Federal Court of Australia

Austin Engineering Pty Ltd v Podulova [2023] FCA 419

ORDERS

BY CONSENT THE COURT ORDERS THAT:

1.    By no later than 5.00 pm AWST on 15 May 2023, the first respondent must file and serve an affidavit that attests, to the best of the first respondent's knowledge, to:

(a)    the storage devices as produced to the Court pursuant to paragraph 12 of the orders made on 20 April 2023 (20 April Orders);

(b)    in respect of the Western Digital Elements SE branded electronic storage device referred to in paragraph 10(a) of the 20 April Orders:

(i)    the reason(s) why the storage device has not been produced to the Court in accordance with paragraph 12 of the 20 April Orders;

(ii)    the location of the storage device;

(iii)    the date on which the storage device was last in the first respondent's control;

(iv)    the contents of the storage device from 13 January 2023 by way of a description of:

A.    the folders (i.e. folder names, description of contents of folders) copied from the applicant's computer network (if any);

B.    the files (i.e. description of the nature of the files) copied from the applicant's computer network (if any); and

C.    the files and folders referred to in (iv)(1) or (iv)(2) above (if any) that were deleted from the storage device between 13 January 2023 and the date in paragraph (iii) above (inclusive);

(v)    what computer(s) (if any) to which the storage device has been connected between 13 January 2023 and the date in paragraph (iii) above (inclusive); and

(vi)    what uses (if any) were made by the first respondent after 13 January 2023 of any of the files or folders referred to in (iv)(1) or (iv)(2) above (if any);

(c)    the materials produced to the Court in accordance with paragraph 13 of the 20 April Orders (Relevant Material);

(d)    the names of all email accounts and cloud storage accounts (if any) in the control of the first respondent which include any of the documents referred to in paragraphs 10(d) to (f) of the 20 April Orders;

(e)    the details (including the identity, kind, owner, administrator and location) of all computers, electronic storage devices, email accounts and cloud storages (if any) which were but are now not (or no longer) in control of the first respondent which contain (or did contain) a copy of any (or any part of any) documents, files, folders or emails that the first respondent took or copied from the applicant, its computer network, its email accounts or cloud storage accounts other than for the purpose of the first respondent performing her employment duties for the applicant (Other Copied Material);

(f)    the uses (if any) made by the first respondent of any part of any of the Relevant Material and Other Copied Material by way of a description identifying what (if any) material (or parts thereof) was used, in what manner (if any) it was used, the purpose (if any) for which it was used and the date(s) (if any) on which it was used;

(g)    the person(s) or entities (if any) to whom the first respondent has disclosed or provided any part of the Relevant Material or the Other Copied Material other than for the purpose of the first respondent performing her employment duties for the applicant, by way of a description identifying the relevant parts (if any), details of the manner (if any) in which it was disclosed or provided, the purpose (if any) for which it was disclosed or provided, and the date(s) (if any) on which it was disclosed or provided; and

(h)    confirmation of the first respondent's compliance with the Court's orders.

THE COURT ORDERS THAT:

2.    By no later than 5.00 pm AWST on 15 May 2023, a director of each of the second to seventh respondents must file and serve an affidavit that attests, to the best of their knowledge or belief, to:

(a)    the details of all computers and other electronic devices provided to the first respondent by or on behalf of one or more of the second to seventh respondents, including the make and model of any such computer or device;

(b)    the identification of the owner and administrator of each computer network which the first respondent has had access to in performing services for or on behalf of one or more of the second to seventh respondents;

(c)    the details of the username(s), profile(s) and/or account(s) assigned to the first respondent for the purposes of accessing any computers and electronic devices (referred to in sub-paragraph (a) above) and computer networks (referred to in sub-paragraph (b) above);

(d)    the details of all external storage devices connected by the first respondent to any computer or other electronic devices (referred to in sub-paragraph (a) above) and the computer network (referred to in sub-paragraph (b) above) including the name and serial number identifying the external storage device, and the date(s) and time(s) of any such connection;

(e)    the names of each of the email accounts provided to the first respondent by or on behalf of one or more of the second to seventh respondents and the identification of the owner and administrator of each of those email accounts;

(f)    the names of the cloud storage accounts that the first respondent has had access to in performing services for or on behalf of one or more of the second to seventh respondents and the identification of the owner and administrator of each of those cloud storage accounts;

(g)    the details of the 'comprehensive review' of IT systems referred to in the letter from Kennedy Vinciullo to HWL Ebsworth Lawyers dated 24 February 2023, including a description of the review and its methodology (including an identification of what was reviewed, how it was reviewed including any fields and keywords used for the searching), who undertook the review, the times and date(s) of the review and findings of the review; and

(h)    the identity of the respondent(s) that employ the first respondent.

3.    Pursuant to rule 8.21(1)(c) of the Federal Court Rules 2011 (Cth), the applicant has leave to file and serve an amended originating application correcting the name of the applicant from 'Austin Engineering Pty Ltd (ACN 078 480 136)' to 'Austin Engineering Ltd (ACN 078 480 136)'.

4.    Paragraph 8 of the 20 April Orders is vacated.

5.    Subject to paragraph 9 of the 20 April Orders and until further order, publication or other disclosure of Confidential Annexures KC-20, KC-28, KC-32, KC-33, KC-44, KC-45, KC-46, JO-3 and Confidential Exhibit AO-1 is prohibited pursuant to s 37AI of the Federal Court of Australia Act 1976 (Cth) on the ground set out in s 37AG(1)(a).

6.    Until further order, the applicant has leave not to tender, file or otherwise provide to the Court confidential exhibit RM-2 of the affidavit of Rodney McKemmish sworn 17 April 2023.

7.    Paragraph 15 of the originating application is stood over to 10.15 am AWST on 26 May 2023.

8.    Costs reserved.

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, Austin Engineering Limited, accuses the first respondent, Anastasia Podulova, of having breached confidentiality obligations and infringed copyright in relation to certain information relating to its business. Ms Podulova was employed by Austin until 13 January 2023. Austin alleges that shortly after that date she commenced employment with one of the other respondents, a competitor of Austin. All the respondents other than Ms Podulova are members of the Schlam group of companies (and I will refer to them collectively as Schlam).

2    On 20 April 2023 I made orders on an ex parte basis restraining Ms Podulova from doing certain things with the allegedly relevant information (which I will refer to as Austin's information), in so far as it was stored in digital form in certain places, and requiring her to produce that information to the Court. There was then an inter partes hearing on 1 May 2023. The respondents did not oppose the continuation of the orders, and Ms Podulova consented to further orders requiring her to disclose, broadly, the whereabouts of the allegedly relevant information and how she has used it. But Schlam opposed orders requiring it to disclose details that are potentially relevant to the alleged misuse of the information by Ms Podulova. After hearing counsel for the parties I made the orders Austin sought. These are my reasons.

Background

3    It is not necessary to describe in detail the background, or the reasons for making the ex parte orders of 20 April 2023. No party contested that Austin had established, at least, an arguable claim that Ms Podulova kept possession of Austin's information, being business information confidential to Austin, after she ceased being that company’s employee, that she had possession of that information during a least part of the time she has worked for Schlam, and that she may have used Austin's information in the course of that work. Nevertheless, a brief description of the background is necessary to appreciate the context in which the disclosure orders are sought.

4    Austin is an engineering company which designs and manufactures specialised truck parts and other products for use in the resources industry. Ms Podulova was its employee, relevantly at the end of 2022 until 13 January 2023. It appears from the affidavit evidence adduced by Austin that after Ms Podulova ceased employment with Austin, she kept a desktop computer, assigned the code ENG39, which Austin had previously given to her to work from home during the COVID-19 pandemic. That computer may have had Austin's information on it.

5    Evidence in the form of a report prepared for Austin by a forensic computer expert, Mr Rodney McKemmish, gives reason to believe that, before and after her employment with Austin ceased, Ms Podulova may have connected multiple external USB storage devices to ENG39 and may have copied files and folders relating to Austin's business to those devices en masse. Mr McKemmish has obtained this information from certain system logs on ENG39. For example, file and folder paths appearing on the logs that are common both to Austin's network and one of the external drives suggests that Ms Podulova may have copied more than 250 GB of data from Austin's network. She may also have downloaded some 1.2 GB of data from Austin's server to ENG39 on the last day of her employment with Austin.

6    Although Austin recovered the computer just over a month later, it appears that Ms Podulova may have retained Austin's information on those USB devices. It is strongly arguable that if Ms Podulova did these things, she breached several terms of her written contract of employment with Austin, as well as equitable duties of confidence.

7    Apart from its employment of Ms Podulova, Schlam may have become involved in these alleged breaches in the following way. Ms Podulova was working for Schlam from at least 18 January 2023. Mr McKemmish has identified that she accessed the Schlam SharePoint server from ENG39 multiple times between that date and 16 February 2023. Among the activity recorded on the logs was downloading of files from the Schlam SharePoint server. Specifically, it is open to infer that on 30 and 31 January 2023, Ms Podulova copied Austin's information from one of the external USB storage devices to the Schlam SharePoint server. That inference is open because Mr McKemmish has identified repeated patterns of activity from the system logs whereby apparently the same files were accessed in both locations at the same time. Mr McKemmish's opinion is that the correlation in timing of the access of the same files on the external USB storage device and the Schlam SharePoint server 'means that there is a reasonable probability that the Austin information could have been copied to the Schlam SharePoint server, or used in documents being accessed on' that server. No submission was made to contradict that opinion and I accept it for the purposes of this interlocutory matter; whether the inference I have described as open should in fact be made is of course a question that can only be determined conclusively at trial.

8    Austin has been careful not to allege that Schlam has in any sense been knowingly involved in any of the claimed wrongful use of Austin's information. The extent to which anyone at Schlam other than Ms Podulova knew of what she was doing with the information is unknown. When I speak of Schlam's involvement I mean only that there is a basis in the evidence to think that Ms Podulova was making use of the information in a way that involved the Schlam SharePoint server or files on that server, and that an inference is open that she was using the information for the purposes of her employment with Schlam. Again, whether that was so must await trial.

9    It was in those circumstances that Austin sought orders for the disclosure of certain information from Schlam. The orders sought are at paragraph 2 of the orders at the beginning of this judgment, so it is not necessary to describe them in detail. Broadly, they require a director of each of the Schlam respondents to provide an affidavit attesting to the best of their knowledge or belief to details of devices, networks and cloud storage, email and other accounts, all of which may have Austin's information on them. The orders also compel production of details of a review of Austin's systems referred to in a letter from Schlam's then solicitors dated 24 February 2023, and the identity of Ms Podulova's employer.

10    One further matter which is relevant to note is that, while Ms Podulova has complied with the orders made on 20 April 2023 requiring her to produce some of the relevant external USB devices to the Court, she has not produced the main external drive which appears to have been the repository of the bulk of Austin's information. She has informed the Court that this is because she destroyed that device at a time before the orders of 20 April were made. Paragraph 1 of the orders set out at the beginning of this judgment requires Ms Podulova to provide an affidavit attesting to the whereabouts and contents of that main external drive.

Principles

11    Austin sought orders for disclosure of information from Schlam under the principle commonly associated with Norwich Pharmacal Co v Commissioners of Customs & Excise [1974] AC 133. At 175B, Lord Reid described it as:

a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrong-doing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers.

12    This is based on equity's jurisdiction to order discovery. It is not necessary for the plaintiff to have a cause of action against the persons from whom this discovery is sought, provided that those persons were 'mixed up' in the wrongful acts of another, for example by unwittingly facilitating their perpetration: at 175C; see also Viscount Dilhorne at 188B; Lord Cross at 196-197; Lord Kilbrandon at 203-204. Although, if the persons had incurred liability to the plaintiff, that would be all the more reason why they should give full disclosure (at 175D).

13    As formulated in Norwich Pharmacal, the principle was directed at disclosure of the names of wrongdoers otherwise unknown to the plaintiff, but it has since been applied to require disclosure of other details about wrongs allegedly committed: see for example Authors Workshop v Bileru Pty Ltd (1989) 88 ALR 211; Hinchcliff v Jehad Abu-Dabat (1998) 41 IPR 400; Sky Channel Pty Ltd v Palmer [2003] FCA 1246. This can include information that will allow an applicant to trace what has happened to its confidential information: Computershare Ltd v Perpetual Registrars Ltd [2000] VSC 139; (2000) 1 VR 626 at [18]-[19] (Warren J); Nexgen Sydney Pty Ltd v Barakat [2020] NSWSC 1169 at [39] (Williams J).

14    To obtain Norwich Pharmacal relief it is not necessary to satisfy the stringent requirements for an Anton Piller order (Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55). The court is entitled to approach the matter by asking whether there is a serious question to be tried in circumstances where, at an early stage of the case, the evidence is often incomplete: Authors Workshop at 215. There is a need for flexibility and discretion in considering whether the remedy should be granted but it should only be granted if it is a necessary and proportionate response in all the circumstances, although the test of necessity does not mean that it is a remedy of last resort: Rugby Football Union v Consolidated Information Services Ltd (in liq) [2012] UKSC 55; [2012] 1 WLR 3333 at [15]-[16] (Lord Kerr JSC, other justices agreeing). The order is made at an early stage in the proceeding if the court is satisfied that the plaintiff will probably suffer irreparable damage if there is any delay in ordering discovery: Nexgen Sydney at [39].

15    It will be necessary to consider that last point in a bit more detail. But it was not in dispute that generally there are three conditions that must be satisfied to obtain Norwich Pharmacal relief (see for example Orb ARL v Fiddler [2016] EWHC 361 (Comm) at [83]-[88] (Popplewell J)):

(a)    there must be an arguable case that a wrong has been carried out by an 'ultimate wrongdoer';

(b)    the order must be necessary to enable the applicant to bring legal proceedings or seek other legitimate redress for the wrongdoing; and

(c)    the persons against whom the order is sought must be involved in the wrongdoing in a way which distinguishes them from being a mere witness.

16    If those three conditions are met, there remains a discretion to be exercised which can involve the weighing of any number of relevant factors and deciding whether disclosure should be ordered so as to do justice: see Rugby Football Union at [17]; Orb ARL at [89].

17    Computershare affords a relevant example of the application of these principles. The plaintiff Computershare, a share registry, had entered into an agreement to provide 'bureau services' to one of the defendants, which subsequently announced a joint venture with the Australian Stock Exchange to set up a competing share registry. Computershare had put on evidence that the defendants had wrongfully used confidential information which it had disclosed in the course of providing the bureau services. Warren J (as she then was) emphasised (at [19]) that Computershare had 'provided evidence at an interlocutory stage which stands unchallenged and unrebutted of alleged wrongful use of confidential information' and that the defendants had not taken the opportunity to deny that on affidavit. Her Honour held:

In order to identify the actual information used, the manner of use and, also, the identity of the persons who have had access to such information Computershare is entitled to an order so as to reveal those matters. There is information exclusively within the province of knowledge of the defendants as to the information utilised, the manner of use and the persons who have had access to such use … Similar to the case where a party was entitled to discovery of information in order to trace the disposition of fraudulently obtained moneys so too is Computershare entitled to trace what has happened to its information in the hands of the Perpetual interests especially vis-à-vis the dealings with the Exchange and Mr Hutchinson. If Computershare was compelled to await trial before the information was revealed to it it may well be too late as its dominance in the market place in the provision of its services would be undermined and, further, the value of its next generation software could be totally diminished.

18    As just foreshadowed, an issue did arise as to the extent to which the Court must be satisfied that the applicant will suffer damage if the Norwich Pharmacal order is not made at an early stage. Counsel for Schlam relied on the following passage from Sega Enterprises Ltd v Alca Electronics [1982] FSR 516, in which Templeman LJ said (at 525) that:

… orders for discovery such as those which are now sought, although useful, must be regarded with great caution. The power should not be exercised in interlocutory proceedings, and certainly not ex parte, unless the court is reasonably satisfied that the plaintiff will, or probably will suffer irreparable damage if there is any delay in ordering discovery. Where the court is satisfied - and on ex parte applications, the court cannot be certain; it must act on the evidence which is before it - that the plaintiff will or may probably suffer irreparable damage, then the court may act with all the speed with which the court is capable and may impose ex parte orders for discovery. But such orders should never be made as a matter of course - never merely as part and parcel of an Anton Piller order - without investigation of the circumstances of each case and without the court coming to the conclusion that it is necessary for the long-term protection of the plaintiff that such a Draconian course should be taken.

19    Counsel for Schlam thus submitted that a Norwich Pharmacal order should not be made unless the Court is reasonably satisfied, on the evidence, that the applicant will or probably will suffer irreparable damage if there is any delay, and that it is necessary for the long-term protection of the plaintiff. He also submitted, relying on Nexgen Sydney at [39], that the Court must be satisfied that the plaintiff probably will suffer irreparable damage if there is any delay in ordering discovery.

20    These authorities could be taken to require, as a necessary condition for the making of a Norwich Pharmacal order, that the Court must be satisfied on the balance of probabilities that the applicant will suffer irreparable damage if the order is not made. But I do not think that they purport to lay down any prerequisite of that kind. The prerequisites for the order are those set out at [15] above. After that, it becomes a matter of discretion, which requires all relevant factors to be weighed in order to determine what is in the interests of justice. The likelihood that damage will be suffered by an applicant if there is any delay will be an important factor, and the weaker that likelihood, the less likely it is to be in the interests of justice to make the order.

21    The desirability of the order will need to be weighed against the imperative for the Court not to intrude on the respondents unless it is necessary for the proper administration of justice; 'necessary', that is, in the flexible sense described in Rugby Football Union (see above). While in Sega Enterprises Templeman LJ described the order as 'Draconian', it is important not to make too much of labels of that kind. It is always a matter of a discretionary balancing of relevant factors. His Lordship's comments need to be read as a whole, in the context of the facts of the case. The primary judge had made orders requiring disclosure of the names and addresses of customers of a distributor of video game consoles which allegedly infringed copyright in respect of the game 'Frogger'. The Court of Appeal found that the disclosure orders were not likely to help the plaintiff unless and until their claim for infringement against the defendant distributor was established at trial. But the orders were likely to damage the defendant's goodwill with its customers. Templeman LJ's reference to 'orders for discovery such as those which are now sought' must be understood in that context. As will be seen, unlike the defendant in Sega Enterprises, Schlam made no submission in this case that the orders sought would be oppressive or otherwise cause undue prejudice.

22    As Templeman LJ acknowledged in Sega Enterprises, these issues usually arise in a context early in the proceedings where the evidence may not permit certainty. Counsel for Schlam appropriately accepted that the issues needed to be determined within that context. They also arise in a context where the very point of the order sought may be to help the applicant, and the Court, find out the extent to which confidential information has been used or disseminated contrary to the applicant's interests. It cannot be necessary to be satisfied first on the balance of probabilities that irreparable damage will occur before making orders permitting discovery of the extent of any damage or orders for the purpose of limiting the damage.

Why the order requiring disclosure from Schlam was made

23    On the face of things, the three criteria I have described above were satisfied. As I have said, it was not in dispute that Austin had established there must be an arguable case that wrongs have been carried out by an 'ultimate wrongdoer', namely Ms Podulova.

24    It also appeared to me that the order was necessary for Austin to bring legal proceedings and to seek redress for the alleged wrongdoing: Austin has a legitimate interest in bringing whatever proceedings it can to restrain any further misuse or dissemination of its confidential and copyrighted information, or if that fails, to obtain compensation or potentially an account of profits for any misuse. Austin has provided confidential examples of Austin's information which was among the files which Ms Podulova has copied or retained, and it included detailed technical drawings of parts and products it designs and manufactures, sales and pricing information, client tender information and other communications with customers. It is easy to see why it would be of grave concern to Austin if a competitor or a customer were to have access to some of that information.

25    It is also easy to see that Austin cannot very well bring such proceedings unless it knows who might have had that access, that is, what Ms Podulova has done with the information. Some of the Schlam respondents may have the information. Mr McKemmish's evidence summarised above means that is not mere speculation. But at present what information (if any) and how much Schlam has is unknown. Schlam itself may not know without conducting further investigations. Austin has foreshadowed its intention to seek orders to enable Mr McKemmish to inspect likely repositories of Austin's information that are in Ms Podulova's or Schlam's control. Without in any sense pre-empting the outcome of that application, the disclosure orders made on 1 May 2023 are a necessary prior step to obtaining such orders.

26    It also appeared to me that the third condition, that Schlam was involved in the wrongdoing in a way which distinguishes it from being a mere witness, was also satisfied. It was employing the alleged 'ultimate wrongdoer' and many of the alleged wrongs took place during the period of her employment and, it can be inferred, possibly in the course of it (even if that was without Schlam's knowledge or approval). Specifically, there was reason to believe that Austin's information may have been transferred to a Schlam server or used in files located on that server. Even if no one at Schlam other than Ms Podulova knew about that, it is enough to mean that Schlam is 'mixed up' in the alleged wrongs and so is not a 'mere witness'.

27    As for the exercise of the discretion, there were good reasons to require Schlam to provide information about what has taken place, even acknowledging that Ms Podulova had also been ordered to do so (with her consent). She is a person who has allegedly committed wrongs involving some deception and dishonesty and if, as Schlam maintains, it had no knowing involvement in those wrongs, its evidence as to what has occurred may be valuable to compare with and supplement hers.

28    It is also relevant that Ms Podulova says that the external USB device which appears on the evidence to have been used the most in the alleged unauthorised copying of Austin's information has been destroyed. If that is true, then there will be no way that Austin can use the device to try to reconstruct what has been done with the information on it. It may be that the only way it can identify whether the information has gone further is to inquire as to whether it has been further copied or otherwise transferred to Schlam's network or devices.

29    Austin also submitted, and I accept, that if it were required to wait for trial or, at least, discovery and inspection and possibly expert evidence in the normal course, that may be too late for it to prevent Austin's information from being further disseminated or used. Experience shows how quickly digital information can be copied and disseminated, and to force Austin to wait months or more to find out what has become of the information is to expose it to a serious risk of losing any control over it. For that reason I considered that making the disclosure orders now was necessary, in the sense discussed above, to prevent probable irreparable damage to Austin, and so necessary for its long-term protection.

30    Schlam nevertheless opposed the orders on two bases. The first, it was submitted, that the evidence did not establish on a prima facie basis that confidential information had passed to Schlam. Counsel sought in that regard to distinguish Computershare on the basis that there, the defendants were all alleged wrongdoers whereas here, Schlam is not. However it appeared to me that while Computershare is not on all fours with this case, it is still relevantly similar. As in Computershare, in this case there is unchallenged and unrebutted evidence, provided at an interlocutory stage, of misuse of confidential information. In both cases, the plaintiff/applicant needs to identify the actual information used and its manner of use and who has had access to it, and there is reason to think that the information will be within the knowledge of the relevant defendants/respondents. As in Computershare, if Austin is compelled to wait too long to find out what information has been misused and who has obtained it, it may be too late.

31    I do accept, as counsel for Schlam submitted, that Computershare is different to this case because, as mentioned, the defendants in that case were all alleged wrongdoers. Warren J therefore put more emphasis on their decision not to deny the allegations than would be suitable here, where there is presently no allegation that Schlam was knowingly involved in Ms Podulova's alleged wrongs. But even allowing for that difference, the lack of any evidence contradicting the evidence adduced by Austin, and the need to find out what has been done with relevant information, mean that Computershare provides useful guidance.

32    As for the evidence specific to this case, counsel for Schlam pointed out that Mr McKemmish's report states only that there is a reasonable probability that Austin's information could have been copied to Schlam's SharePoint server or used in documents on it, which counsel submitted puts it no higher than, 'it could have'. Against that, counsel submitted, on review of Schlam's systems, Schlam has not identified that any of Austin's information has been provided to it.

33    I did not accept that these submissions provided good grounds not to make the orders sought, for two reasons. First, Mr McKemmish's opinion needs to be read as a whole. He is saying, not just in a speculative way that transfer of Austin's information to Schlam could have happened, but that there is a reasonable probability that it did. That evidence needs to be assessed in the interlocutory, and necessarily preliminary, context in which it is adduced, as well as the context that the very point of the orders sought is to obtain more information about these matters. I need not repeat what I have said on that subject above.

34    The second reason I did not accept the submission is that it was not supported by persuasive evidence. The statements that Austin had performed a review of its systems and had not found anything were made in two solicitors' letters, which were annexed to the affidavits of a solicitor who did not attest to the truth of anything in them. While the letters were in evidence without any qualification as to the use that could be made of them, I put little weight on them when neither the solicitors, nor anyone from Schlam, has gone under oath or affirmation to confirm what the letters say. As will be seen, Austin has adduced evidence suggesting that in some respects at least, the letters may be incorrect.

35    I therefore did not accept the follow up submission that this is not a case where further tracing of Austin's information is required. In my view Mr McKemmish's essentially uncontradicted evidence provides sufficient basis to think that Austin's information may have found its way to Schlam (unknowingly or otherwise), so as to make it in the interests of justice to require Schlam to provide information that will help trace what has happened to it.

36    The second basis on which Schlam opposed the orders sought was that it had cooperated and voluntarily provided the information already, in the solicitors' letters just mentioned. The first letter, dated 28 April 2023, identified Ms Podulova's employer and gave some details of the 'comprehensive review' referred to in the earlier solicitors' letter of 24 February 2023. The second letter, dated 30 April 2023, gave details of: devices that Schlam had given Ms Podulova (such as a laptop and smartphone); Schlam networks to which she had had access; and relevant user, email and cloud storage accounts. It also said that Schlam was unable to provide the details of any external storage devices that Ms Podulova may have connected to any of Schlam's computers, other devices or network, because 'Windows does not, by default, log events relating to external storage devices connected via USB. Any event logs that were created by such devices being connected would no longer exist due to the passage of time'.

37    Austin submitted that, despite those letters, it was still appropriate to order Schlam to provide the information sought in the orders, on affidavit. It emphasised three points. The first was that the letter of 28 April 2023 said that Schlam had made inquiries urgently and that they were still ongoing. The second point relied on evidence from Mr McKemmish in an affidavit he swore on 1 May 2023, that it was incorrect to suggest that Schlam's computers, operating on Microsoft Windows, could not be investigated to find out the details of storage devices that Ms Podulova had connected to those computers, other devices and networks, and to say that event logs would no longer exist due to the passage of time. The third point was that, in Austin's submission, the details given of the 'comprehensive review' showed that it was inadequate. All of these matters, Austin submitted, gave reason to believe that, given a little more time and the additional incentive to be correct that comes with having to provide information on affidavit, Schlam may produce better and more accurate information.

38    I accepted that submission. The first point requires little amplification. If Schlam's inquiries were conducted urgently that could, with the best will in the world, affect the reliability of the outcome. If they are ongoing then they may be incomplete.

39    As to the second point, Mr McKemmish's affidavit did make it good. He gave details of how the Microsoft Windows operating system records events relating to the connection of storage devices to a computer in multiple locations, and of the type of information recorded. Further, the expert report annexed to Mr McKemmish's first affidavit provides ample and detailed illustrations of the kinds of evidence and inferences that can be extracted from that information as found on one computer, ENG39, so it is unclear why Schlam instructed its solicitors that such information would not be logged on its devices and network. Mr McKemmish's expert opinion was also that, contrary to the instructions provided by Schlam, event logs can typically be retrieved going back months, depending on the use made of the computer or other device during the intervening period.

40    As for the third point about the 'comprehensive review' which Schlam said it had conducted, the description of the review given in the solicitors' letter of 28 April 2023 did not instil confidence that the review had indeed been comprehensive. Only the files and folders in a OneDrive folder assigned to Ms Podulova were reviewed, without any evidence as to why she would not have used other folders on Schlam's system (noting that Mr McKemmish's evidence suggested that she had used a SharePoint server, which may not be the same as OneDrive). The review was conducted by keyword searching for the word 'Austin', but it is not clear whether that was a search of the file names or the data within the files. It is said that if there was a file with a name that was not clearly identified as 'Payload' (that is, the name of Ms Podulova's employer within the Schlam group, Payload Industries Pty Ltd) then the file was opened and inspected. But that does not address the concern raised in Mr McKemmish's report that Ms Podulova may have copied Austin's information into Schlam's documents, including potentially 'Payload' documents.

41    For those reasons I was persuaded that it is necessary to have Schlam disclose the required information on affidavit, and to give two further weeks for the making of that affidavit, both of which measures would provide a better opportunity to ensure that the information provided is accurate and complete. Schlam submitted that the affidavit should be provided by the Commercial and Contracts Manager at Payload Industries Pty Ltd because he was the person who carried out the 'comprehensive review'. But Austin submitted that it should be a director, noting that there was evidence that one person, Ryan Schlam, is a director of each of the corporate respondents. Senior counsel for Austin expressed no concern about the possibility that this would mean that the director would be giving hearsay evidence in the affidavit. I was persuaded that it was appropriate for the affidavit to be provided by someone with the seniority of a director, and also that it be given by a person (or persons) with authority to make it on behalf of each of the corporate respondents, not just Payload Industries Pty Ltd.

42    Importantly, Schlam made no submission that it would be oppressive or otherwise prejudicial to make that requirement, or that complying with the orders generally would impose any prejudice that could not be compensated with costs. It is open to the Court to order that an innocent party be reimbursed for the expenses of complying with a Norwich Pharmacal order. Nevertheless I considered that here, it was appropriate to wait until more was known about Schlam's potential involvement in the alleged wrongs before making a determination about that, so costs were reserved.

Associate:

Dated:    4 May 2023

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