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The defendants in this case sought to redact contact details from documents in discovery, claiming that it amounts to a request to be released from the implied Harman undertaking and a breach of privacy requirements in clinical trials.

This is a class action brought by the plaintiff on behalf of persons who allegedly suffered injury due to insertion of a contraceptive device. Contact details of individuals likely to have had the procedure, and therefore be class members in the proceeding, were redacted from documents discovered by the defendants. The present application by the plaintiff was for orders that the defendants disclose unredacted copies of the discovered documents for the sole purpose of enabling notification to class members of the opt out process and notice approved in the proceeding.

The defendants argued that the proposed disclosure amounted to a request to be released from the implied Harman undertaking in respect of the discovered documents, and that there were no special circumstances that would justify the Court exercising its discretion to dispense with the undertaking. The defendants also relied on the National Statement on Ethical Conduct in Research Involving Humans in relation to privacy of participants in consent they have given in clinical trials, Principle 6 of the Australian Privacy Principles (APP 6), and the contact information being likely to be outdated and of little utility.

Justice Keogh granted the plaintiff’s application for disclosure of unredacted copies of the discovered documents. In doing so, his Honour noted that s 33ZF of the Supreme Court Act 1986 (Vic) provides the Court with a general power to make orders, of its own motion or on application by a party, as it thinks appropriate or necessary to ensure that justice is done in the proceeding. Neither APP 6 nor the clinical trial participant consent prevents the Court from ordering the production of that confidential information. 

His Honour also found that the proposed use of the redacted information to contact class members was conduct for the purposes of the litigation and thus not inconsistent with the Harman undertaking. His Honour rejected the defendants’ submission that the information was outdated and lacking utility, finding that using the contact information for the specific and limited purpose of providing notice of the proceeding, and of opt out orders, to class members provided a real benefit to the class members about their rights.  


Turner v Bayer Australia Ltd [2021] VSC 877

Supreme Court of Victoria, Keogh J,  
23 December 2021

Plaintiff’s Solicitors: Slater & Gordon;
Defendants’ Solicitors: Clayton Utz;
Plaintiff’s Funder: N/A

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