FEDERAL COURT OF AUSTRALIA

Roohizadegan v Technology One Limited [2019] FCA 1145

ORDERS

THE COURT ORDERS THAT:

1.    The parties confer and submit an agreed minute of orders by 4.00pm today.

2.    Costs of paragraph 4 of the respondents’ amended interlocutory application filed 24 May 2019 be reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEELAHAN J:

Introduction

1    The respondents have applied for a special order for the production of electronic data by the applicant, the terms of which I shall explain below.

2    On 18 May 2016, the first respondent terminated the applicant’s employment. At that time, the applicant was employed by the first respondent as its Victorian State Manager. By his further amended statement of claim the applicant alleges, among other things, that the first respondent terminated his employment because he had exercised or proposed to exercise workplace rights, including the assertion of a contractual entitlement to receive certain incentive payments. In the alternative, the applicant alleges that the first respondent terminated his employment because he suffered a mental disability. In the further alternative, the applicant alleges that the first respondent terminated his employment because he was temporarily absent from work because of illness or injury. The applicant alleges that the termination of his employment was therefore in contravention of s 340(1)(a)(ii) and (iii), s 351, and s 352 of the Fair Work Act 2009 (Cth) (the Act), and alleges that the second respondent, who was the Chairman and Chief Executive Officer of the first respondent, was involved in the contraventions. The applicant alleges that he has suffered substantial losses as a result of the termination of his employment.

3    In addition, the applicant alleges that he was treated less favourably than other employees during the term of his employment, and that this constituted discrimination and adverse action by the first respondent because he had exercised workplace rights by making a number of complaints and proposed to exercise a right to bring legal proceedings. In respect of these alleged breaches, the applicant claims compensation for past and future medical expenses, and compensation in the nature of general damages.

4    The applicant also alleges a contractual entitlement to receive incentive payments for the period 1 October 2009 to 18 May 2016, and alleges that the first respondent failed to pay him incentive payments to which he was entitled because it did not correctly identify revenue for the purposes of the relevant calculations upon which the applicant alleges his incentive entitlements were to be based. The applicant pleads in his further amended statement of claim that his estimated losses in respect of the alleged contractual entitlements total $4,389,387.

5    By way of relief, the applicant seeks the imposition of penalties and orders for compensation for the alleged contraventions of the Act, and damages for breach of contract.

6    For their part, by their amended defence the respondents deny that they contravened the Act, and the first respondent denies the applicant’s claims in respect of the alleged entitlement to incentive payments.

Relevant procedural background

7    On 21 December 2018, the Court made orders providing for the exchange of proposed categories of documents, for the notification of objections to categories, and for the discovery and production of non-privileged documents. The Court recorded that the parties had agreed upon a protocol in relation to access by the respondents to documents that had been produced on subpoena by several of the applicant’s medical practitioners. The Court also fixed the proceeding for trial, commencing 7 October 2019.

8    The parties thereafter exchanged categories of documents that they sought. In a letter dated 14 January 2019 the respondents’ solicitors sought as their category 23 –

The hard drive of all computers that contain emails, file notes or any other documents referred to in items 1 to 22 above.

9    By letter dated 18 February 2019 the applicant objected to making discovery of hard drives on the grounds that it was fishing, and went beyond the scope of what was relevant to the proceeding, and referred to Part 10 of the Court’s Practice Note CPN-1 in relation to discovery.

10    On 1 April 2019, the respondents filed an application by which they sought, among other things, an order that the applicant make available for forensic examination, inspection and copying, hard drives of computers and USB storage devices that contain emails, file notes or any other documents referred to in categories of documents which the respondents sought from the applicant by way of discovery. This was one of a number of applications made at that time by the parties relating to discovery, claims for privilege against production, and access to documents produced on subpoena. The hearing of the parties’ applications commenced on 21 May 2019, and was adjourned part-heard to 4 June 2019. Subsequently, the parties requested that the hearing be further adjourned, and it resumed on 16 July 2019. During the course of the hearing on 21 May 2019 I referred some of the applications to a Registrar of the Court, and other applications have been resolved by agreement between the parties.

11    What remains before me is the respondents’ application that the applicant make electronic devices available for forensic examination, inspection and copying. At the hearing on 21 May 2019 I indicated that I would not make an order of this type in the form then sought by the respondents, as the order that was then sought afforded no protections to the applicant in relation to the confidentiality of the data. Consequently, the respondents sought and obtained leave to file an amended interlocutory application. By their amended interlocutory application filed 24 May 2019 the respondents sought orders the material features of which are summarised as follows –

(1)    the applicant deliver to the premises of his solicitors all computers, hard drives, USB or other electronic data storage devices within his possession or control and which contain or which contained any of the “Listed Things” referred to in a schedule to the amended application;

(2)    the “Listed Things” referred to in the schedule are defined by reference to categories of documents which correspond to some of the categories of documents in the respondents’ list of documents dated 14 January 2019, which were the categories of documents that the respondents requested the applicant to discover;

(3)    an independent computer expert be permitted to make digital copies of the data;

(4)    the applicant is to provide any passwords that are necessary to access the data;

(5)    the independent computer expert is to provide digital copies of the contents of the electronic devices to an independent lawyer together with a report of what the expert has done, and an analysis of the electronic storage devices;

(6)    the independent lawyer is to search for the “Listed Things” and serve on the parties a copy of the independent computer expert’s report, including an analysis of the electronic storage devices and the material and documents comprising the “Listed Things”;

(7)    no provision was made in the orders sought by the respondents for the applicant to object to the production of documents by the independent solicitor; and

(8)    a number of undertakings were proposed, including an undertaking as to damages by the first respondent, and an undertaking by the respondents’ lawyer to pay the costs of the independent computer expert and the independent lawyer.

12    The foundation for the respondents’ application for the orders was a submission that the Court should have “little confidence” that the applicant had made discovery of all documents within the categories of documents sought by the respondents. There were a number of reasons advanced to support this submission.

The applicant’s laptop

13    The respondents relied on a reference in a letter dated 29 March 2018 from the applicant’s solicitors to the respondents’ solicitors to the applicant having accumulated “nearly 100,000 emails” during his period of employment with the first respondent. The context for that reference was that the respondents’ solicitors on a number of occasions had sought return of what they alleged were property and documents of the first respondent. The applicant disputed that he was under an obligation to return these items. In a letter dated 28 March 2018 the respondents’ solicitors stated –

We refer to our letters to [the applicant’s previous solicitors] on 27 February 2018 and on 9 March 2018 and our email to Harmers on 15 March 2018 about your client’s failure to return Technology One’s property upon his dismissal. It is clear, based on the materials he has filed in these proceedings, that he has retained a large volume of our client’s documents since the commencement of his employment in 2006.

As a matter of urgency, please provide us with the following:

    (a)    a list of our client’s documents that your client seeks to retain for the purposes of litigation;

(b)    the return of all of our client’s property and documents that are not listed in (a) to our office;

(c)    an undertaking from your client that he has not kept any of our client’s property and documents and that he has destroyed any electronic copies that he has made of our client’s documents other than those listed in (a).

14    The applicant’s solicitors responded by a letter dated 29 March 2018, which included the following –

6.1    Our client is undertaking a review of the documents in his possession. However, as we are sure you can appreciate, our client was employed with Technology One for almost 10 years and during that time accumulated nearly 100,000 emails. Accordingly, it is no simple task for our client to review this volume of emails and the documents attached to those emails, for the purpose of providing a list of the documents intended for use during these proceedings.

6.2    In circumstances where your client has acquiesced in our client retaining the documents since his termination, and where those documents have been necessary for the purposes of these proceedings, we propose that our client provides an undertaking confirming that subject to paragraph 6.3 below, he:

(a)    will use your client’s documents only for the purposes of these proceedings, which includes:

(i)    the Federal Court proceedings currently on foot (proceedings number VID996/2016) (“Current Proceedings”);

     (ii)    any proceedings related to the Current Proceedings; and

(iii)    any appeal related to the Current Proceedings, (collectively, “Proceedings”)

(b)    will return your client’s documents and property at the conclusion of the Proceedings;

(c)    will destroy all copies of your client’s documents, electronic and physical, at the conclusion of the Proceedings;

(d)    has not and will not disseminate or distribute your client’s documents, other than for the purposes of the Proceedings.

6.3    Prior to the return of your client’s documents and property, a process needs to be agreed upon in respect to the personal materials that may be contained within the property. We propose that a process be determined at the conclusion of the Proceedings.

15    The respondents’ solicitors pursued requests for return of the first respondent’s documents by letters dated 14 May 2018, 31 May 2018, and 5 November 2018. Reference was made in the letters of 14 May 2018, 27 June 2018, and 5 November 2018 to the applicant’s retention of “nearly 100,000 emails”. The applicant’s solicitors responded to the letter of 23 November 2018 and stated (inter alia) –

In your letter, you request that our client return an undefined class of documents which are apparently known as the “First Respondent’s documents”, and which are said to include the “nearly 100,000 emails” referred to in our letter dated 29 March 2018.

Should your client wish to assert a legal right in relation to a particular document which is apparently in our client’s possession, your client must identify the document with appropriate particularity and the basis of your client’s right to the document.

Our client is in possession of certain documents, which are stored on the phone and laptop that our client used in the course of his employment. The laptop and phone have also been used for personal purposes by our client. For this reason, those devices contain files and documents that are personal to our client (such as medical documents and privileged documents).

We dispute the characterisation of the documents stored on the phone and the laptop as being the “First Respondent’s documents”. For the reasons that follow, we consider those documents belong to our client and that our client is entitled to retain them.

The basis upon which our client says the documents belong to him, and that he is entitled to retain them, is that your client gave those documents to our client, or that your client acquiesced in our client retaining those documents.

It was known to your client that our client was in possession of the laptop and its contents at the time of his termination on 18 May 2016. Indeed, our client carried the laptop with him when attending the termination meeting on 18 May 2016 and carried it with him when he left the meeting. Your client did not request that our client return the phone or laptop at that time.

On or about 19 May 2016, our client telephoned Kathryn Carr to discuss his medical certificate. During this conversation, words to the following effect were exchanged:

Our client: what should I do with my sick note, my laptop and mobile phone?

Ms Carr: it does not matter now, you can keep those. Adrian said only because it is you Behnam. Sign the settlement document as we know you need this money.

In that conversation, your client clearly manifested an intention to give the laptop, its contents and its phone and its contents to our client.

Following the conversation between Ms Carr and our client on 19 May 2016, our client retained the laptop and, until recently, your client took no steps whatsoever to recover the laptop and/or his mobile phone from our client.

(Emphasis added.)

16    The letter continued, and then stated –

For these reasons, our client is entitled to retain the documents on his phone and laptop and it is incorrect to assert that those documents are the “First Respondent’s documents”.

(Emphasis added.)

17    I note the following in relation to the above passages. First, there is no express qualification of the previous statement by the applicant’s solicitors that the applicant had accumulated “nearly 100,000 emails”. Second, the letter refers to the applicant’s laptop, and uses the term “the laptop”, and describes it as the laptop which the applicant had with him at the time of his termination on 18 May 2016. Third, the letter conveys the impression that the applicant remained in possession of that laptop, and asserted an entitlement of the applicant to retain the laptop and the documents stored on it.

18    In an affidavit of the respondents’ solicitor, Ms Winter, dated 1 April 2019 in support of the respondents’ application, reference was made in paragraph 42 to documents to which the applicant had referred in his witness statements filed for the purposes of trial. The point sought to be made by paragraph 42 of that affidavit was to suggest that the applicant had produced documents including email exchanges from 2007, 2008, 2010, 2011, and 2013 for the purposes of his evidence at trial, but had discovered comparatively few emails for the relevant period. In response to this part of the affidavit, Ms Sutherland of the applicant’s solicitors stated in an affidavit dated 29 April 2019 –

52.    In relation to paragraphs 42(a), (b) and (c) of the Affidavit of Belinda Winter, sworn on 1 April 2019 (“Winter Affidavit”), I am instructed by the Applicant and verily believe that the documents referred to in these paragraphs came from:

(a)    emails and documents that the Applicant manually saved to his laptop’s desktop or to USB’s during his employment with the First Respondent;

(b)    emails and documents that the Applicant printed during his employment with the First Respondent; and

   (c)    did not come from any other source.

53.    The laptop referred to in paragraph 50(a):

(a)    was given to the Applicant by the First Respondent during his employment with the First Respondent in about 2014;

(b)    was used by the Applicant for work purposes and personal purposes from about 2014 to 2019;

   (c)    contains personal documents, including:

i.    family photos and videos;

ii.    personal tax information;

iii.    the Applicant’s eldest daughter’s medical records;

iv.    expenses related to investment properties owned by the Applicant; and

v.    information related to charity functions and donations.

54.    In relation to paragraph 42(d) of the Winter Affidavit, I am instructed by the Applicant and verily believe that the Applicant has exercised his best endeavours to discover all documents relevant to the Respondents [sic] Request for Discovery (with the exception of the Applicant’s objections), including in respect to categories 17 and 19 of the Respondents’ Request for Discovery.

19    It was accepted that Ms Sutherland’s reference in paragraph 53 to “paragraph 50(a)” was a slip, and that it should be understood as a reference to paragraph 52(a). Ms Sutherland went on to state at paragraph 55(f) –

The Applicant now only has access to documents that he either manually saved on his laptop’s desktop, USBs, or documents that he printed. That is, the Applicant does not have access to emails and documents that reside in the First Respondent’s internal servers, intranet and on the Cloud.

20    I note the references in these paragraphs to the applicant’s laptop, and in particular, the reference to the laptop having been given to the applicant by the first respondent in about 2014, and the statement that the applicant used the laptop for work and personal purposes from about 2014 to 2019.

21    In relation to the previous references to “100,000 emails”, Ms Sutherland stated at paragraph 57 of her affidavit –

In relation to paragraph 42(g) of the Winter Affidavit, I am instructed by the Applicant and verily believe that the reference to “100,000 emails” was a reference to a conversation that the Applicant had with the First Respondent’s information technology department in Brisbane, prior to his termination on 18 May 2016. During this conversation, I am instructed that the Applicant requested that his archived emails be stored on his laptop, so that he could access these emails while offline, but was told words to the effect of, “no, it’s too big to transfer all your emails and documents. You have about 100,000.”

22    There is support for the assertion that the applicant had accumulated 100,000 emails – at least on the first respondent’s Gmail server – because in a document annexed to an affidavit of the first respondent’s IT Director, Ms Ho, dated 6 June 2019 there is reference to the applicant’s Gmail mailbox held on behalf of the first respondent containing a total of 124,135 emails.

23    As I stated earlier, the hearing of the interlocutory applications commenced on 21 May 2019, and was adjourned part-heard, initially to 4 June 2019. On 30 May 2019, Mr White of the applicant’s solicitors made an affidavit which addressed a range of issues and referred to the applicant’s laptop in several contexts. In relation to electronic devices in the applicant’s possession which contained “Listed Things”, Mr White stated –

Devices within Order 4(a) of the Amended Application

6.    I am told by the Applicant that he has in his possession, custody or control the following devices which contain or which contained the “Listed Things” as defined in the Amended Application:

(a)    One blue USB storage device, imprinted with the words “technologyonecorp.com”;

(b)    One silver USB storage device, imprinted with the words “Victorian Water”;

(c)    One silver USB storage device, imprinted with the words “technologyone”; and

(d)    One silver and red USB storage device, imprinted with the words “SAIGLOBAL”.

7.    The computers of Harmers Workplace Lawyers and the Applicant’s laptop also contain certain of the “Listed Things” as defined in the Amended Application.

The Applicant’s laptop contains privileged and confidential documents

8.    In addition to what is mention[ed] in paragraph 53(c) of the First Sutherland Affidavit, I am told by the Applicant that the laptop includes:

(a)    privileged communications between the Applicant and Harmers Workplace Lawyers and other lawyers of the Applicant, in respect of which the Applicant maintains and does not waive privilege; and

(b)    confidential and privileged medical documents belonging to the Applicant, in respect of which the Applicant maintains and does not waive confidentiality and privilege.

24    In relation to the applicant’s approach to discovery, Mr White stated (inter alia) –

17.    I am told by the Applicant:

…

(b)    The Applicant searched his hard copy documents, his laptop and his USB devices for discoverable documents;

…

18.    I am told by the applicant that:

(a)    When the Applicant saved emails to his laptop during his employment, he did not always save the attachments to those emails to his laptop. Therefore, he does not currently have every attachment to every email in his possession;

(b)    Where the Applicant has discovered an email referring to an attachment, but did not discover the attachment, it is because the attachment was not in his possession or the attachment was not a discoverable document.

25    In relation to the applicant’s work emails Mr White stated at paragraph 35 of his affidavit –

35.    I am told by the Applicant that:

(a)    the Applicant sent and received many emails during his employment with the First Respondent which fall within the Categories Requested by the Respondent;

(b)    during his employment, the Applicant was able to access those emails by logging into his “Technology One” email account;

(c)    during the Applicant’s employment, the Applicant kept certain emails (but not all emails) in hard copy form and on his laptop;

(d)    following the termination of his employment, the Applicant was no longer able to access his email account, but the Applicant still had access to those emails which he kept in hard copy form and on his laptop;

(e)    for the above reasons, the Applicant does not currently have, and has not had at any time following the cessation of his employment, access to all emails he sent and received in the course of his employment and only has access to a portion of those emails;

(f)    the Applicant has given discovery of every email in his possession, custody or control within the Categories Requested by the Respondent which he has been able to locate through reasonable searches;

(g)    other emails sent and received by the Applicant in the course of his employment are in the Applicant’s “Technology One” email account, which is accessible to the First Respondent but not to the Applicant.

26    More significantly, Mr White deposed at paragraph 52 of his affidavit to being told by the applicant that on 23 May 2019 he flew from Melbourne to Sydney on a Qantas flight to meet his lawyers. Mr White stated that he was told by the applicant that on the flight he had placed his laptop in the seat pocket in front of him, and that he did not place the laptop in the overhead compartment because he was concerned that it might be damaged or stolen. Mr White stated that the applicant told him that he felt unwell after the aircraft arrived in Sydney such that he used a sick bag, and that in these circumstances he inadvertently left the laptop on the aircraft. Mr White then deposed to extensive enquiries made by the applicant and on the applicant’s behalf, including telephone enquiries and attendances at Melbourne and Sydney airports which failed to locate the laptop. One of the annexures to Mr White’s affidavit is a letter from the applicant’s solicitors to Qantas Lost Property dated 28 May 2019 which referred to the laptop as a “silver LG Ultrabook”. That description of the laptop bears significance for reasons to which I shall now refer.

27    The first respondent’s IT Director, Ms Ho, made an affidavit dated 6 June 2019. In that affidavit, Ms Ho addressed several issues, including the identification of the laptops that had been issued by the first respondent to the applicant during his employment. Ms Ho stated –

45.    Email or chat records show that, [the applicant] was issued with the following laptops:

(a)    Dell Latitude 6430u - non-standard purchase, purchased on 1 August 2013;

   (b)    Toshiba Z930 - non-standard purchase, purchased 2 October 2013;

   (c)    Windows Surface 3 - standard purchase, provided on 2 July 2015; and

(d)    Toshiba Portege Z20T - non-standard purchase, purchased 17 March 2016.

28    Ms Ho deposed that the Dell Latitude had been returned to the first respondent, but that the first respondent had no record of the other three laptops having been returned. Ms Ho annexed contemporaneous email communications in relation to the ordering of laptop computers on behalf of the applicant which show that in 2013 the applicant had rejected a 128GB laptop because it was insufficient for his purposes, and that by an email dated 16 August 2013 the applicant had stated that he had over 250GB of data and requested a Toshiba Z930 with a 480GB drive (SSD). In relation to an LG Ultrabook laptop (being the model referred to in the letter from the applicant’s solicitors to Qantas Lost Property) Ms Ho stated that no LG brand Ultrabook was issued directly to the applicant, but that there had been several LG Ultrabook laptops issued to the first respondent’s Melbourne office which could have been used by the applicant.

29    Mr White made an affidavit dated 15 July 2019 in which he addressed his instructions from the applicant in relation to the identity of laptops that had been issued by the first respondent to the applicant, and what had become of them. A summary of those instructions is that –

(1)    the Dell Latitude was returned to the first respondent;

(2)    the Windows Surface 3 was not used by the applicant, and that it remained in his office when his employment was terminated;

(3)    the Toshiba Z930 was the applicant’s main work laptop from about 2013 until the termination of his employment, that the applicant had travelled to Brisbane with this laptop and the Toshiba Portege Z20T on the day of termination of his employment, and that the applicant retained this laptop following the termination of his employment;

(4)    in about November or December 2018 the applicant put the Toshiba Z930 laptop in a bag of goods that his wife donated to the Salvation Army;

(5)    the Toshiba Portege Z20T was never used by the applicant during his employment by the first respondent, and as such did not hold any documents relating to his employment, and that the applicant had “gifted” this laptop to a friend;

(6)    the applicant obtained the LG Ultrabook from the first respondent in about 2011 or 2012, but this laptop did not connect to his Gmail or Outlook email accounts, that he used the LG Ultrabook for the storage of selected copies of documents and emails, as well as general and personal records (for example, tax records and family pictures); and

(7)    that he had continued to use the Toshiba Z930 as his primary work laptop.

30    In relation to the Toshiba Z930 laptop, Mr White stated –

32.    I am instructed that the Applicant continued to use the Toshiba Z930 following     the termination of his employment, although the Toshiba Z930 was unreliable     and often shut down. The Applicant was also unable to access the First     Respondent’s Gmail platform or Intranet on the Toshiba Z930 following the     termination of his employment. As a result of the unreliability of the Toshiba     Z930, I am instructed that although the Applicant continued to use it at times,     the Toshiba Z930 was not his primary laptop from about May 2016. I am     instructed that the Applicant’s primary laptop from about May 2016 was the     LG Ultrabook, which is discussed at paragraphs 37 to 38 below.

33.    I am instructed by the Applicant that the Toshiba Z930 ceased working at some     time between May 2016 and November 2018 and the Applicant was no longer     able to turn it on from about November 2018.

34.    I am instructed by the Applicant that in about November or December 2018,     the Applicant put the Toshiba Z930 in a bag of goods that the Applicant’s wife,     Katarina Roohizadegan, donated to the Salvation Army.

35.    I am instructed by the Applicant that he did not use the Toshiba Z930 for the     purpose of discovery. For the purpose of discovery, the Applicant used the LG     Ultrabook, hard copy documents and his USB devices.

31    I note that the applicant’s instructions to his solicitors recorded in Mr White’s affidavit are that the applicant disposed of the Toshiba Z930 laptop, which had been his main work laptop, at around the same time as or shortly after the letter from his solicitors dated 23 November 2018 and referred to in paragraph [15] above, by which his solicitors asserted on his behalf an entitlement to retain possession of the laptop. I also note that Mr White states on instructions that the LG Ultrabook was used for the purposes of discovery, whereas the affidavit of Ms Sutherland dated 29 April 2019 and referred to at [18] above conveys the impression that the documents referred to, including documents that were discovered, came from sources including the Toshiba Z930 laptop, and makes no mention of the LG Ultrabook.

The first respondent’s email systems

32    There was extensive affidavit evidence in relation to the first respondent’s email systems during the relevant period of the applicant’s employment. In addition, Ms Ho, the first respondent’s IT Director, was cross examined. The salient features of that evidence are as follows –

(1)    Until 2011 the first respondent used a Microsoft Exchange server, which was upgraded from time to time.

(2)    The first respondent used a backup system for its Exchange Server, which was known as “Commvault”. That system has now been de-commissioned. The backup system was on a physical server that remains in the first respondent’s Brisbane office, and wrote data onto backup tapes. The backup tapes that have been retained by the first respondent provide only a snapshot of the emails that were on the server at the time of the backup. Emails deleted prior to a backup would not be backed up.

(3)    The process to recover data from the first respondent’s backup tapes involves identifying the tapes containing email backups from a catalogue that has been created, and then the conversion of the content of the tapes by a third party service provider to database files, and then to a format that enables searching for an individual employee.

(4)    The first respondent recently arranged for backups to be recovered from 14 tapes. That exercise took a third party service provider an average of five days for seven tapes at a cost of $13,673 for 14 tapes. There was some data missing from the backups. It is unclear whether all emails for selected individuals have been recovered from those tapes. The first respondent has identified 288 remaining email-related backup tapes for the period January 2006 to September 2012. Extrapolating the time and cost of the restoration of the 14 tapes indicates that restoration of these tapes might take two to three months at a cost of approximately $281,000.

(5)    In 2011, the first respondent switched from the Microsoft Exchange to a Gmail service, which was initially available only while online using an internet browser. However, some employees used Outlook to retrieve emails on the Gmail service. When that occurred, the emails were downloaded and local copies of the emails were stored within the Outlook application, and those emails would continue to be accessible without the application being connected to the Gmail service.

(6)    In relation to emails on the Gmail service, all emails since the inception of that service in 2011 remain available to be retrieved by the first respondent, including those that have been notionally deleted by a user.

Grounds for seeking the orders

33    Against the above background the respondents advanced submissions that fell into seven categories, as to why the order for the production and forensic examination of electronic media should be made.

34    First, the respondents submitted that I should not accept that the applicant is no longer in possession of his main work laptop, namely the Toshiba Z930. In response, the applicant pointed to the state of the evidence, and submitted that I should accept that the Toshiba Z930 had become faulty during 2018 to the point where it had ceased to work, and that it had been donated to the Salvation Army.

35    Second, the respondents relied on the statement in the letter from the applicant’s solicitors dated 29 March 2018 to which I referred at [14] above that the applicant had accumulated “nearly 100,000 emails”, and submitted that the applicant had discovered only 205 emails and that it was inconceivable that the applicant had in his possession only 205 emails relevant to the proceeding, and that it was inconceivable that the applicant had in some instances retained emails without retaining the attachments. The respondents also relied on the recent nature of the applicant’s statement through his solicitors that he did not in fact retain nearly 100,000 emails, and that the figure came from the first respondent’s IT department.

36    Further, focusing on the applicant’s claim for incentive payments, the respondents submitted that this was a key component of the applicant’s case and that the applicant had annexed 20 emails to his witness statement filed for the purposes of trial, but had discovered only four documents in relation to that issue.

37    In paragraph 42(b) of her affidavit dated 1 April 2019 Ms Winter stated that in his witness statements filed for the purposes of trial the applicant produced –

(1)    four email exchanges from December 2007;

(2)    an email exchange from 7 July 2008;

(3)    an email exchange from July 2010;

(4)    an email exchange from February 2011;

(5)    an email exchange from June 2013 and August 2013;

(6)    an email exchange from February 2014 and December 2014; and

(7)    several email exchanges from 2015.

38    Paragraph 42 of Ms Winter’s affidavit dated 1 April 2019 continued –

(c)    despite the large volume and date range of emails provided by the Applicant in support of his witness statements, the emails he has disclosed in the discovery process largely pertain to the period 2015 to 2016, with only 1 email from 2007, no emails from 2008, 1 email from 2009, 11 emails from 2010 (9 of which are about the Applicant’s daughter’s illness), 5 emails from 2011 (all of which are about the Applicant’s daughter’s illness), 3 emails from 2012, 1 email from 2013 and 8 emails from 2014;

(d)    I am instructed by the First Respondent and verily believe that there would have been many email communications between the parties between 2009 and 2014 that have not been disclosed by the Applicant. For example, there would have been many emails exchanged about incentive payments for Student Management Services and/or the revenue accruing to Business Unit 03-Employer-Victoria. The Respondents requested these emails in categories 17 and 19;

…

(f)    the Applicant has been very specific in his witness statement of 7 September 2017 yet has failed to disclose documents to support that witness statement. For example:

i.    at paragraph 70 he states that he received a financial pack on 15 October 2009. I am instructed by the First Respondent and verily believe that he would have received the financial pack via email. The email has not been disclosed by the Applicant. The Respondents requested this email in category 19;

ii.    at paragraph 72 he states that he received his incentive payment slip. I am instructed by the First Respondent and verily believe that he would have received the incentive payment slip via email. The email has not been disclosed by the Applicant. The Respondents requested this email in category 17;

iii.    at paragraph 81(l) he states he received material about the Victorian region’s revenue on or around 18 February 2014. I am instructed by the First Respondent and verily believe that he would have received the material via email. The email has not been disclosed by the Applicant. The Respondents requested this email in category 19;

…

(h)    I am instructed by the First Respondent and verily believe that most financial reports that the Applicant disclosed would have been sent to him via email from the First Respondent, however, he has not disclosed a majority of those emails. The Applicant has failed to disclose any emails from 2011 despite financial records being disclosed for that year;

(i)    the Applicant has not disclosed the following:

i.    the spreadsheet that was attached to the email at page 119 of BR-1;

ii.    the “revised temp incentive numbers” attached to an email at page 123 of BR-1;

iii.    the report for June 2007 attached to the email dated 19 July 2007 (category 19);

iv.    the report attached to the email dated 20 November 2014 (category 19);

…

39    One of the categories of documents sought by the respondents in their list dated 14 January 2019 was as follows –

17.    All emails, file notes or any other documents that relate to incentive payments for Student Management Services for the period 3 July 2006 to 18 May 2016.

40    In her affidavit dated 24 May 2019 Ms Winter stated –

4.    In the Applicant's witness statements and the Applicant's statement in reply to the Respondents' sixteen witness statements (collectively called the Applicant's statement materials), the Applicant has produced the following email exchanges which he says relate to his incentive payments for Student Management Services:

(a)    1 email exchange from July 2008 (pages 124-128 of BR-3);

(b)    1 email exchange from September 2009 (page 195 of BR-1);

(c)    2 email exchanges from June 2010 (pages 198-199 of BR-1);

(d)    1 email exchange from April 2011 (page 200 of BR-1);

(e)    3 email exchanges from March 2011 (pages 201-203 of BR-1);

(f)    10 email exchanges from September to November 2015 (pages 204-209 of BR-1);

(g)    2 email exchanges from October 2015 (pages 210-212 of BR-1).

41    Ms Winter then referred to the applicant’s verified list of documents dated 6 March 2019, which is annexure BAW-36 to her affidavit dated 24 May 2019. In Part 3 of the verified list the applicant disclosed a broad category of documents relating to emails between the applicant and various employees of the first respondent from 2007 to 2016 described as follows –

Emails between the Applicant and employees of the First Respondent, including Adrian Di Marco, David Orchard, Edward Chung and Gareth Pye, in which the Applicant complained about the Victoria region not receiving revenue and/or incentives for SMS [Student Management Services] sales for Victorian based customers.

42    In relation to what has become of those documents, the applicant stated –

These emails are no longer in the possession of the Applicant. The Applicant believes that these emails are in the possession of the First Respondent.

43    In her affidavit dated 29 April 2019 Ms Sutherland of the applicant’s solicitors responded to the propositions advanced in Ms Winter’s affidavit of 1 April 2019 in the terms that are set out under [18] and [19] above. In addition, Ms Sutherland responded to paragraphs 42(f), (h) and (i) that –

56.    In relation to paragraph 42(f) of the Winter Affidavit, I am instructed by the Applicant and verily believe that he does not have these emails for the reasons outlined at paragraphs 52 and 55(h) above.

…

58.    In relation to paragraph 42(h) of the Winter Affidavit, I am instructed by the Applicant and verily believe that he does not have these emails.

59.    In relation to paragraph 42(i) of the Winter Affidavit, I am instructed by the Applicant and verily believe:

(a)    the Applicant does not have the attachment referred to in the email at page 119 of Exhibit BR-1;

(b)    the Applicant does not have the attachment to the email dated 19 July 2007; and

(c)    the Applicant does not have the attachment to the email dated 20 November 2014.

44    I pause to note that the failure of the applicant to make discovery of emails and attachments which post-date the introduction of the first respondent’s Gmail service in 2011 are of less significance in terms of potential prejudice to the first respondent, because, on the evidence of Ms Ho, any such emails can be retrieved by the first respondent.

45    Further, the applicant submitted that it was not correct to say that the applicant had discovered only four documents falling within category 17 of the documents requested by the respondents. The applicant submitted that the combination of the four documents, together with an additional six documents that were discovered on 17 May 2019 (referred to at [46] below) and the documents that were exhibited to his witness statement totalled 30 documents. The applicant submitted that the respondents had produced 89 documents relevant to the applicant’s corresponding category, and submitted that the Court could not on this basis accept that the applicant’s discovery was inconceivable or insufficient.

46    Third, the respondents relied on the fact that the applicant had on 17 May 2019 disclosed some further 12 documents that had not been discovered, some of which were used to support an application by the applicant for discovery by the first respondent. These documents included a copy of an email dated 8 September 2012 which had some handwritten notations upon it that I infer for the purposes of this application were those of the applicant. A letter from the applicant’s solicitors to the respondents’ solicitors dated 17 May 2019 stated that this document had been scanned onto the applicant’s computer. Other documents that were disclosed on 17 May 2019 were also said to have been scanned to the applicant’s computer. In response, Mr White of the applicant’s solicitors deposed in paragraph 14 of his affidavit dated 30 May 2019 to the applicant’s instructions as to the reason for the late discovery of documents. In summary, that reason was that the applicant had many folders, sub-folders and files on the desktop of his laptop, and he did not open the relevant folder in which the documents were held until 8 May 2019, and thereupon provided the documents to his solicitors for the purpose of producing to the respondents. In submissions, the applicant characterised these circumstances as inadvertence, and submitted that simply because the applicant has given supplementary discovery does not mean that the applicant has failed to comply with his discovery obligations, or will continue to so fail.

47    For completeness, I record that in paragraph 50 of her affidavit dated 1 April 2019 Ms Winter stated –

50.    The Applicant has also been very specific in his witness statement of 7 September 2017 yet has failed to disclose diary notes prior to 4 February 2016 except for a photocopy of a diary book on 1 and 2 February 2016 and undated diary notes (pages 100-103 and pages 377-388 of BR-1 ). For example:

(a)    at paragraph 67 he states that on or around 24 September 2009 he had a conversation with Mr Orchard about matters including SMS. The Respondents requested any file notes that relate to SMS in in [sic] category 17;

(b)    at paragraph 80 he refers to several conversations about SMS between 17 June 2010 to 18 February 2014, naming dates throughout that period. The Respondents requested any file notes that relate to SMS in in [sic] category 17;

(c)    at paragraph 164 and 165 he refers to a telephone conference in the afternoon on 22 April 2012. The Respondents requested any file notes that relate to Mr Harwood's alleged behaviour in category 2; and

(d)    at paragraph 207 to 210 he refers to a conversation between the Second Respondent and Mr Harwood on 3 February 2016 in great detail. The Respondents requested any file notes that relate to Mr Harwood's alleged behaviour in category 2.

48    In paragraph 61 of her affidavit dated 29 April 2019 Ms Sutherland stated in response –

61.    In relation to paragraph 50 of the Winter Affidavit, I am instructed by the Applicant and verily believe:

(a)    that the Applicant does not have, and has never had, a file note of his conversation with Mr David Orchard on 24 September 2009;

(b)    that the Applicant does not have, and has never had, a file note of his conversations regarding SMS incentives between 17 June 2010 and 18 February 2014;

(c)    that the Applicant does not have, and has never had, a file note of his conversation with Mr Martin Harwood on 22 April 2012; and

(d)    that the Applicant does not have, and has never had, a file note of his conversation with Mr Harwood on 3 February 2016.

49    The above was the subject of a correction by Ms Sutherland, which she made in an affidavit dated 17 May 2019 –

Correction to My April 2019 Affidavit

5.    I am instructed by the Applicant that there is an error at paragraphs 61(a), (b) and (c) of My April 2019 Affidavit.

6.    Paragraphs 61(a), (b) and (c) of My April 2019 Affidavit read that the Applicant:

(a)    "does not have, and has never had, a file note of his conversation with Mr David Orchard on 24 September 2009";

(b)    "does not have, and has never had, a file note of his conversations regarding SMS incentives between 17 June 2010 and 18 February 2014"; and

(c)    "does not have, and has never had, a file note of his conversation with Martin Harwood on 22 April 2012".

7.    At the time of My April 2019 Affidavit, my instructions from the Applicant were that the Applicant did not recall having had a copy of any file note from the conversations referred to at paragraph 6 above. Due to an administrative oversight, the Applicant's instructions in relation to paragraphs 61(a), (b) and (c) were not properly conveyed in My April 2019 Affidavit.

8.    The Applicant has since discovered certain documents that fall within the scope of documents referred to in paragraph 6(b) above. These have been produced to the Respondents.

9.    The Applicant does not recall whether he took any other file notes of the conversations referred to at paragraph 6 above, other than those already discovered.

10.    I confirm that with the exception of paragraphs 61(a), (b) and (c), that My April 2019 Affidavit is true and correct to the best of my knowledge.

50    Fourth, the respondents relied upon the content of some posts that the applicant had made on social media, namely “LinkedIn”. In one post made in early July 2018 the applicant stated –

I have all the evidence in my emails and other documents that they want it … still is not the right time to produce all the recorded evidence that many ex and existing staff have.

51    The respondents relied upon this post to support a submission that it evidenced a willingness on the part of the applicant to withhold documents until such time as it suited his case. The respondents relied upon this in combination with the fact of the late discovery referred to above. In response, the applicant made the following submission –

The reference to “all the evidence” is clearly a reference to evidence generally in existence, including in the hands of other people. Documents in the possession of other people, if they exist, cannot reasonably be said to be within the Applicant’s possession, custody and control for the purposes of discovery. Even if the Applicant had those documents in his possession, it does not follow that they were discoverable. The Applicant was only required to discover certain categories of documents. Many documents in the Applicant’s possession in relation to his employment were not discoverable.

52    The applicant also submitted that the comment on LinkedIn was made prior to undertaking a review of the documents in order to comply with the orders for discovery made on 21 December 2018.

53    Fifth, the respondents relied upon statements that the applicant had made while in the courtroom on 21 May 2019 during a recess that were heard by the respondents’ solicitor. The respondents alleged that the substance of the statements was that the applicant had spiral notebooks that he had not disclosed because his previous barrister had told him not to. This was the subject of evidence from Ms Winter in her affidavits of 24 May 2019 and 7 June 2019. The applicant’s solicitors disputed Ms Winter’s interpretation of what had been said by the applicant on 21 May 2019. Mr White of the applicant’s solicitors in his affidavit dated 30 May 2019 stated that he heard the applicant say words to the effect that he had the spiral notebook, and that he had not produced for discovery the entire spiral notebook. Mr White then stated that a number of extracts from the spiral notebook had been annexed to the applicant’s witness statement, and others had been discovered, but not every page of the spiral notebook fell within the categories of documents that had been sought by the respondents.

54    Sixth, the respondents relied on statements by a psychiatrist, Dr White, whose report dated 9 November 2015 the applicant has filed in this proceeding. In that report Dr White under the heading “clinical history” stated that the applicant reported that he had difficulties with concentration, and was forgetful, and stated later that in the context of the applicant’s work, the applicant had “severe concentration problems”. I pause to note the date of Dr White’s report and to observe that it pre-dates the termination of the applicant’s employment. The first respondent relied on the observations in this report to support a submission that it was “inconceivable” that the applicant has been able to set out conversations in his statements filed in this proceeding without the benefit of file notes. The respondents also relied on opinions of Dr King about the state of the applicant’s mental health in reports filed in this proceeding. In the context of those opinions, the respondents relied on statements in letters from the applicant’s solicitors seeking extensions of time to complete discovery. In a letter dated 18 February 2019 the applicant’s solicitors enclosed an interim list of documents, and stated that –

Our client has exercised his best endeavours to discover all documents in the Categories. However, due to a recent deterioration in his health, he has only been able to discover categories 1 to 9 of the Categories in this time. Our client requires more time to discover the remaining categories, being categories 10 to 21 (Remaining Categories). Our client expects to be in a position to discover the Remaining Categories by 4 March 2019.

55    By a letter dated 3 January 2019, which did not concern discovery, but an allegation of defamation by the applicant, the applicant’s solicitors stated –

However, we note that due to the deterioration of Mr Roohizadegan's health, caused by the conduct of your clients, Mr Roohizadegan is not currently in a position to provide any substantive instructions, respond or cause a response to be sent in respect to your letter.

56    The respondents relied upon the statements about the deterioration in the applicant’s mental health in the correspondence as supporting their submission that the Court should not be satisfied that the applicant has discovered all relevant documents.

57    Seventh, the respondents relied on an allegation that the applicant had not complied with an order of the Court that he disclose the names and addresses of all his medical practitioners. On 21 December 2018, the Court ordered that with the exception of certain medical practitioners who were the subject of subpoenas filed by the respondents –

… the applicant disclose to the respondents the names and professional addresses of all medical practitioners he has consulted in relation to his mental health during the period of September 2010 to the date of this order.

58    The respondents relied on the applicant’s failure to identify a treating psychologist as constituting a contravention of this order. It is convenient to record at this point that I do not accept that submission: I do not regard a psychologist as being a medical practitioner. The respondents also relied on the applicant’s failure to identify in response to the order a psychiatrist, Dr Luke Ainsworth, in respect of whom the applicant had stated to a Medical Panel he had seen on two occasions. This aspect of the interlocutory applications before the Court was resolved by agreement between the parties, and there has therefore been no occasion to examine the circumstances of the allegation that there was a failure by the applicant to disclose the identity of Dr Ainsworth.

Other submissions by the applicant

59    The applicant submitted, in addition to the several responses to the grounds on which the respondents sought orders for production of the electronic devices, that the orders sought were tantamount to a search and seizure order. The applicant pointed to the fact that although there was no search of premises contemplated by the application, the orders sought required the seizure of the data from the electronic devices, and for the search of that data. The applicant referred the Court to the decision of Flick J in Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201 (Metso Minerals) to support a submission that the powers conferred by Division 7.5 of the Federal Court Rules 2011 (Cth) concerning search and seizure should be strictly confined within the limits of the authority conferred by those Rules. I treat that submission as extending to any like inherent or implied powers of the Court that are preserved by r 7.44.

60    The applicant also relied on the respondents’ solicitors’ dealings with some subpoenaed documents as a discretionary reason to refuse the orders sought. Those dealings involved a medical practitioner, Associate Professor Dick, who was served with a subpoena to produce documents that was returnable before a Registrar on 22 May 2019. Associate Professor Dick sent the documents directly to the respondents’ solicitors. The respondents’ solicitors drew this fact to the attention of the applicant’s solicitors by letter dated 17 May 2019 in the following brief terms, which necessarily invited further enquiry –

We also advise that a copy of the subpoenaed documents from Associate Professor Ronald Dick which are returnable before a Registrar on 22 May 2019 were posted directly to our offices by Associate Professor Dick.

61    Understandably, the applicant’s solicitors were concerned to know what steps the respondents’ solicitors proposed to take in consequence of their receipt of the subpoenaed documents directly from Associate Professor Dick and requested by email late on 17 May 2019 –

Pursuant to Australian Solicitors Conduct Rule 31.1.2 please notify us of what steps you have taken or intend to take to prevent inappropriate misuse. Pursuant to Rule 31.2.1, please advise us whether any person has inadvertently reviewed the material.

62    The evidence was that at a hearing before a Registrar on 8 July 2019 counsel for the respondents informed the Court that a graduate from the respondents’ solicitors had reviewed the documents sent to them by Associate Professor Dick. Counsel for the respondents accepted before me that this indicated a lack of supervision and a lack of training. Otherwise, there was no application before me seeking any relief in relation to the inspection of the subpoenaed documents by the respondents’ solicitors.

63    Finally, Mr Harmer informed the Court that he had instructions from the applicant to agree to an order that the applicant provide the material to his firm, and that the applicant’s solicitors would assess documents on the devices against the categories of documents that were sought by the respondents. It appeared to me during exchanges that Mr Harmer was not familiar with the content of the four USB devices referred to under [23] above that were identified as containing discoverable documents. Such an inspection would not involve a “forensic examination” of the devices, which was contemplated by the orders sought by the respondents.

Consideration

64    The evidence before the Court on this application raises a number of questions which are unresolved, and which it is not possible to resolve in the context of the current interlocutory application. A significant issue that arises on the evidence is the applicant’s instructions to his solicitors that in November or December 2018 he disposed of his main work laptop computer, namely the Toshiba Z930, by giving the laptop to his wife for donation to the Salvation Army. There are a number of anomalies in the evidence before the Court in relation to that account. Those anomalies include –

(1)    Until Mr White’s affidavit of 15 July 2019, there was a consistent reference in the material to the applicant’s laptop, which must be understood as being a reference to the Toshiba Z930 laptop which the applicant had with him in Brisbane at the time of termination of his employment on 18 May 2016, and which was described in the material as his main work laptop.

(2)    Until Mr White’s affidavit of 15 July 2019, there was no suggestion that the Toshiba Z930 laptop had ceased to function, or that the applicant had disposed of it. On the contrary, by the letter of the applicant’s solicitors dated 23 November 2019 the applicant asserted a right to retain the laptop.

(3)    There was no suggestion in Ms Sutherland’s affidavit of 29 April 2019 that the applicant had made discovery of documents from an LG Ultrabook laptop. On the contrary, paragraph [53] of Ms Sutherland’s affidavit asserts that the laptop from which documents were discovered was a laptop given to the applicant by the first respondent in about 2014 and which he had used for work purposes and which the other evidence establishes was the Toshiba Z930 laptop.

(4)    During the course of submissions on 21 May 2019 Mr Harmer, the solicitor for the applicant, referred to the applicant’s computer in the following passage (T76/33-37) –

… as I understand it, the emails that he kept, he maintained on the hard drive of his computer at home, including for the purpose of working at home, and it’s that computer that he was – when I say “his computer”, the computer that he was working on, he was permitted to retain, contents, by the company when he finalised work. Now - - -

(5)    During the course of submissions on 17 July 2019 Mr Harmer referred to the applicant’s level of “hyper-vigilance” (T64/36-38). If one were to accept that to be the case, one would have to reconcile that frame of mind with the disposal of a laptop computer by donating it to the Salvation Army in circumstances where the applicant has claimed that the laptop held personal information.

65    The applicant has not himself deposed to the fact that he no longer possesses the Toshiba Z930 laptop, and if he no longer possesses it, the circumstances in which he parted with it. Such evidence as there is, which is in a hearsay form, is untested. Further, Part 3 of the applicant’s verified list of documents dated 6 March 2019 referred to at [41] above does not disclose expressly any documents that were on the Toshiba Z930 laptop as having been in the applicant’s control, or the fact that the applicant had disposed of this device. I also observe that Part 3 of the verified list does not appear to address what became of the copies of the emails that had previously been within the possession of the applicant: see, Federal Court Rules, r 20.17(2)(b).

66    I accept for the purposes of this application that at the time the first respondent terminated the applicant’s employment, the applicant possessed the Toshiba Z930 laptop, and that this was his main work laptop, and that following termination of his employment he retained possession of it. However, I am not persuaded on the current state of the evidence that the applicant is no longer in possession of the Toshiba Z930 laptop. Having regard to the matters to which I have referred in paragraphs [64] and [65] above, I do not have an affirmative state of satisfaction that the applicant gave the laptop to his wife who donated it to the Salvation Army. On the current evidence, I do not accept the applicant’s instructions recorded in Mr White’s affidavit of 15 July 2019 that the Toshiba Z930 laptop ceased to work such that from about November 2018 the applicant was unable to turn it on. Further, I am unable to accept that for the purposes of discovery the applicant used an LG Ultrabook laptop, and not the Toshiba Z930 laptop. On this last topic there is conflicting evidence filed on behalf of the applicant, namely paragraphs 52 and 53 of the affidavit of Ms Sutherland dated 29 April 2014, and paragraph 35 of the affidavit of Mr White dated 15 July 2019, the discrepancies between which are unexplained by the evidence. It is unnecessary for present purposes that I say anything about the evidence that the applicant left an LG Ultrabook laptop on a Qantas aircraft.

67    In evaluating the evidence relied on in support of the respondents’ submissions that the applicant has failed to make discovery of documents in his possession, it is necessary to have regard to the terms of the statutory obligation to make discovery. The statutory obligation in r 20.14(1) of the Federal Court Rules, is that standard discovery is to be given of documents –

(a)    that are directly relevant to issues raised by the pleadings or in the affidavits;

(b)    of which, after reasonable search, the party is aware; and

(c)    that are or have been in the party’s control.

68    The orders for non-standard discovery that were made by the Court in this case on 21 December 2018 did not state that the criteria in r 20.14(1) should not apply: see r 20.15(1)(a).

69    I am not persuaded that the combined force of the evidence establishes that the applicant has failed to make discovery on the basis asserted by the respondents such as to justify the making of the orders sought. I shall address the principal arguments raised by the respondents, noting that I have considered the arguments in their totality –

(1)    I do not accept the respondents’ submission that it is “inconceivable” that the applicant had in his possession only 205 emails relevant to the proceeding. On the evidence, I am not able to make findings as to how many emails the applicant ought to have discovered but has not discovered, bearing in mind the qualified nature of the obligation to make discovery to which I have referred at [67]. On the evidence as it currently stands I am not able to make findings as to what searches the applicant has made, or whether the applicant has failed to make reasonable searches. In relation to the incentive payments, the evidence does not support a finding that the applicant should have discovered something more than 30 emails. To suggest that the applicant should have more than 30 discoverable emails involves speculation. This is particularly the case in circumstances where the applicant has discovered emails in Part 3 of his verified list of documents as being no longer in his possession and the respondents have not pursued the course of seeking more particular discovery from the applicant in relation to Part 3 of his verified list.

(2)    The applicant’s solicitors’ reference in their letter of 29 March 2018 to the applicant having accumulated “nearly 100,000 emails” has not, to my mind, been satisfactorily explained. The number of emails was advanced as a reason why –

    … it is no simple task for our client to review this volume of emails and the     documents attached to those emails, for the purpose of providing a list of the     documents intended for use during these proceedings.

The explanation put forward in paragraph 57 of the affidavit of Ms Sutherland of 29 April 2019, to which I referred at [21] above, does not explain why the accumulation of over 100,000 emails was referred to by the applicant’s solicitors as a reason why it was no simple task for the applicant to review the emails, if the 100,000 emails were not stored on the applicant’s laptop and therefore within his control. Nevertheless, this state of uncertainty about whether the applicant had in his possession over 100,000 emails does not provide a foundation for me to speculate on the topic of whether, having regard to the criteria in r 20.14(1) of the Federal Court Rules, there are emails that the applicant ought to have discovered but has not discovered.

(3)    In relation to the applicant’s late discovery of documents on 17 May 2019, I do not draw the inference that was pressed by the respondents, which in substance was that this was an example of the applicant withholding documents until it suited him. The applicant’s solicitors have deposed to their instructions as to the reasons why the documents that were discovered on 17 May 2019 were not discovered earlier, and in submissions characterised the reasons as inadvertence. There has been no occasion to test the evidence of that explanation.

(4)    In relation to the respondents’ reliance on the contents of the applicant’s witness statements prepared for trial, on the evidence as it currently stands I do not accept the respondents’ submission that I should infer that the applicant has not discovered documents in his possession that may have formed the basis for the contents of various paragraphs of the applicant’s witness statement. The contention that the applicant has set out the substance of conversations in his witness statement without the apparent benefit of supporting file notes may be a topic for cross examination of the applicant at trial. However, I do not accept that the evidence on this interlocutory application supports a finding that it is “inconceivable” that the applicant has set out some conversations in his witness statement without the benefit of file notes that he has not discovered.

(5)    As to the respondents’ reliance upon the content of the applicant’s LinkedIn posts, I am not satisfied that the statements evidenced an intent to withhold discoverable documents until such time as it suited the applicant’s case. The statements are ambiguous, if not enigmatic, and lack any level of specificity as to which emails and documents the applicant was referring. As the discovery orders were limited to certain categories of documents and did not encompass all material in the applicant’s possession, a generalised reference to “emails and other documents” is an insufficient basis to conclude that the applicant intended to withhold those documents that were discoverable. In any event, the statements were made prior to the discovery orders of 21 December 2018 and so I do not accept on this application that the reference to “documents that they want…” evidences an intent to withhold documents within the categories the subject of this application.

(6)    In relation to the respondents’ reliance on what the applicant stated in the courtroom during a break in proceedings on 21 May 2019 concerning a spiral notebook, or spiral notebooks, there is a difference in the evidence of Ms Winter on the one hand and Mr White on the other as to what was said by the applicant. Neither solicitor was cross-examined, and in the circumstances I shall not make any findings preferring one account over the other.

(7)    As to the respondents’ reliance on the medical evidence of Dr White and Dr King to which I have referred at [54] above, I do not consider that the opinions expressed in those reports either alone or in combination with other evidence on this interlocutory application, including statements about the deterioration in the applicant’s health, support a finding that the applicant has not made proper discovery such as to justify the orders that are sought by the respondents on this application.

(8)    As to the respondents’ reliance on the applicant’s failure to identify the psychiatrist Dr Ainsworth as a treating medical practitioner in response to orders made by the Court on 21 December 2018, and perhaps also the general practitioner who referred the applicant to Dr Ainsworth, I acknowledge that the respondents rely on this failure, and upon the fact that the failure appears to be unexplained. However, there are a number of steps involved in treating this fact as a foundation for an order of the type sought by the respondents, and I am not satisfied that this is a sufficient foundation for the orders sought.

70    In determining whether to make the orders sought by the respondents, I have had regard to the considerations referred to by Flick J in Metso Minerals. In that case, which concerned allegations of breach of confidence, breach of fiduciary duties, and breach of copyright, a search order was obtained ex parte and was executed. As a result of the execution of the order, documents were seized. The applicant brought an interlocutory application seeking leave to inspect, or to continue to inspect the seized documents in aid of a discovery process. Flick J refused leave. In his Honour’s reasons for refusing leave, Flick J referred to the extraordinary nature of the ex parte relief that had been obtained which resulted in the seizure of the documents. At [25] Flick J cited the following observations of Powell JA, with whom Meagher JA and Handley JA agreed, in Long v Specifier Publications Pty Ltd (1998) 44 NSWLR 545 at 547 concerning Anton Piller orders –

Reduced to its essentials, an Anton Piller order is an order that the defendant to whom, or to which, it is directed, should permit the persons specified in the order to enter upon his, or its, premises, and to inspect, take copies of, and to remove, specified material, or classes of material, indicating, where appropriate, documents, articles or other forms of property. It is an extraordinary remedy, designed to obtain, and to preserve, vital evidence pending the final determination of the plaintiff’s claim in the proceedings, in a case in which it can be shown that there is a high risk that, if forewarned, the defendant, would destroy, or hide, the evidence, or cause it to be removed from the jurisdiction of the court. For this reason, such orders are invariably made ex parte.

71    Flick J also cited the following observations of Branson J in Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754; 46 IP 159 at [26] –

The court must, in my view, be careful to avoid the extraordinary jurisdiction of the court to make an Anton Piller order from being subverted to a mere investigatory tool for applicants or indeed, from being used for any purpose other than the preservation of vital evidence pending the hearing and determination of a proceeding.

72    At [34]-[36], Flick J considered that discovery of documents was outside the object or purpose of the rules relating to search and seizure –

34.    It is considered that it is no part of the object or purpose of those provisions to facilitate the discovery processes otherwise authorised by the Rules or to facilitate the provision of further particulars. To construe those provisions as extending to such a purpose would erode both the importance attached by the common law to protecting the privacy of individuals and the constraints otherwise imposed by the Rules upon the discovery process.

…

36.    Order 25B of the Federal Court Rules is likewise a provision which gives primacy to the public interest in the administration of justice over the private interests of the individual. But it is a provision which should be strictly confined within the limits of the authority conferred and, once an order is executed, access to the materials and documents seized should be confined to the purpose for which that power was conferred. In the absence of consent, to permit access to seized materials for the purposes of facilitating discovery or the provision of particulars, as opposed to preserving the continued existence of evidence, it is considered would go beyond the authority conferred.

73    Flick J then referred at [44]-[49] to the features of the discovery rules that had been introduced in 1999, and which now find expression in Division 20.2 of the Federal Court Rules. In this case, as I have indicated, I likewise consider that it is relevant to have regard to the qualified nature of the discovery that the Rules require.

74    At [49], Flick J further observed –

… to enable a party to obtain an order pursuant to O 25B [of the Federal Court Rules 1979] and thereafter permit that party to “rummage through” the materials seized, in order to make an assessment as to those documents which that party considers would be or should be discoverable, would defeat the perimeters within which discovery is to be made by a party, especially the more confined and restricted extent of discovery which this Court now permits. It would also endorse a course which courts have properly shunned, namely a course of improperly permitting the relief authorised by O 25B to become an “investigatory tool” (Microsoft Corp v Goodview Electronics Pty Ltd [1999] FCA 754 at [26], 46 IPR 159 at 164 per Branson J; Bugaj v Bates [2004] FCA 1260 at [13] per Stone J) or a preliminary step that later facilitates such an investigation.

75    Findex Group Ltd v McKay [2019] NSWCA 93 (Findex Group) gave rise to a similar issue to that considered by Flick J in Metso Minerals. In Findex Group, the applicants obtained a search order that was executed as a result of which documents were obtained by the independent solicitor. However, no substantive proceedings were issued. The applicant sought leave to inspect and use the documents for a range of purposes, including in other proceedings. The application was refused by the primary judge. In rejecting the application for leave to appeal, Basten JA, with whom Sackville AJA and Emmett AJA agreed, stated at [26] –

There was an additional problem with this aspect of the application: as the primary judge correctly accepted, the purpose of a search order pursuant to r 25.19 [of the New South Wales Uniform CPRs] is to secure or preserve evidence, not to provide discovery, whether at a preliminary stage or in the course of proceedings. Counsel for the applicants was at pains to avoid reference for this purpose to the terms of r 25.19. It provided, he submitted, no guidance as to what was to be done with the documents once seized in terms of access and inspection. That is only true to the extent that one finds no assistance from the express identification of the purpose of a search order. Having regard to that purpose provides an implied constraint on the use which is to be made of the seized documents. The present application appeared to be an opportunistic form of fishing expedition, seen to be available because the documents to be reviewed were available. The primary judge stated:

[123] The plaintiffs maintain … that the purpose of the search order was that of ‘obtaining documents for use in anticipated proceedings including, but not limited to, the proceedings of the kind that were identified at the time’ and that this purpose will not be fulfilled ‘until the plaintiffs have looked at the documents’. That, to my mind, conflates the purpose of preserving evidence (for use in anticipated proceedings) and the function of inspection of that material (as to which it is clear there is no absolute right). It is not a purpose or object of search order provisions to facilitate discovery processes otherwise authorised by rules or to facilitate the provision of further particulars. In Metso Minerals at [34], Flick J warned that construing search order provisions as extending to such a purpose would erode the importance attached by the common law to protecting the privacy of individuals and the constraints otherwise imposed by the rules governing discovery process.

[124] Put another way, it is not a purpose or object of search order provisions to permit a plaintiff who believes that there has been an vindictive campaign made against it, him or her, the luxury of trawling through a mass of documentation that would not otherwise have been available to it, him or her at this stage, whether that be to see what else was said about it, him or her that might be defamatory or might otherwise support some other potential cause of action.

[125] The plaintiffs in the present case argue that, while the purpose of a search order is a relevant consideration as to whether the Court should exercise its discretion to permit further inspection, it is not determinative. Similar to the arguments (unsuccessfully) put forward by the applicant in Metso Minerals, they submit that it is in the interests of the administration of justice that leave should be granted to permit further inspection of the documents, even if the purpose of that further inspection (that being, to determine whether or not to pursue any causes of action) is different to the purpose for which the search order was originally granted.

…

[131] In light of the above principles, it is clear that if I were to accede to the plaintiffs’ application for access to the seized documents for the purpose of facilitating discovery or of ascertaining what other potential causes of action they or any of them may have against the fourth defendant (relevantly, a purpose which is different to the purpose which the search order was originally granted to assist and different from the accepted purpose of search orders) it would be endorsing an approach that courts have consistently rejected. That is, it would be allowing the “extraordinary” nature of relief granted pursuant to UCPR r 25.19 to be subverted to an investigatory tool.

…

[footnotes omitted]

76    Although the orders sought by the respondents are not strictly in the nature of search, or Anton Piller orders, they bear the similarity that what is contemplated is that the applicant is required to produce electronic devices to his solicitors, and that an independent person is to be permitted to take images of the data, and to examine the data. An independent solicitor is to then search the data for documents. In essence, what is proposed is that the data are to be seized, albeit with forewarning to the applicant, who is obviously on notice of this application.

77    The respondents advanced their application on the ground that the Court should have “little confidence” that the applicant had made discovery of all documents within the categories of documents sought by the respondents. The respondents did not cite to the Court any cases in which orders of the type sought by them were made in aid of discovery.

78    Having regard to my conclusions in [69] above, and to the considerations referred to by Flick J in Metso Minerals and by Basten JA in Findex Group, I am not persuaded that it is appropriate in this case to require the applicant to surrender data stored on electronic devices for the purposes of investigating the contents of that data as an aid to the discovery process. As Flick J observed, such an order would have a tendency to defeat the perimeters within which discovery is to be made, and would also be outside the object of Division 7.5 of the Federal Court Rules which concerns search orders. I also take these matters into account in relation to the exercise of the Court’s general powers under s 23 of the Federal Court Act 1976 (Cth) to make orders of a like nature.

79    However, having regard to the applicant’s preparedness to deliver material to his solicitors for their inspection, I would be prepared to make orders to the following effect –

(1)    By 4.00pm 29 July 2019 the applicant deliver to his solicitors all electronic devices such as laptops, hard drives, and USB devices within his control that contain or which contained the “Listed Things” referred to in the respondents’ amended application, and that such devices are to remain in the possession of the applicant’s solicitors until the hearing and determination of this proceeding or further order.

(2)    By 4.00pm 30 July 2019 and upon delivery of the devices to the applicant’s solicitors, the applicant’s solicitors file and serve an affidavit of a solicitor deposing to the date and circumstances of the delivery of the devices to them pursuant to paragraph 1 above, identifying and describing the devices.

(3)    By 4.00pm 20 August 2019, the applicant’s solicitors shall cause the devices to be searched, and shall file and serve an affidavit setting out the steps that they have taken in the course of that search and shall list any documents that they have identified as falling within the agreed categories of documents sought by the respondents and which have not already been discovered by the applicant, or produced as an exhibit to a witness statement filed on behalf of the applicant, noting any claim for privilege from production.

(4)    By 4.00pm 20 August 2019 the applicant file and serve any supplementary verified list of documents.

80    I shall hear the parties on the terms of the orders.

Associate:

Dated:    25 July 2019