Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu

1. By 4.00 pm on 12 September 2018, the first respondent, other than Mr Saayman and any other partner directly involved in the relevant engagements, produce the documents in categories 5 to 9 of the respondents' list of documents dated 3 April 2018.
2. The first respondent pay 80 per cent of the applicant's costs of the interlocutory application dated 16 May 2018.
3. There be liberty to apply.
4. The proceeding be listed for case management on a date to be fixed. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

MOSHINSKY J: 1 These reasons deal with the form of orders to give effect to the reasons published on 26 July 2018: Sadie Ville Pty Ltd v Deloitte Touche Tohmatsu (A Firm) (No 3) [2018] FCA 1107 (the Reasons). These reasons, which should be read together with the Reasons, also deal with costs. I adopt the abbreviations used in the Reasons. 2 On 2 August 2018, each party filed submissions on the form of orders and costs. As these submissions raised some new matters, I gave each party the opportunity to file a responding submission, which each party did on 9 August 2018. 3 The main difference between the parties as to the form of orders concerns whether or not an order for production of documents should be made. DTT submits that the appropriate form of order to give effect to the Reasons is an order that Sadie Ville's interlocutory application dated 16 May 2018 be dismissed. This may seem surprising in circumstances where, in [119] of the Reasons, I concluded that I considered it appropriate to make an order that the partners of DTT other than those directly involved in the relevant engagements produce the documents in categories 5 to 9 of the respondents' list of documents. Some of DTT's submissions in support of its proposed order do not seem to be directed to giving effect to the Reasons, but rather to raising new arguments that were not made at the hearing of the interlocutory application. DTT has not sought leave to re-open the interlocutory application to raise new arguments. Nevertheless, I propose to deal with the new arguments. 4 DTT submits that there is no provision in the Federal Court Rules 2011 that would permit an order to be entered or enforced against any legal persons comprising a subset of the partners of a firm at a past time. Rather, DTT submits, any order must name the particular person(s) who are required to produce the documents in question. This argument was not raised during the hearing before me even though it was clear that Sadie Ville was seeking, in the alternative to an order that DTT produce the relevant documents, an order that the partners of DTT other than those directly involved in the relevant engagements produce the relevant documents. In any event, I do not consider this argument to have merit. The proceeding is in substance brought against each of the partners of DTT at the relevant time or times. While DTT has not been required to produce a list of those partners, it could be required to do so, and presumably knows who they are. An order that applies to the partners of DTT other than Mr Saayman and any other partner directly involved in the relevant engagements, is in substance the same as an order that names the individual partners of the firm other than Mr Saayman and any other partner directly involved in the relevant engagements. In my view, an order that applies to DTT other than Mr Saayman and any other partner directly involved in the relevant engagements, is sufficiently clear. It is also less cumbersome than an order naming all of the individual partners. Further, in circumstances where the parties were required to provide proposed orders to give effect to the Reasons, if DTT considered it necessary to name each individual partner, the firm should have provided a form of order that included all of their names, to assist the Court in giving effect to the Reasons. However, they did not do so. In the circumstances, I consider that an order for production can be framed against DTT other than Mr Saayman and any other partner directly involved in the relevant engagements. 5 DTT further submits that the Court has not made a finding that any individual named person who was a partner at the relevant historic times has any presently enforceable legal right to or access to the relevant documents. I consider this submission to be contrary to the substance of the Reasons. On the basis of the evidence that was before me, I concluded that the partners of DTT other than those who were directly involved in the relevant engagements do have control of the documents (in the sense of possession, custody or power in respect of the documents): see [15] and [115]-[116] of the Reasons; see also [68]-[76]. However, I will reserve liberty to apply, so that DTT can apply to have the order varied or discharged if it seeks to establish, on proper material, that DTT (other than Mr Saayman and any other partner directly involved in the relevant engagements) does not have possession, custody or power in respect of the documents. 6 Another difference between the parties concerns the provision of a list of documents. Sadie Ville seeks the provision of a list of documents that: describes each document in categories 5 to 8 of the respondents' list of documents; and, with respect to the documents in categories 5 to 7, is arranged by reference to the filing hierarchy described in paragraph 19 of the Second Lee Affidavit. I do not consider it appropriate, at this stage, to require DTT to list each document or to arrange the list by reference to the filing hierarchy described by Mr Lee. It seems to me that this may be productive of unnecessary expense. However, it is necessary for the documents to be produced in such a way that it is apparent which documents were grouped together with which other documents within DTT's files for the relevant engagements. I proceed on the basis that the documents will be produced in such a way. Further, if after production of the documents Sadie Ville considers that it needs more information about the structure of DTT's files or the arrangement of the documents, it may apply pursuant to liberty to apply for further orders (whether under r 20.17(3) of the Federal Court Rules or otherwise). 7 There is a difference between the parties as to the date by which production should be required. Sadie Ville seeks in effect 14 days, while DTT seeks 28 days. I am prepared to allow 28 days for production to occur. 8 In relation to costs, while each party has had some success, I consider that Sadie Ville has been substantially successful, in that it has obtained an order for production of the documents. Nevertheless, I consider that some allowance should be made for the fact that DTT has established the claim for privilege on behalf of the partners who were directly involved in the relevant engagements. In the circumstances, I consider it appropriate to order that DTT pay 80 per cent of Sadie Ville's costs of the interlocutory application. I note that DTT submits that the costs of paragraph 3 of the interlocutory application should not be visited on DTT. I think this is sufficiently covered by the reduction (from 100 per cent to 80 per cent) that I propose to make. 9 Sadie Ville seeks its costs on and from 1 August 2018 on an indemnity basis. I do not consider it appropriate to make an order that such costs be paid on an indemnity basis. 10 For the above reasons, I consider it appropriate to make orders to the following effect: (a) By 4.00 pm on 12 September 2018, DTT, other than Mr Saayman and any other partner directly involved in the relevant engagements, produce the documents in categories 5 to 9 of the respondents' list of documents dated 3 April 2018. (b) DTT pay 80 per cent of Sadie Ville's costs of the interlocutory application. (c) There be liberty to apply. (d) The proceeding be listed for case management on a date to be fixed. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moshinsky.