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[1999] FCA 1669
Federal Court of Australia
1999-11-25
McLelland J, Moore J, As McLelland J, Mansfield J
Original judgment source is linked above.
REASONS FOR DECISION 1 On 9 November 1999, I gave reasons for refusing to order that the respondents' discovery of e-mail communications be limited to discovery of e-mail communications which, since the order for discovery was made, have existed in hard copy form. 2 As I indicated in those reasons, I accepted that it would impose a very substantial burden upon the respondents to go back to the backup tapes, retained for disaster purposes, to try to restore records of their e-mail communications to a form in which they can be read, and to go through those e-mail communications to identify the discoverable e-mail communications. I was not satisfied that the material which might be discoverable in those records was of sufficiently insubstantial moment to warrant the order sought, bearing in mind the interests of the parties in having a fair trial. The purpose of discovery is, after all, directed to ensuring that there is a proper examination and determination of issues between the parties. I pointed out in those reasons that, so far as I could determine from the evidence, the orders sought would not only relieve the respondents from the task of restoring and examining the material stored on the backup tapes, but would also relieve them from inspecting any e-mail communications stored on the personal computers of relevant officers, and from inspecting any e-mail communications still stored on the servers in their departments, and if appropriate from discovering those documents. 3 I also indicated that I did not intend to preclude the respondents from pursuing the application, if they presented further evidence germane to the question of the utility of them being obliged to inspect their electronic records to determine if there are any discoverable e-mail communications other than those of which hard copies already exist, and which have been discovered. I stood over the application to a date and time to be fixed with liberty to call it on again on reasonable notice. 4 Since that time the respondents have sought to pursue their claim for the order sought. They have filed and served three affidavits of Matthew James Skinner sworn on 10, 11, and 16 November, 1999 deposing to inquiries he has made of officers of the respondents about their practice in the use of e-mail communications, and addressing the question of whether those persons did have, or were likely to have, e-mail communications which touched upon matters in issue in these proceedings and which had not been reproduced in hard copy form. There was also some evidence given by Michael Clifford of the first respondent on those topics whilst he was giving evidence in the proceedings, allowed without objection in anticipation of this current application being renewed. 5 Counsel for the applicant opposes the Court entertaining this renewed application. It was contended that the Court should not entertain it, having dealt with the application on the material the respondents then chose to put before the Court on 9 November, 1999. Reference was made to the general undesirability of, and the injustice which may flow from, the re-litigation of matters already litigated and to the ordinary rule of practice that an application to set aside, vary or discharge an interlocutory order must be founded on a material change of circumstances since the original application was heard, or where there has been discovery of new material which could not reasonably have been put to the Court in the hearing of the original application. I was referred to the decision of McLelland J in Brimaud v Honeysett Instant Print Pty Limited (Supreme Court of New South Wales, 19 September 1988) ("Brimaud") and to the cases cited by his Honour in his reasons. Those principles were recognised by Moore J in J H Fenner & Co Limited v Gulf Conveyor Systems Pty Limited (4 August 1998, unreported). I accept those principles. 6 I am nevertheless prepared to permit this application to be renewed. As McLelland J said in Brimaud:
"The overriding principle governing the court's approach to interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances." 7 In the present circumstances, I do not consider that there is any real disadvantage to the applicant if I entertain the renewed application. If the respondents can satisfy me that the considerable expense and effort involved in discovering electronic copies of e-mail documents is not warranted, because in effect there is not much prospect of any significant document emerging, then the applicant will not have been disadvantaged. It will not be deprived of discovery of any significant document. If, on the other hand, there is no such prospect, it would be hard to justify putting the respondents to that expense and effort to little purpose. In addition I do not regard the initial application as having been finally decided, because I expressly indicated that I did not intend to preclude the respondents from reviving it. I stood over the application, with liberty to renew it on reasonable notice. 8 Counsel for the applicant also opposed the receipt of Mr Skinner's affidavits or much of them. It is true that they are hearsay evidence, but I am entitled to receive hearsay evidence in my discretion in a matter such as the present. It is also true that the form of the evidence effectively precludes it being cross-examined upon. It was also put that the manner of expression of information given to Mr Skinner by the respondents' officers is, in some respects, not very precise so that (for example) it is not clear whether each of the officers fully understands the nature of the issues in the proceedings in giving the information to Mr Skinner to which he refers, or whether one or more of those officers may have a different view from that which the law prescribes as to what documents are relevant to those issues. 9 I ruled that I would receive those affidavits notwithstanding those objections. It is for the respondents to satisfy me on the application that I should make the order sought, and I think I can accommodate the applicant's submissions by having careful regard to the expressions used in the affidavits of Mr Skinner and by giving them such weight as I consider they deserve in the circumstances. In that regard I bear in mind the oral evidence of Mr Clarke and Mr Clifford on the topic, which disclosed in their two cases more than the brief information reported by Mr Skinner in his affidavits. 10 I turn to consider the merits of the application. I do so in light of the principles identified in my reasons of 9 November, 1999.
11 In my judgment, it is not established to my satisfaction that the electronically stored e-mail records of the respondents contain no documents which ought to be discovered in this proceeding and which may have more than minor significance to their outcome. 12 I have carefully considered Mr Skinner's affidavits. His inquiries have been made of the following persons: Mr Peter Caldwell of Northern Territory Treasury, Mr Jim Colvin of Northern Territory Chief Minister's Department and formerly of Treasury, Mr Alan Tregilgas of Northern Territory Treasury, Mr John Tarca of the first respondent, Mr John Gardner at material times Chief Executive Officer of the first respondent, Mr Michael Chan of the first respondent, Mr Eric Poole a former Minister for Essential Services of the Northern Territory, Mr Stephen Dunham now the Minister for Essential Services of the Northern Territory, Mr Michael Reed, Treasurer of the Northern Territory, Mr Michael Clifford of the first respondent, and Mr Barry Coulter a former Minister for Essential Services of the Northern Territory. 13 I am satisfied from the evidence of Mr Skinner that Mr Poole, Mr Dunham and Mr Coulter have not preserved in electronic form possibly relevant e-mail communications at any material time. I am also satisfied that Mr Clifford's e-mail communications, so far as they touched upon matters of issue in this proceeding, have been discovered. His oral evidence was that he had the practice of printing in hard copy all "relevant" e-mail communications, but he explained that that included any document in which the applicant or its associated companies was mentioned. 14 However, the evidence does not otherwise satisfy me that there is little prospect of there being any e-mail communication, stored electronically, which may be quite material to the applicant's case. The information provided to Mr Skinner cannot be tested. I do not give it more weight than its careful reading deserves. It is useful to compare it with the oral evidence of Mr Clifford, which as I noted went so far as to say that all e-mail communications mentioning the applicant or its associated companies were printed in hard copy. 15 Mr Caldwell is a significant participant in the advisory process within Treasury, as Mr Clarke explained. His judgment of what is trivial has not been able to be tested. His awareness of the issues, that is his perception of what documents should be discoverable in the proceedings has not been explained and has not been tested. Neither he, nor the other persons to whom Mr Skinner spoke, except Mr Clifford in his oral evidence, say that they adopted the process of printing all e-mail communications referring to the applicant or its associated companies. Mr Colvin's practice was never to print out e-mail communications. He told Mr Skinner that he used e-mail communications "generally for routine communications and non-substantive matters". What he regarded as falling within that description was not explained. Mr Tregilgas' position is different again. He generally prints out e-mails when he assesses that is necessary, that is when likely to be useful for future departmental purposes. He does not explain to Mr Skinner what that meant in relation to the applicant. He gives no real indication of whether that means that all or most of the e-mails relating to the applicant have been printed out. I cannot be satisfied that his selection of "necessary" e-mail communications is a comprehensive one for purposes material to these proceedings. It was not a selection by reference to the issues in these proceedings. Mr Tarca's practice is much like that of Mr Tregilgas, except that his selection of e-mail communications to be printed out is by reference to what he regards as documents having "commercial implications". That term is explained, but again it has the same difficulty with it as that to which I have referred in the case of Mr Tregilgas. Mr Gardner also says he uses e-mail communications only for unimportant communications, but not for anything requiring a policy decision or signature or for anything of substance. He does not explain what he means by "anything of substance". There is of course a potential space between those two categories of document, that is unimportant documents on the one hand and documents requiring policy decision or signature and documents containing matters of substance on the other. It is one which has been unable to be explored. Mr Chan's position is somewhat different. Mostly, his e-mails concern technical matters. They may well relate to the applicant. The assertion that he cannot recall receiving e-mails that directly impact upon the issues in this proceeding, or that relate to matters in his statement, is unexplained. I place little weight on it. 16 I note also that none of the information provided to Mr Skinner refers to the possibility of discoverable material being stored on personal computers or on departmental servers (although the evidence shows that the latter prospect is unlikely). 17 As I have indicated, I am not persuaded that the e-mail communications retained only electronically are unlikely to contain any material communications which are discoverable in these proceedings. I have used the word "material" to indicate communications beyond those that are merely formal or insignificant. The applicant is entitled to discovery of them. I am not persuaded, in the interests of justice, that I should excuse the respondents from giving discovery of that material notwithstanding the time, expense, and effort involved in doing so. 18 As the major time and expense and work is in retrieving and restoring the e-mail records, rather than in selecting the e-mail material relating to a particular person, I do not think it necessary in the circumstances to consider the position of individuals such as Mr Poole. On the evidence, once the material is retrieved a search will readily reveal that he has had no such communications. The same will apply to the other officers. 19 For those reasons the application is refused.
I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Decision herein of the Honourable Justice Mansfield.
Associate: Dated: 2 December 1999 Counsel for the Applicant: Mr A Henskens
Solicitors for the Applicant: Colin Biggers & Paisley
NT Power Generation Pty Ltd
Power & Water Authority