[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
JUDGMENT
SIMPSON AJA: The applicant, Alexander Corry, is one of two appellants who have filed an appeal against declarations and orders made in the Equity Division of the Supreme Court by Bell P (as the Chief Justice then was) on 24 June 2021 and 11 February 2022. By Notice of Motion originally filed on 28 February 2022 and amended on 12 September 2022 Mr Corry seeks, with respect to the appeal, certain orders which I will outline below.
On 24 June 2021, after a 7 day hearing in a proceeding (the "contempt proceeding") brought by the present respondents, NHB Enterprises Pty Ltd and Finn Pharmaceuticals Pty Ltd (collectively, "NHB"), Bell P declared that Mr Corry (then the first respondent) was guilty of three counts of contempt of the Supreme Court and that Mr Corry's wife (Boriana Corry, then the second respondent) was guilty of one count of contempt: NHB Enterprises Pty Ltd v Corry (No 7) [2021] NSWSC 741 ("the contempt judgment"). On 11 February 2021, after a further hearing ("the penalty proceeding") Bell P ordered that Mr Corry be sentenced on each count to a term of imprisonment for, respectively, 3, 3 and 2 months, all to be served concurrently, and that a warrant for his committal be issued and executed forthwith. His Honour ordered that Boriana Corry (who is a party to the appeal, but not to the present application) pay a fine of $15,000. On the same date his Honour ordered that execution of the commitment warrant and of the fine imposed on Boriana Corry be stayed pending the outcome of their then proposed appeal: NHB Enterprises Pty Ltd v Corry (No 8) [2022] NSWSC 97 ("the penalty judgment"). In each of those proceedings Mr Corry appeared unrepresented and, by leave, represented Boriana Corry. On 9 May 2022 Mr Corry and Boriana Corry filed an appeal against the declarations and orders.
Essentially, in the present proceeding, put briefly, Mr Corry seeks unrestricted access to certain of the evidence that was before Bell P in the contempt proceeding, and production of certain documents. The basis on, and the circumstances in, which he seeks those orders have a degree of complexity that needs to be explained by reference to the background. Substantially, the background that follows is drawn from the facts recounted by Bell P in the contempt judgment but also from the affidavit and documentary evidence relied on by the parties in support of, and in opposition to, the orders sought by the Amended Notice of Motion.
The evidence in this proceeding comprised an affidavit sworn by Mr Corry on 29 August 2022 the present, and a bundle of documents tendered by him as "Applicant's Tender Bundle" (Exhibit A); and on behalf of NHB an affidavit affirmed by Neil Martin Wallman (a partner at NHB's solicitors, HWL Ebsworth, to whom I will refer as "HWLE") on 15 September 2022 and an affidavit sworn in an earlier aspect of the proceedings by Nicholas Patrick Bova on 15 February 2019 (Exhibit 1).
Before moving to the substance of the application it is necessary to set out, at some length, the background.
[3]
Background
Mr Corry is a pharmacist. From about 2008 he was employed by Bova Compounding Chemist ("Bova Chemist"), the principal of which is Nicholas Bova. Bova Chemist is the trading name of NHB. Bova Chemist is a veterinarian compounding chemist that imports, manufactures, prepares and/or compounds medications for use by Australian veterinarian practices and animal owners (contempt judgment [10]-[14]). Bova Chemist is a very substantial participant in its area of operation.
At some point Mr Corry's employment with Bova Chemist ceased, but he continued to provide services to Bova Chemist through a company of which he was principal, Corry Corporation Pty Ltd ("Corry Corporation"). By 2012 Mr Corry was the leading pharmacist and Chief Operations Officer at Bova Chemist. Until April 2017 he was Bova Chemist's Research Development Officer. He had substantial authority to operate and oversee the day to day operations of Bova Chemist. He was a highly trusted employee (or contractor) with, inter alia, access to all Bova Chemist's equipment and inventory used to prepare prescriptions, and to all Bova Chemist's confidential information (contempt judgment [29]).
Since 2009 Bova Chemist has held a licence for a software database, PK Compounding Software ("PK Software"). Bova Chemist's formulations, and instructions and methods for their creation, are all held within the PK Software database. Indeed, all of Bova Chemist's information was held in PK Software. Many of the formulations within the PK Software were unique to Bova Chemist, having been created by Bova Chemist employees or third parties engaged to develop unique medications (contempt judgment [17]). Other confidential or sensitive information was also contained in the PK Software database, that being client lists, chemical lists, prescriptions, product prices and clients' purchase history. The information would be extremely valuable for any potential competitor (contempt judgment [19]). While Mr Corry was in the employ of Bova Chemist, Bova Chemist held an additional licence for Mr Corry to use on a computer (a "Surface Pro") used by him (contempt judgment [16]).
From 2015 Bova Chemist also used an electronic data base called Vivaldi. The Vivaldi Database held documents recording information such as formulations and protocols for preparing medications and standard operating procedures, training manuals and plans in relation to Bova Chemist's business (contempt judgment [20]).
On 28 January 2016 a company called Medicina Pty Ltd ("Medicina") was incorporated; Mr Corry was a director and shareholder (contempt judgment [31]). Medicina traded under the name NexGen Pharma ("NexGen"). NexGen's business operated in direct competition with NHB and Bova Chemist (contempt judgment [31]). NexGen used a computer software programme called Microsoft Dynamics 365 Platform ("Microsoft Dynamics").
[4]
The 2017 Proceeding
In 2017 NHB came to suspect that Mr Corry was in possession of, and using, its confidential information and property. On 14 June 2017 NHB commenced, by summons, a proceeding against Mr Corry, Corry Corporation and Medicina, (the "2017 Proceeding") asserting unauthorised and improper use of confidential information, breach of contract, breach of duties, breach of statutory obligations under the Corporations Act 2001 (Cth). (contempt judgment [37]) On the same day as that proceeding was commenced, NHB sought, pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 25.20, and Kunc J granted ex parte, a search order authorising a search of premises (residential and business) occupied by Mr Corry and Medicina or the Corry Corporation, and of any vehicles under the control of Mr Corry or those entities ("the First Search Order").
According to Mr Corry (in written submissions) the First Search Order was executed on 15 June 2017. The outcome of the search is not disclosed in the evidence and is not recorded in the contempt judgment. It is not necessary, for present purposes, to know more.
On or about 12 April 2018 the 2017 proceeding was settled at mediation on terms that the then defendants (including the present applicant) pay $840,000 to NHB (contempt judgment [43]).
[5]
The 17 April 2018 orders
On 17 April 2018 Ward CJ in Eq (as the President then was) made, by consent, orders that required Mr Corry (and others) to deliver up to NHB, within 7 days:
"… any part of the PK Software and the Vivaldi Database … in their possession, custody or control"
together with:
"… any document in their possession, custody or control which was created using in any way the PK Software and the Vivaldi Database"
and that the defendants (including Mr Corry) be restrained for a period of 4 years from the date of the orders from:
"…accessing, downloading, transferring, interfering with, disclosing, copying, using or exploiting"
any documents or information owned by NHB ("the April 2018 orders").
No documents or other items were delivered. On enquiry by HWLE, on 11 May 2018 solicitors for Mr Corry advised that none of the defendants had any (relevant) documents in their possession, custody or control (contempt judgment [46]).
[6]
The 2019 proceeding
In late 2018 or early 2019 Mr Bova received information that Mr Corry had possession of and was using PK Software at the NexGen office and had Bova Chemist material on a computer at his residence (contempt judgment [50]). As a consequence, on 18 February 2019, NHB commenced a fresh proceeding against Mr Corry and Medicina (the 2019 Proceeding) (contempt judgment [56]).
[7]
The 2019 Search Order
On the same day NHB sought and was granted a second Search Order ("the 2019 Search Order") authorising a search to be carried out at Mr Corry's residential premises and Medicina's business premises. The application was supported by an affidavit of Nicholas Bova, sworn on 15 February 2019. Exhibited to that affidavit was an earlier affidavit, sworn by Mr Bova on 13 June 2017. It will be necessary to mention this affidavit when I come to deal with Mr Corry's reasons for the orders he now seeks. The 2019 Search Order as made required the presence, at the execution of the order, of an Independent Solicitor and, as it was proposed to search computers, the presence of an Independent Computer Expert. The 2019 Search Order nominated as the "Search Party" Mr Jeremy McKenzie and a colleague as the Independent Solicitor, Mr Neil Wallman, a partner of HWLE and a colleague to assist, and Ms Leanne Balit of Klein and Co and a colleague in the capacity of Independent Computer Expert.
The 2019 Search Order also required, subject to other conditions, that Mr Corry cooperate with the Search Party, disclose certain information, and permit the Independent Solicitor to remove from the premises into his custody any "Listed Things", identified in a Schedule to the order. The "Listed Things" included:
a Microsoft Surface Pro computer (with a stated serial number), and any other computer or electronic device containing any of a number of identified documents or things;
NHB's PK Software (of a given account number) or any copy of that software;
NHB's Vivaldi Database or any copy thereof;
documents created using NHB's PK Software and Vivaldi Database;
Medicina's Microsoft Dynamics 365 Software;
any documents held by Medicina recording formulations used by it to compound or create medications and its knowledge or use of that information.
The 2019 Search Order had, on the front page, a prominent "Penal Notice" warning the addressees (Mr Corry and Medicina) that, in the event of non-compliance with or disobedience of the requirements of the order, they would be liable to imprisonment, sequestration of property or other punishment, and that any other person who knew of the order and did anything to help or permit them to breach the terms of the order may be similarly punished.
The following day, 19 February 2019, the Search Order was amended, to include additional premises (those of AAA Mechanical and LPG Services Pty Ltd) ("AAA"), which was, briefly, a defendant in the 2019 proceeding) (contempt judgment [56]-[63]). AAA occupied business premises adjacent to the premises of Medicina/NexGen.
The 2019 Search Order was executed on 19 February 2019 (contempt judgment [66]). Mr McKenzie and Miss Balit provided reports to the court on the return date, 21 February 2019.
Items seized in the execution of the 2019 Search Order included:
a Microsoft Surface Pro laptop computer with the serial number identified in the "Listed Things";
hard copy documents;
an HP Pavilion computer;
an Apple Mac Book Pro Laptop ("large Mac book");
an Apple Mac Book Air Laptop ("small Mac book".)
(contempt judgment [124]-[126])
Located in one of the devices was the Microsoft Dynamics 365 platform used by Medicina/NexGen (contempt judgment [126]-[130]).
Subsequent investigations revealed that the password to Medicina's Microsoft Dynamics account had been changed and Miss Balit was unable to download the account and complete her task of collecting evidence (contempt judgment [133]).
On 2 May 2019 NHB filed a Statement of Claim in the 2019 proceeding, adding three further defendants, one of whom was Mr Rimon Ghaly, an employee of Medicina and formerly an employee of Bova Chemist. NHB sought, inter alia, a declaration that Mr Corry (and other defendants) were in breach of the April 2018 orders (ie the orders made by Ward CJ in Eq on 17 April 2018 - see [14] above). Following a mediation on 5 June 2019 (to which Mr Corry was not a party) the 2019 proceedings resolved against all defendants except Mr Corry (contempt judgment [141], [142], [146]).
The devices seized in the execution of the 2019 Search Order were examined by Mr Wallman (solicitor for NHB). Mr Wallman identified numerous items linked to Bova Chemist and Vivaldi and PK Software, indicating that the devices had been used to access and use NHB confidential information (contempt judgment [154]-[156]).
Mr Wallman copied various items from the Surface Pro, the large Mac book and the small Mac book and folders onto what was called in the present proceeding a "hard drive" (contempt judgment [156]-[157]). The hard drive became Exhibit NMW 1 to an affidavit sworn by Mr Wallman on 18 December 2019, and, eventually, Exhibit 4 in the contempt proceeding.
[8]
The contempt Notice of Motion
On 14 August 2019, in the 2019 proceeding, NHB filed a Notice of Motion, seeking declarations that Mr Corry, Boriana Corry and Rimon Ghaly were each in contempt of the Supreme Court in various respects, essentially disobedience of the April 2018 orders, and frustration of the 2019 Search Order. Appended to the Notice of Motion was a Statement of Charge particularising the contempt alleged. Four charges against Mr Corry were specified. They were:
Charge One: wilful disobedience and contravention of the April 2018 orders by retaining possession, custody and control of the PK Software and the Vivaldi Database, hard copies of documents comprising or containing the "Listed Things" in the 2019 Search Order and/or confidential information of Bova Chemist (contempt judgment [252]);
Charge Two: wilful disobedience and contravention of the April 2018 orders by accessing, downloading, transferring, interfering with, disclosing, copying, exploiting and/or otherwise using the confidential information of NHB (contempt judgment [254]);
Charge Three: frustration of the 2019 Search Order by contacting Rimon Ghaly and directing him to remove Listed Things from Medicina's premises before the execution of the search order (contempt judgment [255]);
Charge Four: breach and frustration of the 2019 Search Order by interrupting the download of the Microsoft Dynamic Account by changing the password (contempt judgment [257]).
[9]
The 2019 access orders
On 25 November 2019, presumably in preparation for the contempt proceeding, and presumably on the application of Mr Corry (and possibly other parties to the 2019 proceeding) Ward CJ in Eq made orders ("the 2019 access orders") granting to Mr Corry access, under supervision, to various of the seized devices, including the Microsoft Surface Pro and the HP Pavilion. The access permitted was subject to conditions, not only of supervision (by Mr Corry's nominated legal representative) but also of an undertaking by Mr Corry that he would not "tamper with, manipulate, delete, copy or remove any items" from the devices, would not connect the devices to the internet, or have present in the room any item permitting removal or copying of any information on the devices. The conditions imposed were plainly designed to protect the information and material contained in the seized devices and on the "hard drive" from manipulation or use by Mr Corry other than for the purposes of preparation for the contempt proceeding (and possibly the substantive 2019 proceeding). The conditions also permitted Mr Corry, again subject to conditions, to remove any personal items on the devices.
On 20 April 2020 the 2019 access orders were, by consent, varied ("the 2020 access orders") apparently because of Mr Corry's inability to fund a legal representative for the purposes of the agreed supervision. NHB agreed to make available, at its cost, an HWLE solicitor for a period of up to 4 hours to undertake the supervision of Mr Corry on his review of the content of the devices as permitted by the 2019 access orders. The devices identified as the subject of the orders, in addition to those mentioned in the 2019 access orders, were the Microsoft Dynamic 365 Account, the large and small Mac books, (all seized in the execution of the 2019 Search Order) and Exhibit NMW1 to the affidavit of Mr Wallman (that was the "hard drive" on to which Mr Wallman had transferred the material from various devices seized in the execution of the 2019 Search Order, that later became Exhibit 4 in the contempt proceedings).
The conditions now permitted Mr Corry to copy (but not remove, delete or otherwise manipulate) documents onto a USB, of which two copies were to be made by the HWLE solicitor, the original to be placed in a sealed envelope and delivered to the court, together with an index to be prepared by Mr Corry. The orders did not specifically provide for the custody of the 2 copy USBs, but did provide that they were not to be reviewed by NHB or their solicitors having the conduct of the proceedings unless and until Mr Corry served an affidavit in the contempt proceeding that referred to documents contained in the USB. (This he never did).
From correspondence between Mr Corry and HWLE it appears that, on 24 April 2020 (that is, prior to the hearing of the contempt proceeding), Mr Corry attended at HWLE offices for approximately 2 hours where he availed himself of the agreed access to the seized devices and material in accordance with the April 2020 access orders. (see annexure F to the affidavit of Mr Wallman affirmed on 15 September 2022 in relation to the Amended Notice of Motion).
[10]
The contempt proceeding
The hearing of the contempt proceeding commenced on 20 July 2020 and continued over 7 days in July, August and September. Although Mr Corry appeared unrepresented, it is apparent that he offered comprehensive and articulate defences to each charge. Bell P indicated, in the contempt judgment, that Mr Corry had said that he holds a degree in law, although no practising certificate. I make these observations because some of the arguments advanced in the present application raise issues that could have been, but were not, raised in the contempt proceeding.
Perusal of the contempt judgment shows that the evidence before Bell P included affidavits and oral evidence from Mr Bova and Ms Balit. Bell P found that the evidence sustained the first, second and fourth contempt charges, but not the third.
[11]
The appeal
On 9 May 2022 Mr Corry and Boriana Corry filed an appeal, pleading 44 substantive grounds. Having regard to the issues raised on the Amended Notice of Motion (to which I will shortly come), three of the grounds need to be noticed. Grounds 16 and 17 and 32 are as follows:
"16. The First Appellant [Mr Corry] appeals Charge One on grounds that his Honour erred by accepting the evidence of Mr Nicholas Bova
17. In the alternative to 16 above the First Appellant appeals Charge One on grounds that the Respondents failed to disclose all material documents in their possession which cast doubt on the reliability of Mr Bova's evidence
32. The First Appellant appeals Charge Four on grounds that he was denied procedural fairness because the Respondents failed to disclose all evidence to the Court and The First Appellant which cast doubt on the reliability of Ms Leanne Balit's evidence."
On 25 May 2022 (that is, after the contempt judgment and the penalty judgment and the filing of the appeal) Mr Corry wrote to HWLE requesting consent, and a time, for him to have access to the various devices seized in the execution of the 2019 Search Order, and to ensure that any such access included the ability to print and remove documents. HWLE responded on 1 June 2022, referring to and enclosing copies of the November 2019 and April 2020 access orders (specifically the agreement to provide access to the devices under supervision, for the costs of which NHB would be liable) and offering, in accordance with the April 2020 access orders, further access under supervision for two hours (the unused portion of the four hours agreed to in April 2020).
By letter dated 2 June 2022 Mr Corry responded. He asserted that the November 2019 and April 2020 access orders had no relevance to his 25 May 2022 request and repeated his request for access, and further requested the return of the devices seized, which (other than the Microsoft Surface Pro and the HP Pavilion) he said had not formed part of NHB's contempt case. There is no evidence of any reply to this correspondence.
By letter dated 22 August 2022 to NHB's solicitors, Mr Corry referred to "paragraph 17" of the Notice of Appeal and requested access to the Microsoft Surface Pro and the HP Pavilion:
"…including the facility to print and remove documents so that I may obtain the above documents and any other relevant material."
He identified "the documents" to which he referred as documents that may demonstrate that Mr Bova "in an associated entity" was responsible for breaches of Commonwealth legislation. The particular document Mr Corry identified was an email sent by Mr Bova to his brother Stephen Bova on 8 June 2017. I will come in due course to the content of the email, and what Mr Corry seeks to make of it.
HWLE responded the following day, 23 August, declining to provide access to the seized devices, and repeating the offer of 1 June.
In a second letter of 22 August to HWLE, Mr Corry referred to "paragraph 32" of the Notice of Appeal, directed attention to a paragraph of an affidavit affirmed by Mr Wallman on 4 October 2019, to which was exhibited a Tax Invoice (see [75]) and required production of file notes, emails and any other correspondence evidencing communications with Ms Balit. He noted that it appeared that Ms Balit was engaged by HWLE on behalf of NHB "in the proceedings" (it is not clear to what "proceedings" Mr Corry was referring.) He also required production of copies of any records "of that engagement" (again, the "engagement" to which Mr Corry referred is unclear).
On 23 August HWLE responded, declining to produce the documents requested, adding that they considered that there was no obligation to do so, and that, as the documents had played no part in the contempt proceedings, they were irrelevant to the appeal.
[12]
The amended notice of motion
With that rather lengthy (but I think necessary) preamble, I turn to the Amended Notice of Motion the subject of the present proceeding. The orders sought are, substantively:
Order 1: that NHB forthwith provide to Mr Corry access to:
(i) the "MS Surface Pro";
(ii) the HP Pavilion Desk top;
(iii) Exhibit NMW 1 to the affidavit of Mr Wallman of 18 December 2019 (Ex 4 in the contempt proceeding), being the "hard drive" prepared by Mr Wallman from material located in the seized devices;
Order 2: that Mr Corry be granted leave to issue a subpoena (a draft of which is attached to the Amended Notice of Motion) to the "Proper Officer" at HWLE:
The draft subpoena identifies as the documents to be produced:
(a) any file notes recording conversations with Ms Balit concerning the 2019 proceeding;
(b) any emails, including attachments, that were exchanged and record communications concerning the 2019 proceedings;
(c) any short message service communications that were exchanged and record communications concerning the 2019 proceeding;
(d) any documents that record the engagement of Ms Balit in any capacity concerning the 2019 proceedings;
(e) any instructions or communications recorded or provided to Ms Balit using any electronic platform recording communications concerning the 2019 proceeding
(Although items (b) and (c) do not so specify, it may be speculated that they are intended to be limited to communications with Ms Balit, or concerning any engagement of her by HWLE on behalf of NHB).
Order 3: in the alternative to order 2, that "the Representatives acting on behalf of [NHB]" produce to Mr Corry essentially the same documents as are identified in the draft subpoena (with the exception of the documents constituting item ((c) above);
Order 4: that leave be granted to Mr Corry, pursuant to s 75A of the Supreme Court Act 1970 (NSW) to adduce, in the appeal, "evidence obtained in the course of this notice of motion".
Mr Corry did not press for order 4. He said that it was included at the request of the Registrar.
At the hearing of the Amended Notice of Motion Mr Corry again appeared unrepresented. He again presented a coherent and articulate argument, although, as will be seen, ultimately unsuccessful.
In his written submissions Mr Corry summarised his argument as:
"27. The Applicant intends to present an argument before the Court of Appeal in which he alleges that the Trial miscarried because the Respondents had breached their common law prosecutorial duty to disclose all material evidence including documents which cast doubt on the: reliability and independence of Ms Balit's evidence; as well as any material which may have demonstrated a motive to lie on the part of Mr Bova."
Two aspects of the argument emerged. First, by Order 1 of the Amended Notice of Motion, Mr Corry seeks access to the seized devices, and the "hard drive", prepared from the seized devices, in order to present an argument that, in breach of what he alleges to be NHB's "common law prosecutorial duty", NHB withheld from him material, information or documentation that was relevant to the contempt proceeding in that it would cast doubt on the reliability or credibility of Mr Bova's evidence in that proceeding. Second, Mr Corry seeks, pursuant to the proposed subpoena and/or Order 3, to obtain documents that he can use to cast doubt on the independence of Ms Balit, and thus her reliability or credibility.
[13]
Some preliminary observations
The following observations are relevant, although they are anything but determinative of the issues, and, indeed, point in different directions.
By Order 1 of the Amended Notice of Motion Mr Corry seeks unsupervised access to various of the devices that form part of the evidence sustaining the contempt charges. It is apparent from a reading of the reasons of Bell P that the material found on various seized devices was the principal basis for his Honour's satisfaction that Charges 1 and 2 were sustained. So far as I can gather, what might be called "the incriminating material" was extracted and recorded on Ex 4, the "hard drive". But it seems equally clear that that material remained, in its original form, on the seized devices.
That presents this conundrum: the material was central to the declarations that Mr Corry was guilty of the contempt alleged in Charges 1 and 2; those declarations in turn, resulted in the order for his imprisonment. In the ordinary course an appellant appealing against a finding of guilt of contempt and/or an order of imprisonment would be entitled to access to the whole of the evidence that provides the basis for the declarations and orders. Good reasons would need to exist to justify departure from that position. (As will be seen below, there are many good reasons for departure from the general rule.)
On the other hand, it is equally apparent that Mr Corry's possession of that material (and his use of it) constituted the very contempt which he was found to have committed. To return the devices to him, or to give him unrestricted access to them, could, potentially at least, in itself make him guilty of a further act of contempt, and, could, potentially, facilitate further such acts of contempt. (In this respect it is not to be overlooked that Mr Corry points to the expiration of the restraining order that was included in the 2018 orders. That restraint was expressed to be for a period of 4 years, which expired on 17 April 2022).
A further observation is that, as I understand the position, Mr Corry's possession and use of the material is the basis for the claim against him in the 2019 proceeding, that proceeding as against him not having resolved as it has against the other defendants. Release to Mr Corry of the devices could potentially facilitate and compound any misfeasance that may be proved against him in that proceeding. Also not to be overstated is the possibility that, given unrestricted access to the seized devices, Mr Corry could tamper with the material stored thereon. (Although Mr Corry seeks order that will enable him to "remove" material from the devices, I understood him to say that by that he meant "copy". Nevertheless, preservation of the integrity of the essential evidence demands restrictions on Mr Corry's access.)
The next observation concerns the reliance by NHB on the regime put in place in November 2019 and April 2020 for access to Mr Corry to the seized devices and their contents. That regime was for the purposes of Mr Corry's preparation for the contempt proceeding. What he now seeks is access for the purpose of the preparation of his appeal. The two things are not co-extensive. It is conceivable that the material on the devices might expose error in the contempt judgment. The insistence by NHB on continued adherence, for the purposes of the preparation of the appeal, to the regime implemented in November 2019 and April 2020 for the purposes of the preparation of the contempt first instance proceeding is misplaced.
Those preliminary observations having been made, it is necessary to consider, realistically, what Mr Corry hopes to achieve by having access to the contents of the seized devices, and what, if any, might be the consequences or potential consequences of denying him that access. In that context I turn to Mr Corry's written and oral submissions.
[14]
Order 1
Mr Corry identified Ground 17 of the appeal, set out above, as the ground to which proposed Order 1 relates. For greater clarity I have added Ground 16. Those grounds relate to the acceptance by Bell P of the evidence of Mr Bova. Bell P made significant reference to Mr Bova's evidence and plainly accepted it. Mr Corry complains that NHB had in its possession "material documents" or evidence that, if available to him, could have been used to cast doubt on Mr Bova's reliability.
It is of some relevance that Ground 17 is framed in terms of non-disclosure by NHB, rather than unavailability of the material to Mr Corry - that is (as was made clear in the oral argument) Mr Corry asserts a degree of malfeasance on the part of NHB (or its solicitors, HWLE).
Mr Corry identified a single document as the basis for Ground 17. It is an email, dated 8 June 2017, written by Mr (Nicholas) Bova to his brother Stephen Bova. The subject line of the email is:
"Conversation with Marcus Malouf."
The opening words of the email are:
"Steve,
I wanted to send you the details of the conversation I had with Marcus this morning.
Marcus messaged me to tell me that Alex had called him yesterday and that he had said some 'alarming things'."
(Mr Corry accepted that the reference to "Alex" was a reference to him).
Mr Bova then went on to record what he said he had been told by "Marcus". It is best to set out the balance of the email in full. It is:
"• Marcus said that he took notes of the call
• Marcus said Alex rattled off a very large list of things that he was going to divulge to different regulators if I didn't back off and come back to him with a more sensible offer (referring to the letter that he just received from our lawyers)
• Alex said that he had specific condemning evidence of things Colin had done in the past. In particular he said he has old S8 books which he must have stolen. Which he says has evidence of Colin's past actions. He also mentioned an email that he has from Ruth Dalglesh that apparently asked Alex his professional opinion on Colin's behaviour
• He mentioned he has evidence that Heidi has been involved in making medicines incorrectly. He specifically mentioned the eye matter and an incident with a hospital where he says there was an over dose of an irrigation we prepared. He mentioned other pharmacists were involved in this and he could bring everyone down
• He said he has evidence on Rimon, Asha and other staff at work and will bring them all down if I don't back off
• He said he has lots of things on me. Specifically, he has evidence of us selling naltrexone overseas (something Alex convinced me was legal)
• He said he will report us to the ATO for incorrect R&D claims that we have lodged, and this would implicate yourself, Marcus and Pete Ryan. Alex mentioned each of these names to Marcus.
• Alex said is [scil - if] he is going to lose everything, then he won't have any issue in bringing everyone else down with him. Especially me
• He said why can't we just battle on the business field fairly (this is laughable… fair now that he has all Bova IP).
• Marcus said that Alex was ranting quite a lot and Marcus felt as if Alex was very nervous.
• Alex said many times to Marcus that his lawyers were asking for the past 7yrs worth of dirt on me and everyone at Bova so they could attack us. However, Alex said that he doesn't want that, as he wants to sort this out amicably.
• Alex said many times that if he goes down, he has nothing to lose and will definitely bring me down with him.
Subsequent to my call with Marcus, I asked him to keep safe all of the notes he took. Marcus told me that he destroyed all the notes he took after we spoke and that he didn't want to get involved any further. So, I thought it important to send you this email so that conversation is recorded as accurately as possible.
I told Marcus that we would subpoena him if it came to that and suggested he made the effort to remember and re scribe his notes of the call asap."
In written submissions (par 7), Mr Corry interprets this email as an expression of concern on the part of Mr Bova that he (Mr Corry):
"…had specific condemning evidence that he may divulge to different regulators the effect of which would be to bring everyone down …, especially Mr Bova." (italics in original)
and seeks to use it as a springboard for an inference that lurking within the seized devices are documents that would expose wrongdoing on the part of Mr Bova, or Bova Chemist's employees.
This, Mr Corry appears to suggest, would provide a motivation for Mr Bova to give false or unreliable evidence in the contempt proceedings. Just what evidence Mr Corry now says might have been false or unreliable was not specified. He did not identify any evidence given by Mr Bova that he disputes. Nor did he identify any connection between the wrongdoing to which he is said to have alluded in a conversation with Marcus Malory, and Mr Bova's evidence in the contempt proceeding.
The first observation to make about this is that the email cannot, on any view, be construed as an expression of concern by Mr Bova that Mr Corry had evidence damaging to him or to Bova Chemist of the kind to which the email refers. Rather, it is Mr Bova's account of what he said Marcus Malory had told him of threats allegedly made by Mr Corry. There is in the email no semblance of concern that what Mr Corry was reported to have said was true or correct or that Bova Chemist had skeletons in the closet, revelation of which would be damaging to Bova Chemist.
In oral argument Mr Corry sought to make something of what he claimed was the fact that Mr Bova has not denied the allegations attributed to him in the recounted conversation. While the relevance of the absence of a denial by Mr Bova may be doubted, it is not correct that he has not denied the allegations. In an affidavit sworn on 13 June 2017 (apparently for the purposes of the First Search Order) Mr Bova referred to the conversation with Mr Malouf, and to the 8 June 2017 email, and expressly denied the truth or accuracy of the matters said to have been asserted by Mr Corry.
The second observation to make is that, as Mr Corry acknowledged, the email was annexed to Mr Bova's affidavit of 13 June 2017 which was, in turn, annexed to Mr Bova's affidavit of 15 February 2019 (in support of the application for the 2019 Search Order). Mr Corry has had access to the email since at least 2017. If Mr Corry wanted to use the email as a basis for cross-examination of Mr Bova on his credit, it was open to him to do so in the contempt proceeding, and if he wanted to pursue the line he now seeks to pursue - interrogating the seized devices for evidence of wrongdoing by Mr Bova or Bova Chemist employees - it was open to him to have sought production of any documents that he perceived to be relevant at that time. Mr Corry was aware of the email when he had access to the seized devices in preparation for the contempt hearing, and was alerted to the need to search for anything that might support the allegations he was reported to have made.
The final observation to make in this context is that each of the devices the subject of Order 1 can be traced back to Mr Corry's possession. Although the HP Pavilion and the Apple MacBook Laptop were seized from the premises of AAA, they had been used by Mr Ghaly while in the employ of NexGen. Mr Corry was well aware what was contained in those devices.
As I have indicted above, I start on the premise that, unless good reason to the contrary can be shown, an appellant is entitled to access to the whole of the evidence used in the primary proceedings. There are significant exceptions to that premise.
On 12 March 2020, in preparation for the contempt proceeding, Mr Corry made an application for variation of the 2020 access orders so as to give him unrestricted access to the seized devices. Rejecting the application (NHB Enterprises Pty Ltd v Corry (No 2) [2020] NSWSC 272) Parker J said:
"15 For his part, Mr Corry urged me to deal with the application on a wider basis. He relied on the principle that a party is entitled to see the evidence against him or her, at least in a criminal or quasi criminal matter. He argued that the orders were an unjustified restriction on that entitlement.
16 It usually goes without saying that a party is entitled, as a matter of procedural fairness, to scrutinise the evidence which is put against him or her before the Court acts on it. But this is not an absolute rule. Restriction of access to documents on the grounds of national security is one example of an exception to it. That is not this case, of course, but it underlines that what procedural fairness requires is always ultimately a practical question: Re Minister for Immigration and Multicultural Affairs; ex parte Lamb (2003) 2014 CLR 1 at [37] (Gleeson CJ).
17 I think that the facts of the present case illustrate how the ultimate test is one of practicality. The disclosure conditions do not, of themselves, prevent Mr Corry from having access to the devices. All they do is impose a cost upon him if he wishes to do so. In my opinion, it is going too far to say that Mr Corry has an absolute right to be exonerated from that cost or to have it met by someone else. It could hardly be argued, for instance, that an obligation to pay copying costs or access fees, no matter how reasonable, would necessarily infringe Mr Corry's entitlement to procedural fairness.
18 In making the practical judgment of what procedural fairness requires, the Court would be entitled to take into account the full circumstances of the case, which would include Mr Corry's previous conduct and a proper understanding of his actual financial position. And even if the Court concluded that it was unreasonable to continue to impose on Mr Corry the condition that he be supervised by a lawyer retained by him, there might be other solutions which would allow his interests to be properly protected at the contempt hearing without jeopardising the security of the devices."
One other illustration may be given. Suppose a person was accused of murder by use of a firearm. Neither at trial nor on appeal would that accused person be entitled to access to the firearm. It may be, if relevant issues arose, that access would be granted to an independent expert (for example) for the purposes of examination of the firearm. But I can think of no circumstances in which such access would be granted to an unrepresented person, whether at first instance or on appeal. Indeed, it is difficult to conceive of any criminal case in which an unrepresented person appealing against a conviction would be given unrestricted access to any original evidence or exhibit. The same applies in many civil cases, as well as to cases of contempt. Original evidence needs to be preserved. That exposes the problem in the present case. If Mr Corry were able to identify some issue in the appeal that might be resolved by independent examination of the content of the seized devices, no doubt arrangements could be made that would enable that to be done (as Parker J suggested). Mr Corry has not identified any such issue. Nor has he made any application for access by any person other than himself.
That aside, as I have already concluded, Mr Corry has not made out any case for unrestricted access to the seized devices. The basis on which he seeks such access - that he hopes to find within the seized devices evidence potentially casting doubt on the credibility or reliability of Mr Bova's evidence - is untenable.
I decline to make Order 1 as sought in the Amended Notice of Motion.
[15]
Orders 2 and 3:
By Order 2 Mr Corry seeks leave to issue a subpoena. The proposed recipient of the subpoena is HWLE. Leave is required because Mr Corry is unrepresented: UCPR r 7.3. By Order 3 Mr Corry seeks production of essentially the same documents as are identified in the Schedule to the draft subpoena. The same issues arise in relation to each proposed order.
The material of which Mr Corry seeks production comprises communications between HWLE and Ms Balit concerning the 2019 proceeding. In written submissions (para 45) Mr Corry said that the documents he sought under the proposed subpoena were:
"… documents which demonstrate the steps taken which compromised the independence of Ms Balit, who was appointed by the court in an independent capacity."
Mr Corry contended that the documents he seeks are directly relevant to Ground 32 of the appeal, which asserts failure on the part of NHB to disclose to the Court and himself all evidence that casts doubt on the reliability of Ms Balit's evidence.
Ground 32 of the appeal is directed to the finding that charge 4 was sustained. Charge 4 was the charge that Mr Corry had been responsible for changing the password to the Microsoft Dynamic Account. Ms Balit gave evidence (which Bell P plainly accepted) that the change of password frustrated her access to the Microsoft Dynamic account.
While Mr Corry recognised and expressly referred to authorities that established that a legitimate forensic purpose must be demonstrated before leave will be granted and referred to Samootin v Shea [2002] NSWCA 115; Hamzy v Commissioner of Corrective Services (No 1) [2017] NSWSC 183 and Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145, he did not expressly identify any legitimate forensic purpose, nor the manner in which the production of the documents sought would materially assist on an identified issue in the present appeal.
I have read and reread Mr Corry's written submissions, the transcript of his oral submissions and his written submissions in reply to those of NHB (which I have also read and reread). The point or points Mr Corry apparently seeks to make are elusive. Doing the best I can, I set out my (possibly imperfect) understanding of his claims under Orders 2 and 3 as sought in the Amended Notice of Motion. They relate exclusively to the evidence of Ms Balit. As indicated above, Ms Balit was appointed as the Independent Computer Expert as required by the 2019 Search Order. She was part of the Search Party that executed 2019 Search Order on 19 February 2019. She provided a report, initially to the Independent Solicitor, Mr MacKenzie, who was also part of the Search Party. Plainly, the requirement for the presence for an independent solicitor and an independent computer expert was designed to ensure the integrity of the search process. The significant part of Ms Balit's report (for present purposes) was to the effect that, on an attempted examination of the Microsoft Dynamics programme, it was discovered that the password had been changed, thus preventing completion of the collection of evidence task. This gave rise to Charge 4, that Mr Corry was responsible for the password change, with the intention of frustrating the execution of the 2019 Search Order, which change Bell P found to be sustained. NHB contended (and Bell P ultimately accepted) that the evidence established that Mr Corry was responsible for the password change.
At [325]-[335] of the contempt judgment Bell P recorded in detail the various arguments advanced by Mr Corry in defence of Charge 4.
Mr Corry now contends that the documents of which he seeks production (and that is, effectively, any and all communications between HWLE and Ms Balit or the company by which she is employed - Klein & Co concerning the 2019 proceeding) may reasonably be thought to cast light (adversely) on her independence, and therefore the reliability of her evidence. Mr Corry bases this on a Tax Invoice issued to NHB by HWLE on 1 April 2019, to which were attached itemised lists of professional services making up the total of the invoice. Included in these were a small number of items indicating that contact had been made with Ms Balit in March 2019, following the execution of the 2019 Search Order. Mr Corry placed particular emphasis on one item, dated 5 March 2019, which indicated that a solicitor of HWLE had telephoned Klein & Co:
"… regarding cost of any data extracted by the Defendants [of which Mr Corry is one] separate to role as Independent Computer Expert."
From this, it seems, Mr Corry would seek to have drawn an inference that Ms Balit's independence from HWLE was compromised, such that her evidence was tainted.
When pressed in oral argument as to what evidence of Ms Balit he contended was tainted, Mr Corry accepted that her evidence that the password had been changed was not in dispute, but said that Ms Balit's was the only evidence that the password change had any effect on the capacity of the system to be downloaded.
Mr Corry stopped short of indicating directly that he disputed that a password change would impede access - a contention that would be difficult to mount - but nevertheless persisted in arguing that Ms Balit's evidence to that effect was suspect or could be shown (by the production of the documents sought by Orders 2 and 3) to be suspect. When specifically asked, Mr Corry could not recall whether, in the contempt proceeding, he had raised any issue about Ms Balit's evidence that the change of password had affected the download. There is no hint in the detailed examination by Bell P of Mr Corry's arguments against Charge 4 that Mr Corry raised any issue about the possible effect of the password change on Ms Balit's ability to access to Microsoft Dynamics program. I am comfortably satisfied that he did not raise any such issue.
Even to a person whose computer skills might fairly be described as rudimentary, it is impossible to find any basis on which it could reasonably said that a password change could not or may not affect access to a computer programme and Mr Corry did not identify any such basis. Mr Corry has failed to identify any issue arising out of Ms Balit's evidence about which there is any dispute, such that questions of her reliability might be material.
Mr Corry has utterly failed to establish that there is any legitimate forensic purpose in the production of the documents subject of the proposed subpoena, and of Order 3 as sought. I decline to make either of those orders.
I have come to these conclusions without the need to address Mr Corry's argument that, analogously to a public prosecutor of criminal charges, NHB was subject to the constraints of disclosure imposed on such a prosecutor.
The consequence of my conclusions is that the Amended Notice of Motion will be dismissed with costs.
The orders I make are:
1. Amended notice of Motion filed on 12 September 2022 dismissed;
2. The applicant (Alexander Stephen Corry) pay the respondents costs of the Amended Notice of Motion.
[16]
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: 19 December 2022