McClure v Lam (No.2)

Supreme Court

New South Wales

Case Name:	McClure v Lam (No.2)
Medium Neutral Citation:	[2025] NSWSC 1303
Hearing Date(s):	31 October 2025
Date of Orders:	31 October 2025
Decision Date:	31 October 2025
Jurisdiction:	Common Law
Before:	Garling J
Decision:	(1) Order that, by 28 November 2025, the defendant is to produce the following documents under subpoena, namely an identified copy of all clinical records created for all patients who underwent procedures from 1 January 2011 to 31 December 2013, carrying the following Medicare item numbers: (i) 35599 and (ii) 35570, 35571, or 35573. (2) Order that the Notice of Motion filed by the defendant on 21 August 2025 be otherwise dismissed. (3) Order that each party pay her and his own costs of that Motion.
Catchwords:	COSTS – Party/party – Costs order in interlocutory proceedings – Each party to pay their own costs – No issue of principle
Legislation Cited:	Not Applicable
Cases Cited:	Not Applicable
Texts Cited:	Not Applicable
Category:	Procedural rulings
Parties:	Rachel McClure (P) Alan Lam (D)
Representation:	Counsel: J Prats (P) S Grey (D) Solicitors: Martin Street Lawyers (P) Avant Law Pty Ltd (D)
File Number(s):	2020/202054
Publication Restriction:	Not Applicable

EX TEMPORE JUDGMENT

On 24 October 2025, the Court heard an application, by the defendant, to set aside a subpoena to produce which had been filed on 21 August 2025.
The subpoena was addressed to the defendant and sought production of his records.
The defendant contended that, in correspondence and before the Court, there was no legitimate forensic purpose for the issuing of the subpoena. That objection brought and argued by the defendant, failed.
The defendant objected to the subpoena on a second basis, namely that it would be oppressive to him to have to produce his clinical records because of the number of his patients who may have been caught by the subpoena and the inadequacy of the searching capacity of the software used by the defendant. As I said in my reasons, in McClure v Lam [2025] NSWSC 1272, that evidence did not set out many of the facts ordinarily brought before the Court by a party seeking to establish oppression.
However, I took the view that, at least in the first instance in dealing with the subpoena, the Court had to weigh the proportionality of the task which was to be undertaken when compared to the apparent relevance and forensic need for the documents. I was satisfied that one part of the subpoena, namely, the use of the phrase "Prolapse procedures", and the generality of that description, as it was unaccompanied by any specific Medicare item number for such a procedure, would mean that the task, and in the presence of the limited capacity of searching the software, would be oppressive.
I stood the matter over until today for the parties to determine what orders were agreed. The parties are agreed on an order which will shortly be pronounced for the production of documents under subpoena. The parties are agreed that the balance of the Notice of Motion of the defendant be otherwise dismissed. The parties are unable to agree on costs.
In my view, this is a matter in which both parties have had a measure of success, and had both parties sat down together with reasonable, objective and open minds, the matter would never have come to Court.
Accordingly, my order is that each party pay its own costs of the Notice of Motion filed 21 August 2025.
The formal orders of the Court will be,
(1)Order that, by 28 November 2025, the defendant is to produce the following documents under subpoena, namely an identified copy of all clinical records created for all patients who underwent procedures from 1 January 2011 to 31 December 2013, carrying the following Medicare item numbers: (i) 35599 and (ii) 35570, 35571, or 35573.
(2)Order that the Notice of Motion filed by the defendant on 21 August 2025 be otherwise dismissed.
(3)Order that each party pay her and his own costs of that Motion.
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The respondents, McClure and another, initiated proceedings against the appellant, Lam, in the Federal Circuit Court, seeking relief for breaches of the Competition and Consumer Act 2010. The respondents alleged that Lam, a director of a company, had engaged in misleading or deceptive conduct and unconscionable conduct, actions that the respondents claimed led to significant losses. The Federal Court was called upon to determine the allocation of costs in the interlocutory proceedings.

The primary legal issue before the court was whether it should make a costs order in the interlocutory proceedings, particularly considering the fact that no issue of principle was involved. The court needed to assess whether the circumstances justified a departure from the usual rule that each party bears their own costs in interlocutory matters. This consideration was crucial given the extensive nature of the proceedings and the significant resources expended by both parties.

In its reasoning, the court emphasised that while there was no issue of principle that warranted a costs order, the court recognised the exceptional circumstances of the case. Despite this, the court concluded that it was not appropriate to make a costs order against either party. The court noted that the proceedings were complex and had involved considerable legal and factual issues. However, the court ultimately decided that each party should bear their own costs for the interlocutory proceedings, reflecting the court's view that neither party's conduct warranted a costs penalty.

The court's decision highlighted the importance of proportionality in costs orders, particularly in interlocutory matters where no significant issue of principle was at stake. The outcome reinforced the general principle that parties should bear their own costs unless exceptional circumstances justified a departure from this norm.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established