NT Power Generation Pty Ltd v Power & Water Authority

REASONS FOR DECISION 1 I have an application before me which, I permitted to be pursued orally without a formal notice of motion, under O 15 r 3 of the Federal Court Rules ("the Rules") to limit the discovery which the respondents are obliged to make in this proceeding, in particular to the effect that their discovery of e-mails be limited to discovery of e-mails which since the order for discovery was made have existed in hard copy form. Order 15 r 3(2) provides that the Court shall, on such an application, make such orders under O 15 r 1 as are necessary to prevent unnecessary discovery. 2 Burchett J, pointed out in Murex Diagnostics (Australia) Pty Ltd v Chiron Corporation (1994) 55 FCR 194 at 198-199 that O 15 r 3 complements the provisions of O 15 r 15 that the Court should not make an order for discovery unless satisfied that the order is necessary at the time when the order is made. There have been a number of decisions under O 15 r 15 explaining what is meant by the expression "necessary". I will not refer to those decisions in these reasons, although I have considered them. I inadequately paraphrase the views which they express as indicating that the Court should make such order as is necessary in the interests of a fair trial, but having regard to case management principles. Case management principles, as some decisions point out, includes a measure of the utility of the investigative process to provide discovery and the documents which are likely or possible to be identified as discoverable as a result of that process, against the burden imposed in that investigative process. 3 It is that overall balancing which I bring to determination of the current application. 4 There is presently in force an order for general discovery. It is unnecessary to look to the circumstances in which that order came to be made. It is apparent that it has required the parties, but more particularly the respondents, to undertake very extensive investigations in the giving of discovery in this matter. They have filed a number of lists of documents containing a legion of discovered documents. 5 The present application relates to e-mails in the context where, as the evidence shows, it was the practice of a number of persons within both the Treasury Department of the Northern Territory Government and in the first respondent for communications to be made by e-mail. Sometimes those e-mails were converted into hard copy at the time they were read or created. There is no direct evidence as to the circumstances in which that was done. I was asked to infer that it was the practice as a matter of commercial common sense for any significant e-mail document to be converted into hard copy form. I do not think I know sufficient on the evidence to be able to make that inference. I would certainly infer that it was the practice of some persons to convert e-mail communications into hard copy, if they wished to preserve them as a matter of record or for ease of working from them. So much was said by Mr Clarke in relation to his practice. But I do not think I should infer that that was the practice of all the persons who may have had a role in those communications. The position as I see it, therefore, is that it is accepted by the respondents that there may be a number of e-mail communications which up to now their investigations have not identified as documents which ought to be discovered simply because those investigations have not yet been carried out. 6 I accept the evidence which has been given by affidavit from Mr Hee and Mr Finch as to the processes of recording e-mail communications within the first respondent and within the Treasury Department of the Northern Territory Government. That evidence tends to indicate that, by and large, e-mail communications would not be retained in any readily accessible form. They are probably deleted from computer files, except to the extent to that somewhat coincidentally they have been preserved on backup tapes maintained for what is called disaster purposes rather than archival purposes. 7 The evidence indicates, however, that officers within Treasury and within the first respondent could quite readily record e-mails in the archival memory section of their personal computers or that some of them could be stored in the servers in their respective departments. At the end of thirty days, e-mails which were not retained in hard copy form or not retained on personal computer hard drives were apparently routinely deleted, but if before that deletion a backup tape was made for disaster purposes that e-mail would be recorded on the backup tape. 8 So far as I can determine on the information before me no attempt has been made yet to access any of that material. 9 I accept too that it would impose a very substantial burden upon the respondents to now have to go back to the backup tapes preserved for disaster purposes to try and restore them in a way in which they can be read and then to go through them in a way which identifies discoverable e-mail communications. On the other hand the interests of a fair trial dictate that material documents should be discovered by one party to the other, so that that which is appropriately available for use in determining the proceedings is brought to each of the other parties' attention. 10 I do not consider on the evidence that the material possibly to be found in the e-mail records, whether on personal computers, servers in the department, or on the back-up tapes, is of sufficiently insubstantial moment to warrant simply ignoring the obligation to discover that material, that is to warrant simply excusing the respondents from the obligation to give discovery of that material at the present time. I do not know what would come of inquiries of appropriate officers in respect of materials stored on their personal computers. I do not know what, if anything, would come of inquiries made of existing memory in departmental servers, although I suspect from the evidence that nothing would come of that avenue. I do not know what the principal persons involved in communications, and who had a more immediate role in the decision making processes of the first respondent or Northern Territory Treasury Department would say as to whether e-mails not otherwise recorded than in the back-up tapes would contain material or significant information. 11 Given that lack of knowledge, I am not disposed to make an order at the present time in terms of the present application. I do not intend to preclude the respondents from pursuing the application if they were able to satisfy me by appropriate evidence that those mainly involved in the decision making processes of the first respondent (including the Northern Territory Treasury) can give some assurance that the burdensome task involved in going to the back-up tapes would be pointless. If there was evidence to that effect, or if the evidence were that it is likely not to produce any documents of any moment having regard to the sort of documents which have already been discovered by the respondents, then I would be minded to make the order which has presently been sought. In the absence of such evidence I am not prepared to do so. 12 I propose, therefore, simply to make no order on the present oral application. I will stand it over with liberty to call it on, on reasonable notice, if the respondents wish to renew it in the light of additional evidence which they assemble. 13 I bear in mind in making that ruling that the applicants have had discovered to them a significant number of documents, and as cross-examination of Mr Clarke has demonstrated not simply significant in terms of number but also in terms of content relevant to the decision making processes of the first respondent, and in so far as they contribute to the decision making of the Treasury Department. I would not be surprised, therefore, if further evidence could demonstrate that the additional inquiries through the back-up tapes would not be warranted. 14 However in the absence of such evidence, because I have an obligation to make a decision in the interests of a fair trial overall, I am not presently disposed to make the order which is sought. I decline to do so at present. I stand over that oral application to a date and time to be fixed, with liberty to call it on again on reasonable notice.