35 The right of any Professional Adviser to inspect any books and records pursuant to these orders shall be subject to that Professional Adviser first providing to the solicitors for Michael Hawksford a signed written undertaking in favour of Bremick:
a) acknowledging that the financial records or books contain confidential commercial information owned by Bremick, which is of value to it, and the unauthorised disclosure or misuse of which could potentially substantially harm Bremick's commercial interests; and
b) that the nominee may not use or disclose the information in the documents for any purpose other than advising the First Defendant about discharging his duties as a director of Bremick or his duties as a director of BMB or his conduct of these legal proceedings or proceedings 4348 of 2004 ."
27 It was a condition of Brett Hawksford and his professional advisers having access to the books and financial records of Bremick and BMB Investments that he give notice in advance of the categories of documents of which inspection was sought (para 33(e)). The Access Rights include the right to copy the books and financial records using the photocopying, laser printing and computer storage, retrieval and processing facilities of Bremick (para 34), and a list of the categories of documents copied is to be provided to the Michael Hawksford parties (para 33(j) and (k)).
28 At least one of the reasons for requiring the prior specification of the categories of documents to be inspected was to deal with any contest which might arise if the Michael Hawksford parties sought to maintain a claim for legal professional privilege in respect of documents which Brett Hawksford sought to inspect. Requiring the prior specification of categories of documents to be inspected should assist Michael Hawksford and Bremick to do all things necessary to ensure that access and inspection is afforded, and minimise disruption to Bremick's staff which access and inspection would otherwise cause.
29 In May 2006, the solicitors for Brett Hawksford gave notice of categories of documents of Bremick which Brett Hawksford wished to inspect. They comprised categories of documents listed in a notice for discovery insofar as they were business records of Bremick or BMB Investments, all documents relating to any loan or other facilities or arrangement between Bremick and G E Capital Finance Pty Ltd, Bremick and BMB Investments Chartered Accounts, all documents relating to the software used by Bremick, and all documents relating to the balance sheet items for the balance dates of 30 June 2002, 30 June 2003, 30 June 2004 and 30 June 2005 of cash, receivables, and inventories. The solicitors for Brett Hawksford stated that they required access to Bremick's computer system in order to exercise their rights of access and inspection. The position taken by the Michael Hawksford parties was that Brett Hawksford did not have the right to search Bremick's records whether in hard copy or electronically, but that requested documents or categories of documents would be produced and, if sought, copies would be provided. The financial controller of Bremick, Mr Macourt, located documents which fell within the categories of documents and placed them in a conference room at Bremick's premises for inspection. He, or another employee of Bremick, remained in the conference room during the period of inspection. Soft copies of documents requested were provided to Brett Hawksford's professional advisers on compact disc at no cost. Michael Hawksford contended that any hard copies of documents should be paid for at a cost of twenty cents per page. The Michael Hawksford parties refused to permit secretarial or clerical staff employed by Brett Hawksford's solicitors to attend to scan documents, whether or not that person provided a confidentiality undertaking.
30 On 3 November 2006, Brett Hawksford's solicitors advised that they intended to inspect documents relating to all finance facilities by Bremick with any financiers prior to the commencement of the facility with G E Capital Finance Ltd; all documents in any way relating to all and any travel by Michael Hawksford, all and any member of Michael Hawksford's family, all and any staff member of Bremick, Mr Daley or any other person, which travel was paid for directly or indirectly by Bremick; and all documents relating to Bremick's dealings with Coventary (sic) since 1990. Although documents were made available for inspection, the inspection did not occur.
31 By an Eighth Interlocutory Application, the Brett Hawksford Parties sought the following relief:
" 1. A DECLARATION that, on the proper construction of the orders made by the Court on 8 December, 2005 in these proceedings ('the Access Orders'):
a) Brett Hawksford and Brett Hawksford Management Pty Limited and their Professional Advisors (as defined in paragraph 27 [of] the Access Orders) are entitled, subject only,
i) to the giving of the notice referred to in paragraph 33(e) of the Access Orders;
ii) to the giving of confidentiality undertakings referred to in paragraphs 32 and 35 of the Access Orders; and
iii) to the creation of the lists referred to in paragraph 33(j) and (k) of the Access Orders
to have access to and to inspect any financial records and books (as defined in paragraphs 26 to 29 of the Access Orders) of Bremick Pty Ltd ('Bremick') and BMB Investments Pty Ltd ('BMB') as they may wish to access and inspect in their absolute discretion:
iv) wherever such financial records and books are usually kept, situated or stored at the business premises of Bremick and BMB; and
v) in whatever form such financial records and books are stored including but not limited to on computer files, disk or otherwise in electronic form;
b) Without limitation to the form of recording of the financial records and books or the place in Bremick's and BMB's business premises where access and inspection takes place, the Access Orders extend to direct access to all computer files and electronic records containing such financial records and books, subject only to the records and files described in paragraph 31 of the Access Orders being excluded from the rights of access granted under the Access Orders;
c) The reference to 'Professional Advisors' in the Access Orders includes a reference to the support staff of any such Professional Advisors, being employees who are engaged to assist any Professional Advisor with tasks such as copying of records and scanning of records onto disk or otherwise in electronic form provided that any such employee has executed a confidentiality undertaking in the terms of and in accordance with paragraph 35 of the Access Orders;
d) Without limitation to paragraph 30 of the Access Orders, the Access Orders do not include any right on the part of Michael Hawksford or Bremick or BMB by themselves or by their officers, agents, employees or representatives
i) being present at any time when inspection or copying or scanning of records in accordance with the Access Orders takes place or to otherwise prevent, hinder, supervise or control the mode of access, inspection or copying by Brett Hawksford and Brett Hawksford Management Pty Limited and their Professional Advisors; or
ii) to determine which financial records and books of Bremick and BMB fall into the categories of financial books and records notified by Brett Hawksford and Brett Hawksford Management Pty Limited and their Professional Advisors under the notice given under Order 33(e) of the Access Orders and which are proposed to be accessed and inspected by Brett Hawksford and Brett Hawksford Management Pty Limited and their Professional Advisors;
e) Without limitation to the right to copy described in paragraph 34 of the Access Orders that right includes:
i) the right to scan financial records or books by electronic means for storage onto computer files or otherwise to make electronic copies of financial records or books utilizing such portable scanning equipment as Brett's Professional Advisors shall provide;
ii) the right to make copies of financial records or books by means of any copying device as the Professional Advisors of Brett Hawksford and Brett Hawksford Management Pty Limited shall provide;
iii) the right to copy by any of the means referred to in paragraph 34 of the Access Orders by using such equipment as owned and/or controlled by Bremick or BMB at their business premises; and
iii)[iv] where copying is undertaken in the form referred to in Order 1(e)(i) and (ii) above, no charge shall be made by Michael Hawksford, Bremick or BMB for such copying;
f) The rights of access granted under the Access Orders include a right on the part of Brett Hawksford, Brett Hawksford Management Pty Limited and their Professional Advisors and their support staff to have access to and the ability to utilize Bremick's meeting room facilities at the business premises of Bremick and BMB at Maddox Street Alexandria when such rights of access are exercised, including access to Brett Hawksford's office adjoining Bremick's meeting room where such rights of [access] may be exercised in privacy, for the purpose of exercising the rights of access and inspection granted under the Access Orders;
g) Without limitation to the right to access to (sic) inspect the financial records and books of Bremick and BMB including computer files wherever they may be usually stored or kept, the rights of access granted under the Access Orders include a right on the part of Brett Hawksford, Brett Hawksford Management Pty Limited and their Professional Advisors and their support staff to have
i) uninhibited and unsupervised access to a dedicated computer terminal connected to the Bremick computer system and situated in Brett Hawksford's office which adjoins the Bremick meeting room where the rights of access and inspection granted under the Access Orders may be exercised; and
ii) all necessary passwords and security codes of the kind referred to in paragraph 31 of the Access Orders to be entered by Bremick's and BMB's officers employees or agents as and when requested by Brett Hawksford, Brett Hawksford Management Pty Limited and their Professional Advisors so as to enable access and inspection of all financial records and books of Bremick and BMB which are stored in electronic form (except those records and files described in paragraph 31 of the Access Orders);
2. AN ORDER that the plaintiffs and the third and fourth defendants, by themselves or by their officers, agents, employees or representatives, do all things necessary to give effect to and the Access Orders and to facilitate the exercise of the rights of access of Brett Hawksford, Brett Hawksford Management Pty Limited and their Professional Advisors and their support staff in accordance with the Access Orders as construed by the Court in the declaration of right contained in paragraph 1 above. "
32 It is not appropriate to make a declaration as to the proper construction of the orders of 8 December 2005, even if, which I doubt, there is any power to do so. A declaration is final relief. These are not contempt proceedings. The only effect that I can see of making the declaration sought, as distinct from making further orders to better implement the regime which Palmer J laid down, would be to advance a claim that the Michael Hawksford parties were in breach of the orders. That would not be a proper use of the declaratory power.
33 The Brett Hawksford parties submit that it was not the intention nor the effect of the orders of 8 December 2005 that Michael Hawksford, or employees of Bremick, should themselves determine which of Bremick's documents fall within the categories specified by Brett Hawksford for inspection. They submit that they are entitled to inspect the originals of Bremick's documents, whether in hard copy form or stored electronically. They should not be compelled to accept copies. They have been provided with original paper documents except where only some of original documents in a file fall within a requested category. In that event, they have been provided only with copies of the documents requested. They have been provided only with soft copies of documents stored electronically.
34 In relation to Bremick's computer system, Mr Macourt deposed:
" 81. Bremick is divided into six departments: Sales and Marketing, Purchasing, Operations, Information Technology, Warehouse and Finance. Each Department Manager is responsible for the management of that Department's records. Bremick has an integrated computer system incorporating databases storing information about stock management, customers and product sales. Access to various parts of the system is allocated to users on the basis of the information they require in order to perform their job function within the company such as purchasing (i.e. inventory levels) or sales (i.e. area sales figures). The reason for this is twofold: to protect the confidential nature of information which is commercially sensitive to Bremick by ensuring that access to it is restricted to those people who need it to carry out their jobs for Bremick, and to maintain the integrity of the operation of the system itself by restricting access to those parts of the system which relate to the operation of the system itself.
...
83. Security access is granted to the system on a per user basis and grants the user not only the ability to access various parts of the system but also to interact and manipulate the data stored in the system. That is to copy the data, delete the data and change the data. There is no means of simply searching a particular database in Bremick's system without also giving the user the ability to alter the information they access. For example, the search engine for the Sequel Plus database called Sequel Query is a data editor and search engine. "
35 The Brett Hawksford parties submit that having Mr Macourt determine which documents within the categories specified by Brett Hawksford should be made available for inspection interferes with Brett Hawksford's access rights. Such access should primarily be by way of access to Bremick's computer system rather than by copies of documents, even electronic copies. The effect of Mr Macourt's evidence is that all documents which Brett Hawksford has asked to inspect have been made available for inspection.
36 The Brett Hawksford parties also submit that Michael Hawksford has interpreted the orders of Palmer J to impose a regime for computer access which Michael Hawksford had contended before Palmer J should be implemented, where he failed in that contention before Palmer J. The Brett Hawksford parties also complain that the presence of Mr Macourt or another employee of Bremick whilst the Access Rights are being exercised interferes with the exercise of those rights because it inhibits discussion between Brett Hawksford and his professional advisers. The Brett Hawksford parties also contend that the denial of access to secretarial staff employed by Brett Hawksford's solicitors for the purpose of collating and scanning documents is unreasonable and unwarranted. The Brett Hawksford parties also contend that they should be entitled to inspect books and financial records wherever they are usually kept or stored rather than being confined to inspecting documents, including electronic documents, in a conference room and on a computer allocated for that purpose.
37 I do not accept the submission for the Brett Hawksford parties that the requirements of paras 33(e), (j) and (k) are merely procedural and for administrative convenience of Bremick, and do not impose any limitation on Brett Hawksford's substantive rights of access to the books and financial records of Bremick and BMB Investments. The exercise of the access rights is subject to the conditions in paras 33(e)-(k). Those conditions include the giving of at least two business days' notice of the categories of documents of which inspection is sought. Para 33(h) expressly provides that the access rights be exercised "in accordance with the notice referred to in paragraph 33(e)". If, as the Brett Hawksford parties contend, they are entitled to conduct any searches they choose of Bremick's computer system, (and they contend that they are required to be given access codes to enable them to effect such searches), then they would necessarily be able to inspect any documents stored on the computer system whether they were in the categories notified or not. On the other hand, there is no reason the Brett Hawksford parties should not be permitted to inspect original documents. There is nothing in the orders of Palmer J which restricts the access rights to electronic copies of documents on Bremick's computer system.
38 Palmer J's orders (understandably) do not descend to the detail of such matters as whether an employee of Bremick may be present when the Brett Hawksford parties exercise their access rights. Bremick has a legitimate interest in such a person being present if the Brett Hawksford parties or their advisors have access to original documents, including access to the documents stored on the computer system. However, if the documents made available to the Brett Hawksford parties are copy documents, including electronic copies of documents stored on a compact disc, I can see no proper basis for an employee of Bremick to be present if Brett Hawksford or his advisors ask for privacy. It would be a different matter if Brett Hawksford or his advisors asked for assistance. It is clear that from time to time such assistance has been sought. According to Michael Hawksford's solicitors, the purpose of such a person being present was to facilitate the inspection process.
39 If, however, Brett Hawksford or his advisors is given direct access to the computer system, then it is entirely appropriate that an employee of Bremick be present to ensure that no data is deleted or changed. Such a person's presence is also necessary to ensure that, in accordance with order 33, documents which Brett Hawksford and his advisors seek to inspect on the computer system fall within the categories of documents for which prior notice has been given.
40 Whilst the present orders do not envisage that access should be afforded to support staff employed by Brett Hawksford's solicitors, the only reason advanced for the Michael Hawksford parties as to why such access should not be afforded to such persons is that not being a professional such persons might not have a reasonable appreciation of their responsibility to the court pursuant to the undertaking as to confidentiality which is to be given. I see no reason why that should be so. The orders should be varied to permit support staff employed by Brett Hawksford's Professional Advisors, who are engaged to assist with tasks such as scanning or copying of records, to have access to the records for that purpose on their providing the confidentiality undertaking in accordance with para 35 of the orders.
41 I am not persuaded that there is any legitimate basis of complaint that documents and electronic information have been made available to Brett Hawksford in a conference room. The right of access and inspection under the orders does not extend to Brett Hawksford and his advisors having access to records kept by an employee in that employee's office. However, as the access rights extend to access to original records, including electronic records, Brett Hawksford and his advisors are entitled to access to the computer system in which such records are stored. That does not mean that the access to the computer system is unlimited. Nor is the only restriction on access the restriction in para 31 of the orders. A further restriction is that prior notice be given of the categories of records to be inspected. There is no reason why such access should not be given in a conference room for that purpose.
42 The making of copies, including electronic copies, of documents is expressly dealt with by order 34. The right to make copies is part of the Access Rights. Brett Hawksford is entitled to make copies. Order 34 does not provide that copies may only be made using Bremick's facilities. I see no reason why, if he wishes, Brett Hawksford or his solicitors should not use their own facilities to copy the records inspected. Paragraph 34 is silent as to whether Bremick is entitled to charge for the use of its facilities to make copies. Bremick has provided electronic copies of documents requested and has not charged for doing so. I see no reason to make any orders to the effect of the declarations sought in para 1(e). No objection has been made to Brett Hawksford or his advisors using their own equipment to scan or copy documents. The declaration sought by Brett Hawksford does not extend to a declaration that he is entitled to use Bremick's equipment to make copies at no charge. I see no reason to make any further orders in relation to copying.
43 In summary, I will make supplemental orders to give further effect to the orders of Palmer J of 8 December 2005 to provide that: