Consideration
45 There can be little doubt that the purpose of a search order is to secure or preserve evidence. In that regard, r 7.42 of the FCR provides as follows:
The Court may make an order (a search order), in any proceeding or in anticipation of any proceeding in the Court, with or without notice to the respondent, for the purpose of securing or preserving evidence and requiring a respondent to permit persons to enter premises for the purpose of securing the preservation of evidence that is, or may be, relevant to an issue in the proceeding or anticipated proceeding.
46 Rule 7.43(c)(ii) provides that one of the matters on which the Court must be satisfied in making a search order is that "there is a real possibility that the respondent might destroy such material, or cause it to be unavailable for use in evidence in a proceeding or anticipated proceeding before the Court". That requirement also reveals that the principal purpose of a search order is to preserve the evidence, and it implies that that which is preserved may only be made available for use in evidence in the event that the respondent does not otherwise make it available.
47 In Microsoft Corporation v Goodview Electronics Pty Ltd [1999] FCA 754; 46 IPR 159, Branson J (at [26]) said that the Court "must … be careful to avoid the extraordinary jurisdiction of the Court to make [a search] order from being subverted to a mere investigative tool for applicants or indeed, from being used for any purpose other than the preservation of vital evidence pending the hearing and determination of a proceeding". That was said in the context of whether or not the Court should make search orders, which is materially different to the context of a party seeking access to seized material after the execution of search orders that were properly made. It is nevertheless an authoritative statement as to the purpose of search orders and is serves as a caution against allowing search orders to be abused.
48 The fact that a search order preserves evidence for use in a proceeding in due course bears with it the unavoidable implication that there are circumstances in which the preserved evidence will be made available to a party requiring it in order to then make it available in the proceeding; were it otherwise, there would be no purpose to making search orders. It is therefore not the case that a search order will only serve the purpose of preserving evidence, always insulating that evidence from use in the subsequent proceeding. If the evidence is not otherwise produced in the proceeding, there will be a need to access that which was preserved so that it can be adduced in the proceeding. There may also be a need to access what was preserved in order to ascertain whether what has been produced pursuant to, say, discovery procedures is all that had to be produced. But none of that means that access will necessarily be granted at a stage prior to discovery.
49 In Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201, Flick J dealt with a circumstance in which a party sought access to documents that had been preserved under a search order. After analysing the authorities, his Honour stated as follows:
28 In that context, it is considered that the discretion to allow an applicant to inspect seized documents may be exercised to permit:
(a) an assessment to be made as to whether or not there has been compliance with the order as made and (possibly) whether any further order pursuant to O 25B may be warranted;
(b) the identification and separation from the entirety of those documents that were in fact seized, those documents which do or may provide evidence pending the hearing and determination of a proceeding; and
(c) the identification and separation from the entirety of those documents that were in fact seized, those documents which do not provide such evidence so that those documents may be returned.
And, in identifying those documents which should be preserved pending the final hearing and determination of a proceeding:
(d) the search is not limited to those documents directly related to the precise cause of action then known: cf Aristocrat Technologies Australia Pty Ltd v Global Gaming Pty Ltd [2006] FCA 862 at [6]-[7] per Allsop J; Aristocrat Technologies Australia Pty Ltd v Global Gaming Supplies Pty Ltd [2006] FCA 1707 at [4] per Jacobson J.
There may well be other reasons for granting leave to an applicant to inspect seized documents. All of the purposes identified, however, have one thing in common - they allow the documents which have been seized to be inspected in order to ensure that the search order has been complied with and to ensure that only evidence which should be preserved is in fact preserved pending the final determination of a proceeding.
50 His Honour (at [36]) also held that in the absence of consent, to permit access to seized materials for the purposes of facilitating discovery or the provision of particulars as opposed to preserving the continued existence of evidence, goes beyond the authority conferred by the relevant rule of court. His Honour (at [49]) rejected the proposition that the Court's discovery powers can be used to "permit [a] party to 'rummage through' the material seized, in order to make an assessment as to those documents which that party considers would be or should be discoverable".
51 Those dicta were subsequently adopted by Besanko J in Lamond (No 4) [2017] FCA 820 at [20] in rejecting access in that case "as substitute for discovery or in tandem with, or as an adjunct to, the discovery process". They have also more recently been adopted in Findex Group Ltd v iiNet Ltd [2018] NSWSC 1567 per Ward CJ in Eq at [120]-[122]. An application to appeal against the latter judgment was refused by the Court of Appeal: see Findex Group Ltd v McKay [2019] NSWCA 93, particularly at [26].
52 The reasons of Flick J in Metso (No 3) were to some extent reconsidered by the Full Court in Metso Minerals (Australia) Ltd v Kalra [2009] FCAFC 57. The latter was not an appeal from the former. Rather, it was an application for leave to appeal against a subsequent judgment of Flick J in which his Honour said that he again dismissed the applicant's application for access to seized documents for the same reasons as he had given in Metso (No 3). The subsequent application for access to the previously seized documents was made after discovery had taken place on the basis that discovery had been inadequate.
53 Emmett J, with whom Jacobson and Perram JJ agreed, held (at [16]) that if there was material that cast doubt on the adequacy of discovery that has actually been given by the respondents, it would be appropriate to grant access to some or all of the seized documents and that a court would have the power to do so. His Honour (at [17]) identified s 23 of the Act as a source of power to grant access to seized documents if that was considered appropriate for the purpose of ensuring that the proceedings were adequately and properly prepared and for the purpose, if need be, of testing whether proper discovery had been given and whether discovery that had been given was adequate.
54 Of some importance for the present case in view of submissions made on behalf of Hills to the effect, or at least implying, that any access to the seized documents would in any event be limited to the issues in the proceeding as defined by the current pleadings, his Honour (at [19]) identified that one possibility that arises from the execution of search orders is the gaining of access to material that would show a further cause of action beyond that which is pleaded. His Honour held (at [20]) that once a prima facie case has been made out for seizure of documents, there may be a basis for permitting access to the material seized in order to formulate the claims that may be made in respect of that prima facie case.
55 It is apparent from the above authorities that the Court has a discretion to order access to documents that have been preserved under a seizure order. In the case of access to the seized material for the purpose of formulating a claim, or as an aid to discovery, or to particularise a claim, that discretion may be exercised only in narrow circumstances. However, where parties have already furnished discovery and questions arise as to the adequacy of discovery or discovery has not produced the seized material (which is otherwise assumed to be relevant and not subject to a valid objection to production such as privilege), the discretion might be more readily exercised.
56 In my view, this is not a proper case for the exercise of the discretion in favour of Rauland, at least not at this stage. The pleadings have only recently closed. No party has yet made application for discovery from other parties to the proceeding. That is the obvious next step. It is only after the discovery process that it would be appropriate to reconsider whether there is a need for Rauland to have access to the material that is in the meantime being preserved under the seizure orders.
57 The considerations against exercising the discretion in Rauland's favour at this stage are particularly weighty in the case of Hills. That is because Hills was not a party to the proceeding in which the seizure orders were sought and granted, its laptop was seized from its premises and the forensic image that was then made is expected to contain documents which go well beyond what might be relevant to the current proceedings and which are commercially sensitive to it. It should have the opportunity to 'rummage through' its own documents to satisfy any orders for discovery before any need arises to consider whether an independent expert should be given powers to do that.
58 I consider that it would be particularly intrusive to empower an independent computer expert appointed by Rauland to, at this stage, search through all of the material copied from the seized devices in order to find documents or information that may be relevant to the issues in the case. That level of intrusion weighs against the exercise of the discretion in Rauland's favour.
59 The position in relation to the ".pst" file that Ms Johnson created of her Microsoft Outlook account on her Rauland work computer may be thought to be different. On the face of it, that file and its contents are the property of Rauland, they are not expected to contain any of Hills' proprietary information (indeed Hills did not object to their immediate production), and they will be relevant and thus subject to an obligation on Ms Johnson to produce them under any anticipated discovery regime. But it is the last point that counts against production being ordered in this application. They should be sought first from Ms Johnson, whether by notice to produce or discovery orders. This is not a proper case - at least not at this stage - to order their production by way of third party discovery orders against Mr Sisk.
60 It was submitted on behalf of Rauland that the specific point in time 'snapshot' of the ".pst" file is what Mr Sisk has, but that Ms Johnson will not have that as any subsequent activity on the relevant Microsoft Outlook account will have written-over, or amended, the 'snapshot'. But that does not appear to me to be correct because, as indicated at [39] above, Ms Johnson produced the relevant device and Mr Sisk made an image of it. It may be that Ms Johnson still has the ".pst" file on that device, or elsewhere, and will produce it to Rauland in due course. If for some reason that is not possible, then that would constitute a weighty consideration in favour of exercising the discretion in Rauland's favour at that time.
61 It follows that in my view Rauland's application should be dismissed.
62 The conclusion that I have reached makes it unnecessary to consider a number of other points that were raised during the hearing by the respondents during the course of argument. Since they may be raised in answer to any future revived application for access to the seized documents, it is better that I say nothing about them at this stage.
63 Since I have not heard any submissions on costs, I will reserve the question of costs.
I certify that the preceding sixty-three (63) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stewart.