Federal Court of Australia

Kheir Group Pty Ltd v Panoramic Resources Ltd [2025] FCA 868

File number(s):

NSD 1452 of 2023

Judgment of:

STELLIOS J

Date of judgment:

29 July 2025

Catchwords:

PRACTICE AND PROCEDURE – application for leave under s 168(7) of the Evidence Act 1995 (Cth) to make requests under s 167(c) – requests to verify authenticity of documents made out of time – where request made one year after time specified in s 168(5) – where explanation of delay is inadequate – where documents relating to request allegedly not in possession of applicants – where concerns about authenticity of documents can be addressed at trial – utility of request – leave refused

EVIDENCE – application for leave under Evidence Act 1995 (Cth) – considerations under s 192 – additional considerations relevant to granting leave under s 168 –importance of evidence – length and nature of delay – explanation for delay – utility of giving leave – proximity of request to trial

Legislation:

Acts Interpretation Act 1901 (Cth) s 36(1), item 6

Competition and Consumer Act 2010 (Cth) Sch 1, ss 18 and 236

Evidence Act 1995 (Cth) ss 166, 166(b), 167, 167(a), 167(c), 168, 168(5), 168(7), 169, 169(1), 169(1)(c), 169(4)(a), 192 and 192(2)

Federal Court of Australia Act 1976 (Cth) s 37M(1)

Evidence Act 1995 (NSW) s 168

Cases cited:

Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; [2012] FCA 1355

HP Mercantile Pty Ltd v Clements [2014] NSWSC 213

Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4

Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307

Division:

General Division

Registry:

New South Wales

National Practice Area:

Commercial and Corporations

Sub-area:

Regulator and Consumer Protection

Number of paragraphs:

69

Date of hearing:

8 July 2025

Counsel for the First and Second Applicants:

B Kasep

Solicitor for the First and Second Applicants:

PRP Lawyers

Counsel for the First Respondent:

The First Respondent did not appear

Solicitor for the First Respondent:

Thomson Geer

Counsel for the Second Respondent:

A Flecknoe-Brown

Solicitor for the Second Respondent:

Barry Nilsson Lawyers

ORDERS

NSD 1452 of 2023

BETWEEN:

KHEIR GROUP PTY LTD (ACN 135 115 301)

First Applicant

DAVID KHEIR

Second Applicant

AND:

PANORAMIC RESOURCES LTD (ACN 095 792 288)

First Respondent

RICKMAN VICTOR RAJASOORIAR

Second Respondent

order made by:

STELLIOS J

DATE OF ORDER:

29 JULY 2025

THE COURT ORDERS THAT:

1.    The Interlocutory Application dated 9 May 2025 be dismissed.

2.    The second respondent pay the applicants’ costs of the Interlocutory Application.

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

REASONS FOR JUDGMENT

STELLIOS J:

1    This is an Interlocutory Application filed by the second respondent seeking leave pursuant to s 168(7) of the Evidence Act 1995 (Cth) to make a request under s 167(c) to determine the “authenticity, identity or admissibility of” certain documents. Leave is required because the 21 day period specified in s 168(5) for making such a request has expired.

2    For the reasons that follow, I am not satisfied that there is good reason to grant leave to the second respondent to make the request.

Background

The substantive proceeding

3    The Interlocutory Application is made in a substantive proceeding in which the applicants seek damages pursuant to s 236 of the Australian Consumer Law in Sch 1 to the Competition and Consumer Act 2010 (Cth) for alleged misleading and deceptive conduct in contravention of s 18 of the Australian Consumer Law. The alleged contraventions are based on the second respondent’s alleged representations relating to, in broad terms, the future financial performance of the first respondent.

The documents to which the request relates

4    The prospective request (Request) under s 167(c) of the Evidence Act would, if leave were given, relate to the following documents:

(1)    A text message purportedly sent by a director of the first applicant, Ray Kheir, to the second applicant on 13 April 2022 (document (1));

(2)    Text messages purportedly exchanged between the second applicant and Ray Kheir on 15 May 2022 (document (2));

(3)    The purported hardcopy document comprising pages from a notebook entitled “Panoramic Diary Entries – Ray” (document (3));

(4)    The page of a diary purportedly recording notes of the meeting between the second applicant, Ray Kheir and the second respondent on 13 April 2022 (document (4)); and

(5)    The page of a diary purportedly recording notes of a representation made by the second respondent to the second applicant on 16 May 2022 (document (5));

(collectively, the relevant documents).

5    Document (3) contains entries that relate to the purported meetings on 13 April 2022 and 16 May 2022.

6    Copies of the relevant documents were reproduced as exhibits to the affidavit of Jack Geng affirmed on 9 May 2025. Copies of documents (1), (2), (4) and (5) were reproduced as exhibits to the affidavit of the second applicant that was affirmed and served on 15 April 2024. Copies of documents (1) and (3) were also reproduced as exhibits to the affidavit of Ray Kheir that was affirmed, filed and served on 13 March 2024.

The discovery process leading to the Request

7    The Request has been sought following discovery. On 10 February 2025, the Court made various orders for discovery, including that the applicants provide discovery in relation to a number of categories. Those categories included:

    certain correspondence between the second applicant and Ray Kheir;

    certain correspondence or documents in respect of discussions by Ray Kheir and/or the first applicant with the second applicant concerning the respondents; and

    the whole of the original versions of documents (3) to (5).

8    On 25 March 2025, the second respondent’s solicitor, Mr Geng, downloaded and accessed the applicants’ discovery. In his affidavit affirmed on 9 May 2025, Mr Geng deposes that the materials discovered “were not voluminous and were accompanied by various explanations for the absence of relevant material, including due to the voluntary disposal of a mobile phone by Mr David Kheir some time in 2023 and the alleged theft of original documents and mobile phone from Mr Ray Kheir in 2024”.

9    It was also said that the discovered materials included a number of videos of mobile phones being used to display text message exchanges. Mr Geng also deposes that following his enquiries with the applicants’ then solicitor about deficiencies in the scope of discovery, he received a letter from that solicitor stating:

All correspondence or documents in the Applicants’ control have been discovered.

The videos of Ray Kheir’s mobile device, recorded during the first half of 2023, fall within the relevant discovery period. Other correspondence and documents were stolen in the theft that occurred on 13 or 14 February 2024.

10    As will be further addressed below, Mr Geng deposes that these circumstances led to the application for leave to make the Request.

The form of the Request

11    The original form of the Request that was sought by the Interlocutory Application was set out in an exhibit to the Geng affidavit sworn on 9 May 2025. On the morning of the hearing of the Interlocutory Application, the second respondent provided to the applicants and the Court a revised version of the Request with amendments.

12    The amendments were made in response to concerns raised by the applicants in their written submissions about the reasonableness of the proposed Request.

13    The amended version took the following form (with amendments marked in the usual way):

REQUESTS

1.    The First Applicant produce to the Second Respondent and permit the Second Respondent, by the Means described below, to copy, examine and test, each of the Devices.

2.    The Applicants produce to the Second Respondent and permit the Second Respondent to copy, examine and test, the whole original of the document numbered (3) in the definition of Document below.

3.    The Applicants produce to the Second Respondent and permit the Second Respondent to copy, examine and test, the whole original of the paper diary or diaries from which were extracted the documents numbered (4) and (5) in the definition of Document below.

DEFINITIONS

The Means referred to in request 1 above are that the Applicants are to produce the Devices to the custody of an independent forensic expert agreed by the parties or otherwise appointed by the Court (Examiner), on condition that the Examiner:

(a)    as soon as possible, and in the presence of a legal representative of each active party, make a digital copy of the contents of each of the Devices and then return the Devices to the Applicants;

(a1)     perform searches of the Material for, and make separate copies of, any Relevant Material;

(b)     retain all copies of the Material in a secure storage system and (subject to (c) below) not permit access to the Material by any person other than the Examiner’s staff, the legal representatives of the parties, the Court, or any expert witness engaged by one of the parties;

(c)     not produce (otherwise than pursuant to further order of the Court) any Sensitive Material to any party to these proceedings other than the Applicants;

(d)     if and when ordered to do so by the Court, prepare a report describing what the Examiner has done with the Devices and the Material and deliver the report to the Court and to the parties;

(e)    provide to the Applicants and the Second Respondent:

(1)    a copy of the Material (excluding any Sensitive Material) Relevant Material as soon as practicable after 14 days from the date the Examiner returns the Devices to the Applicants, and

(2)    a copy of any further Material not already provided (including because of any dispute as to whether it was Sensitive Material) when ordered to do so by the Court; and

(f)    destroy all copies of the Material in his or her possession as and when ordered to do so by the Court.

Devices means:

(a)    each mobile phone owned or operated by either of Ray Kheir or David Kheir;

(b)    each laptop or other computer owned or operated by either Ray Kheir or David Kheir on which is stored or from which is accessible any iCloud backup data for any Apple account; and

(c)    the device on which were made the video recordings of Ray Kheir’s mobile phone being operated which were produced by the Applicants by way of discovery in March 2025.

Documents means:

(a)    the text message purportedly sent by Ray Kheir to David Kheir on 13 April 2022 via the Signal app, a screenshot of which was purportedly reproduced at page 86 of Exhibit RK-1 to the affidavit of Ray Kheir affirmed 13 March 2024 and at page 38 of Exhibit DK-1 to the affidavit of David Kheir affirmed 15 April 2024;

(b)    the text messages purportedly exchanged between David Kheir and Ray Kheir on 15 May 2022, a screenshot of which was purportedly reproduced at page 59 of Exhibit DK-1 to the affidavit of David Kheir affirmed 15 April 2024;

(c)    the purported hard copy document comprising a notebook labelled “Panoramic Diary Entries – Ray” which was purportedly reproduced at pages 58-85 of Exhibit RK-1 to the affidavit of Ray Kheir affirmed 13 March 2024;

(d)    The page of a diary purportedly recording notes of the meeting between Victor, David Kheir and Ray Kheir on 13 April 2022, which was purportedly reproduced at page 39 of Exhibit DK-1 to the affidavit of David Kheir affirmed 15 April 2024;

(e)    The page of a diary purportedly recording notes of a representation made by Victor to David on 16 May 2022, which was purportedly reproduced at page 60 of Exhibit DK-1 to the affidavit of David Kheir affirmed 15 April 2024.

Issues means the authenticity of the purported copies of the Documents which were exhibited to the affidavits of Ray Kheir affirmed 13 March 2024 and David Kheir affirmed 15 April 2024.

Relevant Material means electronic documents (including data of any kind and all its associated metadata including its contents and any file name, and including deleted or subsequently modified data and metadata) which indicates any one of the following:

(a)    the date on which the Device from which the data is extracted was first acquired, turned on or set up;

(b)    any date or dates on which the “Signal” encrypted messaging application was installed on (or removed from) the Device;

(c)    the existence, capacity, synchronisation settings and usage history of any remote backup system (included but not limited to the Apple iCloud system) operating on, accessible from, or able to backup the contents of, any of the Devices (including any Device referred to in the data, not just the Device from which the data is extracted);

(d)    it is an email, text message, or other electronic message of any kind (including a message sent using the “Signal” application, or any data comprising or relating to posts made on the online forum known as “HotCopper”):

(i)    between Ray Kheir and David Kheir, or

(ii)    between either Ray Kheir or David Kheir and any other person, or

(iii)    from any user account on any app or website accessible from the Device (whether or not the user account names its owner as Ray Kheir or David Kheir),

which relates to any one or more of the following:

(iv)    Panoramic Resources Limited (however described, including by reference to its abbreviations “Panoramic” or “PAN”);

(v)    Rickman Victor Rajasooriar (including by either of his names “Victor” or “Rajasooriar”);

(vi)    nickel commodity prices or investments;

(e)    it was created at any time between 11 April 2022 and 14 April 2022 and relates to any one or more of the matters set out at (d)(iv) to (vi) above;

(f)    it is an electronic copy of any handwritten notes or diary entries relating to any one or more of the matters set out at (d)(iv) to (vi) above;

(g)    it is an electronic copy of a video recording of a mobile phone being operated so as to display electronic messages between any of Ray Kheir (phone number ), David Kheir (phone number ) and Victor Rajasooriar (phone number ).

Material means all data copied from any of the Devices.

Sensitive Material means any of the Material other than the Relevant Material, or any of the Relevant Material which may be (subject to determination by the Court of any question arising between the parties as to these matters): be protected by legal professional privilege.

(a)    protected by legal professional privilege, or

(b)    irrelevant to the Issues and either commercially or personally sensitive,

and which the Applicants have specifically identified as such by notice in writing delivered to the Examiner and copied to each other active party within 14 days after the Examiner returns the Devices to the Applicants.

Evidence

14    The second respondent relied on the following affidavits:

(1)    affidavit of Jack Geng affirmed on 9 May 2025; and

(2)    affidavit of Jack Geng affirmed on 1 July 2025.

15    The applicants relied on the following affidavits:

(1)    affidavit of David Kheir affirmed on 24 June 2025;

(2)    affidavit of Ray Kheir, a director of the first applicant, affirmed on 24 June 2025; and

(3)    affidavit of Paul Page, solicitor for the applicants and Ray Kheir, sworn on 24 June 2025.

16    I will outline the salient features of the affidavits in chronological order.

Geng affidavit of 9 May 2025

17    As foreshadowed earlier in these reasons, the Geng affidavit of 9 May 2025 annexed copies of the relevant documents and the original form of the Request. Mr Geng states that the Request is made for the purpose of determining the authenticity of the relevant documents.

18    In relation to documents (1) and (2), the central objective of the Request is to obtain the original metadata for each of those electronic messages to verify the date on which the messages were exchanged. To give effect to this objective, the second respondent seeks the production of devices to an independent forensic expert to allow for the extraction of the relevant data and the preservation of the metadata. The second respondent also seeks production of the device or devices on which the videos were purportedly made of Ray Kheir’s mobile phone. As indicated, the videos have been produced by way of discovery.

19    In relation to documents (3) to (5), the second respondent seeks production of the complete originals of those documents. The second respondent also seeks the metadata of the electronic copies that were made of those hardcopy documents in order to show when the electronic copies were created.

20    The second respondent proposes that the expert would report on the extent to which the original copies of the documents are able to be retrieved from the devices, the contents of the metadata and any indications that the data has been manipulated or modified.

21    The affidavit of 9 May 2025 also sets out the basis for the application, the reasons for delay in seeking to make the application, and reasons why the Request is reasonable.

22    The three affidavits relied upon by the applicants were affirmed or sworn on the same date.

The second applicant’s affidavit

23    The second applicant deposes to the following facts:

(1)    His current mobile phone does not contain any of the relevant documents. The previous phone on which they were stored, including the text messages in documents (1) and (2), became faulty and was disposed of in or around 2023. There is no backup of the data from that device. All information was stored exclusively on that device and not saved to iCloud or any external storage.

(2)    The screenshots of the text messages were provided to his then solicitor in February 2024. The second applicant deposes that he has observed that the screenshots show creation dates of 27 September 2023 and 24 May 2023.

(3)    The hardcopy diary pages of documents (4) and (5) were entrusted to Ray Kheir for safekeeping, but were stolen from Ray Kheir’s vehicle in February 2024. The second applicant deposes that the digital copies of these diary pages were provided to his then solicitor and show a creation date of 11 October 2023.

(4)    “There is no laptop or other computer owned or operated by the second applicant on which is stored, or from which is accessible any iCloud backup data for any Apple account.”

24    The second applicant objects to forensic examination of the devices or documents by an independent expert for the following reasons:

(1)    The mobile phone containing the text messages has been disposed of and the original hardcopy diary pages were stolen.

(2)    The digital copies of the documents are the only existing records. Those copies have been discovered and further forensic analysis would be redundant.

(3)    The proposed examination, involving unrestricted access to data devices risks exposing unrelated personal or commercial information, including communications and records prejudicial to his interests as a party.

(4)    The Request is unfair and oppressive.

(5)    The requirement for the second applicant to report on matters that are privileged, irrelevant and either commercially or personally sensitive within 14 days of the phone being returned would be time consuming, expensive and unmanageable; risk inadvertent disclosure; and lead to protracted disputes about categories.

Ray Kheir’s affidavit

25    Ray Kheir deposes to the following facts:

(1)    In February 2024, two bags were stolen from his vehicle. Critical documents and electronic devices were in those bags.

(2)    His current mobile phone does not contain any of the relevant documents. The phone storing the text messages recorded in documents (1) and (2) was stored in one of the stolen bags. The screenshots were captured and provided to the applicants’ then solicitor in 2023 and, as produced in discovery, bear creation dates of 27 September 2023 and 24 May 2023.

(3)    He did not create or maintain any backup of this data. All information was stored exclusively on the device and not saved to iCloud or any other external storage.

(4)    His current phone does not belong to the first applicant.

(5)    The device used to create the videos was stored in one of the stolen bags. Those videos were recorded during the first half of 2023.

(6)    He does not own or operate any laptop or computer that stores or provides access to iCloud backup data for any Apple account.

(7)    The hardcopy notebook (document (3)) was stored in one of the stolen bags. Prior to the theft, he provided a digital scan to his then solicitor. The digital copy produced during discovery shows a creation date of 14 August 2023.

(8)    Documents (4) and (5) were entrusted to Ray Kheir for safekeeping, but were stored in one of the two stolen bags.

26    Ray Kheir objects to the request for forensic examination on the following grounds:

(1)    The devices and original hardcopy devices are unavailable rendering forensic examination impossible.

(2)    The digital copy of the relevant documents are the only existing records.

(3)    The proposed examination risks exposing unrelated personal or commercial information which is particularly prejudicial because he is not a party.

(4)    The Request is unfair and oppressive.

(5)    The requirement for Ray Kheir to report on the matters that are privileged, irrelevant and either commercially or personally sensitive within 14 days of the phone being returned would be time consuming, expensive and unmanageable; risk inadvertent disclosure; and lead to protracted disputes about categories.

Page affidavit

27    Paul Page deposes to the following facts:

(1)    The applicants served the affidavits containing the relevant documents on the second respondent on 13 March 2024 (Ray Kheir) and 15 April 2024 (the second applicant).

(2)    On 10 February 2025, the Court ordered discovery which the applicants completed by providing documents to the second respondent on 7 March 2025. That included digital scans and the videos.

(3)    On 27 March 2025, the second respondent raised concerns about the authenticity of the documents.

Geng affidavit of 1 July 2025

28    The second affidavit by Jack Geng elaborates on the reasons for the delay in seeking leave to make the Request. He also states that he disagrees with the creation dates asserted by the second applicant and Ray Kheir in relation to the digital copy of the notebook (document (3)) and the digital copies of the diary pages (documents (4) and (5)) as produced during discovery:

(1)    In relation to the digital copy of the notebook, Mr Geng deposes that, having reviewed the properties of that electronic diary, he found the “created” date to be 6 March 2025 and the “modified” date to be 30 April 2025.

(2)    In relation to the digital copies of the diary pages, having reviewed the properties of those documents, Mr Geng states that the “created” and “modified” dates were 24 June 2024.

29    Mr Geng states that it is unclear to him whether the dates he describes are the dates of creation of a new copy, as distinct from first creation by way of scanning. That led Mr Geng to the conclusion that it is impossible for anyone other than the applicants to verify the metadata of the original documents by any means other than inspecting the devices on which the files are stored.

30    Mr Geng also deposes that he “performed some experiments” to identify ways in which electronic messages might be created later than the date on which they are displayed as having been sent, and determined that it is possible to do so.

legislation

31    Section 167 of the Evidence Act relevantly provides (emphasis added):

A party may make a reasonable request to another party for the purpose of determining a question that relates to:

(c)    the authenticity, identity or admissibility of a document or thing.

32    In oral submissions, counsel for the second respondent also suggested that the Request might be supported by s 167(a) (“a previous representation”). However, that makes little difference to the reasons that will follow.

33    “Request” is defined in s 166 of the Evidence Act to mean (relevantly):

… a request that a party (the requesting party) makes to another party to do one or more of the following:

(a)    to produce to the requesting party the whole or a part of a specified document or thing;

(b)    to permit the requesting party, adequately and in an appropriate way, to examine, test or copy the whole or a part of a specified document or thing;

(c)    to call as a witness a specified person believed to be concerned in production or maintenance of a specified document or thing;

(e)    in relation to a document of the kind referred to in paragraph (b) or (c) of the definition of document in the Dictionary—to permit the requesting party, adequately and in an appropriate way, to examine and test the document and the way in which it was produced and has been kept;

34    Section 168(5) and (7), respectively, set out the time limit for making a request under s 167(c) and the power of the Court to give leave outside of that time (emphasis added):

(5)    If a party has served on another party a copy of a document that it intends to tender in evidence, the other party may only make a request relating to the document if the request is made within 21 days after service of the copy.

(7)    Despite subsections (5) and (6), the court may give the other party leave to make a request relating to the document, or other document, after the end of the 21 day period if it is satisfied that there is good reason to do so.

35    Subsection 169(1) relevantly provides:

(1)    If the party has, without reasonable cause, failed or refused to comply with a request, the court may, on application, make one or more of the following orders:

(c)    an order that the evidence in relation to which the request was made is not to be admitted in evidence …

36    Section 192 of the Evidence Act identifies considerations that must be taken into account when deciding whether leave should be given under s 168(7):

(1)    If, because of this Act, a court may give any leave, permission or direction, the leave, permission or direction may be given on such terms as the court thinks fit.

(2)    Without limiting the matters that the court may take into account in deciding whether to give the leave, permission or direction, it is to take into account:

(a)    the extent to which to do so would be likely to add unduly to, or to shorten, the length of the hearing; and

(b)    the extent to which to do so would be unfair to a party or to a witness; and

(c)    the importance of the evidence in relation to which the leave, permission or direction is sought; and

(d)    the nature of the proceeding; and

(e)    the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence.

submissions

Second respondent

37    In support of the Interlocutory Application, the second respondent made the following submissions:

(1)    As for why the Request should be permitted to be made under s 167:

(a)    Following discovery, there are reasonable grounds to suspect that the relevant documents are fabricated:

(i)    There are questions about when and why the videos were made.

(ii)    There is no way of verifying the assertions that the applicants have made about the contents of the metadata for documents (3)–(5) otherwise than by accessing the original electronic documents in their original location.

(b)    At trial, the credibility of the documentary evidence will stand or fall with the credibility of the witnesses themselves. If the documents are inauthentic, that will be a basis for an attack on the credibility of the witnesses.

(c)    There is the possibility of unfairness if the documents were to be relied on at trial. It is forensically critical for the second respondent to test these matters ahead of an anticipated contest on credibility of the applicants’ witnesses at trial.

(d)    While it would be possible to explore all of the issues in cross-examination at trial, that assumes the evidence ought to be admitted at trial, and the second respondent seeks to rely on the procedure in s 167 to make the Request to test the authenticity of the relevant documents and the videos. A consequence of non-compliance with the Request, without reasonable excuse, is that the Court can make an order under s 169(1)(c) of the Evidence Act that the evidence not be admitted.

(e)    The use of an independent expert mitigates both the risk to the applicants of unjustified intrusion in their private or privileged affairs and the risk to the second respondent of allegations of the perverting the digital imaging process.

(2)    As for reasons why leave should be given under s 168(5), the second respondent submitted that:

(a)    The relevant documents to be tested have been identified in the Request.

(b)    The content of the “requests” as defined in s 166(b) are sufficiently specific — that is, “to permit the requesting party, adequately and in an appropriate way, to examine, test or copy the whole or a part of a specified document or thing”.

(c)    The nature and basis of the authenticity concerns have been identified.

(d)    The application has been made at a reasonable time after the second respondent’s legal representatives became aware of a proper basis in the evidence — it was not a tactical decision to await discovery (as suggested in the affidavit of Mr Page).

(e)    The Request is “reasonable” because:

(i)    The process is not unduly intrusive or onerous. An independent digital forensics process is commonly used.

(ii)    It will be a simple process for the applicants to comply with.

(f)    While the second applicant and Ray Kheir have indicated that they are unable to comply with such a request because the requested material does not exist, there is utility in making the order nonetheless because the second respondent will then have grounds to make a further application under s 169 of the Evidence Act.

Applicants

38    In opposition to the Interlocutory Application, the applicants made the following submissions:

(1)    The evidence of the second applicant and Ray Kheir is that the Request cannot be complied with:

(a)    Documents (3)–(5) were stolen.

(b)    Neither the second applicant nor Ray Kheir has a laptop or computer on which is stored or from which is accessible any iCloud backup data for any Apple account.

(c)    The device that was used to make the videos was stolen.

(2)    The Request has a broad reach:

(a)    It would allow the expert to make and retain a digital copy of the entire contents of each phone or computer produced — not only the relevant data or metadata.

(b)    The applicants would then have 14 days to provide the expert and the second respondent written notices that identify any information that is within the following categories:

(i)    protected by legal professional privilege, or

(ii)    both irrelevant to the authenticity of the relevant documents and either commercially or personally sensitive.

Thus, the category of excluded information would not include information which is neither commercially nor personally sensitive, but nonetheless irrelevant to the question of authenticity.

(c)    If ordered by the Court, the expert would prepare a report describing what the expert has done — not a report directed towards any examination of the contents of each phone or computer, or any metadata relevant to the question of authenticity of the relevant documents.

(d)    The expert would then provide to the applicants and the second respondent:

(i)    The entire copied contents of the devices produced by the applicants, less any of the excluded information; and

(ii)    When ordered to do so, a copy of anything in relation to which there is a dispute over categories.

(e)    There are no limitations on how the second respondent may use the information provided.

(3)    The second respondent has not explained why the Request was not made within the time required under s 168(5) nor adequately explained why the application was not made until 9 May 2025.

(4)    Grant of leave creates the risk that the proceeding will be delayed, unfairly disrupt the applicants’ preparation for final hearing and create significant additional expense.

(5)    To the extent that it seeks production by the applicants of Ray Kheir’s devices, it is doubtful that clause 1 of the Request is one made “to another party” under the terms of s 167.

(6)    There is a disconnect between the Request and the permitted purpose of determining a question that relates to the authenticity of any document. Instead, it is submitted that the second respondent is “fishing”:

(a)    If the Request were directed to the relevant purpose, it would simply require the expert to isolate and copy the data and metadata in relation to the relevant documents, rather than the entire contents less the excluded categories.

(b)    The Request is framed to capture information that is irrelevant to the question of authenticity.

(c)    The so-called questions about the authenticity of the documents are grounded in a mix of speculation, supposition and argumentation as to not constitute questions at all for the purposes of s 167(c).

(d)    There is a lack of evidence that identifies the nexus between the Request (even in its amended form) and the permitted purpose.

(e)    The second respondent has not produced any expert evidence that calls into question the authenticity of the documents. Instead, the second respondent relies upon the “experiments” conducted by Mr Geng.

(7)    The Request is not reasonable because:

(a)    It requires production of devices irrespective of whether they contain any of the relevant documents.

(b)    It is draconian and intrusive, and not limited to copying the data and metadata in relation to the relevant documents.

(c)    It is unfair, burdensome and disruptive and would require the applicants and Ray Kheir to engage lawyers to review the information for privilege.

(d)    It is based upon speculation, supposition and argumentation.

(e)    There is no acceptable evidence that any question about authenticity cannot be determined by testing the discovered documents at the hearing.

The amended Request

39    As foreshadowed, the amended version of the Request was provided to the applicants and the Court on the morning of the hearing. Counsel for the second respondent explained in oral submissions that the main reason for the amendments was to meet the applicants’ written submissions directed to the reasonableness of the Request.

40    It was submitted that, rather than forming a definitive view on whether the Request is reasonable, the Court should instead make preliminary observations as to whether there appears to be anything on the face of the Request which is not reasonable.

41    Ultimately, given the conclusions that follow, whether the Request is “reasonable” is not a question that I need to answer. Accordingly, I have not considered whether the form of the Request — that is, for the production of devices for testing by an independent expert — is one that is capable of constituting a “reasonable request” for the purposes of s 167. However, if the question were to be raised squarely, it would have to be answered on the basis of the form of the request presented to the Court. It is not for the Court to hypothesise on valid or invalid variations to the terms of a request.

42    As a result of the late amendment, Counsel for the second respondent accepted that the applicants might require an opportunity for further submissions. The Court put that option to counsel for the applicants but, having sought instructions, the opportunity was declined.

consideration

43    The question to be resolved is whether leave should be given under s 168(7) of the Evidence Act. That turns on whether “there is a good reason” to give leave. I am not persuaded that the statutory condition in s 168(7) for an exercise of power to grant leave is satisfied. In short, that is due to the delay in making the application, the lack of utility of an order being made, and the mandatory considerations under s 192.

Leave under s 168(7)

44    As noted by Gaudron, Kirby and Callinan JJ in Stanoevski v The Queen (2001) 202 CLR 115; [2001] HCA 4 at [41] (Hayne J agreeing at [67]), “[i]n addition to matters which may be relevant in a particular case, in all cases [of considering leave under the Evidence Act] the court must take into account the matters prescribed by s 192(2)”, although “[s]ection 192 is not exhaustive as to the matters to be taken into account”: at [44].

45    In that regard, the observations of Black J in HP Mercantile Pty Ltd v Clements [2014] NSWSC 213 at [23], when considering the corollary to s 168 in the Evidence Act 1995 (NSW), are illustrative of some additional considerations relevant to the satisfaction that there is “good reason” to give leave under s 168 (emphasis added):

I am satisfied that there is good reason to grant the leave sought by Mr Clements. The evidence goes to a significant issue; Mr Chapman's affidavit appears to have been very detailed, in 39 pages and 253 paragraphs with 113 exhibits and it would have taken some time for Mr Clements to review that affidavit and identify the matters which arose from it to which he was required to respond; the delay in giving the notice was not particularly long, given the history of the proceedings and having regard to the complexity of that affidavit; and, most importantly, the notice was given in sufficient time to allow HP Mercantile to make arrangements to call Mr Purcell had it wished to do so.

In addition to taking account of the s 192 considerations, I also consider the following to be relevant to my decision: the importance of the evidence, the length and nature of the delay, the explanation for the delay, and the utility of giving leave.

Importance of the evidence

46    There is no question that the relevant documents are important to the substantive proceeding. They are annexed to affidavits which form part of the evidence in chief that the applicants intend to lead at trial. They go directly to the central issues in the proceeding about the alleged representations.

Delay in making the request

47    The relevant documents were first provided to the respondents in March and April of 2024:

(1)    Ray Kheir’s affidavit served on 13 March 2024 exhibited documents (1) and (3).

(2)    The second applicant’s affidavit served on 15 April 2024 exhibited documents (1), (2), (4) and (5).

48    The parties were in agreement that the applicable time limit under s 168(5) for a s 167 request expired on 3 April 2024 for Ray Kheir’s affidavit and on 7 May 2024 for the second applicant’s affidavit. Applying the rule in item 6 of the table in s 36(1) of the Acts Interpretation Act 1901 (Cth), the deadline might in fact be 4 April 2024 and 8 May 2024. In any event, it is common ground that the time periods have long since expired.

49    In his affidavit of 9 May 2025, Mr Geng deposes that it was unnecessary to make a request under s 167 until the applicants’ discovery had been completed. He states that he was alive to the possibility that the applicants may discover documents establishing the provenance and authenticity of the relevant documents.

50    On 25 March 2025, he downloaded and accessed the applicants’ discovery. The materials were not voluminous and were accompanied by explanations about the absence of relevant material. The applicants also discovered the videos.

51    On 27 March 2025, Mr Geng wrote to the applicants’ then solicitor, outlining his concerns. He took the view that the just, quick and cheap management of the proceeding required the issues to be addressed as a matter of the inadequacy of the discovery process rather than through an entirely separate process. At that point he did not consider that there was a proper basis in the evidence to raise authenticity concerns and considered it improper to raise the question with the Court without further material.

52    On 4 April 2025, the applicants’ then solicitor advised that all correspondence and documents in the applicants’ control had been discovered. Mr Geng explains that the letter of 4 April 2025 raised two new assertions of relevance. First, that the relevant financial statements and tax returns, which were to be discovered, did not exist. Secondly, that the videos had been recorded during the first half of 2023. Mr Geng explains that both matters added significant weight to the concerns he had developed before receiving the letter of 4 April 2025. Mr Geng states he was then on annual leave from 18 April 2025 to 27 April, returning to work on 28 April 2025. The application was filed on 9 May 2025.

53    Mr Geng states that it was not until he received the letter of 4 April 2025 that he considered that the second respondent had a proper basis to raise authenticity concerns. He further states that shortly thereafter he became aware of the procedure in ss 167–168 of the Evidence Act and the 21 day time limit. It was not until the letter of 4 April 2025 that the real issues came to light.

54    I am not persuaded by this explanation. In his defence, the second respondent denies the allegations that verbal representations were made on 13 April 2022 and 16 May 2022. During the course of oral submissions, counsel for the second respondent said that, on the face of the documents, the evidence was surprising because the instructions from the second respondent was that the conversations alleged never occurred or not in those terms. Additionally, document (1) was described as a strangely specific stand-alone text message.

55    On this basis, at least in relation to documents (1) and (3) to (5) which record the alleged representations on 13 April 2022 and 16 May 2022, the second respondent had questions, if not about the authenticity of the documents, at least relating to the authenticity of the documents: see Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307 at [26] (Basten JA (with Spigelman CJ and Ipp JA agreeing)). It may have been a legitimate choice to await discovery. However, that does not mean that there was no foundation for pursuing a s 167 request prior to that discovery.

56    In any event, the explanation would appear to be at odds with Mr Geng’s evidence that he only became aware of the procedure under ss 167–168, and the time limit under s 168(5), after the letter of 4 April 2025. Furthermore, if the Request can be supported by s 167(a), as suggested by the second respondent, then it might have been sought without any implicit allegation challenging the authenticity of the documents.

Utility of the application

57    It is reasonably clear from the evidence provided by the second applicant and Ray Kheir that they will fail to comply with the Request. Specifically, they claim that there is nothing that can be produced in response to the Request because:

(1)    The originals of documents (3)–(5) were stolen;

(2)    The devices storing the text messages recorded in documents (1) and (2) were either discarded or stolen;

(3)    The device that recorded the videos was stolen;

(4)    The information was stored exclusively on those devices and were not saved to iCloud or any external storage; and

(5)    The digital copies were the only copies.

58    The Request extends to devices owned or operated by either the second applicant or Ray Kheir. However, with the denial that the text messages or electronic copies of the relevant documents were stored on an external device, the residual scope of the Request would not relate to the question of authenticity of the documents and, thus, would not be supported by s 167.

59    If the evidence demonstrates that s 167 will not produce a response that bears upon a question relating to authenticity, a real question arises about the utility of giving leave to make the Request.

60    Counsel for the second respondent argued that the Request had utility in two ways. First, s 167 provides the only method by which the second respondent can produce independent material to test the authenticity of those documents — as opposed to any material produced by the applicants. The difficulty is that, on the evidence before the Court on this Interlocutory Application, the Request is unlikely to produce any material.

61    Secondly, there is forensic utility because non-compliance with the Request would then permit an application under s 169(1)(c) for an order that the evidence in relation to which the request was made is not to be admitted in evidence. However, that possibility is conditioned in the opening words of s 169(1) by the failure or refusal to comply with the request to be “without reasonable cause”. Subsection 169(4)(a) provides that “it is reasonable cause to fail to comply with a request if the document or thing to be produced is not available to the party”. It follows that the inability of Ray Kheir to provide any information to the applicants would also constitute a reasonable cause for why that information is not produced pursuant to the Request. Given the evidence before the Court on the Interlocutory Application, the forensic use advanced by the second respondent is not one that would lead to the desired outcome.

Mandatory considerations under s 192

62    As foreshadowed, s 192 identifies considerations that are to be taken into account in deciding whether to give leave. Those considerations can be considered together.

63    As stated already in these reasons, there is no question that the relevant documents are important to the substantive proceeding.

64    The second respondent submitted that the process to be complied with under the Request is simple and commonly used. However, even after the amendments to the Request to address the applicants’ concerns about the disproportionate scope of the Request and its reasonableness, it is not obvious that the process would be straightforward even if one were to anticipate that only the current phones would be produced for testing. The Request creates categories of material that requires judgments to be made. It would require the applicants to seek the assistance of their lawyers, particularly in relation to material protected by legal professional privilege. There is a real prospect of disputes arising about the terms of the Request that would place demands on the time of the parties and the Court.

65    During oral submissions, counsel for the second respondent accepted that further expert evidence might be required if the application for leave were successful. However, it was submitted that the process could be managed before the trial, and that the currently listed days would be sufficient to accommodate that evidence. I accept that is possible, but the trial is listed for the second week of September 2025, and there are appreciable risks to maintaining the current listing if leave were given.

66    In terms of unfairness to the second respondent, I have already considered the asserted lost opportunity for an order under s 169. Additionally, it is difficult to see how concerns about the authenticity of the documents could not be addressed at trial: see Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 207 FCR 448; [2012] FCA 1355 at [92] (Perram J). The authenticity of a document will be a matter that goes to the relevance and weight of the evidence.

67    On balance, the mandatory considerations militate against giving leave. That is particularly because the trial is less than two months away. Given that circumstance, it is also not evident that giving leave is the best course of action consistent with the overarching purpose of resolving disputes efficiently: Federal Court of Australia Act 1976 (Cth) s 37M(1).

Disposition

68    While the authenticity of the relevant documents is an important issue in this proceeding, I am not persuaded that there is good reason for leave to be given to make the Request. That is primarily the case because of the considerable delay in seeking leave to make the Request out of time, the absence of persuasive reasons for the delay, the proximity of the Request to the trial, and the lack of utility.

conclusion

69    For the reasons given, the Interlocutory Application is refused with costs.

I certify that the preceding sixty-nine (69) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Stellios.

Associate:

Dated:    29 July 2025