Weruva International, Inc v Briscoe

The plaintiff is a United States corporation that manufactures a range of cat food, including one known as “Best Feline Friends”. The plaintiff distributes its products in Australia through, amongst other things, a company associated with the Petbarn network of businesses.

These proceedings were commenced in April 2023, almost two years ago, but have not yet progressed beyond the stage of the defendants filing List Responses to the plaintiff’s Amended Commercial List Statement.

The first to third defendants are veterinary surgeons. The fourth defendant is the owner of a veterinary hospital.

The plaintiff alleges that the first to third defendants made representations concerning its products which are said to be misleading or deceptive within the meaning of s 18 of the Australian Consumer Law, [1] and that the fourth defendant is either knowingly involved in or vicariously liable for those representations.

The alleged representations are to the effect that the plaintiff’s product has caused severe illness in a “cluster” of cats.

In the plaintiff’s lengthy Amended Commercial List Statement, the representations are pleaded as matters of “reasonable implication” and matters that can be “reasonably inferred” from a large number of specified matters of fact.

Now, by notice of motion filed on 21 November 2024, the plaintiff seeks leave to have pre-evidence discovery from the defendants, and leave to issue a number of subpoenas.

Commendably, the range of discovery sought is now more confined than that which was originally called for, and it now seeks these documents:

The subpoenas are directed to a number of industry associations, to an entity associated with an animal neurologist named in the List Statement, and to the product distributor to whom I referred. The subpoenas seek much the same information as sought in the discovery categories, albeit with a slightly different date range.

The plaintiffs must establish that there are “exceptional circumstances”, for the purposes of Supreme Court Practice Note SC Eq 11, warranting the provision of discovery, and I would add the issue of subpoenas, before it serves its evidence.

The idea behind SC Eq 11 is that, normally, a plaintiff must be in a position to prove its case when it commences proceedings and should be in a position to serve the evidence upon which it relies to make out the allegations in its List Statement without the need for discovery, notices to produce, or subpoenas.

Mr Wyles, KC, who appears with Mr Adamopoulos today for the plaintiff, submitted that there were “exceptional circumstances” here for two reasons.

First, Mr Wyles submitted that the documents called for, both by discovery and by subpoena, relate to information which would necessarily be solely in the position of the defendants. That is a fact that has been held to be relevant, in the circumstances of particular cases, to whether exceptional circumstances are shown.

I accept that in this case the information sought is information of a nature likely solely to be in the position of the defendant. However, in the circumstances of this case, I am not satisfied that this constitutes exceptional circumstances. That is because the plaintiff seeks to make out a case of misleading or deceptive conduct based upon inference and, in those circumstances, the defendants are in my opinion entitled to see on what evidence the plaintiff relies to prove that case without being obliged to reveal to the plaintiff what documentations are in their possession.

Mr Wyles submitted that, absent pre-evidence discovery, the plaintiffs would very likely seek to serve a second round of evidence-in-chief following discovery in the usual course. That may be true, but that may well occur in any event were discovery to take place, as I think it should, in the usual time after evidence is exchanged.

Mr Wyles pointed to the focused nature of the pre-evidence discovery sought and the fact that it is linked in terms to nominated paragraphs of the List Statement and submitted that in those circumstances it was not likely that the party would need to seek further discovery after exchange of evidence.

Understandably, however, Mr Wyles was not able to say that the plaintiff would agree not to seek any further discovery in due course. I cannot form any view about how likely it is that it would in due course wish to seek more discovery than it seeks now.

I am not persuaded in those circumstances that this is a case where I should order pre-evidence discovery.

As to the subpoenas, the defendants do not in terms oppose the plaintiff having leave to issue the subpoenas, no doubt because they would not directly be affected by the service of those subpoenas. However, although SC Eq 11 does not in terms refer to subpoenas, I have held on earlier occasions that it is not permissible to seek to step around the requirements of SC Eq 11 by serving a notice to produce. [2]

Although I understand that the issue of subpoenas to third parties is a different circumstance than the service of a notice to produce by a plaintiff on the defendant, practitioners should not understand that the Court will look any more kindly on a request to issue subpoenas to third parties before evidence than they would in relation to notices to produce.

I do not propose to grant the plaintiff the relief it seeks and my order today is that its notice of motion of 21 November 2024 be dismissed with costs.