mixed. Orders made 28 August 2020: (1) Apollo to pay two-thirds of Goway's costs thrown away by reason of the vacation of the hearing on 30 June 2020, assessed on the ordinary basis; (2) discovery orders in...
Key principles
The Court exercised its discretion under s 98 Civil Procedure Act 2005 and UCPR costs rules to order that Apollo pay two-thirds of Goway's costs thrown away by the vacation of...
An indemnity costs order was not justified because the evidence did not establish the level of delinquency or unreasonableness required for indemnity costs (Legal Principles...
An order for discovery against Goway was appropriate under Rule 21.2 UCPR because the classes of documents sought were limited to facts in issue (authority, ratification, what...
Issues before the court
What costs order should be made in respect of costs thrown away by vacating the hearing on 30 June 2020?
Whether Apollo's Notice of Motion should be granted to order discovery from Goway in the classes and on the terms sought (including scope, persons,...
Cited legislation
Plain English Summary
Johnson J vacated a trial date that had descended into 'litigious semi-chaos' because of late pleadings, late evidence and discovery activity by both parties. The Court held Apollo principally responsible for the adjournment and ordered Apollo to pay two-thirds of Goway's costs wasted by the vacated hearing on the ordinary basis, but refused to award indemnity costs because Apollo's conduct did not reach the threshold of delinquency/unreasonableness required. Separately, the Court granted Apollo's application for discovery against Goway over a specified set of employees, an extended time period (1 September 2012 to 12 December 2018) and comprehensive search terms, finding those categories reasonably tailored to contested facts (authority, ratification, what travel was supplied and its value) and not oppressive or a 'chain of enquiry'.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,799 words · generated 30/08/2026
No linked legislation citations have been extracted yet.
What happened
This is an interlocutory ruling by Johnson J in proceedings between Apollo Kitchens (NSW) Pty Limited (Apollo) and Goway Travel Pty Limited (Goway). The Court was asked to decide two discrete but connected interlocutory issues after the final hearing listed for 30 June 2020 was vacated on that day:
Who should bear the costs thrown away by reason of the hearing being vacated on 30 June 2020; and
Whether Apollo's Notice of Motion filed 14 July 2020 should be granted so that Goway must give discovery in the categories and on the terms Apollo sought.
The background is that the proceedings began in 2018 (Statement of Claim 17 August 2018) and moved sluggishly, with multiple directions and compliance failures. The hearing had been listed for two days commencing 30 June 2020. In the week before the hearing there was significant document and affidavit exchange: on 26 June 2020 Goway provided discovery (by Registrar's consent order made 23 June 2020), Apollo received documents from Ms Comito on 27 June 2020 and served a 'tender bundle', and Goway served a further affidavit of Mr Forno plus circa 500 pages of documents on 29 June 2020. On 30 June 2020 Apollo filed a Notice of Motion seeking to vacate the hearing and to amend the Statement of Claim to include a claim in money had and received. The Court vacated the hearing because the matter was, in the judge's words, in "a state of litigious semi-chaos" (hearing vacation judgment: see [32]–[44] as reproduced in the judgment delivered on 28 August 2020).
At the 20 August 2020 hearing the Court heard submissions and read affidavits. On 28 August 2020 Johnson J delivered reasons and made orders: Apollo was to pay two-thirds of Goway's costs thrown away by reason of the vacation of the hearing (assessed on the ordinary basis), and discovery orders were made in the terms of Apollo's Notice of Motion filed 14 July 2020 subject to the minor modifications Apollo accepted. The proceedings were to be transferred to the District Court at an appropriate time (s 146(1) CPA).
Why the court decided this way
Costs decision (vacated hearing): The judge applied the Court's statutory and procedural powers: s 98 Civil Procedure Act 2005 confers broad discretion on costs and UCPR rules govern the general rule that costs follow the event (r 42.1) and interlocutory costs (r 42.7). For a party to be compelled to pay indemnity costs, the jurisprudence requires demonstration of "relevant delinquency" or unreasonableness connected to litigation conduct (Oshlack, White Constructions, Rosniak, Leichhardt Municipal Council v Green). Johnson J evaluated the chronology and evidence immediately relevant to the vacated hearing: Apollo's chronic delays in complying with directions, late briefing of counsel (one week before the hearing), counsel's advice to add a new cause of action (money had and received), Apollo's late tender bundle based on documents obtained only on 27 June 2020, alongside Goway's late service of Mr Forno's affidavit and 500 pages on 29 June 2020. The judge concluded that Apollo's conduct was the principal cause of the adjournment, though Goway contributed (Decision [6]). The judge was not satisfied the degree of delinquency/unreasonableness reached the threshold required for indemnity costs; rather, an ordinary-basis, proportionate costs order was appropriate. The extent of Apollo's responsibility justified a two-thirds apportionment of Goway's wasted costs.
Discovery decision: The Court applied discovery principles, UCPR r 21.2 (power to order discovery of classes of documents) and the relevance test in r 21.1(2), like s 55 Evidence Act 1995, and the obligation to give effect to the overriding purpose in s 56 CPA. The threshold for ordering discovery is necessity in the interests of a fair trial (Percy, Daleport), but discovery must not be broader than justified because of possible oppression, disproportionate cost, delay or "chain of enquiry" discovery (Palavi; Graphite Energy; Elanor Operations). The judge examined the pleadings (Amended Statement of Claim and Defence), identified the live issues (what travel was agreed, terms, service provided, costs to Goway, whether Ms Comito had authority, and potential ratification), and found the categories Apollo sought were sufficiently connected to those facts in issue. Apollo relied on handwritten notes said to originate with Ms Comito which identified named Goway personnel; Johnson J accepted those notes as part of the evidential foundation for including specific 'Relevant Employees' in the class to be searched. The judge accepted Apollo's proposed time window (1 September 2012 to 12 December 2018) as justified by the pleaded issues and material pointing to Systemic conduct, and rejected Goway's objections to particular search terms and to searching TravelBox/TourPlan (absent technical evidence of impossibility or oppressive burden). Overall, the judge concluded the categories sought were not a fishing expedition nor prohibited chain-of-enquiry discovery and ordered discovery largely as Apollo requested.
Before and after state of the law
Before: The applicable legal principles were well-established. For costs, s 98 CPA provides general costs discretions; the High Court and NSW courts have repeatedly stated that indemnity costs require relevant litigation-related delinquency or unreasonableness (Oshlack; White Constructions; Leichhardt Municipal Council v Green). For discovery, established tests require that discovery is necessary for a fair trial (Percy), that documents be relevant to facts in issue (UCPR r 21.1(2)), and that discovery be proportionate and not a 'chain of enquiry' (Palavi; Graphite).
After: This judgment applies those settled principles to the facts: it reaffirms that a party principally responsible for a vacated hearing may be ordered to pay a substantial portion (here two-thirds) of the other party's wasted costs on the ordinary basis, even when the other party also contributed. It also demonstrates the Court's willingness to order targeted, expansive discovery when the applicant shows a reasonable evidential foundation connecting categories of documents (including searches by named employees and booking systems) to the pleaded factual issues, the judge emphasised that practical difficulties affect timing but do not, without technical proof, negate the scope order.
Key passages with plain-English translation
"I am satisfied that the principal cause of the adjournment ... lay at the feet of Apollo, with some contribution ... by Goway." (Decision [6].)
Plain English: The judge found Apollo mostly to blame for the hearing being vacated, although Goway also played a part.
"Section 56 Civil Procedure Act 2005 provides that the overriding purpose ... to facilitate the just, quick and cheap resolution ... The parties ... are under a duty to assist the Court ..." (Hearing vacation judgment quoted at [38].)
Plain English: The Court reminded the parties of the statutory duty to help the case move quickly and cheaply; that duty informs decisions about adjournments and costs.
"I am satisfied that the proposed areas of discovery do not constitute a fishing expedition nor a form of 'chain of enquiry' discovery." (Conclusion on discovery.)
Plain English: The judge found Apollo's discovery request expressly targeted relevant issues and was not an improper, speculative grab for documents.
Court's approach to practical difficulties: the judge accepts Goway's operational constraints (COVID-19, travel agency staff) are relevant to timing, not to the merits of limiting discovery.
Plain English: If a defendant says searches are hard because they're a small travel agency or due to COVID-19, that mainly affects how much time the Court should give to comply, not whether the order should be made.
What fact patterns trigger this precedent
A hearing is listed after prolonged case-management directions and one or more parties fail to comply with pre-trial directions, with late evidence, late briefing of counsel, late pleadings or new causes of action raised on the eve of trial.
A respondent serves a large bundle of evidence/documents at short notice, prompting the applicant to seek adjournment.
The applicant relies on contemporaneous documentary evidence (including handwritten notes from a relevant third party) that identifies other personnel and supports discovery requests.
The contested discovery categories are framed to capture communications, booking-system records and materials tied to named employees and a contested time window that map to issues of authority, ratification, and the value/extent of services provided.
In those fact patterns, this decision supports (1) allocating wasted hearing costs against the party principally responsible for the collapse of the hearing, and (2) making discovery orders that reach into booking systems and communications if grounded to facts in issue and limited in time and persons.
How later courts have treated it
This judgment itself cites and applies existing authorities (Palavi, Percy, Elanor Operations, Graphite Energy, Oshlack). It reinforces established lines of authority, courts will order proportional costs against the responsible party and will permit broad but targeted discovery where a solid foundation exists. Later courts (not canvassed here) would likely treat this decision as an application of those principles to a fact pattern involving travel-booking systems and disputed agency authority. The judgment’s practical stance, that operational difficulty affects timing rather than scope absent clear technical proof, is an implementation stance practitioners may cite in future discovery cost/time disputes.
Still-open questions
Technical search burdens: the Court required Goway to identify specific technical evidence if it could not comply with search terms. What precisely constitutes sufficient technical proof of inability to run Boolean searches or to access TravelBox/TourPlan data hosted in other jurisdictions/entities remains fact-dependent, parties may need detailed IT affidavits to resist specific search requests.
Third-party witnesses: the judge noted no affidavit from Ms Comito and that neither party intended to call her at the vacated hearing. The absence of a direct witness affidavit did not prevent discovery orders. The extent to which discovery may proceed where the alleged central actor is unwilling or unavailable to be questioned remains bounded by relevance and proportionality but may raise issues about how the discovered material will be used at trial.
Apportionment of costs: the Court selected two-thirds as a practical apportionment given both parties contributed to the chaos. The judgment does not provide a precise formula for apportionment. Future cases will continue to develop how courts quantify the degree of responsibility between parties when allocating 'costs thrown away'.
Transfer timing and interlocutory oversight: the Court retained the interlocutory discovery and costs determination while proposing to transfer the substantive proceedings to the District Court. The coordination of discovery obligations across a transfer (and any differences in case management regimes) may generate procedural wrinkles later.
Disclaimer: This deep dive explains the Court's reasons and the legal principles Johnson J applied in Apollo Kitchens (NSW) Pty Limited v Goway Travel Pty Limited (No 2) [2020] NSWSC 1157, grounded in the judgment text. It is legal information, not legal advice. I can make mistakes. Before you act on, rely on, or use any part of this analysis (including any draft orders), get a qualified Australian lawyer to check it.
Judgment (8 paragraphs)
[1]
Solicitors:
Blackstone Waterhouse (Plaintiff)
Richard Glover Law Practice (Defendant)
File Number(s): 2018/253671
Publication restriction: ---
[2]
Judgment
JOHNSON J: On 30 June 2020, I made orders vacating the final hearing of civil proceedings between the Plaintiff, Apollo Kitchens (NSW) Pty Limited ("Apollo") and the Defendant, Goway Travel Pty Limited ("Goway") and made associated case management orders to progress the litigation: Apollo Kitchens (NSW) Pty Limited v Goway Travel Pty Limited [2020] NSWSC 852 ("the hearing vacation judgment").
The unhappy and protracted history of this litigation was summarised briefly in the hearing vacation judgment and what follows assumes that the reader is familiar with the contents of that judgment. I will refer to parts of the hearing vacation judgment later in this judgment.
Since 30 June 2020, the parties have attended to necessary steps to be taken to progress the litigation. A joint position has been reached by Apollo and Goway that, given the quantum of the claim, the proceedings should be transferred to the District Court of New South Wales pursuant to s.146(1) Civil Procedure Act 2005. At an appropriate point, I will make an order to that effect so that the progress and determination of the proceedings will occur in the District Court.
[3]
The Present Issues
However, there are two areas which are appropriate to be determined in this Court before that transfer takes place. Those issues are:
1. determination as to the appropriate costs order to be made arising from the vacation of the hearing on 30 June 2020;
2. determination of an application by Apollo for discovery contained in a Notice of Motion filed 14 July 2020.
It is the joint position by the parties, accepted by the Court as being a sensible approach, that orders for discovery should be made in this Court with the process of discovery to be undertaken in the period when the proceedings are in the course of transfer to the District Court to facilitate the progress of the litigation during that period.
[4]
Hearing of the Applications for Costs and Discovery on 20 August 2020
The hearing of the applications concerning costs and discovery proceeded on 20 August 2020. Mr Talintyre and Mr Cobb-Clark of counsel appeared for Apollo at that hearing with Mr Maroya and Ms Scott of counsel appearing for Goway.
The following affidavits were read without objection for Apollo on the costs and discovery applications:
1. affidavit of Venothan Steven Panicker affirmed 30 June 2020;
2. affidavit of Mr Panicker affirmed 14 July 2020;
3. affidavit of Mr Panicker affirmed 21 July 2020;
4. affidavit of Peter Bader affirmed 31 July 2020.
In the course of submissions, counsel for Apollo referred as well to affidavits which had been filed for other purposes in the proceedings.
Counsel for Goway read the following affidavits with respect to the costs and discovery issues:
1. affidavit of Richard John Glover sworn 22 June 2020;
2. affidavit of Mr Glover sworn 20 July 2020;
3. affidavit of Mr Glover sworn 28 July 2020;
4. Affidavit of Mr Glover sworn 11 August 2020.
Counsel for Goway also referred to affidavits which had been filed in the proceedings for other purposes.
In advance of the hearing on 20 August 2020, counsel for Apollo and Goway had exchanged and filed detailed written submissions on the costs issue and Apollo's application for discovery. These written submissions served the purpose of identifying the issues in dispute and crystallising what fell for determination by the Court with respect to costs and discovery.
Counsel for Apollo and Goway addressed the Court on both the costs and discovery issues at the hearing on 20 August 2020.
[5]
Costs Thrown Away as a Result of Vacation of Hearing on 30 June 2020
Legal Principles Regarding Costs Orders
The power to order costs on the present application lies in the discretion of the Court with the Court having power to determine by whom, to whom and to what extent costs are to be paid and whether the costs are to be awarded on the ordinary basis or on an indemnity basis: s.98 Civil Procedure Act 2005. An order as to costs may be made by the Court at any stage of the proceedings: s.98(3) Civil Procedure Act 2005.
The general rule is that costs follow the event: Rule 42.1 Uniform Civil Procedure Rules 2005 ("UCPR"). Of course, the proceedings are not completed and the present application arises at an interlocutory stage and focuses upon an appropriate costs outcome concerning the costs thrown away as a result of the adjournment on 30 June 2020. The principles as to costs apply on an interlocutory application such as this: Rule 42.7 UCPR.
An order for indemnity costs may be appropriate where the case involves some relevant delinquency on the part of a party to the proceedings: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [44]. In this context, some "relevant delinquency" does not mean moral delinquency or some ethical shortcoming, but delinquency bearing a relevant relation to the conduct of the case: White Constructions (ACT) Pty Limited (In Liquidation) v White and Ors [2004] NSWSC 303 at [10]-[11]. It is necessary to demonstrate some delinquency or unreasonableness on the part of the party against whom an indemnity costs order is sought: Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616. The need for unreasonableness is an underlying feature of an indemnity costs order: Leichhardt Municipal Council v Green [2004] NSWCA 341 at [51], [57]. The power to order costs on an indemnity basis may arise in different circumstances, including the manner in which a litigant has conducted proceedings.
Submissions of the Parties
It is not necessary to recite in any detail the submissions made in writing and orally on behalf of Apollo and Goway on the costs issue. It will suffice to set out the broad propositions put on behalf of each party before moving to the resolution of the application.
Mr Talintyre, for Apollo, submitted that the appropriate outcome should be that the Court makes no order as to costs with respect to the hearing vacated on 30 June 2020. He submitted that an element of fault lay with both parties with late service of substantial material being undertaken on both sides so that a costs order should not be made in favour of either Apollo or Goway arising from the vacated hearing.
[6]
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 () 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'"
[7]
Conclusion and Orders
With respect to the application for costs thrown away by the vacation of the hearing date on 30 June 2020, for reasons expressed earlier in this judgment, I propose to order that Apollo pay two-thirds of Goway's costs thrown away by vacation of the hearing date on the ordinary basis.
With respect to Apollo's application for discovery, I will make orders for discovery as proposed by Apollo in its Notice of Motion filed 14 July 2020, subject to the areas of modification accepted by Apollo as noted earlier in this judgment (at [41]-[42]).
Once these orders have been made, I will at an appropriate time make an order under s.146(1) Civil Procedure Act 2005 transferring the proceedings to the District Court of New South Wales.
I make the following orders:
1. Apollo is to pay two-thirds of Goway's costs thrown away by reason of the vacation of the hearing on 30 June 2020 with those costs to be assessed on the ordinary basis;
2. the parties should furnish to my Associate by email on or before 18 September 2020 Short Minutes to give effect to the orders for discovery to be given by Apollo and Goway as provided for in this judgment;
3. the Short Minutes should provide for Goway to pay Apollo's costs of the Notice of Motion for discovery filed 14 July 2020.
I confirm that the proceedings are before me for directions at 9.30 am on 2 October 2020.
[8]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 August 2020
Orders made 28 August 2020: (1) Apollo to pay two-thirds of Goway's costs thrown away by reason of the vacation of the hearing on 30 June 2020, assessed on the ordinary basis; (2) discovery orders in the terms of Apollo's Notice of Motion filed 14 July 2020, subject to minor agreed modifications; (3) parties to provide Short Minutes by 18 September 2020 to give effect to discovery orders and provide that Goway pay Apollo's costs of the Notice of Motion for discovery.
Mr Maroya, for Goway, submitted that Apollo should be ordered to pay Goway's costs thrown away as a result of the vacated hearing with the primary submission being that costs should be awarded on an indemnity basis or, alternatively, on the ordinary basis.
Mr Maroya submitted that there had been failures on the part of Apollo to comply with orders of the Court over a long period of time to progress any application for discovery so that steps were being taken close to the hearing date which endangered its viability. In addition, it appears that the solicitor for Apollo only briefed counsel a week prior to the scheduled hearing listed for 30 June 2020. Thereafter, Apollo gave notice of its intention to amend the Statement of Claim to include a claim based on monies had and received with that being the principal basis upon which Apollo indicated it sought to proceed.
Whilst acknowledging that Goway served a further affidavit of James David Forno sworn 29 June 2020 on the eve of the scheduled hearing, together with some 500 pages of documents, it was submitted that this material was largely responsive to Apollo's proposed amendment to advance a claim based upon monies had and received.
Mr Maroya submitted that the circumstances in which the proceedings came to be adjourned on 30 June 2020 constituted delinquency or misconduct so as to justify an order for costs on an indemnity basis.
The Hearing Vacation Judgment of 30 June 2020
As the present ruling on costs arises from the vacated hearing of these proceedings on 30 June 2020, it is appropriate to state briefly what occurred on that day and why it happened. It is appropriate at this point to refer to the hearing vacation judgment delivered on that day.
In the hearing vacation judgment, I described the subject matter of the litigation at [2]-[6]:
"2 The proceedings were commenced by Statement of Claim filed as long ago as 17 August 2018, in which the Plaintiff sought an order that the Defendant pay to the Plaintiff the sum of $698,842.25, together with interest and costs.
3 The Plaintiff's claim relates to the alleged provision by the Defendant to the Plaintiff of travel packages under a scheme described as the Staff Travel and/or Family and Friends Programme. The Statement of Claim alleges that, between September 2014 and July 2017, the Plaintiff purchased travel packages from the Defendant (which were not supplied) in the sum of $612,133.67, together with a claim of $86,708.58, for what was said to be overcharging by the Defendant of the Plaintiff's American Express card with respect to a number of items.
4 At the heart of the proceedings is the claim by the Plaintiff that money was paid to the Defendant for travel which was not provided, together with the additional American Express overcharging issue.
5 A person of note in the events giving rise to these proceedings is one Lisa Comito, who is said to have been an employee of the Defendant at all relevant times and appears to have been the contact between the Plaintiff and the Defendant. In saying that, there is a risk of oversimplification, but that is in broad terms what is said.
6 What the Defendant asserts in its Amended Defence (filed on 14 November 2019) is that it was Ms Comito who was dealing with the Plaintiff in this respect, effectively not as part of her employment with the Defendant or as an agent of the Defendant and that this was a type of frolic of her own so that the Defendant is not liable. Once again, I express the issues in an overly simplistic way. However, that appears to be a central issue in the proceedings."
I described the progress of the proceedings in 2019 at [8]-[12]:
"8 The proceedings had moved along in a rather ponderous fashion until 25 October 2019 when they came before me as Duty Judge: Apollo Kitchens (NSW) Pty Limited v Goway Travel Pty Limited [2019] NSWSC 1913.
9 At that point, complaint was made by the Plaintiff concerning the delay in the proceedings. A Defence had been filed (on 1 November 2018) which contained some admissions together with a number of non-admissions and a general denial. In expressing concern about the progress (or lack of it) in the proceedings, I observed at [15] that the delay was troubling, 'having clearly in mind the obligations of the court and the parties under s 56 of the Civil Procedure Act 2005'.
10 Orders were made on 25 October 2019 whereby the Defendant was to file and serve an Amended Defence by 15 November 2019, the Defendant was to file and serve its evidence by 6 December 2019, the Plaintiff was to file and serve any further evidence by 31 January 2020, and the proceedings were to be listed for directions before the Common Law Registrar on 7 February 2020.
11 I indicated (at [20]) that if those steps were taken, 'there ought be no good reason why a hearing date could not be allocated, with an accurate estimate being given for that purpose'. I observed (at [21]) that the parties should expect that any Registrar or Judge who came to look at these proceedings thereafter would have squarely in mind the requirement of the parties to take all steps to 'facilitate the just, quick and cheap resolution of the real issues in the proceedings'.
12 It might be said that my effort at judicial encouragement fell on deaf ears because it appears from what happened subsequently that the orders made on that day received limited compliance."
Thereafter, I described the chronology of events between January and June 2020. The hearing date of 30 June 2020 was fixed by the Registrar on 7 February 2020, with further directions being made with which Apollo consistently failed to comply. The chequered history of the proceedings in May and June 2020 was summarised at [19]-[23]:
"19 On 1 May 2020, the proceedings came before the Registrar once again. An order was made that the Plaintiff was to file and serve evidence in reply and to request categories of discovery of the Defendant by 12 May 2020. The matter was stood over for directions on 15 May 2020. The Plaintiff failed to comply with the order for service of evidence and categories of discovery.
20 The matter came before the Registrar again on 15 May 2020. Orders were made that the Plaintiff file and serve evidence in reply by 20 May 2020 with a guillotine order being made whereby the Plaintiff would not be entitled to rely on any evidence in reply served after that date. The proceedings were stood over to 29 May 2020. It appears that the Plaintiff once again failed to comply with that order.
21 The matter came before the Registrar again on 29 May 2020. Directions were given for the filing of written submissions in advance of the final hearing with a direction being given, as well, for the parties to agree on a joint Court Book by 24 June 2020.
22 On 16 June 2020, the Plaintiff filed a Notice of Motion seeking leave to rely upon an affidavit of Peter Bader affirmed 3 June 2020, which had been served on the Defendant on 5 June 2020, with an order for discovery also being sought by the Plaintiff.
23 On 23 June 2020 (that is one week ago), the matter came before the Registrar. The Registrar was informed that orders could be made by consent between the parties, whereby the Defendant was to provide the Plaintiff with discovery of certain documents within specified categories by 4.00 pm on Friday, 26 June 2020 (that is, on the second last working day before the commencement of the hearing). The Registrar noted, as well, that the Plaintiff was granted leave to rely upon the affidavit of Peter Bader dated 3 June 2020 at the final hearing of the proceedings."
When the hearing was scheduled to commence on 30 June 2020, the Court was informed for the first time that Apollo was applying to vacate the hearing. That unexpected development was explained in the following way at [25]-[31]:
"25 When the hearing commenced this morning, the Court was informed for the first time by counsel for the Plaintiff that application was being made to vacate the hearing. A Notice of Motion was filed in Court which sought that order, together with an application for leave to file and serve an Amended Statement of Claim and other consequential orders.
26 The Court has heard submissions on behalf of the Plaintiff and the Defendant with respect to this application. The Court was informed that the Defendant had provided a further affidavit of Mr Forno dated 29 June 2020, together with some 500 pages of documents, with that material being served on the Plaintiff late yesterday afternoon.
27 The Court was informed that discovery was provided by the Defendant last Friday afternoon in accordance with the Registrar's order made on 23 June 2020.
28 The Court was informed, as well, that the Plaintiff sought to rely upon additional evidence at the hearing.
29 An affidavit of Venothan Panicker affirmed 30 June 2020 was relied upon in support of the Notice of Motion for the Plaintiff. The affidavit indicated that Mr Talintyre, the lead counsel for the Plaintiff, was briefed last Tuesday, 23 June 2020. Advice had been given by him that the Plaintiff should seek an amendment to the Statement of Claim to add a claim based on money had and received, in addition to the Plaintiff's claim in contract. Further advice was given by counsel as to various changes in the way in which the Plaintiff would seek to put its case.
30 There is, in addition, what has been described as the Plaintiff's further tender bundle. Mr Panicker stated that the further tender bundle contains documents provided by Ms Comito to Mr Bader on 27 June 2020 together with documents from discovery provided by the Defendant on 26 June 2020. The documents provided by Ms Comito were sought from her following receipt of the Defendant's discovery on 26 June 2020.
31 No explanation has been provided as to why any communication between Mr Bader, who is a director of the Plaintiff, and Ms Comito only took place in the shadow of the hearing. It was apparent from the material exchanged between the parties that neither party (it would seem) was intending to call Ms Comito as a witness. But it might be thought that there would have been communications with Ms Comito, or at least attempted communications with Ms Comito, who may or may not have chosen to speak to the parties before 27 June 2020."
I described the position as it then presented itself at [32]-[37]:
"32 The position then is this. The Plaintiff's claim listed for hearing today will involve an examination of evidence to be adduced at the final hearing of what passed between the Plaintiff and the Defendant (and Ms Comito for that matter) concerning these so-called travel packages, what payments were made and to whom and for what, and where the money went and whether it is with Ms Comito or the Defendant.
33 The question which arises is whether the case is able to be determined on its merits without there being an appropriate gathering of material, in a coherent fashion, by the parties to permit the Court to determine the issues raised in the proceedings.
34 It would be apparent from what I have said so far that the encouragement offered by me on 25 October 2019 does not seem to have had much effect on the Plaintiff's side.
35 At the same time, on the Defendant's side, the provision of a large volume of documentation yesterday afternoon, in circumstances where the documents would need to be deployed in some meaningful way at the hearing, was itself a troubling development. It has been said for the Defendant that this step was not caught by an existing Court order but was action taken before the hearing. The problem is that all of this has impacted upon the capacity of the Court to undertake a hearing of this matter which, if it commenced today, would have to be completed in two days.
36 One wonders, quite frankly, whether the apparent settlement of the discovery issue last week was ever going to see anything other than an application to vacate this hearing.
37 It is difficult to understand how it was that the Court only learned of the application to vacate when I came on the Bench this morning, but that is the situation which has presented itself to the Court."
In determining that the hearing ought be vacated, I described the matter as being "in a state of litigious semi-chaos" and said at [38]-[44]:
"38 Section 56 Civil Procedure Act 2005 provides that the overriding purpose of the Act is to facilitate the just, quick and cheap resolution of the real issues in civil proceedings. The Court is to give effect to that overriding purpose in exercising any powers under the Act with respect to civil proceedings. The parties to civil proceedings are under a duty to assist the Court to further that overriding purpose and, to that end, to participate in the processes of the Court and comply with directions and orders of the Court: s.56(3).
39 In deciding whether to vacate the hearing (an application for adjournment), the Court is required by s.58 Civil Procedure Act 2005 to act in accordance with the dictates of justice. For the purpose of determining what are the dictates of justice in a particular case the Court must have regard to ss.56 and 57 which provides for the objects of case management.
40 Considering the factors identified in s.58(2) of the Act, there are difficulties with the degree of expedition with which the parties have approached the proceedings in the ways to which I have mentioned. The question whether any lack of expedition was beyond the control of the respective parties it seems to me is something of an open question. There is a reasonable argument that the application of due diligence and compliance with Court orders would have seen the current state of affairs being avoided. However, that has not occurred and the present application has been made.
41 The Court is to consider the degree of injustice that would be suffered by the respective parties as a consequence of any order or direction. It is submitted for the Plaintiff by Mr Talintyre, who has come into this matter recently, that the hearing is not able to proceed to a determination on the merits if it goes ahead today without amendment to the pleadings and that it would be contrary to the dictates of justice if the Defendant was able to utilise documents furnished for the first time yesterday.
42 The Defendant submits that the matter was otherwise listed for hearing. The Defendant has emphasised repeatedly the delay and defaults of the Plaintiff in coming to this point. However, it seems to me that the Defendant's position is complicated by the substantial volume of documentation provided by it only yesterday.
43 In the end, I am satisfied that the appropriate course is not to attempt to force this matter on today. This matter is in a state of litigious semi-chaos. Which party has caused that state of affairs is a matter to be investigated further by me in the context of costs. I will consider the use of cost orders, including special cost orders, depending upon the material put before me and the parties will have an opportunity to be heard on that issue.
44 However, it would be contrary to the dictates of justice to force this case on in its current state."
Thereafter, a timetable was fixed for further steps to be taken by the parties including the provision of written submissions on the question of costs arising from the vacation of the hearing.
Decision
It is important to keep in mind that the present costs ruling relates to a defined and limited part of the proceedings, namely costs thrown away as a result of vacating the hearing on 30 June 2020. If a broader view of the history of the proceedings was pertinent, then it could be said that Goway was not progressing the litigation meaningfully in 2019 and that Apollo was failing to comply with a number of Court orders in the first part of 2020.
However, it is necessary to focus upon the conduct of the litigation insofar as it contributed to the adjournment of the hearing on 30 June 2020. It is relevant to that issue that Apollo was not acting with appropriate expedition with respect to discovery, leading to a pressured and unsatisfactory regime for discovery being put in place in May and June 2020. It is the case that counsel for Goway informed the Registrar, on more than one occasion, that Apollo's dilatory approach concerning discovery may well warrant the 30 June 2020 listing being vacated. However, despite that warning, no such application was made by Goway so that the hearing date remained in place.
For reasons that have not been explained, it appears that the solicitor for Apollo only briefed counsel to appear one week prior to the hearing. Counsel advised that an amendment ought be made to the Statement of Claim to plead a claim based on money had and received. This late development contributed to the loss of the hearing date. Added to that was the service by Apollo of a further tender bundle containing documents provided by Ms Comito to Mr Bader on 27 June 2020, together with documents from discovery provided by Goway on 26 June 2020. The late obtaining of these documents from Ms Comito, and service of them in a tender bundle, was a further contributing factor to the adjournment of the hearing.
Further complicating the matter, however, was the service by Goway on 29 June 2020 of a further affidavit of Mr Forno sworn that day together with some 500 pages of documents upon which counsel for Goway intended to rely at the hearing commencing the next day.
It was the case that an affidavit of Mr Forno, sworn on 21 February 2020, contained a schedule which was objected to by Apollo. In my view, the further affidavit of Mr Forno dated 29 June 2020, and the accompanying bundle of documents, may be seen as a step taken by Goway to ensure that factual matters upon which it sought to rely at the hearing were available in admissible form. In that sense, the late service of the affidavit of Mr Forno was not simply a reaction to Apollo's late decision to rely upon a claim of money had and received.
I am satisfied that the principal cause of the adjournment of the hearing on 30 June 2020 lay at the feet of Apollo, with some contribution to that state of affairs being made, as well, by Goway.
To the extent that any costs order may be made in favour of Goway, I am not persuaded that costs should be ordered on an indemnity basis. It is the case that Apollo did not comply fully with its obligations under s.56 Civil Procedure Act 2005 in the period leading up to the final hearing, with a flurry of activity only being undertaken in the days before the hearing. Although that state of affairs is less than satisfactory, I am not satisfied that delinquency or unreasonableness has been established so as to warrant an order for costs being made on an indemnity basis.
In the exercise of discretion, I am satisfied that Apollo should be ordered to pay a substantial proportion of Goway's costs wasted by the adjournment of the hearing on 30 June 2020. As a contributing factor to the adjournment related to the conduct of Goway as well as Apollo, it is an appropriate outcome if Apollo is ordered to pay two-thirds of Goway's costs thrown away by the vacation of the hearing date. The intention of the order is that Apollo should pay two-thirds of Goway's costs calculated on the ordinary basis. An order to that effect will be made at the conclusion of this judgment.
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.