:	Colin Biggers & Paisley Lawyers
Counsel for the Third Respondent:	Mr F Hardingham
Solicitor for the Third Respondent:	Bruce Stewart Dimarco
Counsel for the Fourth Respondent:	Ms M Kerhowlas
Solicitor for the Fourth Respondent:	TressCox Lawyers
Counsel for the Fifth Respondent:	Mr I Wylie
Solicitor for the Fifth Respondent:	William Roberts Lawyers

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1113 of 2010

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	ADVANCED MEDICAL INSTITUTE PTY LIMITED (ADMINISTRATORS APPOINTED) (ACN 117 372 915) First Respondent AMI AUSTRALIA HOLDINGS PTY LIMITED (ADMINISTRATORS APPOINTED) (ACN 095 238 645) Second Respondent JACOV VAISMAN Third Respondent BRIAN LONERGAN Fourth Respondent JAMES VANDELEUR Fifth Respondent

JUDGE:	NORTH J
DATE OF ORDER:	31 JANUARY 2011
WHERE MADE:	MELBOURNE

THE COURT ORDERS THAT:

1. Leave be given to the applicant under s. 440D of the Corporations Act 2001 to continue this proceeding as against the first and second respondents until 28 March 2011, for the purpose of these orders only.
2. By 4 PM on 4 February 2011 the applicant deliver to the first and second respondents:

(i) a copy of each of the documents referred to in the applicant’s statement of claim, including a copy of the transcript of the examination of the Third Respondent referred to in the Particulars to paragraph 21 of the Statement of Claim and all transcripts referred to in Annexure B to the Statement of Claim (with the patient’s date of birth and credit card and banking information redacted), together with the audio recordings from which the transcripts referred to in Annexure B of the Statement of Claim were prepared (collectively Statement of Claim Documents);

(ii) a copy of the CD containing images of 5,849 paper documents referred to in paragraph 7(a) of the affidavit of Scott Keith Morris dated 27 January 2011; and

(iii) an inventory of all documents, recordings and any other items seized or otherwise obtained pursuant to the search warrant.

3. Until 28 March 2011 the first and second respondents keep confidential all information contained in the documents produced to them by the applicant pursuant to order 2(i);
4. By 4 pm on 4 February 2011 the applicant deliver to each of the third and fourth respondents a copy of the Statement of Claim Documents.
5. Until 28 March 2011 each of the third and fourth respondents keep confidential all information contained in the documents produced to them by the applicant pursuant to order 4;
6. By 4 pm on 4 February 2011 the applicant deliver to the fifth respondent:

(a) a copy of the Statement of Claim documents; and

(b) a copy of each of the documents described in the fifth respondents’ notice to produce, pursuant to O.33 r 12, dated 18 January 2011.

7. Until 28 March 2011 the fifth respondent keep confidential all information contained in the documents produced to him by the applicant pursuant to order 6.
8. Until 28 March 2011 the applicant and the third and fifth respondents be restrained from approaching any of the patients of the first and second respondents referred to in the Statement of Claim Documents.
9. Until 28 March 2011 the first, second and fourth respondents be restrained from approaching any of the patients of the first and second respondents referred to in the documents delivered to them by the applicant pursuant to these orders, other than by communicating with patients of the first and second respondents at the request of those patients, for the purposes of medical consultations or treatment, or for the purpose of providing ongoing medical assistance.
10. The applicant’s notice of motion dated 27 January 2011 be adjourned to 28 March 2011.
11. The applicant file and serve any notice of motion for leave to continue this proceeding under s. 440D of the Corporations Act 2001 by 16 March 2011, such notice of motion to be made returnable on 28 March 2011 and heard together with its notice of motion dated 27 January 2011.
12. By 16 march 2011 the applicant file and serve any further affidavit in support of the notices of motion referred to in the preceding two paragraphs.
13. The respondents file and serve any affidavits in reply by 23 March 2011.
14. The respondents file and serve any notices of motion to transfer this proceeding to the New South Wales Registry by 14 March 2011, together with any affidavits in support, to be returnable on 28 March 2011 and heard simultaneously with the other notices of motion referred to in this order.
15. The parties file and serve any affidavits in response to any notices of motion to transfer this proceeding to the New South Wales Registry by 21 March 2011.
16. Each of the third, fourth and fifth respondents file and serve defences to the applicant’s statement of claim, on or before 15 March 2011.
17. The directions hearing be adjourned to 10:15am on 28 March 2011.
18. Costs be reserved.
    

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION	VID 1113 of 2010

BETWEEN:	AUSTRALIAN COMPETITION AND CONSUMER COMMISSION Applicant
AND:	ADVANCED MEDICAL INSTITUTE PTY LIMITED (ADMINISTRATORS APPOINTED) (ACN 117 372 915) First Respondent AMI AUSTRALIA HOLDINGS PTY LIMITED (ADMINISTRATORS APPOINTED) (ACN 095 238 645) Second Respondent JACOV VAISMAN Third Respondent BRIAN LONERGAN Fourth Respondent JAMES VANDELEUR Fifth Respondent

JUDGE:	NORTH J
DATE:	31 JANUARY 2011
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. The Australian Competition and Consumer Commission (ACCC), the applicant, has filed an application alleging that the respondents have contravened the Trade Practices Act 1974 (Cth) in their offering services for male sexual dysfunction. The companies which operated the business are presently in voluntary administration and their fate will be considered at meetings to be held under the Corporations Act 2001 (Cth) shortly after 15 March 2011.
2. One of the orders sought at this directions hearing requires the applicant to produce to the respondents all the documents referred to in the statement of claim. Those documents include references to patients who have sought treatments for male sexual dysfunction. The documents also include transcripts of telephone contacts made by the patients with the first and second respondents.
3. Clearly this material includes intimate, private medical information. The information would have been given in the expectation that it would not be used other than for the purposes of the treatment of those patients. Because the details of these patients have now found their way into legal proceedings the applicant seeks to protect the confidentiality of those patients. Obviously the Court will be astute to do so.
4. The power of the Court to make orders which protect the privacy of the patients of the first and second respondent can be found in s 23 of the Federal Court of Australia Act 1976 (Cth) (the Act). Specific provisions giving the Court the power to ensure confidentiality are found in s 50 of the Act. However, that section is limited to evidence which is given in a hearing. This case is at a much earlier stage. The fourth and fifth respondents are practising doctors and accept that they have professional obligations to safeguard the confidentiality of information concerning their patients irrespective of the orders of the Court. The same professional obligation does not apply to the other respondents.
5. It is likely that the law would protect the patients in these circumstances from disclosure of their personal information by the first three respondents. However, in order to make certain that their confidentiality is protected, it is appropriate that the Court make quite far reaching orders binding on the respondents. Orders will be made which require the respondents to keep confidential all of the information contained in the documents produced to them by the applicant which are referred to in the statement of claim and which the applicant has agreed to provide by 4 February 2011.
6. Furthermore, for the moment the respondents will be restrained from approaching any of the patients referred to in those documents. This is an unusual order and will be revisited on 28 March 2011 when the matter next comes before the Court for directions. On that date the position of the first and second respondents and their future will be clearer. At present they are in administration and the attitude of the administrators is, not surprisingly, a little unclear. They are concerned to continue the business operated by those respondents and need some time to consider the issues relating to the litigation.
7. Thus, whilst the orders are far reaching and perhaps beyond what is usual in the course of such litigation, they are made for a very limited time period, and with the express purpose of giving to those patients referred to in the statement of claim the utmost protection from public disclosure as the Court is able to do.
   

I certify that the preceding seven (7) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice North.

Associate:

Dated: 14 February 2011