Apollo Kitchens (NSW) Pty Limited v Goway Travel Pty Limited

The Discovery Issue

As will be seen, a substantial part of the discovery issue in this litigation is not in contest. Apollo's Notice of Motion filed 14 July 2020 sought an order under Rule 21.2 UCPR that Apollo give discovery of the documents within the classes specified in Annexure A to the Notice of Motion. Goway agrees with the categories of documents which Apollo proposes to discover.
The Notice of Motion identified in Annexure B, categories of documents which Apollo sought that Goway discover for the purpose of the proceedings. A substantial part of the categories contained in Annexure B are not disputed by Goway. It is accepted that discovery ought be given to Apollo with the contest relating to certain parts of the proposed categories in Annexure B to the Notice of Motion. Scope of Dispute Concerning Discovery by Goway
Annexure E to the affidavit of Mr Glover sworn 28 July 2020 contains a tracked version of the categories of discovery which Apollo seek from Goway, with alterations made to the categories reflecting parts to which Goway objects.
The most convenient approach is to set out below the categories of discovery in Annexure B to the Notice of Motion with tracked alterations reflecting Goway's proposed amendments: "'Relevant Employees' means the following individuals: 1. Greg Atkins 2. Deepak Pritamdas 3. Michelle Pearce 4. Carrie Bell 5. Muji Gurtala 6. Peter Lacy 7. Graziella Caruso 8. Chris Craddock 9.- Carolyn Weppler 7. Belinda Piper 8. Jarrod Ritchie 9. Mitchell Trench 13. Ghila Schutte 14. Sue Cornwell 15. Anthony Saba 16. Lara Carmina Categories of discovery a. All emails and their attachments dated between 1 September 2014 and 31 July 2018 between any Relevant Employee or Lisa Comito on the one hand, and David Duggan or Peter Bader on the other which contain any of the search terms annexed to this order. b. All emails and their attachments (including relevant emails within the email chain) between Deepak Pritamdas and Lisa Comito and/or Greg Atkins on 1 June 2017. c. All emails and their attachments (including relevant emails within the email chain) from Jarrod Ritchie to lisamariec75@hotmail.com and/or Greg Atkins on 18 June 2018. d. All emails and their attachments dated between 1 September 2012 2014 and 12 December 17 August 2018 between any Relevant Employees, or any Relevant Employees and Lisa Comito's personal (lisamariec75@hotmail.com) or Goway email addresses, which contain any of the search terms annexed to this order. e. All brochures or flyers created between 1 September 2012 and 31 July 2018 depicting any apparent Goway Travel branding and containing any of the following terms: i. 'Family and Friends' ii. 'Charity' iii. 'F&F' or 'F and F' iv. 'Staff Travel' f. Job descriptions (or any variations of job descriptions) as described in the contracts of employment for each of the Relevant Employees from 1 September 2012 2014 to 12 December 17 August 2018. g. All documents referring or relating to 'TravelBox 31510 Masterfile' for the period 1 September 2012 2014 to 12 December 17 August 2018 which refer to David Duqgan or Peter Bader. h. All documents referring or relating to GORE270429 for the period 1 September 20142 to 172 December August 2018 which refer to David Duqgan or Peter Bader. i. Forensic audit reports prepared by PKF Forensic & Risk Services, as identified in Goway's statement re 'Family and Friends' clients issued on 25 July 2018. Plaintiff's Keywords and Search Terms Charity AND 'Lisa Comito' 'Family and Friends' 'F&F' or 'F and F' 'Peter Bader' 'Elissar Bader' 'Bianca Bader' 'Jessica Bader' 'Salwa Bader' 'Teresa Grabler' 'Giselle Badr' 'Joseph Badr' 'Lara Badr' 'Nicole Badr' 'Marc Chami' 'Jason Chami' 'Daniella Chami' 'Pierre Chami' 'Souhail Chami' 'Eid Chami' 'David Duggan' 'Jeremy Foxe' 'Brian Swan' 'Loredana Loca' 'George Kokkinos' 'Antoine Tarabay' 'Apollo Kitchens' 'Harvey Crabtree' 'Najla Zakhour' 'Pierre Zakhour' 'Patrick Zakhour' 'Natalie Zakhour' 'Louis Zakhour' 'Joseph Ardita' 'Tina Ardita' 'Nadia Naddaf 'Gabrielle Logan' 'Elias Yammine' 'Bilal Kalsina' 'Melissa Williamson' ('Corporate Account' or 'Corporate Travel') AND ('Peter Lacy' OR 'Carolyn Weppler' OR 'Bruce Hodge') AND ('Anthony Saba'' OR 'Carrie Bell') 'Joseph Harb' 'Platinum Travel Pass' 'Travelbox' AND 31510 'Tourplan' AND ''GORE270429' 'GOWRET FA'"
At the hearing on 20 August 2020, Mr Cobb-Clark, counsel for Apollo, noted that his client accepted Goway's alterations to the categories of discovery as proposed in paragraph (a) so that the words "which contain any of the search terms annexed to this order" would be deleted. In addition, Apollo accepted that the entry "Harb" in the list of key words and search terms should be amended to "Joseph Harb". Further, Mr Cobb-Clark indicated that Apollo would consent, with respect to the last three key words and search terms in the list, for those items to be searched only in conjunction with other search terms as contained in the list and not as a single or freestanding search.
Beyond that, the contest between Apollo and Goway with respect to discovery is identified by Goway's proposed redactions in the categories set out at [41] above. Legal Principles on Application for Discovery
The Court has power under Rule 21.2 UCPR to order a party to give discovery of documents within a class or classes specified in the order. The basis for an order is that discovery is necessary in the interests of a fair trial: Percy v General Motors-Holden's Pty Limited [1975] 1 NSWLR 289 at 292; Commonwealth Bank of Australia v Daleport Pty Limited (In Receivership) (No. 3) [2017] NSWSC 1584 at [20]. In determining whether to make an order for discovery, the Court will have regard to the applicable principles in ss.56-60 Civil Procedure Act 2005: DHR International, Inc v Challis (No. 2) [2015] NSWSC 1964 at [27].
The classes of documents to be discovered may be specified by reference to one or more facts in issue or by description of the nature of the documents and the period within which they are brought into existence: Rule 21.2(3) UCPR. A document is relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of the witness), regardless of whether the document or matter would be admissible in evidence: Rule 21.1(2) UCPR. The test is similar to the relevance test under s.55 Evidence Act 1995: Zhu v Yingle Cultural Exchange (Australia) Pty Ltd (In Liq) [2010] NSWSC 107 at [10].
The class of documents to be discovered must be specified no more widely than the Court considers justified in the circumstances so as to avoid the potential for discovery to give rise to oppressive and disproportionate costs and to impede the overriding purpose in s.56 Civil Procedure Act 2005: Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [21]-[22]. There is no entitlement to "chain of enquiry" discovery: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [101].
It must be concluded that documents sought could "possibly throw light" on the issues in the case or that it is likely that the documents will materially assist on an identified issue or that there is a reasonable basis, beyond speculation, that it is likely that they will materially assist: Elanor Operations Pty Ltd v Chief Commissioner of State Revenue (NSW) [2020] NSWSC 840 ("Elanor Operations") at [43] (Ward CJ in Eq).
If compliance with an order for discovery would be too onerous, then limitations may be placed on it: Elanor Operations at [41]. The Court has a general discretion to require or limit discovery consistent with the overriding purpose in s.56 Civil Procedure Act 2005: Palavi v Radio 2UE Sydney Pty Ltd at [101]. The Court should be alive to the cost, and associated delay and complexity, associated with extensive discovery: Commonwealth Bank of Australia v Goater [2016] NSWSC 710 at [31]-[34]. Submissions for Apollo
Mr Cobb-Clark noted that the present application for discovery is to be considered against the background where, on 23 June 2020, the Registrar ordered, by consent, that Goway give discovery of limited categories of documents. In circumstances where the hearing was vacated and the parties have since agreed that the matter should be transferred to the District Court, the parties have considered further the discovery issue giving rise to the present proposed categories as specified in Apollo's Notice of Motion.
By reference to the Amended Statement of Claim filed on 10 July 2020, Mr Cobb-Clark noted that Apollo alleges that, between September 2014 and December 2017, Apollo entered into an agreement or a series of agreements with Goway whereby Goway agreed to provide various travel packages to Apollo. Apollo claims that on or about 5 July 2018, Goway repudiated the agreement(s) without having provided to Apollo all of the travel that it had purchased in the travel packages. Apollo claims that it has suffered a loss of at least $612,133.67 by reason of Goway's failure to provide it with the entirety of the travel packages purchased. Additionally, Apollo claims that it is entitled to refunds for travel that it had to purchase itself as a result of Goway failing to provide the travel that it had agreed to provide in the travel packages.
The Amended Statement of Claim also adds a claim for money had and received. The basis of that claim is that Goway received from Apollo a total of $656,058.58. However, Goway failed to provide Apollo with travel packages to the value of $612,133.67 and has been enriched by that amount. A similar claim is made in respect of a payment of $9,384.00 which Apollo pleads it paid to Goway by mistake.
Goway's Defence to the Amended Statement of Claim filed on 16 July 2020 pleads, amongst other things, that Ms Lisa Comito did not have express, implied or ostensible authority of Goway to contractually bind Goway to the travel packages sold to Apollo. Goway also pleads that it has provided $568,684.89 in travel services to Apollo. Goway also pleads that the price paid for the travel packages by Apollo was many times less than the travel would cost Goway to supply and this would thereby cause substantial loss to Goway.
Against this background, Mr Cobb-Clark submitted that the pleadings give rise to the following issues in dispute: 1. What travel packages did Apollo agree to purchase? 2. What were the terms of those travel packages? 3. What was the cost to Goway of acquiring travel services for provision to Apollo pursuant to the purchased travel packages? 4. Did Ms Comito have the express, implied or ostensible authority of Goway to enter into contracts with Apollo for the travel packages? 5. If Ms Comito did not have authority, did Goway subsequently ratify her conduct? 6. What travel services were actually provided by Goway to Apollo? 7. What was the value of the travel services provided by Goway to Apollo?
Mr Cobb-Clark submits that the categories of discovery that Apollo proposes be given by Goway are addressed directly to these facts in issue. He submitted that they do not constitute a fishing expedition, but are targeted to produce directly related and relevant information to permit a fair trial of the issues in dispute.
The written and oral submissions then addressed the categories of discovery proposed by Apollo. With respect to the dispute about the list of "Relevant Employees", Mr Cobb-Clark submitted that the purpose of the list was to tailor or narrow the scope of the searches to be undertaken by Goway. The list of names was said to identify persons whom Apollo reasonably believes were involved in Ms Comito's activities. The list of 16 employees sought to determine to what extent Goway had knowledge of the activities of Ms Comito in selling travel packages to Apollo. It was submitted that this went to the issue of knowledge as an element of ratification, with the issue of knowledge extending beyond persons who were directly concerned in Ms Comito's activities.
Mr Cobb-Clark noted that the persons in the list to whom objection was taken by Goway were persons nominated in notes said to have been written by Ms Comito and provided to Mr Bader, with those notes being marked Exhibit "VSP1" as part of Mr Panicker's affidavit affirmed on 14 July 2020. Those handwritten notes refer to persons including Graziella Caruso, Chris Craddock, Carolyn Weppler, Ghila Schutte, Sue Cornwell, Anthony Saba and Lara Carmina.
Mr Cobb-Clark submitted that reliance upon notes said to have been written by Ms Comito were sufficient for the purpose of the application for discovery and that it was not a precondition for an order for discovery to be made that there be an affidavit from Ms Comito.
It was submitted for Apollo that the fact that Goway asserted that these named persons were not involved with retail customers did not answer the question of the role of these persons, and their knowledge of Ms Comito's activities in circumstances where Ms Comito's notes named the persons as pertinent in this aspect.
With respect to the period of time covered by the discovery categories, Mr Cobb-Clark submitted that Goway had put in issue the question of Ms Comito's authority to contract on its behalf with Apollo and that this raised questions of what knowledge Goway had of Ms Comito's activities. It was submitted that the conduct of Ms Comito in relation to Apollo formed part of a system or pattern of conduct by Ms Comito which had its genesis in at least September 2012 so that the order for discovery should extend to that period.
With respect to the end date for discovery, Mr Cobb-Clark submitted that the relevant period for discovery ought conclude on 12 December 2018 which was the date when Ms Comito's employment was terminated by Goway. It was submitted that documents between August 2018 (when Apollo ceased purchasing travel packages) and December 2018 were directly relevant to the question of Goway's knowledge of Ms Comito's activities. It was submitted that documents from this period were particularly relevant to the issues of ostensible authority or ratification.
It was submitted that, according to the affidavit of Gregory John Atkins sworn 5 December 2019 (paragraph 62), by about July 2017, Mr Atkins appeared to have had serious concerns about Ms Comito's conduct and that this raised questions of whether, by continuing Ms Comito's employment until December 2018, Goway authorised or ratified her conduct as part of the "Family and Friends" scheme.
With respect to suggested further limitations by Goway of the categories for discovery at (d), (g) and (h) and the "TravelBox" and "TourPlan" search terms, Mr Cobb-Clark submitted that Goway's restrictions were not appropriate having regard to the issues in dispute, particularly the question whether Goway knew of and authorised or ratified Ms Comito's conduct. It was submitted that these categories and search terms related to master files concerning bookings made as part of the "Family and Friends" scheme and that these documents are likely to be directly relevant to the question of what travel Apollo received and at what price and whether the sale of the travel was authorised by Goway.
With respect to search terms, Mr Cobb-Clark submitted that a list of search terms had been prepared for use in conjunction with Categories (a) and (d) with the intention of limiting the searches and product that Goway would otherwise have to provide to Apollo.
It was submitted for Apollo that Goway appears to have misunderstood how a Boolean search string works as part of its objection to certain specified search items. Mr Cobb-Clark submitted that the search terms included on Apollo's list were achievable and appropriate having regard to the issues in the case.
Apart from the areas where Apollo accepted Goway's amendments or proposed a modification to its own application (see [42] above), it was submitted for Apollo that Goway should be ordered to give discovery to Apollo in the terms sought in Apollo's Notice of Motion filed 14 July 2020. Submissions for Goway
Mr Maroya submitted that discovery should not be ordered against Goway in the areas where objection was taken as set out at [41] above.
With respect to the "Relevant Employees" to whom objection is taken, Mr Maroya submitted that the handwritten notes said to have emanated from Ms Comito were best described as "a hearsay wish list of speculative requests that might be made of employees with little to no relevance to Ms Comito or the proceedings". It was submitted that the evidence indicated that Mr Johnston, a director of Goway, had carried out investigations concerning the way in which Goway had functioned and that what Mr Johnston has said should be preferred to the handwritten notes attributed to Ms Comito.
It was submitted that the persons nominated in Ms Comito's notes were all junior to Ms Comito and in many instances were not employees of Goway, but employees of Goway Canada, a wholly separate legal entity. It was submitted that, of the 400-500 pages of documents produced by Goway on 29 June 2020, no reference was made to the name of Ms Cornwell. Submissions were made, as well, concerning Ms Schutte and Mr Craddock in opposition to Apollo's proposed inclusion of those persons in the list of "Relevant Employees". It was submitted that the persons to whom Goway objected were not relevant to these proceedings. It was submitted that Apollo's desire to include these names offended the prohibition upon "chain of enquiry" discovery.
With respect to the period of time covered by the categories, Mr Maroya submitted that the relevant issue concerned the question of Ms Comito's authority to contract with Goway and not any other person. It was submitted that the activities of Ms Comito which predate her involvement with Mr Bader, a director of Apollo, have no relevance to these proceedings. It was submitted that Ms Comito went on indefinite stress leave from 14 June 2018 and that Mr Atkins states that, whilst on stress leave, Ms Comito was not involved in, nor did she have anything to do with, any retail bookings. Once again, it was submitted that this part of Apollo's application contravened the prohibition on "chain of enquiry" discovery.
With respect to search terms, Mr Maroya submitted that Goway is a travel agency which does not operate a sophisticated, legal search engine that allows it to run Boolean searches.
Mr Maroya submitted that Mr Bruce Hodge, the founder of Goway, was permanently based in Canada and it was not clear how he was said to be relevant to these proceedings.
With respect to the final search terms contained in the list (at [41] above), Mr Maroya noted that "TravelBox" is operated by Goway Philippines and is not under the control of Goway Australia so that searching that category presented other difficulties. It was submitted that "TravelBox" and "TourPlan" were booking operating systems and not a general repository of information that might touch upon the question of knowledge.
With respect to the proposed narrowing of categories identified by Mr Cobb-Clark (see [42] above), Mr Maroya submitted that this proposal would not assist given the continuing difficulty, as expressed by Goway, with searching the combinations referred to in the list of search terms.
It was submitted for Goway that the contested categories of discovery should not be ordered in this case as Apollo's application involved a fishing expedition and not a legitimate use of the discovery process. Decision
I accept as accurate Mr Cobb-Clark's summary of the issues (at [50]-[53] above) raised by the Amended Statement of Claim and Defence to the Amended Statement of Claim, both of which have been filed since 30 June 2020. I accept that this summary of the issues in the proceedings may be utilised as a touchstone for the purpose of determining whether discovery in the contested areas should be ordered.
It is clear that determination of Apollo's claim against Goway will involve an examination of contact which took place between Apollo on the one hand, and Ms Comito and Goway on the other hand, over a number of years during which there is no dispute that substantial sums of money were paid by Apollo. The live issues in the proceedings will involve findings as to express, implied or ostensible authority for Ms Comito to act for Goway and, if there was no such authority, whether Goway subsequently ratified Ms Comito's conduct. Resolution of these issues will involve consideration of relevant documentary evidence together with oral evidence from persons within Goway who worked with, or had knowledge of, the activities of Ms Comito with Goway.
I note that no affidavit has been obtained from Ms Comito and it is not suggested that she will be called by either party as a witness at the hearing. It is clear that neither party intended to call Ms Comito if the hearing listed for 30 June 2020 had proceeded. "Relevant Employees"
Criticism is made by Goway of Apollo's reliance upon handwritten notes said to have been produced by Ms Comito to Mr Bader who has, in turn, provided them to Mr Panicker. No objection was taken by Goway to these notes being admitted as part of Mr Panicker's affidavit at the hearing of the Notice of Motion. In any event, the notes form part of the evidence on the present interlocutory application and the source of the notes is identified in Mr Panicker's affidavit: s.75 Evidence Act 1995.
The present question is whether Ms Comito's notes, taken with the evidence, provide sufficient foundation for the persons named in the notes to be included in the categories of discovery.
According to Ms Comito's notes, Ms Caruso was aware of the "Family and Friends" tickets and sent an email to Mr Lacy expressing her concerns. Although Ms Caruso was said in the notes not be involved in the booking process, Ms Comito asserts that she had knowledge of it and was aware of conversations which Ms Comito had with Mr Atkins concerning that topic.
According to Ms Comito's notes, Mr Craddock, a business development manager, did not make any "Family and Friends" bookings, but was aware that they were taking place and would speak to Ms Comito about them.
According to Ms Comito's notes, Ms Weppler was the regional manager in Toronto and Ms Bell reported to her whilst Ms Bell was based in Sydney for one year from January 2016. According to the notes, bookings were processed through "TravelBox" and Ms Bell would have had discussions with Ms Weppler and Mr Saba.
According to Ms Comito's notes, Ms Schutte was aware of the "Family and Friends" scheme and she raised concerns with Ms Comito several times that it was very stressful for Ms Comito.
Ms Comito's notes state that Ms Cornwell and Marzia Senzio would often help Ms Comito and book car rentals or domestic hotels on the "Family and Friends" bookings.
According to Ms Comito's notes, Mr Atkins would refer to the "Family and Friends" scheme with head office as the corporate account.
I am prepared to proceed upon the basis that Ms Comito's notes nominate, in broad terms, certain persons and activities which are said to relate to the "Family and Friends" scheme which lie at the centre of the present proceedings.
The evidence on the present application reveals the following concerning these persons.
Ms Caruso is a member of Goway's product buying team and may be taken to have had some knowledge of the nature, extent and cost of the products being sold by Goway. Even if Ms Caruso had no involvement in the booking or issue of tickets, an issue in these proceedings concerns Ms Caruso's knowledge of the "Family and Friends" scheme and of Ms Comito's activities in that respect.
Ms Schutte is the manager of the group's incentive section of Goway responsible for inbound travel to Australia. From about October 2014 until July 2017, Ms Comito was the local operations manager with supervision of the inbound travel department. This period of time includes the period when Ms Comito was offering travel packages to Apollo, allegedly on behalf of Goway. The fact that the inbound team had no involvement with retail customers does not bear upon the question of what Goway knew about the "Family and Friends" scheme and Ms Comito's involvement in it.
Ms Cornwell was a member of the inbound reservations team at Goway. The reference to Ms Cornwell in Ms Comito's notes provides a foundation for inclusion of Ms Cornwell's name in the list of "Relevant Employees".
Mr Craddock is a business development manager employed by Goway in the inbound sales team. Like Ms Caruso, the fact that Mr Craddock had no involvement in retail bookings does not address the issue of what Mr Craddock (and Goway) knew about the scheme.
The evidence reveals that Ms Weppler is the retail manager in Goway's Toronto office and that Mr Saba and Ms Carmina are employees of Goway Canada. Ms Comito's notes indicate that Ms Bell, a retail consultant located in Goway's Sydney office, reported to Ms Weppler whilst she was based in Sydney during 2016.
Mr Glover's affidavit of 28 July 2020 asserts that, according to Mr Johnston's investigations, there is no relationship between Ms Weppler, Mr Saba, Ms Carmina and Ms Comito in terms of Ms Comito's involvement in the Sydney office retail department. Even if these persons did not have a working relationship with Ms Comito herself, Ms Comito's notes provide a foundation for inclusion of these persons in the list of "Relevant Employees". I accept Apollo's submissions that the question of knowledge on that part of these specified Goway personnel of the activities of Ms Comito is relevant, at least, to the ratification issue.
In my view, sufficient foundation has been demonstrated for inclusion of these persons in the list of "Relevant Employees" with the searching to be undertaken by Goway in that respect not being, at least on the evidence before the Court on this application, unduly onerous. I propose to include all names of "Relevant Employees" as sought by Apollo. The Period of Time Covered by the Discovery Categories
With respect to the period of time covered by the discovery categories, I note that Goway has put in issue the question of Ms Comito's authority to contract on its behalf with Apollo. This raises question of what knowledge Goway had of Ms Comito's activities. The evidence reveals that Ms Comito did not offer travel as part of the "Family and Friends" scheme only to Apollo with the affidavit of Mr Atkins of referring to other clients having made bookings by a charity associated with Ms Comito.
I accept Apollo's submission that the conduct of Ms Comito in relation to Apollo forms part of a system or pattern of conduct by Ms Comito which appears to relate back at least to September 2012, and thus that the relevant period of discovery should commence on 1 September 2012.
I also accept the submission of Mr Cobb-Clark that the relevant period for discovery in these categories should conclude on 12 December 2018, the date when Ms Comito's employment with Goway was terminated. Although the evidence reveals that Ms Comito ceased working for health reasons prior to December 2018, I accept that documents between August and December 2018 are relevant to the question of Goway's knowledge of Ms Comito's activities. In circumstances where there is material pointing to Mr Atkins having concerns about Ms Comito's conduct by about July 2017, I accept that documents up to the termination of her employment in December 2018 are relevant to issues of ostensible authority or ratification.
I propose to include in the orders for discovery the period of time sought by Apollo. Other Limitations
I am satisfied that other limitations sought by Goway to be placed upon the categories by Goway with respect to Categories (d), (g) and (h) ought not be implemented. There is a proper foundation revealed in the material for these categories to be included, extending to searches concerning "TravelBox" and "TourPlan". Search Terms
The controversy concerning search terms relates, in particular, to suggested difficulty in Boolean searches for two terms. I express my satisfaction that the keywords and search terms as sought by Apollo are all appropriate to be included in an order for discovery. The Court is faced with competing submissions from the Bar table as to the ability to undertake such searches (as argued by Mr Cobb-Clark) and difficulty in undertaking such searches (as submitted by Mr Maroya). Insofar as there is said to be technical difficulty with the making of searches of this type, Goway has not provided any evidence which discloses any technical foundation for such a problem.
In circumstances where I am satisfied that the search terms as sought should be included in the order, in the absence of evidence that would demonstrate that such an order is oppressive, I propose to make the order as sought.
I have borne in mind Mr Maroya's submission that, given it is Goway's staff who would be conducting the discovery exercise, Goway is a travel agency with staff who work in that capacity and not in a legal office or a larger commercial enterprise (and that this may be a more difficult task for them). I have kept in mind, as well, that the impact of the COVID-19 pandemic is such that Goway's travel agency is not functioning in the manner in which it ordinarily would at other times and that there are fewer staff currently working in the Goway office (affidavit of Mr Glover sworn 28 July 2020, paragraphs 23-24).
In circumstances, however, where the Court is satisfied that the keywords and search terms should be included in the order for discovery to be given by Goway, it seems to me that practical factors of this type bear upon the time which Goway should be allowed for the purpose of complying with the discovery order, rather than the question as to whether the disputed keywords and search terms should be included in the order. Conclusion Regarding Categories of Discovery
In determining that an order for discovery should be made against Goway in the terms sought by Apollo, I express my satisfaction that the proposed areas of discovery do not constitute a fishing expedition nor a form of "chain of enquiry" discovery.
In circumstances where I propose to publish the present judgment to the parties on 28 August 2020, with the matter to come before me again at 9.30 am on 2 October 2020 for further directions, the parties will have an opportunity to consider the orders I intend to make concerning discovery and to propose dates by which time Apollo and Goway should comply with their discovery obligations under the orders.
If the parties cannot agree as to dates for these purposes, I will consider what orders should be made when the matter comes before me on 2 October 2020.

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (14)

Cited By (1)