FEDERAL COURT OF AUSTRALIA

Hastwell v Kott Gunning (No 3) [2019] FCA 1641

ORDERS

THE COURT ORDERS THAT:

1.    The parties are directed to confer as to orders reflecting these reasons.

2.    The parties must confer about the costs of their interlocutory applications and the costs reserved from the case management hearings on 15 February 2019, 5 April 2019 and 30 May 2019, and by 4.00 pm on 22 October 2019 must provide a minute of consent orders dealing with those matters or, if agreement cannot be reached, separate minutes of orders.

3.    The proceedings are listed for a case management hearing at 11.00 am on 30 October 2019.

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

REASONS FOR JUDGMENT

JACKSON J:

1    The applicant, Mr Hastwell, seeks remedies for alleged contraventions of the Disability Discrimination Act 1992 (Cth) and the Sex Discrimination Act 1984 (Cth) by the respondent, Kott Gunning, as well as remedies for breach of contract. The parties have filed pleadings and Kott Gunning has filed particulars. The parties have also filed voluminous lay affidavit evidence.

2    Directions were made about discovery. Their effect was to identify categories for further discovery and such further categories as are not agreed. The latter were to be the subject of any application for further and better discovery which either party decided to make.

3    Each party has filed and served discovery lists verified by affidavits, in the case of Kott Gunning, two, and inspection has occurred. Each party has also filed an interlocutory application in respect of discovery. These reasons concern those applications.

The issues in the proceedings

4    Before turning to the applications it is necessary to describe the issues that arise on the pleadings. It is sufficient for present purposes to do so in broad terms only.

5    Kott Gunning is a law firm based in Perth. It is common ground that Mr Hastwell was an employee of the firm for approximately 18 months from 3 September 2013, although the precise date on which his employment ended is in issue.

6    Mr Hastwell claims that he has been openly homosexual for a period of approximately 25 years and that he was openly homosexual during his employment at Kott Gunning. In his statement of claim he alleges that he was subject to 'repeated and offensive behaviour, questioning and doubts regarding his sexual orientation by employees of Kott Gunning'. Particulars of many alleged incidents involving named partners and employees are given.

7    Mr Hastwell also alleges he was subject to bullying and harassment regarding whether he had been drinking at work and had a drinking problem, whether he used illicit drugs, and whether he was a prostitute. Once again, particulars of a number of alleged incidents are given. Further incidences of alleged bullying, harassment and discrimination involving things said to him by named employees are given. It is not necessary to describe any of the alleged incidents save to say that they mostly involve things that were said to Mr Hastwell, or said in his presence by various staff members, in encounters in the course of the working day, or on social occasions. Incidents involving one client of the firm, and one person providing services to the firm, are also said to have occurred.

8    The statement of claim also alleges that Kott Gunning discriminated against Mr Hastwell by giving him a lower pay rise than other staff members for the 2014/2015 financial year, even though he had exceeded his annual budget target for the preceding financial year, by failing to arrange membership of certain professional associations for him and, from mid-July 2014, by failing to give him any new work.

9    The statement of claim goes on to describe a number of occasions when, it is said, Mr Hastwell raised concerns about the above matters with managers and partners at Kott Gunning. These included Mr Hastwell giving an 'informal' written complaint to a partner, Stephen Williams, on 26 May 2014 and a 'formal' written complaint to Mr Williams and other partners in December 2014.

10    Mr Hastwell further alleges that certain persons he came into contact with were in fact agents of Kott Gunning who had been instructed to monitor him. There is also reference to communications between Kott Gunning and Mr Hastwell or his lawyers about a formal investigation into Mr Hastwell's complaints.

11    Mr Hastwell claims that the conduct summarised above involved discrimination against him because of his sexual orientation, in contravention of the Sex Discrimination Act. He also alleges sexual harassment in contravention of that Act. He claims breach of numerous express and implied terms of his contract of employment. He also alleges that he suffers from anxiety, which he claims is a disability, and that he was subject to discrimination and harassment as a result of the disability, in contravention of the Disability Discrimination Act. He claims damages.

12    In broad terms, Kott Gunning denies these allegations. In relation to many of the specific incidents on which Mr Hastwell relies, Kott Gunning's defence describes or explains them in ways that do not indicate any discriminatory, bullying or other inappropriate behaviour. If these descriptions and explanations are accepted, either nothing of note happened, or Mr Hastwell misunderstood what had happened.

13    Kott Gunning denies that Mr Hastwell made his fee target for the relevant year and says that it did arrange his professional association memberships. It admits that it did not give him any new work from mid-July 2014 but says that he continued to work on existing files and billed approximately $89,000 between then and his last day of work on 18 December 2014. It admits that Mr Hastwell gave it the informal and formal written complaints. It denies that it engaged any agents to monitor Mr Hastwell in the way that he has alleged.

14    Kott Gunning says that it terminated Mr Hastwell's employment in March 2015 because he had been absent from the workplace for more than three months, no medical certificate was current, and no return to work was imminent. As will be seen, there is an issue about a particular medical certificate. Kott Gunning says it considered that Mr Hastwell had abandoned his employment and that the employment relationship had irretrievably broken down.

15    Kott Gunning denies discriminating against Mr Hastwell on the basis of his sexual orientation. It denies any breach of contract. It says it did not know that he was suffering from any disability and denies discriminating against him or harassing him on that basis. It says that it took all reasonable steps to prevent discrimination, bullying and harassment, so that if its employees did engage in such conduct, the firm is not liable for it.

Mr Hastwell's discovery application

Itemisation of Part 2 and Part 3 of Kott Gunning's lists

16    Mr Hastwell seeks orders that Kott Gunning file and serve amended versions of the verified lists of documents it filed on 2 April 2019 and 24 May 2019. The amendments he seeks are that the documents in Part 2 and Part 3 of each of the two lists be itemised.

17    Part 2 concerns documents over which Kott Gunning claims legal professional privilege. There are also two documents in Part 2 of the list dated 2 April 2019 over which without prejudice privilege is claimed, but they are individually itemised so this aspect of Mr Hastwell's application does not relate to them. Part 3 concerns documents which were but are no longer in Kott Gunning's control.

18    The documents in Part 2 of Kott Gunning's two lists over which legal professional privilege are claimed are described by category. They include correspondence between the firm and the solicitors on the record for it in these proceedings, and a range of other correspondence and documents involving Kott Gunning's legal advisers which are said to have been created for the dominant purpose of giving or receiving legal advice or providing legal services in relation to actual or contemplated litigation.

19    Mr Hastwell sought orders to the same effect at a case management hearing held on 30 May 2019. On that occasion I declined to make the orders. However since that was an interlocutory determination, it is open to Mr Hastwell to apply for the orders he seeks again. While that course is generally not to be encouraged, I now have the benefit of fuller argument than I did at the case management hearing, so it is appropriate to reconsider the point.

20    Mr Hastwell relies on r 20.17(2) of the Federal Court Rules 2011 (Cth). Rule 20.17 is as follows:

List of documents

(1)    A list of documents must be in accordance with Form 38.

(2)    The list must describe:

(a)    each category of documents in the party's control sufficiently to identify the category but not necessarily the particular document; and

(b)    each document that has been, but is no longer in the party's control, a statement of when the document was last in the party's control and what became of it; and

(c)    each document in the party's control for which privilege from production is claimed and the grounds of the privilege.

(3)    A party may apply to the Court, before or after the list of documents has been served, for an order:

(a)    about the use of categories in the list; or

(b)    that a more detailed list of documents be provided; or

(c)    that each document in a category be separately described.

(4)    The list of documents must be verified by an affidavit sworn in accordance with rule 20.22.

Note: Control is defined in the Dictionary.

21    The ordinary meaning of the words of r 20.17(2)(b) and r 20.17(2)(c), requiring a description of 'each document', do seem to refer to itemisation. That is reinforced by the contrast which can be drawn with r 20.17(2)(a), which refers to categories. The rule has been applied to require itemisation in other cases: see e.g. Georgiou v Spencer Holdings Pty Ltd (No 4) [2011] FCA 1222 at [24]-[31] (Besanko J); Domain Paper (Australia) Pty Ltd v Galloway [2014] FCA 936 at [33]-[38] (Murphy J).

22    What Kott Gunning has done in its list is the reverse of what seems to be contemplated by the rules; it has itemised the documents covered by r 20.17(2)(a), but has described the documents covered by r 20.17(2)(b) and r 20.17(2)(c) by category.

23    Kott Gunning submitted that this was consistent with r 20.17 read as a whole. It relied on r 20.17(3)(c), which permits the court to order that each document in a category be separately described, and said that to give full effect to that, it is necessary to read r 20.17(2)(b) and r 20.17(2)(c) as not requiring separate itemisation. I do not accept that. By using the concept of 'category', r 20.17(3)(c) is referring back to r 20.17(2)(a), which also uses that term. Rule 20.17(3)(c) still has work to do if it is read as only relating to non-privileged documents that are still in the party's control. Rule 20.17(3)(b) is apt to apply to r 20.17(2)(b) and r 20.17(2)(c), when the descriptions of the documents given in Part 2 or Part 3 of a list lack sufficient detail. Rule 20.17(3)(b) tends to confirm that r 20.17(2)(b) and r 20.17(2)(c) require itemisation, because it contemplates that a 'list of documents' has been provided already.

24    It is true that the descriptions of the various categories which Kott Gunning have given establish prima facie claims to legal professional privilege in relation to the documents in the categories. They also provide Mr Hastwell with sufficient detail about the nature of the documents and the basis of the claims so that, if he did wish to challenge the claim for privilege, he could state the basis for the challenge, or at least the basis for doubt about the claim. But in Kenquist Nominees Pty Ltd v Campbell (No 3) [2017] FCA 1230 at [49]-[51] Yates J reviewed authorities which indicate that the purpose of rules requiring itemisation of privileged documents is not to facilitate an examination of the validity of claims of privilege. Its purpose is, rather, to enable the court to make an order for the production of the document should the court consider it appropriate to make such an order.

25    Mr Hastwell is therefore correct in submitting that the Federal Court Rules require Kott Gunning to itemise each of the documents that are currently described by category in Part 2 of its lists of documents. The same goes for Part 3.

26    Kott Gunning sought dispensation from that requirement, if I were to adopt that construction of the rule. The court has power under r 1.34 to dispense with compliance with any of the rules, either before or after the occasion for compliance arises. That rule and its predecessor under the court's 1979 rules have been held to give a very wide discretion to waive compliance, and there is no general test to be applied in exercising the discretion, save that the court ought to do what justice appears to require: Dowling v Fairfax Media Publications Pty Ltd (No 2) [2010] FCAFC 28 at [61] (Logan and Flick JJ). Exercise of the discretion is appropriate where strict application of the rules would cause some injustice, as for instance in circumstances not anticipated by the rules, but in general it is not appropriate to exercise the discretion where the rules have set up specific and detailed procedures designed to protect the position of both parties: Canberra Residential Developments Pty Ltd v Brendas [2010] FCA 90 at [10] (Stone J).

27    Senior counsel for Kott Gunning submitted that it would be oppressive, and would render the costs of discovery disproportionate, to require itemisation of the documents in Parts 2 and 3 of its lists. He pointed to the volume of evidence that has been filed, including the evidence of 26 witnesses, as well as the number of interlocutory applications, as supporting the conclusion that there would be a very large number of documents that have been generated where privilege is claimed.

28    Senior counsel also, however, drew my attention to r 20.20(2), which provides that a party is not obliged to discover any document that has been created after the proceeding was started, if the party is entitled to claim privilege from production for the document. That rule substantially reduces the work that would be involved if Kott Gunning were required to itemise the privileged documents, as that requirement only relates to documents generated before the commencement of the proceedings.

29    There was no direct evidence as to the volume of such documents, although Kott Gunning pointed to the history of the dispute before these proceedings were commenced in 2017, including the application to the Australian Human Rights Commission before that, which occurred in March 2016. There is evidence in an affidavit of Tom Darbyshire dated 9 October 2018, a partner of Kott Gunning, that the firm engaged counsel to advise it on its dealings with Mr Hastwell in February 2015. The affidavit of one witness external to the firm says that he was first contacted about the dispute in March or April 2016. So it appears that Kott Gunning or its advisers were gathering evidence before the commencement of these proceedings. But there is no direct evidence as to how much privileged documentation those efforts produced.

30    It therefore seems to me that the sole basis of Kott Gunning's application for dispensation from r 20.17(2)(c) in relation to the privileged documents in Part 2 of its discovery lists is that the history of the matter, and the likely obtaining of legal advice on it, goes back some two years before these proceedings were commenced in May 2017. But that hardly makes it an unusual piece of litigation, and there is no evidence indicating that it would be especially onerous to itemise each privileged document from that period. There is no basis to conclude that the cost of itemising the discovered materials will be disproportionate to the complexity of the litigation.

31    Itemising the documents is a clear requirement of the rules, and no persuasive case has been made out as to why this matter is one where the detailed requirements of the rules, which have been developed in order to protect the interests of both parties, ought not to apply. I will direct Kott Gunning to provide an itemisation of Part 2 of each of the two discovery lists that it has produced.

32    The requirement to itemise Part 3 is different. In each of the lists of documents, verified on affidavit by Mr Darbyshire, Part 3 indicates that the documents of which Kott Gunning no longer has control are emails and an electronic calendar, all of which have been deleted and have not been retained. It follows that to order Kott Gunning to itemise those documents would be futile. I will dispense with the requirement to do so.

Mr Hastwell's 73 categories of proposed discoverable documents - general principles

33    Mr Hastwell's application seeks discovery of a large number of categories of documents which he says are relevant and have not been discovered. They are listed in Schedule A to his interlocutory application. Before turning to those categories, it is useful to set out some general principles as to how to approach such applications.

34    The court has a broad discretion in relation to discovery. The legitimate scope of discovery is determined by reference to the pleadings and the issues they raise. Standard discovery is predicated on direct relevance to the issues raised by the pleadings or in the affidavits. In exercising its discretion, the court will balance the costs, time and possible oppression to the producer against the importance and likely benefits to the applying party: Coca-Cola Company v Pepsico Inc [2011] FCA 1069 at [35]-[36] (Dodds-Streeton J).

35    That is confirmed by s 37M(2)(e) of the Federal Court of Australia Act 1976 (Cth), which requires the court to pursue the objective of 'the resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute'. It is also confirmed by r 20.11 of the Federal Court Rules, which indicates that an order for discovery must 'facilitate the just resolution of the proceeding as quickly, inexpensively and efficiently as possible', and r 20.14(3), which sets out the matters that must be weighed up in determining what is a reasonable search for the purposes of discovery: see also Australian Mud Co Pty Ltd v Coretell Pty Ltd (No 5) [2013] FCA 663 at [33] (Barker J).

36    Mr Hastwell sought to rely on r 20.14 of the Federal Court Rules. That rule refers to standard discovery. But Kott Gunning was already ordered to give standard discovery. Setting aside the question of itemisation, which I have dealt with above, the lists of documents that Kott Gunning have provided are, on their face, in adequate compliance with those orders. There is no point in ordering standard discovery again.

37    In truth, Mr Hastwell was alleging deficiencies in the discovery that Kott Gunning has given, in that there were documents it can be expected to have which it has not discovered. Consistently with that, Mr Hastwell referred to the principle that the affidavit of discovery is no longer treated as conclusive.

38    The question of whether particular categories of documents should be the subject of particular discovery orders in such a case is governed by r 20.21. That rule reads:

Order for particular discovery

(1)    If a party (the first party) claims that a document or category of documents may be or may have been in another party's control (the second party), the first party may apply to the Court for an order that the second party file an affidavit stating:

(a)    whether the document or any document of that category is or has been in the second party's control; and

(b)    if the document or category of documents has been but is no longer in the second party's control - when it was last in the second party's control and what became of it.

(2)    The first party seeking an order under subrule (1) must identify the document or category of documents as precisely as possible.

39    Mr Hastwell is making a claim of the sort referred to in r 20.21(1) here. His application falls to be determined by reference to the principles in and arising out of r 20.21. While r 20.21 is not a substitute for general discovery, when the latter has been given and is alleged to be deficient, an application under that rule should be made: see Dennis v Chambers Investment Planners Pty Ltd [2012] FCA 63; (2012) 201 FCR 321 at [37] (Barker J). That is how I will approach Mr Hastwell's application here.

40    An applicant for an order for discovery bears the onus of satisfying the court that the documents sought are necessary: Trade Practices Commission v CC (NSW) Pty Ltd (No 4) (1995) 58 FCR 426 at 436 (Lindgren J). Mr Hastwell needs to establish a deficiency in the discovery that Kott Gunning has given: see Construction, Forestry, Mining & Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462; (2014) 232 FCR 560 at [98] (Flick J). A deficiency may emerge from an analysis of the pleadings, from the documents produced on discovery, from the evidence or from the nature and circumstances of the particular case: Construction, Forestry, Mining & Energy Union v Rio Tinto Coal Australia at [98]. It is not necessary to infer the existence of a particular document; it is sufficient if it appears that a party had excluded documents under a misconception of the case: Mulley & Marney v Manifold (1959) 103 CLR 341 at 343 (Menzies J). But there must be a basis to consider that the documents sought are likely to exist; mere speculation is not enough: Independent Cement & Lime Pty Ltd v Australian Cement Ltd [1988] FCA 749 at 14-15 (Gray J).

41    With those general principles in mind, I will turn to consider the 73 documents or categories which, Mr Hastwell claimed, Kott Gunning has failed to discover. While that is an extraordinarily high number, it soon became apparent that it was possible to group them so that the exercise, while onerous, was not impossibly large. Mr Hastwell dealt with the categories in groups in his oral submissions and that is how I will deal with them here.

42    Before turning to the 73 categories I should make two observations about the approach Mr Hastwell took to the application. First, his written submissions were, with respect, unhelpful because they contained mostly general statements of principle and did not say why any particular category of documents was missing from Kott Gunning's discovery. Kott Gunning's written submissions in reply did not speculate about what the alleged deficiencies in its discovery might be, and therefore did not respond to the key questions about specific categories to which Mr Hastwell's application gave rise. Subject to a qualification, there was nothing to respond to. The qualification is that the basis of the alleged deficiency was sometimes evident on the face of the description of the categories sought.

43    In any event, Mr Hastwell had the opportunity to put on an affidavit providing evidence from which it could be concluded that there were indeed relevant documents that Kott Gunning could be expected to have, but which were not discovered. He did not take up that opportunity.

44    The result of Mr Hastwell's approach was that at the start of the hearing the court had received little assistance as to precisely why Kott Gunning's discovery was said to be deficient (other than the matters of form I have already addressed). The paucity of specific material supporting the need for particular discovery of those categories led Kott Gunning to submit that it was prejudiced in its response to the application, because without notice of the reasons for the asserted deficiencies it was unable to adduce evidence it might otherwise have adduced.

45    As will be seen, I consider that I am able to deal with the application without causing such prejudice. But the silence in Mr Hastwell's written submissions on the key questions of why documents in the categories he sought were relevant, were likely to be in Kott Gunning's possession, and had not been discovered, was unsatisfactory. I make allowance for the fact that he is a self-represented litigant, but I also take into account that he was once an experienced litigation lawyer and therefore can be expected to understand the importance to the efficient operation of the court that parties provide pertinent written submissions and evidence.

46    The second observation I make is that while Mr Hastwell's primary position was that all of the 73 categories were directly relevant according to the criterion in r 20.14 of the Federal Court Rules, in the alternative he argued that all 73 categories were 'necessary pursuant to rule 20.15', that is, the rule that permits non-standard and more extensive discovery. But the submissions said no more than that. They did not explain why non-standard discovery was necessary in relation to any specific category. Also, the application did not comply with the numerous requirements of r 20.15, including the fundamental requirement that it be accompanied by an affidavit stating why the order should be made: r 20.15(3). I will therefore disregard the vague alternative submission that discovery under r 20.15 is warranted.

47    There is no test for relevance stated in r 20.21, which is the rule that I consider applies here. I will proceed on the basis that Barker J outlined in Dennis v Chambers Investment Planners at [39]:

I see no reason why a party may not apply under r 20.21 following either standard or non-standard discovery, or even (exceptionally) before general discovery, to seek particular discovery of a document or category of documents that is or are said to be relevant. In such a case it will be incumbent on the party seeking particular discovery to satisfy the Court that the document should be discovered in the circumstances of the case. The document or category of documents must be relevant, directly or indirectly. Additionally, the Court would, I think, need to be satisfied that discovery of the document will facilitate the efficient conduct of the proceedings. If, for example, one can see that the documents are likely to be relied on at trial, and if not provided during the pre-trial period would likely later result in an adjournment of the trial, then it may make good sense for the Court to require particular discovery at the pre-trial stage. That said, each application will depend on its own facts and circumstances and will be affected by the underlying policy of the new Rules to limit the scope of discovery and to advance the overarching purpose of civil procedure in the Court as stated by s 37M of the FCA Act.

Categories 1 to 8 - personnel file

48    The first eight document categories concerned documents said to be in Mr Hastwell's personnel file. The first category was, in terms, all material from that file. The other seven categories covered 'evaluations' concerning Mr Hastwell, as well as reference checks and similar verifications, annual leave applications, performance appraisals and all material regarding his occupational health and safety induction.

49    Mr Hastwell submitted at the hearing of the application that the need for discovery of the personnel file was 'self-evident'. He is a former employee making a claim against his former employer. As a general proposition, it may be accepted that there is likely to be relevant material on his personnel file, although it by no means follows that everything on the file is relevant. But there was evidence adduced on behalf of Kott Gunning to the effect that approximately 85 of the documents that it had discovered were from the personnel file. That evidence was in an affidavit of Kott Gunning's solicitor in these proceedings, David Heldsinger, sworn on 29 May 2019.

50    Mr Hastwell nevertheless asserted that the discovery of the employment file that had been given was incomplete. At the hearing he referred to a broad range of additional documents including additional medical certificates, evaluations, photographs, his practising certificate, memberships, employment history and his 'formal complaint'. It appears that this list was not intended to be exhaustive, as Mr Hastwell indicated that it was 'just to name a couple of things'.

51    When asked by the court whether there was any evidence that such additional documents existed, Mr Hastwell effectively invited the court to infer that they did, because documents of that sort could be expected to be on a person's employment file.

52    I am not satisfied that this discharges the onus on Mr Hastwell of establishing both that documents in the categories sought are likely to be in Kott Gunning's control, and that Kott Gunning has not discovered them. While the affidavits of discovery are not conclusive, they have been sworn by a legal practitioner who must be taken to have been aware of his duties in this regard, and they need to be given weight. In those circumstances, and where a review of the list of documents said to come from the personnel files reveals no obvious deficiencies, mere speculation that there might be more is not enough.

53    Examples of deficiencies that Mr Hastwell gave did not advance his position. One example was medical certificates. He said from the bar table that not all his medical certificates had been discovered. And yet there were nine medical certificates in Kott Gunning's list. The court cannot infer that more than that number existed, and are or were within Kott Gunning's possession, custody or power. If there were in fact more, Mr Hastwell could have put on an affidavit to that effect, or pointed to existing evidence indicating that discovery of nine medical certificates was incomplete. Yet he did not do so. The court was left with nothing more than assertion, unsupported by evidence.

54    Another example was Mr Hastwell's practising certificate. At the hearing of the discovery applications he tendered correspondence with Heldsinger Legal on that subject. But when I asked him why the practising certificate was relevant to any issue in the proceedings, given that no one was alleging that he was not entitled to practise during his time at Kott Gunning, Mr Hastwell was unable to say. I ruled that the correspondence was not relevant and did not admit it. Similarly, the absence of material that is not relevant cannot establish any deficiency in discovery.

55    The categories of documents said to be in Mr Hastwell's personnel file of which he seeks discovery suggest that he has not paid regard to what Kott Gunning has told him was on his personnel file, and has been discovered. For example, one of the categories is 'All material regarding Occupational Health & Safety Induction'. Kott Gunning's discovery list includes a copy of an induction program for Mr Hastwell, a copy of an occupational health and safety induction checklist which he has signed, and a copy of an acknowledgment form he has signed. So Kott Gunning or those advising it have turned their minds to the relevance of that material and have discovered it. There is no basis to say that they have overlooked the need to discover it or misconceived its potential relevance. And there is no reason to think that Kott Gunning has more documents relevant to that subject.

56    Mr Hastwell referred to specific evidence in an affidavit of Stephen Williams, a partner of Kott Gunning, dated 10 October 2018. Mr Williams says that before the decision was made to employ Mr Hastwell, Mr Williams called a friend of his who had worked at a firm where Mr Hastwell had worked in the past to ask her about him, and she spoke of him in very positive terms. But there is no suggestion in the evidence that Mr Williams took a record of the call, and the relatively informal way he describes it suggests that he did not. To say that Kott Gunning has failed to discover any such record is to speculate. In any event, it is unclear what issue in the proceedings that goes to. Mr Williams' evidence indicates that he heard favourable things about Mr Hastwell at that point in time. What more would be gained by a written record of that conversation?

57    Another example is that Mr Hastwell seeks discovery of performance appraisals. But Kott Gunning has discovered a copy of handwritten notes at his 'Probate Meeting', which seems to refer to an interview held at the end of his employment probation period. There are also documents in Kott Gunning's list which seem to meet the description of performance appraisal materials, (specifically document 89, 'Copy of Performance Recognition and Development Planning for Solicitors for Haydyn Hastwell with handwritten annotations and attached handwritten notes dated 01/08/2014' and document 100, 'Copy of Performance Recognition and Development Planning for Solicitors for Haydyn Hastwell (Undated). Attachments: Lexis Affinity Library Fee Earner Profile for Haydyn Hastwell'). There is nothing in the materials to suggest that there is more.

58    I am not satisfied that there is any material to indicate that Kott Gunning is likely to have possession of documents from Mr Hastwell's employment file which are relevant and which it has not discovered. I will not order particular discovery of documents in categories 1 to 8 of Schedule A to Mr Hastwell's interlocutory application.

Categories 9 to 15 - investigations and surveillance

59    This group of document categories included a range of documents concerning investigations into Mr Hastwell which it is said Kott Gunning may have conducted or commissioned. Mr Hastwell submitted that it would be 'extraordinary' if such investigations had not been conducted.

60    There is evidence in affidavits filed on behalf of Kott Gunning that the firm did consider conducting or commissioning an investigation into the allegations that Mr Hastwell made in his formal complaint, but in the end it decided not to do so. There is limited correspondence between Mr Hastwell and Kott Gunning on that subject, which has been discovered. There is evidence of discussions between Kott Gunning and a potential independent investigator about the possibility of an investigation, but nothing came of those discussions and, once again, there is nothing in the evidence to suggest that any documents were generated as a result which have not already been discovered. There is no evidence of anything more.

61    Mr Hastwell refers to evidence in his main affidavit to the effect that he overheard another employee of Kott Gunning say that he (Mr Hastwell) was under investigation. However Kott Gunning denies that, and there is nothing in the evidence to contradict that denial or to suggest that despite it, documents concerning the alleged investigation ever existed.

62    There is evidence that Kott Gunning did commission brief surveillance of Mr Hastwell which took place in October 2014. An affidavit sworn on 8 October 2018 by an investigator, Mr Brennan, suggests that Kott Gunning commissioned the surveillance because it was concerned about Mr Hastwell's poor attendance record and the reasons for it. Mr Hastwell seeks discovery of photographs referred to in the affidavit of one of the investigators, Adrian Claxton. Mr Claxton's field notes and photographs he took are in evidence and have been discovered, as are the notes of another investigator who assisted with the investigation. There is nothing in the evidence to suggest that any further documents are or have been in Kott Gunning's possession, custody or power.

63    Mr Hastwell sought discovery of four photographs he said were attached to a particular email from Mr Claxton. He said that the email listed eight attachments, but only four had been discovered, so there must be four more. But that is based on a misreading of the email. In fact, four of the attachments (photographs) are listed in the subject line of the email and, as the file names reveal, the same four attachments are also listed in the 'Attachments' field. So there are four attachments to the email, not eight, and they have been discovered.

64    There is also a category for SMS/MMS/social media involving Mr Hastwell. Kott Gunning has discovered certain text messages concerning the applicant. There is nothing in the materials to suggest that there are more.

65    Once again, Mr Hastwell has pointed to nothing in the pleadings or evidence to indicate that Kott Gunning has, or had, any relevant materials that have not been discovered. I will not order particular discovery of categories 9 to 15 in Schedule A to his interlocutory application.

Categories 16 to 39 - references to the applicant by Kott Gunning and its employees

66    By this group of document categories, Mr Hastwell seeks discovery of everything Kott Gunning has which refers to him. The first of these categories is 'All material referencing the applicant'. The second is 'All e-mails to and from the applicant's Kott Gunning e-mail address'. Then there are 22 further categories, each of which in form seeks 'All [named partner or employee's] e-mails referencing the applicant'.

67    That is extraordinarily broad. Mr Hastwell was employed by Kott Gunning for some 18 months. It can be expected that a very large number of emails referring to him were created during that time. It can also be expected that many, perhaps most of those emails were both innocuous, in the sense that they referred to Mr Hastwell in connection with routine work matters, and irrelevant to any of the issues in these proceedings.

68    Those issues, as I have described them, centre on a number of specific incidents which Mr Hastwell alleges occurred. The incidents mostly involve brief verbal interactions between Mr Hastwell and others during the course of the working day or on social occasions which are inherently unlikely to have resulted in or been recorded in any emails. To the extent that they were so recorded, there is nothing in the materials to suggest that Kott Gunning or those advising it have misconceived the potential relevance of emails to the question of whether the incidents occurred in the way Mr Hastwell alleges they did, or has withheld relevant emails that are likely to exist. Kott Gunning's discovery lists contain a large number of emails, indicating that searches of emails for relevant material were conducted.

69    Underneath the listing of these categories in Schedule A to Mr Hastwell's application he says 'These may include communications (notably internal e-mails) between staff evidencing bullying, harassment and/or discrimination between September 2013 and say April 2015'. But the suggestion that any such emails exist and have not been discovered is just speculation.

70    Mr Hastwell submitted that the emails were relevant because they concerned his work 'and everything to do with my work is relevant'. I do not accept that. This litigation is not the occasion for a broad ranging inquiry into every aspect of Mr Hastwell's work at Kott Gunning. He has made allegations about specific incidents, and about discrimination in relation to work related matters such as pay and professional association memberships. But the suggestion that all emails of a named partner or employee (presumably emails both to and from that person) that merely refer to Mr Hastwell are relevant is not one that I can accept.

71    When he turned to the specifics of the individuals whose emails he sought, Mr Hastwell referred to the person who was initially his personal assistant (PA) at Kott Gunning, and claimed from the bar table that while they got along well at first, 'the relationship deteriorated', 'there were a lot of errors', and work was not going out. He claimed that he had started writing down everything that needed to be done.

72    I indicated that I was not going to receive that as evidence from the bar table and asked Mr Hastwell where I might find reference to it in the evidence that had been filed. He referred to one paragraph from his main affidavit sworn in support of his claim, which refers to a conversation he says he had with a partner of Kott Gunning, Vidal Hockless, raising his concern that work had not been going out. But that evidence makes no reference to the named PA whose emails he seeks. And it would appear it could not be referring to her, as earlier in his affidavit Mr Hastwell says that he attended a going away party for her, some months before the discussion with Mr Hockless.

73    Also, the only document to which that part of Mr Hastwell's evidence refers is 'a hand written record' he was keeping of all correspondence that was awaiting Mr Hockless' signature. There is no indication that he emailed that record to anyone and no suggestion that, if the hand written record survives, Kott Gunning rather than Mr Hastwell has control of it.

74    In any event, this claimed deterioration of secretarial work is not mentioned in the pleadings. The example does not support Mr Hastwell's application for discovery of all of the PA's emails that refer to Mr Hastwell.

75    Another example Mr Hastwell gave was of emails from clients that praised his work. It is not clear how those emails can be relevant to his claims of discrimination, but when asked to direct the court to evidence of the likely existence of the emails he referred to 'about five' documents in his own discovery list. I have reviewed that list and it is not apparent what documents Mr Hastwell is referring to. In any event, the documents themselves are not in evidence or, if they are, Mr Hastwell did not identify them as such.

76    The only other example he gave of how a class of emails as wide as all emails referring to him might be relevant was to refer to the issue about his professional association memberships. He seemed to concede that there was no issue in relation to his membership of the Law Society of Western Australia, but he did refer to his membership of the Australian Insurance Law Association (AILA). However this overlooks the fact that there are at least two documents in Kott Gunning's first discovery list which, on the face of their descriptions are relevant to that issue, one of which is an email chain (documents 326 'Copy of email chain ending in email … to Ashley Crisp. Subject: FW Membership Enquiry (to AILA)' dated 5 June 2018 and 327 'Copy of Australian Insurance Law Association membership record for 2017/18' dated 5 June 2018). Mr Hastwell said that there were also emails between him and that association. But even if that could be accepted as evidence from the bar table, it is clear from Part 3 of both of Kott Gunning's lists that his email inbox was deleted when he left the firm.

77    I will not order discovery in relation to categories 16 to 39 of Schedule A to Mr Hastwell's interlocutory application.

Categories 40 to 42 - witness statements

78    By category 40, Mr Hastwell sought 'All the respondent's sworn, unsworn and draft witness statements to be itemised in accordance with rule 20.17(2)'. This appears to assume, no doubt correctly, that to the extent that a statement has not been filed and served, it is subject to a claim of privilege. As such, it has been addressed already in the part of the reasons dealing with itemisation. If any such documents were generated before the commencement of these proceedings, they must be itemised.

79    Category 41 seeks attachments to an email which is annexed to an affidavit of Mr Kevin Chalklin sworn 11 October 2018 and filed on behalf of Kott Gunning. The attachments are three documents entitled 'Injury Management Policy', 'Equal Employment Opportunity, Bullying and Unlawful Harassment Policy' and 'Kott Gunning Employee Acknowledgement Form - form 2'. It was not entirely clear what Mr Hastwell's complaint about that was. Other than the Injury Management Policy, which does not seem to be relevant, the documents have been discovered.

80    Mr Hastwell said that the copy of the Equal Opportunity policy that had been discovered post-dated his employment. But the date given for it in the discovery list is 2012, and that matches the date of the email to which it is attached, 25 October 2012. Mr Hastwell's employment commenced on 3 September 2013. There is nothing suggesting that the version of the policy that has been discovered is not the version that applied at that time.

81    Category 42 is responses to a text message which a partner of Kott Gunning, Ashley Crisp, sent to Mr Hastwell and others on 13 March 2014. The text message is referred to in the statement of claim and its contents and the intent behind sending it are in issue. Mr Crisp's evidence confirms that he received responses from some of those who received the text message. Those responses are potentially relevant. Mr Crisp's evidence also states that he no longer has the text message itself or, presumably, the responses. But the text was received by other work colleagues so it is possible that others have kept the responses and that those responses are in the control of Kott Gunning.

82    Kott Gunning should give discovery of documents in this category. The potential relevance of the responses, and the likelihood that they exist and have not been discovered, is such as to attract the exercise of the discretion in Mr Hastwell's favour. I do not consider that the lack of any reference to this in Mr Hastwell's written submissions causes prejudice to Kott Gunning, as the basis on which Mr Hastwell was seeking discovery of the category must have been evident from the description of the category.

83    I will order discovery of the documents in category 42 from Schedule A to Mr Hastwell's application. I will not order discovery of categories 40 or 41.

Categories 43 and 44 - breach of contract cause of action

84    Category 43 seeks discovery of all of Kott Gunning employee policies from September 2013 to April 2015. Mr Hastwell's written employment contract provides that his employment is subject to the terms of any operational policies of Kott Gunning as may be adopted from time to time including equal opportunity, bullying and unlawful harassment. But that policy is the only one that Mr Hastwell pleads was breached. It is annexed to Mr Chalklin's affidavit, and has been discovered. I have already dealt with Mr Hastwell's complaints about it.

85    Category 44 seeks discovery in relation to the training of insurance department employees in each of the employee policies from 2012 to 2014. Documents going to that would be directly relevant, as Kott Gunning particularises its in-house training as part of the plea that it is not liable for any contravening conduct of its employees. Mr Chalklin's affidavit is very specific that during Mr Hastwell's period of employment there were two relevant training sessions held in-house, and also that Kott Gunning paid for employees to attend one relevant external seminar. Records of those seminars, including employee attendance records, are annexed to Mr Chalklin's affidavit and are discovered. There is no basis for any speculation that Kott Gunning has any more records relevant to training during the period of Mr Hastwell's employment.

86    However all three of these seminars took place in the second half of 2014. Mr Hastwell's employment commenced in September 2013. It seems to me that training of other staff on equal opportunity, bullying and harassment for a reasonable time before Mr Hastwell started working for Kott Gunning is relevant, as any such training would potentially inform the attitudes and approaches of staff who were already employed when Mr Hastwell started at the firm. The period proposed by Mr Hastwell in the category, running from the start of 2012, is a reasonable one. I can infer from the evidence about the records that have been discovered that there are potentially records from the earlier part of the period that are discoverable.

87    I will order that Kott Gunning give discovery of any records of equal opportunity, bullying and harassment training given to employees of its insurance department between 1 January 2012 and 3 September 2013. I doubt this will cause any prejudice to Kott Gunning, as the reasons why the documents are asserted to be discoverable are self-evident on the face of the category, and it is also self-evident why it would be said that Kott Gunning could be expected to have such records. However I am conscious that this precise point - the discoverability of records pre-dating the commencement of Mr Hastwell's employment - has not been put to Kott Gunning. In my view the fair and efficient course is to order discovery of the category within four weeks but to give Kott Gunning liberty to apply.

Categories 45 to 47 - billed time

88    These document categories seek discovery of all hard copy and soft copy files that Mr Hastwell worked on during his time at Kott Gunning as well as all material relating to his time recording, billed and billable time, billings and other information about his financial performance.

89    As I have indicated, the question of whether Mr Hastwell made his billing target for the 2013/2014 financial year is in issue, because he alleges that Kott Gunning gave him a lower pay rise than his peers even though he had exceeded his annual budget. The same assertion is made in his main affidavit although without much supporting detail. I have doubts, however, about whether it follows that an examination of all files is warranted.

90    Kott Gunning has produced documents relevant to those allegations. Mr Williams' affidavit annexes a report for Mr Hastwell's financial performance as at 30 April 2014, which is when, according to the affidavit the process of reviewing salaries commenced. Mr Hockless' affidavit annexes a list of the files that Mr Hastwell worked on during his employment at Kott Gunning with figures for his billings on each file. There are at least 10 other documents in Kott Gunning's discovery list which, on the face of the descriptions, are relevant to the issue of Mr Hastwell's billing performance and pay review.

91    In oral submissions Mr Hastwell put his reasons for saying that there is more to be discovered as follows:

… what I'm pretty much saying is that I can see the discrepancy on the printouts that that [sic] they provided and I'm not going to tell them what it is. But I can tell you that there are files that don't look familiar to me. And I may need to go over by, you know, looking over the file, calculating my billable time. Because I can tell you right now that those printouts are not correct.

92    This, once again, was purported evidence given from the bar table alleging that the records that had been produced were incomplete or incorrect. But Mr Hastwell was unable to point to anything in the materials that supported these assertions about the discrepancy which, he indicated, he refused to identify for Kott Gunning. In the absence of that evidence, there is nothing before me to suggest that the records that have been produced are inaccurate or incomplete.

93    Subject to questions of adequate notice of his case, none of this prevents Mr Hastwell from seeking to adduce evidence on the issue at trial. But for the purposes of this discovery application, he has failed to point to any material establishing a deficiency in Kott Gunning's discovery on the subject. I will not order particular discovery of categories 45 to 47 of Schedule A to Mr Hastwell's interlocutory application.

Categories 48 to 49, 52 and 70 - failure to provide work

94    As I have indicated, in his statement of claim Mr Hastwell alleges that Kott Gunning failed to give him any new work from around mid-July 2014.

95    Mr Hastwell seeks discovery of 'All material regarding the distribution of files within the insurance department whilst the applicant was employed at Kott Gunning' and emails of 'insurance department employees seeking work or providing work' during that period.

96    Mr Hastwell submitted that these materials were relevant to the issue raised at paragraph 94 of his main affidavit. That affidavit largely replicates the allegations, including particulars, in paragraph 42 of the statement of claim in which this allegation is made.

97    The main difficulty with Mr Hastwell's application in this regard is that, as I have indicated, Kott Gunning admits that it gave him no new work from mid-July 2014. He does not allege that other employees were receiving new work or point to any specific instance of that as evidencing discrimination against him.

98    Mr Hastwell's submissions also referred to paragraph 42(d) of Kott Gunning's defence. That responds to a plea of a meeting which Mr Hastwell says he had with Mr Hockless and Mr Williams about work allocation and that no new files were forthcoming from any of the partners. The defence asserts that Mr Crisp, a partner of Kott Gunning, had asked for assistance on five or six new files, but that Mr Hastwell responded that he could only take one. There is no evidence that any documents were generated as a result.

99    Mr Hastwell also sought discovery in relation to paragraph 42(g) of the defence. In that paragraph, Kott Gunning alleges that the practice in the insurance section was that lawyers or secretaries would email the whole section if they had capacity asking for more work, but Mr Hastwell never did.

100    Kott Gunning's allegation, in terms, indicates that such emails were generated, and that is hardly surprising. But in my view to order discovery of all such emails over the period September 2013 to January 2015 would be disproportionate to the importance of the question in the context of the issues raised by the pleadings and will not facilitate the efficient conduct of the proceedings. It is difficult to see how keyword searches could isolate such emails easily, so Kott Gunning would be forced to comb through what would no doubt be many thousands of emails to find those that go to the allegation it has made. The reason why that is disproportionate to the importance of the issue is that the allegation in paragraph 42(g) of the defence about the usual practice of people seeking work in the insurance section is only provided by way of background, as contrast to the claim that Mr Hastwell never asked for work in that way. I do not consider that the wide ranging inquiry that would be required to give full discovery in relation to the alleged practice is justified in view of the relative unimportance of the allegations.

101    By category 70, Mr Hastwell seeks discovery of documents that confirm the redundancies of named employees. It would appear that this relates to the question of workload in the insurance department as well. Kott Gunning denies that the redundancies occurred and there is no evidence in the materials to say that they did occur. If they did, that would tend to undermine Mr Hastwell's allegation that he was denied work in some discriminatory way, as it would indicate that work was generally scarce in any event. This category is of questionable relevance, and there is nothing in the materials to suggest that any redundancies, and therefore any documents confirming them, have ever existed.

102    I will not order discovery in relation to documents in categories 48, 49, 52 and 70 of Schedule A to Mr Hastwell's interlocutory application.

Categories 50 and 51 - paragraph 79C of the defence

103    Paragraph 79 of the statement of claim relevantly claims that Kott Gunning, its servants and/or agents perceived Mr Hastwell's claimed disability, namely his anxiety, as being caused by intoxication from drugs and/or alcohol, and therefore discriminated against and harassed him in the ways claimed.

104    Paragraph 79 of the defence relevantly pleads in response to this that:

the Respondents deny that the Applicant was harassed as a result of any alleged disability, including any perceived disability.

…

B.    Kott Gunning and, so far as the Respondents are aware, its employees and agents did not perceive the Applicant to have an alcohol or drug related disability.

C.    The Respondents do not admit that an actual or perceived drug or alcohol addiction is a disability for the purposes of the Disability Discrimination Act 1992 (Cth).

105    Mr Hastwell seeks discovery of all material regarding his actual or perceived drug or alcohol addictions in accordance with paragraph 79C of the defence.

106    This is based on a misunderstanding of the pleadings. It is Mr Hastwell who alleges that he had a perceived drug or alcohol addiction. At no point does Kott Gunning allege that. To the contrary, the firm denies that it or its employees were aware or perceived that he had any alcohol or drug related disability. There is nothing to suggest that Kott Gunning has control of documents going to something that it says it never perceived. And there is no allegation by any party that Mr Hastwell had an actual drug or alcohol addiction.

107    The plea at paragraph 79C is a general proposition which puts Mr Hastwell to proof of his claim that an actual or perceived drug or alcohol addiction is a disability for the purposes of the Disability Discrimination Act. That is, in essence, a legal issue about the proper construction of the Act. No discovery is necessary or useful in relation to it. I will not order discovery of categories 50 and 51 of Schedule A to Mr Hastwell's interlocutory application.

Categories 53, 54, 65 and 66 - pay and superannuation

108    Mr Hastwell seeks discovery of all material regarding his pay from Kott Gunning, including payslips, superannuation, bank transfers, sick pay and holiday pay. He also seeks material regarding insurance department employee pay, pay rises and targets for the relevant financial years.

109    This appears to relate to the allegation that Kott Gunning gave Mr Hastwell a lower pay rise for the 2014/2015 financial year than it should have. Kott Gunning has discovered a bundle of his payslips already. Mr Hastwell tendered into evidence two more payslips which he said were not in that bundle and which indicated that it was incomplete. But be that as it may, there is nothing to indicate that the amount Kott Gunning actually did pay him is in issue, so there is no reason to think that payslips and similar materials are relevant.

110    As for the material concerning other employees' pay rises and targets, I accept that such material would be relevant to Mr Hastwell's claim, in effect, of pay discrimination. However Kott Gunning points to documents that it has already discovered in its first list, including item 328 'Copy of email from Emma Leys to Emma Leys. Subject: "FE: Remuneration scales for 2014/15 budgets" (forwarding chain of emails between [various people] with subject line "Remuneration scales for 2014/15 budgets")' dated 12 September 2018 and item 465 'Copy of Kott Gunning Staff List - Budget Forecast 2014/2015 (with highlighted column and handwritten annotation)' which is undated. There is no evidence that Kott Gunning has anything more.

111    I will not order discovery of categories 53, 54, 65 and 66 of Schedule A to Mr Hastwell's interlocutory application.

Categories 55 and 56 - insurance

112    At document categories 55 and 56, Mr Hastwell seeks discovery of Kott Gunning's workers compensation policies from 2014 to the present, and all material regarding Kott Gunning's notification of its workers compensation claim to QBE Insurance regarding him, and QBE's responses.

113    The only reference to workers' compensation in the statement of claim is to a speech that Mr Crisp gave about workers' compensation stress claims and an allegation by Mr Hastwell about what he took from a conversation with Mr Crisp about that.

114    When asked why Kott Gunning's workers' compensation policies were relevant, all Mr Hastwell could point to was to raise the question of what Kott Gunning notified QBE of when it claimed on that policy. But the terms of the policies cannot bear on that. What those terms are, and whether the policies respond to any claim concerning Mr Hastwell, is a matter between Kott Gunning and QBE.

115    As for the notification to QBE of any such claim, that did occur, and the written notification has been discovered. When asked why QBE's response to that is relevant, Mr Hastwell was unable to say. As far as I can tell, the notification is not in evidence before me - as I have said, the affidavit evidence is voluminous and if it is there, I was not referred to it. While it can be expected that QBE did respond, I have no basis to infer that the response may be relevant to any issue in the proceedings.

116    I will not order discovery of categories 55 and 56 of Schedule A to Mr Hastwell's interlocutory application.

Categories 57 to 63 and 71 - notification of bullying and harassment

117    At document categories 57 to 63, Mr Hastwell seeks discovery of 'material' relating to conversations that he pleads he had with various partners and employees of Kott Gunning. At one of those, being a conversation with Mr Williams on 26 May 2014, he handed over what he calls his 'Informal Complaint', and he seeks discovery of material regarding that too. He also seeks, at category 71, material regarding meetings 'of a similar nature' to that meeting.

118    Kott Gunning admits that most of these conversations occurred, although it may differ from Mr Hastwell's account of what was said during them.

119    The suggestion that there is additional, unspecified 'material' in relation to these matters is entirely speculative. There is nothing in the pleadings or evidence to suggest, for example, that any of the persons who engaged in the conversations made any record of them. And if they had, and if they were within Kott Gunning's control, it is inherently unlikely that Kott Gunning would not have discovered them already. As I have said, while the affidavits of discovery are not conclusive, that does not mean that they can be ignored. Something more than speculation is necessary to permit a finding that a party has omitted to discover such obviously relevant material, if it exists. There is nothing more than speculation here.

120    The suggestion that there is material about meetings 'of a similar nature' is even more speculative.

121    I will not order discovery of categories 57 to 63 or 71 of Schedule A to Mr Hastwell's interlocutory application.

Category 64 - fire drill

122    At document category 64, Mr Hastwell seeks 'All material confirming fire drill on 16 July 2014 to or from building management and to and from staff members'.

123    This relates to allegations at paragraph 29 of the statement of claim to the effect that on that date, Kott Gunning or its servants or agents entered Mr Hastwell's office when he was not there and searched his belongings. Kott Gunning denies this. Mr Hastwell's main affidavit asserts that it happened during a fire drill.

124    I accept that in the usual course of things it is likely that Kott Gunning received some written notification of the fire drill, if it occurred. It may be that the firm no longer has that notification, but that is able to be clarified by way of discovery.

125    I also accept that documents indicating whether the fire drill occurred on that day are directly relevant as either documents that support Mr Hastwell's case or, if they indicate that there was no fire drill on that day, documents that adversely affect his case: see r 20.14(1)(a), r 20.14(2)(c) and r 20.14(2)(d). I doubt that the documents will be difficult to find, if they still exist. I do not consider that ordering discovery of them prejudices Kott Gunning, despite the lack of specific submissions from Mr Hastwell on the point, as it must have been evident on the face of the proposed category why the documents were sought.

126    I will order discovery in relation to category 64 of Schedule A to Mr Hastwell's interlocutory application.

Category 67 - handling employees with drug and alcohol issues

127    At document category 67, Mr Hastwell seeks 'material' evidencing Kott Gunning's dealing with a junior female staff member with an alcohol abuse problem as indicated at paragraph 8 of the statement of Mr Williams.

128    There is nothing in the evidence to suggest that this incident, generated any documentation. But even if it did, it cannot be relevant to the current proceedings. The way that Kott Gunning dealt with another staff member who had an alcohol abuse problem can have no bearing on whether Mr Hastwell was subject to the bullying and harassment he alleges occurred to him at the firm.

129    I will not order discovery in relation to category 67 of Schedule A to Mr Hastwell's interlocutory application.

Categories 68 and 69 - IT searches

130    At document categories 68 and 69, Mr Hastwell seeks discovery of material in relation to certain searches of Kott Gunning's computer systems that are mentioned in Mr Hockless' affidavit, and the current 'Kott Gunning disaster recovery policy'.

131    Mr Hockless says that he could not find a medical certificate which Mr Hastwell's former lawyers sent to Kott Gunning advising that Mr Hastwell was unfit for work from 3 March to 3 April 2015. Mr Hockless says that Kott Gunning 'engaged IT consultants to conduct a search of our data to see if the medical certificate found its way onto any other file, but without success'.

132    Since the certificate was sent to Kott Gunning by Mr Hastwell's former lawyers, there is a clear record of it having been sent. Mr Hockless says he does not dispute that it was sent, but suggests that he accidentally deleted the email without reading it.

133    The issue on the pleadings to which the certificate is relevant is Kott Gunning's allegation at paragraph 64 of its defence that one of the reasons that it dismissed Mr Hastwell, by letter dated 26 March 2015, was that he had been absent from the workplace for over three months and had not provided any medical certificate for the period after 2 March 2015. The reasons why it dismissed him are relevant because at paragraph 64 of the statement of claim, he alleges that the dismissal was part of the discrimination against him because of his sexual orientation.

134    Since there is no dispute that a medical certificate for that period had been provided, the issue becomes whether Mr Hockless saw it (before he read the affidavit of Mr Hastwell sworn 9 August 2018 to which it is attached). If he did see it before Mr Hastwell was dismissed on 26 March 2015, that would tend to cast doubt on Kott Gunning's claim that it dismissed him partly because it did not have any medical certificate for the period after 2 March 2015.

135    However in my view 'material', if any, about the searches of the computer system is not going to shed light on that issue. Kott Gunning does not dispute that the email was received. So it was on Kott Gunning's system at some point. What is at issue is whether Mr Hockless saw it before 26 March 2015.

136    There is no basis to say that the email is still on Kott Gunning's system but has not been discovered. Kott Gunning's affidavits of discovery are evidence to the contrary and, once again, while they are not conclusive, they are still probative evidence. The evidence that expert searches were conducted further decreases the probability that Kott Gunning has the email.

137    Discovery of more detail about searches for the email is unlikely to shed any light on whether Mr Hockless saw it before 26 March 2015. Whether or not the email was subsequently recoverable after an expert search of Kott Gunning's systems says nothing about that question. The disaster recovery policy is even less relevant - no catastrophic loss of data has been alleged. I am not satisfied that any of this material will facilitate the efficient conduct of the proceedings.

138    I will not order discovery of categories 68 and 69 of Schedule A to Mr Hastwell's interlocutory application.

Categories 72 and 73 - complaints

139    At document categories 72 and 73, Mr Hastwell seeks discovery of all material regarding two complaints about a named partner by each of two named employees. However the only evidence suggesting that any such complaints were made is vague hearsay evidence to the effect that 'a number of complaints had been made' against the partner and 'nothing had ever been done about those complaints'. The subject matter of the complaints and the identity of the alleged complainants is not specified. So there is no basis to conclude that documents about the complaints may be relevant to the issues in these proceedings. Nor is there any basis for the speculation that such documents exist; the suggestion that nothing was ever done about the complaints tends to suggest that they do not.

140    I will not order discovery of categories 72 and 73 of Schedule A to Mr Hastwell's interlocutory application.

Summary regarding Mr Hastwell's application for discovery

141    I will order discovery in relation to categories 42, 44 and 64 of Schedule A to Mr Hastwell's interlocutory application. In relation to category 44, Kott Gunning has liberty to apply. I will not order discovery in relation to any of the other categories that are the subject of Mr Hastwell's application.

Kott Gunning's application for particular discovery

142    Kott Gunning applied for discovery in relation to six separate documents or categories of documents. At the hearing, only the first five of these were pressed. Mr Hastwell conceded that he should give discovery in relation category 4. So four of the categories ended up being in issue.

143    The principles I have identified above in relation to Mr Hastwell's application apply equally to the application by Kott Gunning.

Category 1 - medical and pharmaceutical reports and records

144    Kott Gunning sought discovery of Mr Hastwell's medical and pharmaceutical reports and records for the five year period prior to the commencement of his employment in September 2013.

145    Kott Gunning submits that this material is relevant because Mr Hastwell pleads that he suffered loss and damage including anxiety and depression as a result of Kott Gunning's actions. Kott Gunning says that there is, however, evidence that Mr Hastwell had one of those conditions, namely anxiety, for at least five years before he commenced employment with the firm. Mr Hastwell does not dispute this, so there is no need to go into detail about that evidence.

146    Mr Darbyshire deposes to the fact that Mr Hastwell has not discovered any medical records for the period before 18 June 2013. Mr Hastwell did not deny that or put on any evidence as to whether he had discovered any medical and pharmaceutical reports and records.

147    I accept that this material provides a basis to consider that the documents sought are likely to exist. There is a reasonable likelihood that if Mr Hastwell had suffered from anxiety for some five years leading up to June 2013 he would have sought medical help for that, which would have generated documentation such as medical certificates, prescriptions and possibly reports.

148    I consider that Mr Hastwell should be required to discover any such material. That is because, if he already suffered from anxiety or depression, that suggests that it was not caused by any actions of Kott Gunning. I make no finding to that effect, of course - it is merely one possible consequence of accepting evidence on that subject, if any exists, and I do not rule out the possibility that if Mr Hastwell establishes at trial that Kott Gunning engaged in discrimination, bullying and harassment, that may have exacerbated any pre-existing condition or, conceivably, triggered a relapse.

149    It will not be unduly onerous for Mr Hastwell to go through his medical records from September 2008 (if he retains any) to September 2013 to ascertain what documentation of that nature he has.

150    I will order discovery in relation to category 1 in Kott Gunning's application. Mr Hastwell implicitly accepted in his written submissions that such material may be relevant if it is limited by reference to anxiety and depression disorders. Kott Gunning, however, submitted that it should cover all non-physical ailments. I am satisfied that there is sufficient relevance in non-physical ailments to warrant discovery in view of the fact that the same searches will need to be conducted anyway, and the implied undertaking will give protection to Mr Hastwell's privacy (subject to the possibility that the material is eventually admitted into evidence at trial).

151    I will order that Mr Hastwell give discovery of his medical and pharmaceutical reports and records for the five year period prior to the commencement of his employment in September 2013 in so far as those documents concern any ailment, condition or medical complaint that is not solely physical in nature.

Categories 2 and 3 - previous employment documentation and income tax returns

152    Kott Gunning seeks discovery of documentation of Mr Hastwell's employment history in the five years leading up to his employment with Kott Gunning and tax returns for the financial years during that period.

153    Kott Gunning submits that this material is relevant because Mr Hastwell claims damages for loss of income, loss of opportunity for promotion and advancement at Kott Gunning, and damage to his professional and personal reputation. Kott Gunning says that his work history and past earnings are relevant to assessing the extent of any financial loss.

154    Documentation of Mr Hastwell's work history is also said to be relevant to assessing what reputation he had at the time he was employed by Kott Gunning. Mr Hastwell's own evidence is that he was told one month into a three month probation period at the employer immediately preceding Kott Gunning that he would not be employed on a permanent basis and he resigned before the probation period was complete.

155    Mr Hastwell resists discovery of this material. He submits that it is not directly or indirectly relevant. He says that because his claim for economic loss can only concern earnings from the time he ceased employment at Kott Gunning, tax returns predating that employment cannot be relevant. He says that the other documentation of his employment history cannot be relevant to his reputation.

156    In my view the material is relevant. Documents showing what Mr Hastwell was earning before he worked at Kott Gunning, and his employment history up to that time, are directly relevant to the question of what his earning capacity would have been had Kott Gunning not engaged in the alleged bullying and harassment. That is especially so since the pay rise he obtained at Kott Gunning is alleged to have reflected the discrimination in which he says Kott Gunning engaged. If he makes good his allegation that his pay at Kott Gunning was, in effect, distorted by the contravening conduct, then evidence of what he was paid by other employers will be relevant to determining any lost earning capacity.

157    Mr Hastwell claimed that the materials should not be discovered because his economic loss is something for him to 'prove and raise with the court'. He is correct to say that the onus of proof of his loss is on him. But that does not exempt him from discovery in relation to the issue. Since the issue is raised in the proceedings, anything that is (at least) directly relevant to it may be discoverable. Rule 20.14(2) makes this clear, as not only documents on which a party intends to rely are directly relevant, but also documents that adversely affect the party's own case.

158    Similarly, Mr Hastwell's employment history with other employers will be directly relevant to assessing the reputation which he says was affected by the conduct of Kott Gunning, that being the reputation he had when he started at the firm. It is unclear why Mr Hastwell submits that any 'material in my possession can have no bearing on my reputation'. The reasons for the cessation of his employment with previous employers may well be reflected in communications between those employers and Mr Hastwell.

159    The tax returns and the documentation as to previous employment constitute material which, in the usual course, may be expected to exist or to have once existed. Mr Hastwell did not claim that this material has been discovered.

160    Once again, I do not consider that it will be onerous for Mr Hastwell to locate and produce this material, if he still has it. It is limited to tax returns, employment contracts, letters of appointment, letters of resignation and letters of termination. That is not likely to be voluminous.

161    Nevertheless, in my view five years is too long a period to go back. I consider that three years before the commencement of Mr Hastwell's employment with Kott Gunning is sufficient time to capture anything likely to be relevant to the issues I have identified.

162    I will order discovery of categories 2 and 3 in Kott Gunning's application, but limited in time to the three years preceding his employment with Kott Gunning.

Category 4 - electronic or digital records of Mr Hastwell's social media conversations and meetings

163    Mr Hastwell conceded category 4, in his affidavit sworn 26 July 2019. I will therefore order discovery as sought by Kott Gunning in relation to its category 4.

Category 5 - complaint to the Medical Council of New South Wales

164    Kott Gunning seeks discovery of documents in relation to a complaint that Mr Hastwell made to the Medical Council of New South Wales concerning Dr Julian Parmegiani.

165    Dr Parmegiani is a psychiatrist from whom Mr Hastwell's previous lawyers commissioned a report for the purposes of his claim against Kott Gunning. I infer that was to support his allegation that he was subject to a disability because of a psychiatric condition, namely anxiety. There is evidence that the report was unfavourable to Mr Hastwell's case. It is not necessary to go into detail as to why; suffice to say that Dr Parmegiani appears to have reached conclusions about Mr Hastwell's psychiatric condition which, if correct, would potentially undermine the credibility of the claims that Mr Hastwell makes in these proceedings.

166    Mr Hastwell made a complaint to the Medical Council of New South Wales about Dr Parmegiani which, under s 11 of the Health Care Complaints Act 1993 (NSW), was taken to have been made to the Health Care Complaints Commission of New South Wales (HCCC). The HCCC dismissed the complaint.

167    Dr Parmegiani's report has not been discovered, let alone produced. The reason there is evidence as to its contents is that when the HCCC dismissed Mr Hastwell's complaint, he applied for judicial review to the Supreme Court of New South Wales. Kott Gunning has adduced evidence of Mr Hastwell's amended particulars of claim in the judicial review application, in which he says that the report 'completely contradicts my claim and went further, to directly challenge my credibility'. The particulars of claim set out extracts from the report which bear that description out.

168    Mr Hastwell resisted discovery of documents relating to the HCCC complaint on several bases. One was a submission that it 'would be in contempt of the Supreme Court of New South Wales to include such references'. This appeared to encompass a claim that Kott Gunning had given an express undertaking to the Supreme Court restricting the use that could be made of the documents. Mr Hastwell also referred to the 'implied undertaking' which is the subject of Harman v Secretary of State for the Home Department [1983] 1 AC 280, and to the fact that while the Supreme Court of New South Wales has heard the judicial review application, it is yet to deliver judgment. Mr Hastwell also submitted that in obtaining the documents, Kott Gunning had impermissibly relied on without prejudice communications.

169    In order to assess these submissions it is necessary to describe how Kott Gunning acquired a copy of the particulars of claim, which is the document on which it relies for the purposes of this aspect of its discovery application.

170    Mr Hastwell has produced a heavily redacted copy of what appears to be an email dated 27 November 2018 from him to Kott Gunning's solicitors making a without prejudice settlement proposal. The only part of the body of that email which is not redacted gives the title and matter number of the Supreme Court application for judicial review of the HCCC's decisions, and similar details of an application for judicial review of a decision of the Legal Services Commissioner (which is not relevant since Kott Gunning no longer presses its category 6).

171    It appears that the reference to the judicial review proceedings in that email alerted Kott Gunning to the existence of the proceedings, and prompted the firm to seek access to documents filed in the proceedings. On 20 May 2019 Mr Williams emailed the Supreme Court referring to both judicial review proceedings in that court and saying that the firm wished 'to apply as a non-party for access to these two files so as to obtain copies of the pleadings'. The email said that the court's on-line access form appeared to contemplate personal inspection, which was inconvenient given that Kott Gunning was located in Perth. It asked whether it would be possible to obtain copies of the documents by email.

172    The email attached two application forms for access to the court file. In relation to the one concerning the HCCC proceedings, in the box provided for the reasons for access to the file, Kott Gunning said as follows:

We are the respondents in Federal Court action Hastwell -v- Kott Gunning NSD714/2017.

On 27 November 2018 the applicant in those proceedings, also the plaintiff in the NSW Supreme Court proceedings noted above, wrote to our lawyers disclosing his involvement in the NSW proceedings, which he said were related to the current Federal Court proceedings against us, and to Supreme Court NSW action Hastwell -v- Legal Services Commissioner Mr John McKenzie 18/197067. This was the first time we became aware of the two sets of NSW proceedings.

Hastwell -v- Legal Services Commissioner Mr John McKenzie 18/197067 is the subject of a separate application for access to documents.

Hastwell has suggested any potential settlement of the three matters be approached as a 'package deal' but when asked for details of the NSW Supreme Court proceedings noted above said he was 'not in a position to meaningfully respond' and 'I cannot obtain authority from any third party', thus we seek access to the above-mentioned documents to explore opportunities to bring three sets of proceedings in two jurisdictions to a close.

173    The form was signed on behalf of Kott Gunning on 17 May 2019. Above the signature the form said:

I the applicant agree that I will not remove or tamper with any document on this file during inspection, nor will I remove the file from the registry inspection area.

I further undertake to return the file to the viewing room counter immediately upon completion of inspection.

174    As a result of a telephone call from the Supreme Court registry, on 23 May 2019 Mr Williams sent another email, this time to the Chambers of Justice Rothman, who had been assigned to hear the application for judicial review of the HCCC decision. Mr Williams' email said that it had been suggested in the call that it may be more expedient to contact his Honour's Chambers direct in order to seek access to the file and asked whether that was 'the best way forward'.

175    Justice Rothman's Chambers responded on the same day annexing the amended particulars of claim and the defendant's response. The covering email said nothing about the basis on which the documents were provided or any restrictions on the use to which they could be put.

176    I will first consider the question of what is often called the implied undertaking, that is, the obligation for which Harman is sometimes cited as authority. Senior counsel for Kott Gunning submitted that this obligation did not apply to the firm here because it was not a party to the HCCC proceedings nor the servant, agent or privy of any party. He relied on Hearne v Street [2008] HCA 36; (2008) 235 CLR 125 to submit that, while the courts sometimes apply the principles 'by analogy' when deciding whether to grant access to the court file to a stranger to the litigation, the implied undertaking does not apply to such non-parties 'directly'. He submitted that while Hearne v Street was authority for the proposition that the obligation can extend to the servants and privies of parties, there was no authority for the proposition that it extends to a stranger to the litigation.

177    Hearne v Street involved proceedings for contempt against directors of companies involved in litigation or of related companies. The directors had sent part of an expert report filed on behalf of the opposing parties in the litigation to a minister of the State in order to gain support for an Act of Parliament that would affect the ability of the other parties to prosecute the litigation. The High Court unanimously held that the directors were in contempt.

178    At [96]-[97] Hayne, Heydon and Crennan JJ (Kirby J agreeing) described the obligation the directors had breached as follows (footnotes omitted):

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits ...

It is common to speak of the relevant obligation as flowing from an 'implied undertaking'.

179    The plurality went on (at [106]-[107]) to confirm that what is often called the 'implied undertaking' is in fact a substantive obligation imposed by law as a condition of discovery (although the types of material listed in the quote above shows that their Honours were not limiting the obligation to the discovery process). Their Honours set out a number of quotes from other cases explaining the purpose of the rule as being to limit the invasion of privacy and confidentiality consequent on litigation, so that it goes no further 'than is strictly required for the purpose of securing that justice is done': Hearne v Street at [107] quoting from Lord Keith of Kinkel in Harman at 308.

180    The plurality went on to consider when non-parties such as the directors were subject to the obligation. (While Gleeson CJ agreed in the result, he found that the directors were agents of a party to the litigation and so did not consider it necessary to decide how far beyond servants and agents the obligation extends: see Hearne v Street at [3]-[4]). At [109] the plurality said that in both England and Australia, the various instances in which it has been held that non-parties are subject to the undertaking 'have been broadened into a wider and coherent principle'. A statement of that principle in England was that '[A]ny person who knowingly … does acts which are inconsistent with the undertaking is himself in contempt and liable to sanctions': Hearne v Street at [109] quoting Hobhouse J in Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 at 765. For Australia, the plurality quoted with approval (at [110]) the dictum of Anderson J in Hamersley Iron Pty Ltd v Lovell (1998) 19 WAR 316 at 334-335: 'The implied undertaking is binding upon anyone into whose hands the discovered documents come, if he knows that they were obtained by way of discovery'. And at [111] they quoted with approval statements of Lord Denning MR and Stephenson LJ in Riddick v Thames Board Mills Ltd [1977] QB 881 to the effect that anyone who uses the documents for an 'ulterior or alien' purpose or who makes 'improper use' of them breaches the undertaking. The plurality concluded 'Use with knowledge of the circumstances would be improper use'.

181    As a bald proposition, therefore, it would be incorrect to say that the obligation (or implied undertaking) cannot apply to a stranger to the litigation. Nevertheless, I accept that it does not apply to Kott Gunning in the present circumstances. As Hearne v Street confirms, the content of the obligation is that the material cannot be used for any purpose other than the purpose for which the party disclosing the material provided it. That is in the context where the party to litigation has been compelled as part of the court process to make disclosure. It follows that the purpose for which use is authorised is the purpose for which the documents were compelled to be disclosed, typically for use in the litigation.

182    It makes no sense to apply that obligation to a stranger to the litigation who has obtained the material from the court as a result of an application to the court for access to documents on the court file. That is because persons who obtain material that way will almost invariably wish to do so for reasons other than use in the litigation. They are, after all, strangers to the litigation who cannot obtain the documents other than by application to the court. The use to which they want to put the material will be foreign to the purpose of the Harman obligation. That is most obviously so in the frequent cases where the applicant for access is a media organisation which wishes to publish a report based on the material. But it must go for any applicant who is not seeking access merely out of idle interest.

183    The obligation is an obligation to the court: Bourns v Raychem Corporation [No 3] [1999] 1 All ER 908 at [16] (Laddie J), quoted with approval in Hearne v Street at [106]. It is an obligation the court has the right to control and the court can modify or release a person from it: Australian Competition and Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32; (2009) 174 FCR 547 at [47] (Mansfield, Kenny and Middleton JJ). It must follow that if a person seeks access to material for use other than in the litigation, and the court grants access to that person, the person is not subject to an obligation to use the material only for the purposes of the litigation.

184    That is inherent in the approach that the courts take to applications for access by third parties. The usual approach of the Supreme Court of New South Wales is set out in its Practice Note SC Gen 2 Supreme Court - Access to Court Files (1 March 2006). The guidance in the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) is limited; r 36.12(2) of those rules merely provides:

Unless the court orders otherwise, on payment of the fee prescribed by the regulations under the Civil Procedure Act 2005, the registrar:

  (a)    must furnish to any party to any proceedings, and

(b)    may furnish to any other person appearing to have a sufficient interest in the proceedings,

a copy of any pleading or other document that has been filed in the proceedings.

185    The practice note supplements this, relevantly as follows:

Introduction

4.    The purpose of this Practice Note is to prescribe the procedures surrounding the provision of access to court files.

Search

5.    A person may not search in a registry for or inspect any document or thing in any proceedings except with the leave of the Court.

Access

6.    Access to material in any proceedings is restricted to parties, except with the leave of the Court.

7.    Access will normally be granted to non-parties in respect of:

•    pleadings and judgments in proceedings that have been concluded, except in so far as an order has been made that they or portions of them be kept confidential;

•    documents that record what was said or done in open court;

•    material that was admitted into evidence; and

•    information that would have been heard or seen by any person present in open court,

unless the Judge or registrar dealing with the application considers that the material or portions of it should be kept confidential. Access to other material will not be allowed unless a registrar or Judge is satisfied that exceptional circumstances exist.

…

13.    A person to whom any document or thing is produced by the Court for inspection may make copies of or take extracts from the document or thing.

14.    It should not be assumed that material held by the Court comes within paragraph 7. Affidavits and witness statements that are filed in proceedings are often never read in open court. This can occur because they contain matter that is objected to and rejected on any one of a number of grounds or because the proceedings have settled before coming on for hearing. Affidavits, statements, exhibits and pleadings may contain matter that is scandalous, frivolous, vexatious, irrelevant or otherwise oppressive. UCPR 4.15 allows the Court to order this type of matter to be struck out of a document.

15.    If access to material were to be given prior to the conclusion of the proceedings to which it relates, material that is ultimately not read in open court or admitted into evidence would be seen. Thus, access will not normally be allowed prior to the conclusion of the proceedings.

16.    Even where material has been read in open court or is included in pleadings, there may be good reason for refusing access …

17.    Application by a person, who is not a party to proceedings, for access to material held by the Court in the proceedings shall be made in the attached form to the registrar of the appropriate Division, who will refer doubtful cases to the Chief Justice or to a Judge nominated by the Chief Justice. The registrar or Judge may notify interested parties before dealing with the application. The applicant must demonstrate that access should be granted in respect of the particular documents the subject of the application and state why the applicant desires access. Enquiries may be made to the Court's registry on (02) 9230 8111.

18.    The person to whom access to material is granted normally may copy or take extracts from the material and the registry may assist with copying.

186    This demonstrates caution, for the reasons given in the note, about providing access to material that has not yet been disclosed in open court. Relevantly, pleadings will generally not be provided until after the proceedings have concluded.

187    There have been cases where courts have considered these principles in conjunction with the principles that inform the implied undertaking (as I will continue to call it, for convenience). In Akins v Abigroup Ltd (1998) 43 NSWLR 539 at 549 Mason P observed (Priestley JA and Rolfe A-JA agreeing):

The procedure for seeking access is now regulated by Practice Note No 97 (1998) 43 NSWLR 1 - Access to Court files by non-parties. A stranger to proceedings would not be in a position superior to that of a party, and a party must show 'exceptional circumstances' before leave will be given permitting the collateral use of documents subject to a Home Office v Harman undertaking: Complete Technology Pty Ltd v Toshiba (Australia) Pty Ltd (1994) 53 FCR 125 at 132-133; Esso [Australia Resources Ltd v Plowman (1995) 183 CLR 10] at 37.

The two cases cited by his Honour support the proposition that exceptional circumstances are required before leave will be given, not the proposition that a stranger to proceedings would not be in a position superior to that of a party.

188    In Eisa Ltd v Brady [2000] NSWSC 929 at [21]-[22] Santow J referred to Mason P's dictum and applied it to an application by a newspaper for access to pleadings. His Honour held that, just as when a party applied for release from the implied undertaking, exceptional circumstances would need to be shown before access to pleadings would be permitted. His Honour also applied the predecessor to Practice Note SC Gen 2, which was in similar terms. Santow J denied access at that stage in the proceedings. For present purposes, the significance of this is that, as reflected in the practice notes, the court dealt with the problem by denying access. It was not suggested that the applicant would be subject to any obligation if the pleading had been disclosed (and given that the applicant was a media organisation, nor could it be).

189    Barrett J adopted that analysis in Australian Securities and Investments Commission v Rich [2002] NSWSC 198. That case too involved media organisations seeking access to a pleading. Once again, the court denied access. At [16], after referring to Eisa Ltd, Barrett J observed:

At para 21 of his judgment, Santow J referred to the principle in Home Office v Harman [1983] AC 280 to the effect that a party to proceedings who gains access to documents pursuant to a pre-trial process comes under an implied undertaking not to use them for a collateral purpose. The relevance of that consideration in a context such as the present was the subject of analysis by the Industrial Commission in Court Session (Wright, Walton and Hungerford JJ) in Stonham [v Speaker of the Legislative Assembly of New South Wales (No 1) (1999) 90 IR 325]. That parties were subject to such an inhibition was taken as an indication that access by a non-party should not be allowed where the motivating purpose was one from which the relevant principles precluded parties themselves. Among these are 'a purpose of furthering public debate' or so that the documents concerned may be 'made a ground for comments in newspapers'. Publication to the world at large, even though motivated by a very proper desire to place in the public domain matters considered to be of genuine and general public interest, is thus a collateral purpose in which a party to litigation with access in the pre-trial phase to documents to which the Home Office v Harman principles apply may not engage; and so, by analogy, it should be regarded as a purpose which the court should not seek to facilitate or promote in addressing questions of access by non-parties to court files.

190    The point to be drawn from this for present purposes is that while the court may in the exercise of its discretion apply the implied undertaking 'by analogy' - that is, seek to protect parties to litigation to the same extent as the implied undertaking does by denying a non-party access to a document - that is not the same thing as saying that the implied undertaking applies when a third party does obtain access from the court. This supports the submissions that senior counsel for Kott Gunning made.

191    In Re Universal Music (Australia) Pty Ltd v Sharman Licence Holdings Ltd; Ex parte Merlin BV [2008] FCA 783; (2008) 222 FCR 580, Jacobson J dealt with an application by a non-party to defunct copyright infringement proceedings for access to a wide range of documents. The purpose for which access was sought was for the non-party, a licensing agency, to determine whether the copyright of its members had been infringed. His Honour considered the implied undertaking in the course of his decision and (at [60]) observed:

It seems to me to follow from Home Office v Harman that although non-parties are not subject to the implied undertaking, they are subject to the same type of restriction in relation to documents that have not been read in open court, or at least considered by the judge as evidence or submission. After all, why should a non-party, by the side-wind of access to a court file, be free from the constraint which applies to the persons who supplied the contents of the file?

192    His Honour granted access to affidavits to the extent that they had been read into evidence (the body of the affidavit only, not exhibits or annexures) and did not grant access to other documents sought. I do not read his statement that non-parties 'are subject to the same type of restriction' as the implied undertaking to mean that some obligation to the court necessarily arises if the court gives non-parties access. In context, I consider his Honour was just approaching the exercise of his discretion by reference to the same consideration that Santow J and Barrett J found relevant, namely that it is generally undesirable if non-parties are free to use documents in ways that parties are not. Once again, the solution was not to refer to or impose some obligation on the non-parties - it was to deny access altogether to anything that had not gone into evidence, or which remained the property of the parties.

193    The final case I need to mention in this regard is Alafaci v Mangano [2009] NSWSC 1131. There, Smart AJ found four defendants to be guilty of civil contempt because they used material they had obtained from the court file in one proceeding to support an application that one of them brought in a different (guardianship tribunal) proceeding. The material was comprised of documents that had been produced pursuant to subpoena in the court proceedings. There is therefore some similarity to the present situation, in that a non-party to the proceedings obtained the documents from the court file. His Honour held that in using the documents in the new (guardianship tribunal) proceedings, the defendants had breached the implied undertaking: at [71], [86], [96], [109] and [120].

194    However I do not read Alafaci v Mangano to stand for any general proposition that if a person who is not a party to litigation obtains documents from the court file, the person takes those documents subject to the implied undertaking. It does not appear that any argument was directed to Smart AJ as to whether the implied undertaking did apply in those circumstances. It appears to have been assumed that it did. In any event, the circumstances in the case were exceptional. The four defendants were three siblings and their mother who comprised one faction in a family that was 'divided into two bitter warring factions': at [3]. The other faction was comprised of the siblings' uncle (the mother's brother), Paul Alafaci, and the siblings' grandmother (the mother's mother), Mary Alafaci. Mary's husband (the grandfather/father) had died and two of the defendants had made a testator's family maintenance claim against his estate. Those were the court proceedings: see [10]. One of the siblings, who was not a plaintiff in that action, procured a work colleague to take copies of the documents that had been provided to the court under subpoena: see [18]. The court provided copies of the documents because the application form incorrectly said that the firm seeking access was acting for the plaintiff in the court proceedings: see [21]. The documents were then used to support the application to the Guardianship Tribunal in respect of Mary, alleging that Paul Alafaci was misusing her credit card.

195    So the non-parties to the court proceedings could hardly be described as strangers to the litigation. More to the point, access to the subpoenaed documents was gained pursuant to the practice note governing that subject (at [85]), and not under Practice Note SC Gen 2 concerning applications for access by third parties. And the access was gained because the person who filled out the form for access falsely indicated that the applicant was a firm acting for a party to the court proceedings. The copying of the documents was relevantly unauthorised by the court: see [85]. It is understandable why Smart AJ was prepared to find contempt in those circumstances. Alafaci v Mangano is distinguishable from this case.

196    I accept that the implied undertaking does not prevent Kott Gunning from using the particulars of claim in the HCCC proceedings to support its application for discovery in these proceedings. It does not apply in circumstances where Kott Gunning obtained the document as a non-party on request to the court.

197    However that is not the end of the question of whether the circumstances gave rise to restrictions on the use to which the document can be put. Mr Hastwell submitted that Kott Gunning was in breach of an express undertaking. In oral submissions it became clear that he was referring to the undertaking reproduced at [173] above. But that is solely an undertaking designed to prevent tampering with the original court file and to ensure that the file is returned intact after inspection. It says nothing about the use to which copies of the materials inspected can be put. As it turns out, Kott Gunning did not inspect the court file at all - it just received copies of the pleadings by email from Justice Rothman's Chambers.

198    The other possible source of obligation is the fact that Kott Gunning indicated that it sought access to the documents for a particular purpose. That is set out at [172] above. On the basis of the survey of the authorities I have made above, I do not consider that there is any general principle that a party to whom the court gives access is obliged to use the documents only for the reason given in the application for access. No such rule appears in Practice Note SC Gen 2, nor can it be derived from the application form. It is true that the form requires a reason for access to be given, but that is explicable on the basis that without a good reason, access will be denied. It does not follow that once the documents are provided they must only be used for the purpose indicated in the form.

199    It is conceivable that such an obligation may arise in the particular circumstances in which access is given. The party might give an undertaking or the court may impose the obligation as a condition of leave. But circumstances giving rise to an obligation punishable by contempt of court will not be found lightly: see Srotyr v Clissold [2015] NSWSC 1770 at [21]. In the absence of an express, or perhaps clearly implied, undertaking given by the applicant, or a condition imposed by the court, I do not consider that the obligation will arise.

200    It does not arise in the circumstances here. There is a statement in correspondence from the chambers of the judge overseeing the proceedings which Mr Hastwell brought against the Legal Services Commissioner of New South Wales, that 'Nothing will be released. Inspection only will be provided'. But that did not relate to the HCCC proceedings, and there is nothing to suggest that it was the result of any undertaking made by Kott Gunning.

201    It is true that Kott Gunning told the court that it was seeking access to the particulars of claim in the HCCC proceedings for a particular purpose, and it has now used them for a different purpose. But unless it obtained the document on the express or clearly implied basis that it could only use them for the purpose it disclosed to the court, it cannot be said to be in contempt for subsequently using the document for a different purpose. And there is no suggestion that Kott Gunning did not in fact have the purpose it expressed at the time of the application.

202    There is also an argument available that the implied undertaking did not apply in any event to a pleading. As Brereton J said in Helicopter Aerial Surveys Pty Ltd v Robertson [2015] NSWSC 2104 at [10], 'the touchstone of the obligation appears to be that of compulsion'. It could be said that the filing of Mr Hastwell's claim and the contents of the claim were each his choice. But there are conflicting authorities on this question. In Helicopter Aerial Surveys at [35] Brereton J observed that 'it has never been the case that pleadings have been regarded as subject to the implied undertaking'. But in Eisa Ltd at [21] Santow J said that the 'so-called Harman principle … may be taken to include pleadings'. Le Miere J took that approach in Buswell v Carles (No 2) [2013] WASC 54. Given my view that the implied undertaking does not prohibit Kott Gunning from the use it seeks to make of the particulars of claim in any event, it is not necessary to reconcile or choose between these lines of authority.

203    Turning to the argument based on without prejudice privilege, it is clear that the existence of the proceedings in the Supreme Court of New South Wales was disclosed to Kott Gunning in the course of a without prejudice communication. But that does not preclude Kott Gunning from obtaining material about those proceedings through means independent of the without prejudice communication. The without prejudice privilege prevents Kott Gunning from adducing evidence of the contents of the without prejudice communication. It does not prevent it from using the knowledge gained as a result of the communication in other ways. In Field v Commissioner for Railways for New South Wales (1957) 99 CLR 285 at 291-292 Dixon CJ, Webb, Kitto and Taylor JJ observed:

The law relating to communications without prejudice is of course familiar. As a matter of policy the law has long excluded from evidence admissions by words or conduct made by parties in the course of negotiations to settle litigation … This form of privilege, however, is directed against the admission in evidence of express or implied admissions. It covers admissions by words or conduct. For example, neither party can use the readiness of the other to negotiate as an implied admission. It is not concerned with objective facts which may be ascertained during the course of negotiations. These may be proved by direct evidence. But it is concerned with the use of the negotiations or what is said in the course of them as evidence by way of admission.

204    The types of communications that are protected by the privilege have been broadened since then to extend beyond pure admissions, to all bona fide statements, made for the purpose of attempting to compromise a dispute, which touch upon the strengths or weaknesses of the parties' cases or place a valuation on a party's rights: Samnakay v Schofield [2013] WASCA 138 at [44] (Newnes and Murphy JJA). But the principle that is relevant for present purposes remains the same; adducing evidence of the communications is what the privilege prevents, not the use of facts that are discovered by reason of the communications: see 789TEN Pty Ltd v Westpac Banking Corporation [2004] NSWSC 594 at [15]-[29] (McDougall J).

205    Mr Hastwell relied on s 131(1) of the Evidence Act 1995 (Cth). That subsection provides that evidence is not to be adduced of:

(a)    a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or

(b)    a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.

206    A court document in different proceedings that was obtained independently as a result of knowledge of the existence of the proceedings (a fact in the public domain anyway) that was gained in the course of settlement negotiations does not meet either of these descriptions.

207    Mr Hastwell also claimed that Dr Parmegiani's report was 'privileged in any event'. I take him to be referring to legal professional privilege. But if a relevant document is protected by that privilege, that does not make the document immune from discovery, being disclosure of its existence and confirmation that it is in the control of the party giving discovery (or, if it is not, what has become of it). The document must still be discovered. If privilege is claimed, then it should be discovered in Part 2 of the list. If the other party wishes to challenge that privilege, that issue will be dealt with at that point. The document will not be inspected by that party unless and until that issue is resolved in its favour.

208    It is also worth noting that if the document does end up being inspected, the inspecting party will be subject to the implied undertaking, restricting the use to which the document may be put. Further, discovery and any subsequent inspection and production of the document does not mean that the document will necessarily be admitted into evidence at any trial. Mr Hastwell claims that it is inadmissible, but it is well established that the criteria for discovery and the criteria for admitting a document into evidence are not the same: see e.g. Tracenia Nominees Pty Ltd v Centro Properties Ltd [1993] FCA 996 at 6-7 (Heerey J).

209    Mr Hastwell submitted that it would be prejudicial to rely on the material since it is the subject of pending proceedings before the Supreme Court of New South Wales. But there is no general principle that material that is filed in one proceeding is precluded from being produced or relied on in another proceeding. In any event, as I have said all that is being sought at the moment is discovery of the document. Inspection and any subsequent attempt to rely on the documents in court are matters that will be considered on their merits as and when they arise. They have not arisen yet.

210    Mr Hastwell also submitted that the references to Dr Parmegiani's report in Kott Gunning's evidence and submissions in support of its discovery application did not disclose the full meaning of the document and were therefore misleading. But there is no suggestion that the material advanced by Kott Gunning in support of its discovery application was a misleading representation of the effect of the material that was available to it, namely the particulars that Mr Hastwell filed in the Supreme Court. Kott Gunning put a full copy of the particulars into evidence. If that is not the complete picture in relation to the content of Dr Parmegiani's report, that cannot be blamed on Kott Gunning. It does not yet have access to the full report, which is one of the things it is seeking in the application.

211    On the basis of the description of Dr Parmegiani's report which Mr Hastwell gave in his proceedings for judicial review of the HCCC's decisions, the report is directly relevant to his claim against Kott Gunning. It would appear to adversely affect Mr Hastwell's case; his concern about that is one of the things that led him to commence the judicial review proceedings. I do not accept any of the submissions as to why the report should nevertheless not be discovered.

212    I will order discovery of Dr Parmegiani's report. There is evidence that Mr Hastwell's complaint about the report and accompanying documents ran to some 200 pages. I will also order discovery of those documents, as it is reasonably likely that what Mr Hastwell said about the report in the complaint, and what evidence he provided in support of what he said, would also be directly relevant to his mental state in the same way as the report itself seems to be. It is also possible that the documents filed with the complaint contained material on which Dr Parmegiani relied, or material which Mr Hastwell said contradicted Dr Parmegiani's opinion, either of which would be relevant.

213    But I am not persuaded that the wider category of documents which Kott Gunning seeks, namely all documents sent or received to or from the Medical Council of New South Wales and the HCCC are relevant. It is not clear what those subsequent documents concern. I am not satisfied that they are likely to be relevant to the issues in these proceedings. I will not order discovery of that wider category.

Summary regarding Kott Gunning's application for discovery

214    I will order Mr Hastwell to provide particular discovery in relation to categories 1 to 5 of Kott Gunning's interlocutory application, modified as I have indicated. Kott Gunning does not press category 6.

Orders

215    I will hear the parties as to what orders should be made to reflect these reasons. I will order the parties to confer as to costs of their interlocutory applications including the costs that were reserved from the case management hearings on 15 February 2019, 5 April 2019 and 30 May 2019.

Associate:

Dated:    8 October 2019