the evidence
8 The respondents' application was supported by an affidavit sworn by their solicitor, Ms Elizabeth Perry.
9 On 10 July 2013, the Court made an order that each party make standard discovery. On or about 13 August 2013, the respondents served on the applicants a list of documents, which was verified by an affidavit sworn by the first respondent. On or about 8 November 2013, the respondents served on the applicants a supplementary list of documents, which was also verified by an affidavit sworn by the first respondent. On or about 22 August 2013, the applicants served on the respondents an executed copy of their list of documents. On or about 17 December 2013, the applicants served on the respondents an executed copy of a supplementary list of documents.
10 There then followed correspondence between the solicitors for the parties wherein the respondents requested discovery of further documents, including, by letter dated 20 December 2013, certain banking records and telecommunications records.
11 By letter dated 17 March 2014, the applicants' solicitors advised the respondents that a second supplementary list of documents would be served, and that was done on 14 April 2014.
12 In the period between those events, the applicants' solicitors wrote a detailed letter, dated 27 March 2014, to the respondents' solicitors advising the respondents of the applicants' attitude to the discovery of certain categories of documents sought by the respondents. As to the Banking records, the applicants said:
6. Bank accounts maintained by the First and Third Applicants for the period 1 July 2007 to 31 March 2012.
To the extent that these documents have not been discovered they will be discovered.
13 As to the Telecommunications records, the applicants said:
4. Dr Taylor's telephone billing records for the period May 2007 to March 2012.
These documents do not fall within the ambit of standard discovery.
We note that Ms Perry's affidavit sworn 25 February 2014 states that these documents are "directly relevant to a number of factual matters going to the financial resources and physical capacity at all pertinent times". We do not agree, and do not understand how it can be said that Dr Taylor's telephone billing records are relevant to "financial resources and physical capacity".
The phone records of the Applicants that relate to conversations about which Dr Taylor gives evidence have been discovered.
5. Mr Curiel's telephone billing records for the period May 2007 to March 2012.
These documents do not fall within the ambit of standard discovery.
We note that Ms Perry's affidavit sworn 25 February 2014 states that these documents are "directly relevant to a number of factual matters going to the financial resources and physical capacity at all pertinent times". We do not agree, and do not understand how it can be said that Mr Curiel's telephone billing records are relevant to "financial resources and physical capacity".
The phone records of the Applicants that relate to conversations about which Dr Taylor gives evidence have been discovered.
14 The respondents' solicitors replied to this letter by letter dated 1 April 2014. They addressed the Telecommunications records in considerable detail. Their response on this matter is lengthy, but I propose to set it out because it sets out the respondents' arguments in support of their contention that the Telecommunications records fall within the existing order for standard discovery, or should be the subject of an order for more extensive discovery:
4. The facts and content of communications between Dr Taylor and our clients, principally Dr Saloniklis, in the period 1 May 2007 and 1 July 2007 are disputed in multiple respects. We note the prior discovery of Optus records for the period May to June 2007. Your clients have self-evidently assessed those records against the parameters of 'standard discovery' and, appropriately, determined that they are discoverable.
Your clients have pleaded or deposed to conversations by telephone spanning the period July 2007 to March of 2012 during the period in respect of which their records are sought which will or may be disputed, including (but not limited to) the telephone conversations referred to in:
paragraphs 351 & 352, 369, 411, 469, 502, 535, 592, 645 and 706 of Dr Taylor's affidavit of 11/11/13; and
paragraphs 68, 69, 74, 92, 95, 101, 109, 110, 117, 140 and 141 of the Third Amended Statement of Claim
In a number of instances, the parties are in disagreement about whether telephone conversations took place at all. Of the discussions that our clients agree took place, the content of such discussions will be in dispute in a number of cases. The duration of such discussions will be a clear and probative indicator of such details in a number of instances.
The telephone records over the period requested would tend to prove or disprove the existence of disputed telephone conversations and confirm details such as duration, time and date of conversations that the parties do not dispute occurred. We query what cogent basis your clients could have for denying the direct relevance to factual matters in issue, given that you obviously concede the direct relevance of phone records for the period May to June of 2007 where similar matters are in dispute.
Your clients have deposed further to various matters pertaining to Dr Taylor's health ranging from 2009, through the second half of 2010, and from the second half of 2010 onwards. Dr Taylor's reliability as a historian and the extent to which she was and is suffering any of the symptoms or conditions pleaded or deposed to is firmly in issue in these proceedings. The phone records over the period sought would tend to prove or disprove:
Dr Taylor's level, frequency and intensity of engagement in social, business or other activities during the relevant periods; and
The time of day and night that Dr Taylor was typically active and attending to personal or business matters during the relevant periods.
These matters are directly relevant not only to the existence and extent of pleaded symptoms or conditions, but to the alleged causation of incapacity, lost earning capacity and past and future losses pleaded in the Third Amended Statement of Claim (reflected in paragraph 255B).
At this time, we do not press for discovery of Mr Curiel's personal telephone records for periods other than March of 2011. With reference to paragraphs 133 and 134 of the Third Amended Statement of Claim and paragraphs 182 to 184 of Mr Curiel's affidavit of 11 November 2013, your clients plainly rely on communications Mr Curiel claims to have initiated as being probative of the Respondents' level of knowledge as to Dr Taylor's status in the period subsequent to the events referred to.
Mr Curiel's telephone records for March of 2011 will prove or disprove that such communications were in fact initiated. As such, they will either adversely affect your clients' case, or adversely affect the respondents' case and are directly relevant and discoverable.
Further, and for clarity, we press for discovery of your clients' home telephone records for the period 1 May 2007 to 31 March 2012, for the same reasons set out above in relation to Dr Taylor's own telephone records.
(Footnotes omitted.)
15 In order to complete the narrative of events, I set out the applicants' response to the respondents' arguments as contained in a letter from the applicants' solicitors dated 14 April 2014:
4. Dr Taylor's telephone billing record for the Period May 2007 to March 2012.
Dr Taylor's evidence does not refer to where telephone calls are made, and thus the production of the Applicant's telephone records are not probative as to whether the telephone calls were made. Accordingly, these records do not fall within the ambit of general discovery.
Your arguments in relation to the relevance of Dr Taylor's telephone records are not consistent with the Respondent's own discovery where, consistent with that argument the telephone records of the Partnership, the relevant clinics, Dr Saloniklis, Dr Roache, Dr Hall, Dr Pathi, Dr Chan and Ms O'Sullivan would have been discovered by the Respondents. They have not been discovered.
The comments that are made in relation to the relevance of these records to Dr Taylor's health are not logical or probative.
5. Mr Curiel's telephone billing record for the Period May 2007 to March 2012, and his home telephone records.
We repeat our comments at 4 above, and note also that the Second Supplementary List of documents has already identified that Mr Curiel does not have in his possession the text message referred to in paragraph 134 of the Third Amended Statement of Claim.
16 The only Telecommunications records actually discovered by the applicants are described in their list of documents as follows:
81. Optus records for the First Applicant's telephone accounts May to June 2007.
17 Pursuant to orders of the Court, each of the first and third applicants have filed and served an affidavit of the evidence which they will give at trial. The first applicant deposes to a number of conversations with doctors involved in the partnership in her affidavit of evidence sworn on 11 November 2013. The respondents contend that, in relation to some of these conversations, it is unclear whether the conversation was in person or by telephone and, if the latter, the identity of the participant who made the telephone call. The respondents contend that, in addition to establishing whether the telephone call took place, the Telecommunications records will establish the precise date, duration, and origin of the calls. This is what I will describe as the first category of Telecommunications records sought by the respondents. They relate to specific conversations and can be identified by reference to the affidavits of evidence filed in the proceeding and include, in one case, a telephone call which is in dispute on the pleadings. I include in this first category the Telecommunications records of the third applicant that also relate to specific conversations which can be identified on the evidence and pleadings.
18 In addition to this first category, the respondents also seek, in the case of the first applicant, Telecommunications records over a period of almost five years. This is what I will describe as the second category of Telecommunications records sought by the respondents. The basis upon which they seek this second category is as follows. The respondents point to the fact that it is part of the applicants' case that the first applicant's health, capacity, and presentation has been affected by the respondents' conduct as identified in the Third Amended Statement of Claim. The allegations include:
(1) an allegation of severe nausea, vomiting, physical discomfort, fatigue, tiredness and exhaustion from at least 25 February 2009 until 28 September 2009;
(2) an allegation of exhaustion in the second half of 2010; and
(3) allegations of symptoms and/or occurrences associated with pregnancy, miscarriage, anxiety, agitation, stress, feelings of disassociation from her body, nausea, shaking, increased heart rate, difficulty breathing, sweating, chest tightness, abdominal discomfort, sleeplessness, nightmares, lethargy, and physical exhaustion, all arising in 2011 and existing for various time periods.
19 The respondents point to the fact that the respective affidavits of evidence of the first and third applicants contain evidence directed to these matters. In addition, the applicants have filed medical reports of consultant psychiatrists on which they propose to rely at trial. These reports provide evidence of the first applicant's health, capacity, and presentation.
20 The respondents contend that the first applicant's Telecommunications records over the five year period are directly relevant to these allegations, or should be the subject of an order for more extensive discovery under r 20.15 of the Federal Court Rules 2011 (Cth).
21 With respect to the Banking records, the respondents' solicitor states that banking and financial records discovered to date by the applicants either pertain to particular and limited periods where they relate to facilities held or maintained privately by the first or third applicant, or pertain to loan facilities established by the first and/or third applicants or one or more entities on trust structures with which they are or were associated. The respondents' solicitor states that the applicants have not discovered statements for normal, everyday transactional bank accounts maintained by the first or third applicants over the period July 2007 to March 2012, and such records as have been discovered relate to discrete periods, or to investment or financing facilities.
22 In their Third Amended Statement of Claim, the applicants plead that their loss and damage includes the loss of the first applicant's ability to take up an alternative position, and the loss, in the case of the first and third applicant respectively, of the ability to make alternative investments. They also plead that the first applicant has sustained a loss of earning capacity, pain and suffering, and a loss in terms of the amenities and enjoyment of life.
23 The applicants' solicitor filed and served an affidavit in response to the respondents' application. She annexes a letter to her affidavit which she states is in accordance with her instructions from the applicants. The applicants' position is set out in that letter. They state that they have complied with their obligations to make standard discovery as far as their Banking records and Telecommunications records are concerned. However, to avoid further disputes, the applicants' solicitor states that the applicants are prepared to provide some further discovery in relation to both Banking records and Telecommunications records.
24 As far as the Banking records are concerned, the applicants' solicitor states that there are two accounts in respect of which the applicants have not given discovery of all statements covering the period from 1 July 2007 to 31 March 2012.
25 The first account is the third applicant's BankWest Telenet Saver Account. The applicants hold statements for this account for the period from 15 December 2009 to 31 March 2012 and state that they are prepared to make discovery of these statements.
26 The second account is a Westpac loan account and related transactional account. The applicants state that they are prepared to make discovery of all statements not previously discovered for the period up to 31 March 2012. The offer by the applicants is conditional on the redaction of those parts of the statements showing withdrawals for personal expenses and for deposits unrelated to wages or earnings. The applicants contend that these entries are not relevant. They also seek an undertaking of confidentiality from the respondents or the redaction of entries for deposits showing monies received by the applicants as the outcome of a legal dispute, which are the subject of an obligation of confidentiality on the applicants.
27 The applicants also offer (if requested) to give discovery of complete copies of all statements in relation to three Westpac loan accounts identified in their solicitor's letter.
28 The applicants' solicitor states that she is instructed that the applicants do not have any overseas bank accounts.
29 As far as the Telecommunications records are concerned, the applicants are prepared to make discovery of documents falling within category 1, subject to the redaction of irrelevant entries. They are not prepared to make discovery of documents falling within category 2.