Jay & Ors v Petrikas & Ors

District Court of NSW|2021-09-23|Before: Levine J, Tamberlin J

Solicitors: Plaintiffs: A R Conolly & Company Defendants: Crown Solicitor's Office File Number(s): 2019/00072815

Judgment

The plaintiffs, by notice of motion filed on 24 June 2021, seek orders for further and better discovery from the defendants and/or an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) ("UCPR") r 5.4 for non-party discovery against the Rural Fire Service of NSW.
These are my reasons for refusing the plaintiffs' application.

The evidence

The plaintiffs relied upon the affidavit of Mr Alan Conolly sworn on 24 June 2021.
The defendants relied upon the affidavits of Mr Bruce Cantrill sworn on 11 and 12 August 2021.

A brief overview of the litigation

The cause of action pleaded in the statement of claim filed on 6 March 2019 is a claim for injurious falsehood, based on a letter dated 25 August 2016 and two Briefing Notes dated 5 September 2016. Those statements were made in the course of workplace-related complaints made on 6 September 2016. The three-year delay in commencing proceedings is a significant factor in relation to this application.
The defendants are volunteer fire fighters connected to the Rural Fire Service of NSW ("RFS") and part of the Hawkesbury Rural Fire District, Region East. The fourth defendant is an employee of the RFS and Superintendent Fire Control Officer for the District, as well as being the RFS officer to which the South Sector Group reports as part of the RFS chain of command. An application by the plaintiffs for an extension of the limitation period to bring defamation proceedings against the fourth defendant was dismissed: [2019] NSWDC 707; the claim brought against the fourth defendant is, like the claim against the other three defendants, for injurious falsehood only.
After the defendants had been served and obtained representation, the plaintiffs' solicitors issued a subpoena to the RFS seeking 20 subsets of documents, which resulted in the production of a very substantial amount of material, much of which had to be put into order by Mr Cantrill. The plaintiffs do not cavil with the adequacy of the RFS answer to this subpoena, but submit that non-party discovery should nevertheless be ordered against the RFS.
As is set out in the first affidavit of Mr Cantrill (at paragraphs 12 to 59), over the two and a half years since the proceedings were commenced, the parties have engaged in frequent and at times acrimonious correspondence about documentation relating to the claim. Discovery was not given until March 2021, by which time the defendants' affidavits revealed that they had not kept any of the documents produced under subpoena by the RFS and had no other records of their own in relation to the 2016 complaint the subject of the injurious falsehood claim.

The relevant statutory provisions and principles of law

Although UCPR r 21.2 applies on a "one size fits all" basis to common law claims, it should be noted that applications for discovery in defamation proceedings focus strongly upon the pleadings and particulars, for the reasons set out by Professor Brown in Chapter 21 ("Discovery"), Brown on Defamation: Canada, United Kingdom, Australia, New Zealand, United States (Carswell, 2nd ed.) This approach is also, in my view, appropriate for a claim for injurious falsehood.
As to the obligation for discovery generally, UCPR r 21.2 provides: 21.2 Order for discovery (1) The court may order that party B must give discovery to party A of: (a) documents within a class or classes specified in the order, or (b) one or more samples (selected in such manner as the court may specify) of documents within such a class. (2) A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances. (3) Subject to subrule (2), a class of documents may be specified: (a) by relevance to one or more facts in issue, or (b) by description of the nature of the documents and the period within which they were brought into existence, or (c) in such other manner as the court considers appropriate in the circumstances. (4) An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue.
In the Hoxton Park Residents Action Group Inc. v Liverpool City Council [2014] NSWSC 372, Hallen J describes how this rule works: "The Statutory Regime in relation to the Notice of Motion 62 The Plaintiffs rely upon Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"), rule 21.2 which relevantly provides that the court may order that a party give discovery to another party of documents within a class or classes specified in the order (using a convention whereby party B is ordered to give discovery to party A). An order for discovery may not be made in respect of a document unless the document is relevant to a fact in issue. A class of documents must not be specified in more general terms than the court considers to be justified in the circumstances. It is clear from this rule that that discovery is discretionary. 63 UCPR rule 21.1(2) provides that a document or matter is to be taken to be "relevant to a fact in issue" if it could, or if it 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 a witness), regardless of whether the document or matter would be admissible in evidence. 64 It is also sufficient if the document would either (i) advance a party's case or damage his or her opponent's case, or (ii) lead to a train of inquiry that would either advance a party's case or damage his or her opponent's case: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 11 QBD 55, 63; Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341, 345. 65 However, Allsop P (as his Honour then was) said in Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264, at [101]: "Parties should understand that the restriction on discovery now contained in Pt 21 is the current framework for discovery. Discovery (and its uncontrolled use) always contains (and contain) the risk of abuse and oppression. Discovery can be a highly expensive exercise. Courts in defamation, as in all other matters, including commercial matters, should be astute to ensure that it is not used as a weapon of oppression by wealthy litigants to oppress less well-funded parties. Even when all parties are well resourced, over-enthusiastic and unnecessary use of discovery impedes the due administration of justice and undermines confidence in the court system's ability to resolve disputes justly, quickly and cheaply. Parties should understand that there is no entitlement to 'chain of inquiry' discovery. If discovery is being used abusively, the courts can and should control it."
In the course of hearing an application for further and better discovery in Hunter New England Local Health District v Munters Pty Limited [2018] NSWSC 788 at [18], Bellew J set out the relevant principles for discovery as follows: "19 The parties were generally in agreement as to the principles which apply to an order for discovery. In the context of the present case, those principles may be summarised as follows: (i) discovery cannot be ordered other than in respect of documents that are relevant to a fact in issue. It is therefore necessary to demonstrate a connection between the class of documents of which discovery is sought, and a fact or facts in issue. Where a class is specified in some manner other than by relevance to a fact in issue, it must be apparent that the class so described will capture only documents that are so relevant: Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [22]; (ii) the facts in issue will be primarily identified by an examination of the pleadings: Schlam v WA Trustee Executor & Agency Co Ltd [1964] WAR 178; Mulley v Manifold (1959) 103 CLR 341; [1959] HCA 23; (iii) for the purposes of discovery, a document need not be admissible, and need not be directly probative of the existence of the fact in issue, to be relevant. It follows that in a general sense, the test for discovery under the rule is relatively wide: Hutchinson v Glover (1875) 1 QBD 138; (iv) the relevance of a document to a fact in issue is to be determined by its capacity to rationally affect the assessment of the probability of the existence of the contentious fact: Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co (1882) 52 LJQB 181; (v) discovery will be ordered only where it is reasonably required for the fair disposition of the proceedings, and where its legitimate purposes include to obtain evidence and to avoid surprise: In the matter of Felan's Fisheries Pty Ltd [2017] NSWSC 1262; (vi) discovery involves an "inroad", in the interests of justice, upon the right of the individual to keep his own documents to himself: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd (2013) 250 CLR 303; [2013] HCA 46, citing Harman v Home Department State Secretary [1983] 1 AC 280; [1982] 2 WLR 338; (vii) the discretion conferred by r 21.2 must be exercised having regard to the provisions of ss 56-60 of the Civil Procedure Act 2005 (NSW). In this regard, case management principles become relevant, although they are not necessarily determinative: Expense Reduction Analysts Group Pty Ltd (supra); (x) although proper compliance with a party's obligations of discovery is an important and necessary part of modern litigation, the court necessarily has the capacity under the rules to limit discovery, or control the process of giving discovery, so that it does not become unduly onerous: Con Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 1200; (ix) there is no entitlement to "chain of enquiry" discovery. If the process of discovery is abusive, or compliance with an order too onerous, the court can (and should) control it: Palavi v Radio 2UE Sydney Pty Limited [2011] NSWCA 264."
Where a party has provided discovery with verification, as is the case here, the affidavit supporting that discovery is generally conclusive as to: 1. Whether the party has any undisclosed documents; 2. The relevance (or lack thereof) of any undisclosed documents; and 3. Any claim for privilege: Fruehauf Finance Corp Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359 at 364.
The approach to challenges to the sufficiency of discovery is helpfully summarised by Davies J in Kaji Australia Pty Ltd v Glover (No. 2) [2018] NSWSC 414 at [39]-[41]: 39 In Proctor & Gamble v Medical Research Pty Ltd [2001] NSWSC 183 Hunter J said at [64]: [64] I think the true rule in resolving a question of sufficiency of discovery is as follows: The affidavit verifying discovery is conclusive of the question unless it can be shown (i) by recourse to the documents discovered; (ii) from the content of the affidavit verifying discovery; (iii) from the pleadings, or "from any other source that constituted an admission of the existence of a discoverable document" that the discovery has been insufficient. Further, where the discovering party has misconceived the nature of the obligation of discovery it is not necessary to infer the existence of relevant documents other than those discovered (see Mulley v Manifold(1959) 103 CLR 341 at 343 and Falk v Finlay, Supreme Court of New South Wales, Austin J, 24 December 1999, unreported). 40 In Preston v Star City Pty Ltd [2007] NSWSC 293 Hoeben J (as his Honour then was) said at [21]: Although the basic rule remains that an affidavit of discovery is conclusive some exceptions to that rule have been recognised by the common law and by the rules of court (Mulley v Manifold (1959) 103 CLR 341, Fruehouf Corporation Pty Limited v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359). Those exceptions are narrow and require that the insufficiency of the affidavit of discovery appear either from the documents themselves or from any other source that constitutes an admission of the existence of a discoverable document. In applying one of those exceptions the court has to "on the face of it or from admissions in other documents … have reasonable grounds for being fairly certain that there were other relevant documents which ought to have been disclosed …" (British Association of Glass Bottle Manufacturers Limited v Nettlefold (1912) AC 709 at 714, Beecham Group Ltd v Bristol Myers Co (1979) VR 273 at 276). 41 In Dai v Zhu [2013] NSWCA 412 the Court of Appeal said: [124] The applicants' submissions did not canvass the authorities dealing with the circumstances in which a court can go behind an affidavit of discovery, although the respondents' submissions did refer briefly to the relevant principles. Giles J examined the authorities in Fruehauf Finance Corp Pty Ltd v Zurich Australian Insurance Ltd (1990) 20 NSWLR 359. His Honour concluded (at 366) that in general an affidavit of discovery is conclusive in relation to the "amplitude of discovery" and that cross-examination of a deponent will not be permitted. Other authorities take a different view and hold that the court has a discretion to permit cross-examination of a deponent who has verified a list of documents: Hartogen Energy Ltd (in liq) v Australian Gas Light Co (1992) 36 FCR 557, at 560-561, per Gummow J; Commissioner of Australian Federal Police v Propend Finance Pty Ltd [1997] HCA 3; 188 CLR 501, at 574, n 315, per Gummow J; cf Procter v Kalivis [2009] FCA 1518; 263 ALR 461, at [34]-[41], per Besanko J. Of course in the present case, Ms Dai was not cross-examined. [125] As Giles J's survey of the authorities demonstrates, there are exceptions to the conclusiveness of affidavits of discovery. Courts have adopted various formulations of the circumstances in which affidavits of discovery may be challenged. A frequently cited authority is Mulley v Manifold [1959] HCA 23; 103 CLR 341, where Menzies J said (at 343): ... it cannot be shown by a contentious affidavit that the discovery made is insufficient. Before 1912, it was thought that the insufficiency had to appear from the pleadings, the affidavit of documents itself or the documents therein referred to. However, in British Association of Glass Bottle Manufacturers Ltd v Nettlefold [1912] AC 709], it was established that the insufficiency might appear not only from the documents but also from any other source that constituted an admission of the existence of a discoverable document. Furthermore, it is not necessary to infer the existence of a particular document; it is sufficient if it appears that a party has excluded documents under a misconception of the case. Beyond this, the affidavit of discovery is conclusive. Other cases have used somewhat broader language. Thus in Frankenstein v Gavin's House-to-House Cycle Cleaning and Insurance Co [1897] 2 QB 62, AL Smith LJ said (at 64-65) that a plaintiff had to establish: ... by some means other than by a conflicting affidavit that the defendants' affidavit is incorrect. In order that the plaintiff may succeed in doing so, the Court must be satisfied with reasonable certainty either from the defendants' own statements that they have erroneously represented or misconceived the nature of the documents ..., or from some source other than by affidavit that the defendants' affidavit is incorrect. (This passage was cited by Giles J in Fruehauf, at 363). Besanko J's review of the cases in Procter v Kalivis led him to conclude (at [33]) that: reasonable grounds for being fairly certain that there are other relevant documents is a good workable test and is a test supported by the authorities."
The court may nevertheless make orders for further and better discovery, although such orders require clear evidence of material not only existing, but also being relevant. Such an order will not be made merely on the basis of a speculative possibility that a party has not disclosed relevant documents. In order to justify an order for further discovery, the applicant must do the following: 1. Specify the document, or class of documents, in respect of which further discovery is sought; 2. Establish reasonable grounds for believing that the documents were, or had been, in the opponent's position; and 3. Identify precisely how the document or documents in question are relevant.
As to reasonable grounds, these may be established in cases such as the following: 1. Where there are admissions made by the party that they have had or have now other relevant documents in their possession, such as references to other documents in the material discovered. 2. Where the form of the original list of documents itself points to the probable existence of other documents. 3. Where a small number of documents is provided in circumstances are likely to have resulted in a great deal of material, the subject matter of the litigation may point to the existence of other documents: Ace Hire Aust Pty Ltd v ADI Ltd 2006 NSWSC 969. 4. Where it is apparent, from the documents discovered, that the issues in the case have been misinterpreted or misunderstood.
The third of the four categories identified above is the most pertinent to this application. There are very few proceedings where a party has no documents whatsoever to be produced.
There are, however, other principles which need to be considered. Chief among these is the problem of the availability of temporary and/or informal electronic records such as text messages and other transient records of an electronic nature, where months or years have passed since the events in question. This ongoing problem is helpfully analysed in "Discovery in Federal Courts" (ALRC CP 2, 15 November 2010) at Part 3: "3.56 Since 1999 the range of material potentially to be discovered has increased exponentially through advancing computer technologies - with an attended and significant increase in discovery costs. Electronic communications can be inherently expensive to discover, in part due to the cost of specialist service providers with expertise in computer technologies. For example, Lord Jackson's Review of Civil Litigation Costs reported that typical service charges for e-discovery include: electronic document processing (extracting metadata, text, attachments etc, for use on a document review system) £250-£1,000 per gigabyte of data, document hosting on a review system at £20-£150 per gigabyte per month and a user access fee between £10-£100 per user. 3.57 E-discovery costs can also include expensive computer software and hardware. For example, the ALRC heard during initial consultations that the discovery of information stored on old back-up tapes can require the reconstruction of outmoded hardware at great expense in order to read the tapes only to discover completely irrelevant information. 3.58 A number of commentators have noted the distorting effect that technology has had on discovery costs. This includes Acting Justice Ronald Sackville of the New South Wales Supreme Court, formerly a judge of the Federal Court of Australia, who has remarked on the discovery process: "It is here that extraordinary and disproportionate costs are frequently incurred by parties to litigation. Far too often the search for the illusory 'smoking gun' leads to squadrons of solicitors, paralegals and clerks compiling vast libraries of materials, much of which is of no significance to the issues in the proceedings. The problem has been compounded, not alleviated, by the exponential growth of electronic communications which can be tracked and often reconstructed after deletion." 3.59 The sheer volume of data that must be managed in modern trade and commerce can blow out the cost of searching through electronic material for the purposes of discovery, resulting in costs disproportionate to the value of the documents discovered - in terms of their use in the litigation. The increasing amount of information which contemporary litigants must deal with was recently highlighted in Betfair v Racing New South Wales. In this case, one source of discoverable documents is 'an electronic data warehouse containing the electronic records of over 2.52 million customers and occupying some 21 terabytes of memory growing at 70 gigabytes per day'. One terabyte is said to be the equivalent of 500 million printed pages." [Citations omitted]
These concerns about the so-called "distorting effect" of e-discovery expense occurred at a time courts were still using outdated discovery rules created for paper documents only and where delineation of possession of a document (or its absence or destruction) was determined by the presence or absence of a paper record. Unfortunately, these same rules have continued to be applied to electronically stored information even though, as Tamberlin J noted in Yarra Creek Central Packing Shed Pty Ltd v Amcor Limited [2006] FCA 1802 (at [12]), software is available that is capable of analysing large amounts of metadata "in a matter of seconds".
The factors to take into account where electronic records are sought may be summarised as follows: 1. Discovery requires production, not creation, of documents: El-mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816 (but note a contrary view in Ange v Fairfax Media Publications Pty Ltd [2012] NSWSC 1200 at [49] to [53]). Production can require production of what seems like a significant number of documents including metadata, but if there are technical hurdles to obtaining full access, orders can be made for this to be done through predictive coding or other search software. 2. Courts understand that even where the record-keeping body is an organisation required to keep records, the keeping of electronic records of an evanescent nature such as text messages may nevertheless not be possible. The sheer volume of electronic records, the need to replace the equipment on which they are read at regular intervals and the likelihood of such records being deleted by the sender and/or recipient on a basis of good housekeeping need also to be taken into account. For this reason, it is often advisable, at the commencement of litigation where records of this nature are involved, to consider applications to the court or correspondence with the opponent requiring the keeping of such records. In fact, where there are records of a transient nature which are in hard copy, there is much to be said for an early application for a subpoena to preserve (but not inspect) such documents: Djuricanin v Foreign Language Publications Pty Ltd (Supreme Court of New South Wales, Levine J, 12 May 1995: subpoena to police to preserve prosecution files and related administrative documentation after conclusion of criminal charges, pending the hearing of future defamation proceedings). 3. A discovering party will not generally be required to expend significant sums to change or create documents in the most usable form merely at the request of the party seeking discovery: Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 15) [2012] FCA 781. 4. Special care needs to be exercised to ensure that the request for electronic documentation is not oppressive. In Construction, Forestry, Mining and Energy Union v BHP Coal (No 2) [2017] FCA 1539, Collier J sets out relevant principles in relation to an application to search email boxes the contents of which were automatically archived after six months and would have required expert intervention to be recovered. 5. Where a party claims to have lost electronically stored information, they will be required to make the same or similar searches as they would make for a physical document. If a party has deleted electronically stored information or destroyed the device which stored it, courts may make orders which will include the striking out of the proceedings (Charmyne Palavi v Queensland Newspapers Pty Ltd & Anor [2011] NSWSC 274; Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264).

Documents produced and documents sought

As is set out in the letter from the plaintiffs' solicitors to the defendants' solicitors, the plaintiffs' discovery sought documents within the following classes: "(1) All audio recordings of the South Sector meeting on 20 July 2016 conducted by the NSW Rural Fire Service and copies of any transcripts created thereof; (2) All documents referring to the South Sector meeting on 20 July 2016 conducted by the NSW Rural Fire Service; (3) All records of complaints made to Karen Hodges or Ben Watson about the plaintiffs; (4) All briefing notes produced by Karen Hodges documenting complaints about John Peters and Graeme Jay; (5) All records of instruction to Karen Hodges to produce briefing notes documenting complaints about John Peters and Graeme Jay; (6) Any record that was signed by two or more South Sector Group Captains that mentioned the Reports, outcome of the Reports or outcome of allegations of misconduct against Graeme Jay and John Peters; (7) Any record that purported to be a response to the letters signed by Rebel Talbot dated 11 December 2017 that, in accordance with clause 2.9(c)(ii) of SOP SS1.1.2-3, notified recipients that certain complaints would not be taken any further and that were received by: (a) Adam Rutter; (b) Andrew Rutter; (c) Bruce Earle; (d) Chris Petrikas; (e) Daniel Naethuys; (f) David Ryan; (g) Grant Evans; (h) Ian Wedge; (i) John Vernon; (j) Karen Hodges; (k) Ken Pullen; (l) Neville Wearne; (m) Peter Gatt; (n) Ron Gray; (o) Steve Cohen; (p) Stuart Lowe; and (q) Tom Misdom. (8) Any record that notes, advises or records the existence or occurrence of a meeting or conference to discuss the Reports, outcome of the Reports or allegations of misconduct against Graeme Jay and John Peters; (9) Any records that were produced or circulated at any meeting or conference to discuss the Reports, outcome of the Reports or allegations of misconduct against Graeme Jay and John Peters; (10) All documents relevant to the issue that the sending of the letter was a matter or thing done in good faith for the purpose of executing a provision or provisions of the Rural Fires Act 1997 (NSW); (11) All documents relevant to the issue that the first plaintiff had breached Service Standard 1.1.42 Sections 3.10-3.15 and Code of Conduct Section 4.6; (12) All documents relevant to the issue that the second plaintiff had breached Service Standard 1.1.42 Section 3.13(e) and Section 3.13(1) and Code of Conduct 4.6; (13) Documents showing the republication of the matters complained of, in whole or in part, by any other party."
The plaintiffs identify 17 documents or groups of documents which have not been provided in answer to those categories as follows: "(1) Emails and/or diary notes between Karen Hodges, Ben Watson, Jason Heffernan, and Jason Plumridge; (2) Minutes of the meeting at Hawkesbury District Office with Rob Rodgers, Rebel Talbert and the group captains which addressed the issue as to why the Plaintiffs were found to have done nothing wrong, in relation to the investigation report; (3) Emails, meetings notes, file notes and correspondence relating to meetings between Karen Hodges and other commissioners like Jason Heffernan, Ben Watson and various Group Captains; (4) Karen Hodge's directions for Ian Wedge to conduct the statements with the defendants and others; (5) The email from Mr Pullen to all Group Officers complaining the investigations' findings and requesting a meeting. This email was copied to a number of people. The internal emails which followed that request, including emails to the assistant commissioners, and records of the subsequent meeting of the group officers have not been produced. Subsequent to that email, further emails and reports including from Karen Hodges to others including the assistant commissioners. Rebel Talbot and Rob Rogers (now Commissioner) who attended a subsequent meeting with the group officers; (6) The communications and directions between Karen Hodges and Ben Watson in relation to the investigation; (7) Instructions given to Ian Wedge by Karen Hodges relating to the statements; (8) Emails requesting statements, and emails with draft statements and emails concerning statements; (9) All records of correspondence of Karen Hodges' to all the defendants concerning their statements and the investigation and evidence; (10) All email and notes to and from Ben Watson, Jason Heffernan, and Karen Hodges about the investigation; (11) Emails instructions and advice from Jason Heffernan to Jason Plumridge setting out the scope of appointment and any further guidelines or emails concerning the appointment; (12) Emails from all group captains and defendants requesting a meeting with the commissioner and others concerning the result of the investigation; (13) Meeting notes or minutes of meeting with Rob Rodgers, Rebel Talbot with group captains; (14) Emails from Chris Petrakis concerning the proposed motion of John Peters, and emails relating to that email including decisions concerning the running of the meeting; (15) Emails or notification from Karen Hodges to Graeme Jay and Joanne Jay about Teagan Jay and her welfare; (16) Emails from Karen Hodges and others (commissioners) within the RFS about the welfare of Teagan Jay and the investigation and the referral of this complaint, statements and other documents; (17) Records of the meeting of Hawkesbury Group Officers held at Hawkesbury Fire Control Centre with and a number of senior staff, including Assistance Commissioner Rebel Talbert and Robert Rogers. On the discovery by the Defendants that meeting has taken place with no meeting minutes, diary entries, calendar entries and emails either before, during or following that meeting. Those records should be discovered."
The following features of this list may be noted: 1. None of these 17 categories refer to actual documents with dates or other identifying information. It is acknowledged that they are based on supposition as to whether the meetings in question took place, whether diary notes were created and and, in relation to the investigation of Ms Jay, that the defendants were in some way involved in that investigation. 2. Many of the categories refer to the fourth defendant, Ms Hodges, and to other RFS employees, although the RFS has already answered a comprehensive subpoena in relation to all these documents.
In broad terms, the plaintiffs seek further and better discovery of the following categories of documents: 1. Emails prior to the investigation (early 2016) (paragraphs 12 - 16 of the affidavit of Mr Conolly). This would include information about when and in what circumstances the defendants have replaced their computers since 2016. 2. Mobile phone text messages and other "telephone records" for the period "early 2016" (paragraphs 17 - 19 of the affidavit of Mr Conolly). This would include information about when and in what circumstances the defendants have replaced their mobile phones since 2016. 3. Correspondence about selection of witnesses and instructions to the investigator for the period "early 2016" (paragraphs 20 - 21 of the affidavit of Mr Conolly). 4. Records of any meetings between the defendants after the investigation was finalised (mid to late 2016) as set out in paragraph 22 of the affidavit of Mr Conolly. 5. Documents relating to Ms Teagen Jay (paragraph 23 of the affidavit of Mr Conolly).
I deal with each of these groups in turn.

Emails

Mr Conolly states: "12. The Defendants have email addresses as RFS officers/ volunteers and/or as employees. The Defendants also have personal electronic devices, including their mobile telephone, by which they are contacted when required and each person would be reasonably expected to have a private email address. 13. The emails of each individual defendant who is Volunteer or employee of the RFS would be emails held at least through the RFS email address of each person and held on the personal computer and electronic device and telephone of each officer. 14. The emails of each individual defendant who is an employee of the RFS would be emails held on the computer of the Employee, on the personal device of the employee, including their telephone, and on the server of the RFS. 15. No records have been discovered by any of the Defendants other than the records produced by the RFS in 2019. 16. It is not known whether the Defendants through the Crown solicitors' Office maintains that the employees of the RFS are unable to request that the RFS Discover documents including emails held on the server of the RFS. The volunteer officers of the RFS had at least an email address through the RFS. Those emails would be held on the hard drive of the home computer of the defendants, and on the server of the RFS. It is not known whether the Defendants says that each Defendant has searched their archived emails and hard drive for emails and text messages held by them but not by the RFS."
Although Mr Conolly elides the role of volunteer and employee, the first three defendants were never more than volunteers. The fourth defendant was and remains an employee of the RFS, but her position is that all the documents she has have been produced by the RFS in answer to the subpoena issued to the RFS in 2019.
How thorough was that answer to subpoena? In his affidavit, Mr Cantrill describes the document management system at the RFS, including electronic management, as follows: "84. I am informed by a legal officer of the RFS and believe the following with regard to its document management system: (a) the RFS has a centralised email service and records of sent and received emails to and from RFS addresses are gathered as required. The system is online and records are retained for seven years. (b) The system is considered reliable from 2014 onwards and back-up tapes are required to search for anything before 2014. (c) the RFS information technology team (ICT) can conduct the retrieval of emails given document search parameters such as dates, times and additional detail. (d) Mobile phones issued to RFS employees are managed under a centralised account with Telstra. (e) In order to retrieve records of calls from RFS phones the RFS would need to direct a request to Telstra. It is not known how far back in time the requests for certain calls can be made. (f) the RFS does not have a centralised service to retrieve SMS messages from RFS owned phones. (g) Voice call recordings for RFS Land Line phones in operational facilities in certain areas are retained and can be retrieved in the same way as emails."
It is in these circumstances that, at paragraph 67 of his affidavit, Mr Cantrill states that he has been informed by each of the first, second and third defendants that, as at March 2021, none had retained any documents, physically or electronically, within the categories of discovery sought. The first, second and third defendants told Mr Cantrill that they were volunteers and that any documents or records they may have had were sent to the RFS and not retained by them personally. In particular, Mr Cantrill states at paragraph 70, that the first, second and third defendants do not have RFS emails in their capacity as volunteers, or mobile phones, or RFS computers.
The fourth defendant is in a different position. She is an employee of the RFS and has an email address, computer and mobile. However, she states, and there is good reason to accept, that the documents she has had in her possession in relation to the categories of documents have all been produced in the very extensive documentation supplied by the RFS in answer to the plaintiffs' subpoena.
Mr Cantrill sets out the inquiries he has made about the defendants' personally owned computers, phones and electronic records: 1. The first defendant replaced his computer and phone since 2016. 2. The second defendant replaced his phone in June 2020. 3. The third defendant replaced his mobile phone in mid-2020. His computer was lost in the March 2021 floods. 4. The fourth defendant replaced her private phone in November 2018; she also replaced the RFS owned phone in her possession in March 2021, but this was two years after the RFS subpoena was answered.
Mr Cantrill further states at paragraph 85 that the request for further searches for emails and other documents not produced in answer to the RFS subpoena would be onerous to comply with: "85. I am informed by a legal officer of the RFS and believe the following with regard to what would be the cost of RFS undertaking a search of its document management system: (a) the cost of the RFS search would be dependent on the scale of the request. The RFS search would not be able to include searching for telephone records. I refer to [84] (d), (e) and (f) of my affidavit. (b) The scale of the request would depend on the volume of data, time frame, the format in which the information is to be provided, and the quantum of source system that would need to be integrated in order to gather the requested documentation. (c) The scale of the request would determine whether the search could be undertaken by RFS staff or whether an independent contractor would need to be engaged."
This is not a case where the existence of a specific email or other computer-generated document can be pointed to, or described, or given a date. Mr Crispin's submissions were, to use his words, that "there's got to be more" and that he did not consider a great deal of effort had been made to check for the existence of these records. In particular, he complained that no evidence was before the court as to what had happened to the mobile phones and computers that were replaced (apart from the computer lost in the flood), or explanation as to why, if these devices were replaced, the emails in question could not be accessed from the replacement equipment.
The difficulty is that the relevant events occurred more than five years ago, in circumstances where no actual document or documents able to be searched for can be pointed to. Those documents should be able to be identifiable if they exist. In fact, after the defendants made complaints about the plaintiffs which resulted in an investigation in 2016, the plaintiffs made a series of freedom of information requests for documentation from the RFS which would have alerted the RFS to the documents in question. The investigation documents and records have now been produced under subpoena by the RFS and there is nothing in that material pointing to the absence of identifiable material of the kind referred to in this general way by the plaintiffs.
As was the case in Kaji (at [45]), much of the plaintiffs' argument depends on inferences being drawn on matters that might be thought to relate to the defendants' credit. These inferences, namely that there must be more documentation of some kind, are no more than speculation about what the defendants might have been doing, in terms of contacting each other about the complaints process. Questions relating to their credit are not appropriate matters to raise in an application for further and better discovery.
I am satisfied that the defendants have sufficiently complied with their discovery obligations in relation to emails and electronic records generally. They are not obliged to provide further affidavit material setting out when and in what circumstances they disposed of computers or phones. Even in the course of speedily conducted litigation, such a request would (absent clear evidence of destruction of the kind that occurred in Palavi) be considered only if there were compelling reasons to do so. In the present case, where the three volunteers say they have no records and the fourth defendant, the RFS employee, says all her documents are produced in answer to the RFS subpoena, the court would be reluctant to order any further and better discovery of this very general nature.

Telephone records

Mr Conolly states: "17. The records to be produced would include telephone records relating to calls made at about the time of the events pleaded, by which the Defendants. It is not known whether the Defendants have considered Discovery of their telephone records and text messages, and whether there has been Discovery of such records.' 18. The Defendants have not advised whether the documents exist and are in the custody of the RFS or if the documents existed but were destroyed, or never existed. 19. The documents which would be expected to be discovered by the Fourth Defendant, are outlined in paragraph 9 of the letter 21 May 2021."
Mr Cantrill points to the circumstances in which the mobile phones in question have been replaced, as set out above.
The only documents Mr Crispin could point to were text messages sent in 2016. Again, this is supposition. For the same reasons as set out above, I am of the view that to be requiring the defendants to embark upon explanations about the whereabouts of their 2016 mobile phones would be a pointless exercise.

Correspondence about selection of witnesses and instructions to the investigator

Mr Conolly states: "20. The documents which would be reasonably expected to be Discovered by each or all of the Defendants, include instructions to the investigator concerning, the nomination of the specific witnesses to be interviewed, the selection of those witnesses, the issues to be addressed to those witnesses, draft statements of those witnesses and any arrangements made for interviews. The records Discovered do not include records relating to the witnesses at the meeting who were not to be interviewed. No records have been Discovered relating to the instructions as to the scope of the appointment of the investigator and the guidelines for the investigation. No records have been Discovered of records of a meeting call, and the minutes of the subsequent meeting. 21. It is noted that not all present at the meeting provided statements, or \were interviewed or approached by the investigator to provide a statement. Further, the select witnesses interviewed as recorded in the investigator's report uniformly provided a history of what occurred at the relevant meeting which was a history consistent with each other person who provided a statement. The information provided by each witness was ultimately found to be incorrect, and uniformly incorrect, when, at the request of the Plaintiffs solicitor the recording of the meeting, (which initially was said not to exist) was produced, and a transcript of that meeting produced. No action was taken by the RFS against any of the witnesses, whose statements were provided, and in relation to which the evidence was found to be contrary to the recording of the meeting."
Mr Cantrill states that all documents currently held and relevant to the fourth defendant have been produced by the RFS on subpoenae.
The real difficulty is that there is no evidence of the first three defendants playing any role in the selection of witnesses and instructions to the investigator. They were simply volunteers who made a complaint and, in the case of one of them, a statement. In the absence of a clear reference to some document in existence revealing that this in fact occurred, no further and better discovery should be ordered.

Meeting after the investigations

Mr Conolly states: "22. Following the investigation a meeting was called by officers and group captains, asking for an explanation as to why the Plaintiffs were found to have done nothing wrong. No records of that meeting have been produced by any of the Defendants. This includes no emails, meeting notes, no diary entries in outlook, no file notes, or correspondence, have been produced by Karen Hodges the Fourth Defendant, who held meetings with commissioners including Jason Heffernan and various Group Captains relating to the meeting, the outcome of the investigation and subsequent meeting and further recommendations."
Mr Crispin acknowledged that he was not in fact able to point to any document to demonstrate that there had been any meeting or meetings of the kind described after the investigation took place. It is effectively supposition on the part of the plaintiffs that some meeting of this kind occurred.
There is a reference to a "transcript" of a meeting in Mr Crispin's submissions. He acknowledged, however, that this was not a transcript of this meeting, but of another meeting where the relevant documents had been produced under subpoena.
No further and better discovery should be ordered concerning these categories of material.

Documents in relation Ms Teagan Jay

Mr Conolly states: "23. No records have been discovered concerning the meetings relating to the welfare of Teagan Jay, and the investigation into the sexual relationship with the volunteer officer who was her supervisor."
Ms Jay is a relative of one of the plaintiffs. The investigation in question was separate to the investigation involving the defendants.
Mr Cantrill states that the fourth defendant was not involved in the question of Ms Jay's welfare (affidavit, paragraph 78). The other three defendants say, according to Mr Dean, that they played no part in this investigation. There is no documentary material or other evidence pointing to the contrary. Once again, it is supposition, and I do not propose to make any orders for the "records" sought.

No order for further and better discovery be made

I have rejected each of the five categories of documents put forward by Mr Conolly in his affidavit as being categories warranting further and better discovery. Mr Crispin's alternate submission is that non-party discovery should be given by the RFS.

Non-party discovery by the RFS

Mr Conolly states: "25. If the Documents sought to be discovered by Karen Hodges are records held by the RFS, on its server, or in its file storage, and the court is against the Plaintiff's proposition that records held by the employer are records within the control of Karen Hodges, given her position at the RFS, then the Plaintiffs seek alternatively an order that there be discover by the non-party, the RFS including a search of its server."
The defendants oppose this application, pointing to the following: 1. The plaintiffs have already issued a wide-ranging subpoena to the RFS. They do not complain that documents have been withheld. 2. The plaintiffs have elected not to join the State of New South Wales, although they had the option to do so in 2019 when they joined the fourth defendant. They should not be given the benefit of non-party discovery now. 3. There have already been substantial delays in this litigation, to the prejudice of the individual defendants. These proceedings were commenced late and are now in their third year without being ready for allocation of a hearing date (as the issue of interrogatories has yet to be determined). 4. These proceedings involve an economic tort with liquidated claims just above the jurisdiction for the Local Court. The making of a non-party discovery order against the RFS would be disproportionate to the relief sought as well as contrary to the overarching principles set out in s 56 of the Civil Procedure Act 2005 (NSW).

Conclusions concerning alternative order for discovery against a non-party

The RFS provided a comprehensive answer to a subpoena in 2019. Not only did the RFS provide a great deal of material, but Mr Cantrill went to considerable trouble in terms of setting up the documentation in a neat and easy-to-read manner. A list of the documentation provided is attached to his first affidavit. It is very comprehensive. No court would make a discovery order against a non-party in such circumstances. In particular, granting permission to search a server in the very general way described by Mr Conolly is not only contrary to UCPR r 21.2 but oppressive.

Costs and other orders

Costs should follow the event: UCPR r 42.1.
The parties should now move forward to prepare for a hearing date to be allocated on the next occasion these proceedings come before the court for directions.

Order: 1. Dismiss the plaintiffs' applications for further and better discovery and alternative order for discovery from a non-party (RFS). 2. The plaintiffs are to pay the defendants' costs such costs to include the costs of 17 and 24 June and of today. 3. Plaintiffs' interrogatories in 21day. 4. Plaintiffs are to answer the defendants' interrogatories in 21 days. 5. The defendants are to answer the plaintiffs' interrogatories in 21 days after the receipt. 6. Matter stood over to the Defamation List for directions on Thursday 28 October 2021 at 9am, on which date, if there is no objection to interrogatories, the matter will be allocated a hearing date as a 5-10 day matter.

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 September 2021

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