James & Anor v Faddoul & Anor

CATCHWORDS : INJUCTIONS - Interlocutory injunctions - Interlocutory mandatory injunctions for delivery up of images - PROCEDURE - Discovery - appointment of Court expert to inspect computers

Adriana James (P1) PARTIES : Everrett Wood James (P2) Roberta Faddoul (D1) George Faddoul (D2)

COUNSEL : Dr CS Ward (P) Mr G Bassett (D)

SOLICITORS : Henry Davis York (P) Gilbert & Tobin (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY LIST

4307/06 Adriana James & Anor v Roberta Faddoul & Anor JUDGMENT (ex tempore) 1 HIS HONOUR: The first plaintiff Adriana James and the second plaintiff her husband are the shareholders in, and the second plaintiff is the sole director of, the third plaintiff Blue Spark Pty Limited, which carries on business under the name of ANDA. Prior to 16 June 2005, the first defendant Roberta Faddoul was an employee of ANDA and the second defendant her father was a director of and minority shareholder in Blue Spark. The defendants have since ceased to be involved with the plaintiffs, and have established a competing business, and there are commercial disputes between them and the plaintiffs.

2 On 16 May 2006, two current employees of ANDA received emails attaching intimate photographs of the first plaintiff which had been taken by the second plaintiff and stored on his laptop. They were obviously of a private, and confidential, nature. Inquiries undertaken on behalf of the plaintiffs, and preliminary discovery ordered by the Federal Magistrate's Court, have established that the source of the emails in question was a web address, for which the contact details provided were those of the first defendant at QC Seminars, 51A Arcadia Road, Glebe. The second defendant was listed as an additional telephone contact, at the same address. Although the second defendant apparently asserts that he has severed his connections with QC Seminars, there is evidence showing that he has had a connection with them at least until recently, although he contends that this does not continue.

3 Since the order for preliminary discovery was obtained in the Federal Magistrate's Court, the plaintiffs' solicitors have endeavoured, by correspondence with the defendants and subsequently with their solicitors, to elicit information as to how the defendants may have come into possession of the images and what, if anything, has become of them. Those efforts have been conspicuously unsuccessful in producing any meaningful response. In those circumstances, the plaintiffs on 16 August 2006 obtained the leave of Windeyer J to file a summons seeking interlocutory and final relief, and later that day his Honour made orders in accordance with short minutes of that date, relevantly as follows: … 4. The matter be listed for hearing in relation to paragraphs 2, 3, 4 and 5 in the Summons at 10am before the Equity Duty Judge on 11 September 2006. 5. The plaintiffs file and serve an amended notice of motion and statement of claim by 5.00pm on 25 August 2006. 6. The defendants file and serve their affidavits in reply by 5.00pm on 6 September 2006. 7. The plaintiffs file and serve any affidavits in reply by 5.00pm on 8 September 2006. 8. Except for the purpose of communicating with her legal advisors, the first defendant be restrained until further order from distributing, forwarding, communicating, printing or making copies of the Pictures (as defined in the Summons) which are in her possession, custody or power/control. 9. The first defendant be restrained from removing, tampering or deleting any of the Pictures (as defined in the Summons) or any email or document containing the Pictures or recording the receipt, storage, forwarding, editing or deletion of the Pictures, describing the Pictures or referring to the Pictures which currently exists on any computer/s, flash drives, memory sticks and USB devices and any other electronic device or media she owns/leases/or has an interest in which were at 51A Arcadia street Glebe on 16 May 2006.

4 As will be apparent, the effect of those orders was, inter alia, to stand over for hearing today the plaintiffs' application for the relief claimed in paragraphs 2, 3, 4 and 5 of the summons. The same relief is now claimed also in paragraphs 6, 7 8 and 9 of an amended notice of motion filed on 31 August 2006. Paragraph 5 of that motion seeks an order that Blue Spark Pty Limited be joined as a plaintiff. That order is not opposed, and I will make an order adding Blue Spark as third plaintiff. 5 Paragraph 7 in the amended notice of motion seeks an order that if the pictures or copies of them are in the defendants' possession, custody or power, the defendants deliver them and all copies of them to the plaintiff at the offices of the plaintiff's solicitors within seven days. That is, in effect, a mandatory interlocutory injunction, seeking on an interlocutory basis part of the final relief which the plaintiff seeks in these proceedings, namely delivery up of the images. Whilst such orders are rarely made, this is a case in which the defendant has not been able to articulate any basis upon which it would be entitled to retain the pictures in question as against the plaintiffs, and in those circumstances I see no reason why, even on an interlocutory basis, that order should not be made. Accordingly, upon the plaintiffs by their counsel giving to the Court the usual undertaking as to damages I will make an order in accordance with paragraph 7 of the notice of motion.

6 Paragraphs 6, 8 and 9 in the notice of motion are claims for orders in the nature of discovery. Paragraph 6 claims an order that the defendants make and serve on the plaintiffs within seven days an affidavit stating whether photographs or digital images which depict the first plaintiff, copies of which were attached to emails originating from a particular email address, are or have been in the defendants' possession, custody or power, and if they have been and are not currently in their possession, custody or power and they have parted with them, what has become of them. Paragraph 8 claims an order that the defendants make available any computers owned, leased or operated by them to the plaintiff's nominated representative for forensic examination to determine whether or not the pictures are now or have ever been stored in electronic format on any such computer. Paragraph 9 claims an order that the defendants make and serve within seven days an affidavit stating all of the email addresses that were registered or caused to be registered or run or capable of being operated by the defendants, and a list of all emails sent or received by the defendants on 16 May 2006 from all of those email addresses.

7 The order sought in paragraph 6 would require no more than what the plaintiffs would be entitled to obtain on discovery. Although it has been argued that it amounts to a fishing expedition, there is ample evidence that there are likely to be fish of the relevant kind in the pond, and in those circumstances it is not a fishing expedition at all, but a proper application for discovery. I will make an order in terms of paragraph 6 of the amended notice of motion.

8 The order sought in paragraph 8 would authorise the plaintiff's nominated representatives to trawl through any computers owned, leased or operated by the defendants - including any information in those computers which might be entirely irrelevant to the matters the subject of this dispute. While the plaintiffs should have an opportunity to inspect the defendants' computers for the purpose of determining whether the pictures have been stored on them, that opportunity should not involve access to other information which might be stored on those computers. In this respect, I accept the defendants' submission that the appropriate way to proceed is the appointment of a court expert for that purpose. The defendants have proposed the Director of Forensic IT at Ferrier Hodgson, and while the plaintiffs have not had an opportunity to consider and consent to that, I propose to adopt that course, and to reserve leave to the plaintiffs, if so advised, to apply for the appointment of someone else in the place of that Director.

9 The order sought in paragraph 9 would require production of information and material which goes significantly beyond that which is relevant to these proceedings. In particular, it is not apparent why all emails sent or received by the defendants on 16 May 2006 would be relevant, nor why all email addresses that the defendant had or operated would be relevant. In the course of argument, Mr Ward, for the plaintiffs, has proposed that the order sought in paragraph 9 should be limited by restricting it to emails sent or received to which the pictures were attached (and presumably the email addresses on which such transmissions and reception took place). So limited, there are sufficient limitations in the order that the material sought has sufficient apparent relevance to the issues in the proceedings and a sufficient nexus with the issues to justify an order for discovery, and I would be prepared to make an order so modified.

10 I direct that the plaintiffs bring in short minutes by 4pm this afternoon providing for orders in accordance with these reasons, that is: · An order in accordance with paragraph 5 of the amended notice of motion. · An order in accordance with paragraph 6 of that motion. · An order in accordance with the draft minute of order brought in by the defendants in lieu of paragraph 8 of the motion. · An interlocutory order, upon the plaintiffs undertaking as to damages, in accordance with paragraph 7 of the motion. · An order in accordance with paragraph 9, but limited in the way I have described.

11 The plaintiff has substantially succeeded on the interlocutory application, and the Short Minutes should contain provision for the defendants to pay the plaintiffs' costs of the motion.

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.