Howden Australia Pty Ltd v Minetek Pty Ltd

1. The Respondents' interlocutory application dated 14 July 2021 be dismissed with costs. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

PERRAM J: 1 By an interlocutory application dated 14 July 2021 the Respondents seek an order that: The Applicants' solicitors provide to the Respondents' solicitors the forensic images of the USB devices and external hard drives of Daniel Stack listed in the spreadsheet produced by the Applicants on 18 October 2019. 2 These reasons assume a working familiarity with the Court's reasons in Howden Australia Pty Ltd v Minetek Pty Ltd (Forensic Imaging) [2020] FCA 1419 ('Forensic Imaging'). There is no doubt that the Applicants' solicitors are in possession of the forensic images now sought by the Respondents. As explained in Forensic Imaging at [9], Mr Stack gave evidence that the Third Respondent ('Mr Bourcier') had given to Mr Stack a copy of an Excel spreadsheet with the file name 'RVC Calculations.xls' whilst both were employed by the First Respondent ('Minetek'). The Applicants (together, 'Howden') claimed that this file could only have come from Howden. In response the Respondents put on a further affidavit from Mr Bourcier denying Mr Stack's allegations that Mr Bourcier had given him the RVC Calculations.xls file. Subsequently, the Respondents gave discovery which revealed that Mr Bourcier had in fact emailed the file to Mr Stack. 3 This interlocutory skirmish, in a sense, is at an end. The RVC Calculations.xls document has been discovered by the Respondents along with an email in which Mr Bourcier sent the document from his personal email address to his email address at Minetek. Further, the email in which Mr Bourcier sent the same document to Mr Stack has also been discovered. 4 As part of the process of chasing these various lines of inquiry down, Howden's solicitors retained Mr McKemmish to assist them. As part of his work he imaged Mr Stack's USB devices and some of his external hard drives. It is those images which are the subject of the present application. 5 It is not suggested by the Respondents that they desire to have access to the images of Mr Stack's USB devices and external hard drives for any purpose relating to this proceeding. Indeed, they are candid in conceding that the purpose they have in mind is to consider whether to sue Mr Stack and Howden. Because using the images for that purpose would be to use them for a purpose extraneous to this litigation, the Respondents would require the leave of the Court to be released from the implied undertaking not to use documents for purposes extraneous to the litigation. 6 That question does not yet arise however. This is for the short reason that the Respondents do not have in their own possession or that of their current solicitors, the images in question. They seek to remedy that possessory shortfall by seeking production of the forensic images and, if they are successful in that endeavour, they seek leave to be permitted to use those images for the purpose of considering their position with respect to Mr Stack and Howden. 7 It is evident that the only purpose for which production is sought is to assist the Respondents to consider whether they should sue Mr Stack and Howden. The power of the Court to order production is conferred by r 20.31 of the Federal Court Rules 2011 (Cth): 20.31 Notice to produce document in pleading or affidavit (1) A party (the first party) may serve on another party (the second party) a notice to produce, in accordance with Form 39, for the inspection of any document mentioned in a pleading or affidavit filed by the second party. (2) The second party must, within 4 days after being served with the notice to produce, serve the first party with a notice: (a) stating: (i) a time, within 7 days after service of the notice, when the document may be inspected; and (ii) a place where the document may be inspected; or (b) stating: (i) that the document is not in the second party's control; and (ii) to the best of the second party's knowledge - where the document is and in whose control it is; or (c) claiming that the document is privileged and stating the grounds of the privilege. (3) If the second party does not comply with paragraph (2)(a) or (b) or claims that the document is privileged, the first party may apply to the Court for an order for production for inspection of the document. 8 The Respondents identified the trigger for the operation of this rule to be that the materials sought were referred to in affidavits of Mr McKemmish and Ms Currey, solicitor for Howden, on the basis of which the Respondents issued a notice to produce to Howden on 10 October 2019. I do not consider that the power in r 20.31(3) is available when it is being used for a purpose other than the pursuit of the litigation in which the application is made. It is not necessary to determine whether this is because r 20.31(3) is subject to an implied limitation to that extent or whether it does so extend but its use in that way would be an abuse of process. The result is the same: either the Court cannot make the order or, if it can, it should not. 9 To be complete, I do not accept that the pursuit of an application to be released from the implied undertaking constitutes a legitimate forensic purpose for which the Court's powers of compulsory production can be called in aid. Were it otherwise, this Court's power to issue subpoenas to third parties or order parties to give discovery would be open to the most serious abuse. 10 Mr Studdy SC in his careful argument for the Respondents submitted that a party could be released from the implied undertaking even where it had come into the possession of the document other than in the course of the proceeding, citing the decision of Wilcox J in Springfield Nominees Pty Limited v Bridgelands Securities Limited (1992) 38 FCR 217 ('Springfield'). No doubt that is true. However, Springfield is not authority for the proposition that the Court may use its compulsory powers to put a party into possession of a document solely so that it may then apply to be permitted to use it for purposes extraneous to the litigation. Nor do I accept that anything said by the plurality in Hearne v Street [2008] HCA 36; 235 CLR 125 at [96] provides support for such a proposition. Mr Studdy relied on this passage: Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. (Footnote omitted) 11 The critical words are 'the party obtaining the disclosure' which suggest that the plurality assumed that only a party in possession of a document would be seeking leave to use it for a different purpose. In my respectful opinion, it says nothing about the situation where the party seeking leave has not yet obtained the document. 12 The interlocutory application is dismissed with costs. I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Perram.