Collins v Trimatic Contract Services Pty Ltd and Ors (No.2)

[2014] FCCA 1608

FEDERAL CIRCUIT COURT OF AUSTRALIA

COLLINS v TRIMATIC CONTRACT SERVICES PTY LTD & ORS (No.2) [2014] FCCA 1608

Catchwords:

PRACTICE AND PROCEDURE – Application for inspection of document – where document referred to in an affidavit – whether database or data repository was a document for the purposes of the Federal Circuit Court Rules2001 – production and inspection ordered.

WORDS AND PHRASES – document.

Legislation:  

Acts Interpretation Act1901 (Cth)
Federal Circuit Court Rules 2001 rr.14.10(1), 14.10(2)

Applicant: TIMOTHY JOHN COLLINS

First Respondent: TRIMATIC CONTRACT SERVICES PTY LTD

Second Respondent: PETER WILLIAM JONES

Third Respondent: TIMOTHY MARK UNGAR

File Number: PEG 276 of 2013

Judgment of: Judge Jarrett

Hearing date: 11 June 2014

Date of Last Submission: 11 June, 2014

Delivered at: Perth

Delivered on: 12 June 2014

REPRESENTATION

Counsel for the Applicant: Mr D. Howlett

Solicitors for the Applicant: Lark Lawyers

Counsel for the Respondent: Mr J.B. Blackburn

Solicitors for the Respondent: Norton Rose Fulbright

ORDERS

1. The First Respondent provide a copy of the Applicant’s restored TSA work email account in PST format on a portable hard drive to the solicitors for the Applicant as soon as possible and in any event no later than 4 pm on Tuesday 17 June 2014.

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT PERTH

PEG 276 of 2013

TIMOTHY JOHN COLLINS

Applicant

And

TRIMATIC CONTRACT SERVICES PTY LTD

First Respondent

PETER WILLIAM JONES

Second Respondent

TIMOTHY MARK UNGAR

Third Respondent

REASONS FOR JUDGMENT

ex tempore

1. This is an application for the production of some documents or perhaps a single document – depending on the way one looks at it – referred to in an affidavit of David Anthony Holmes filed on 20 May, 2014 in these proceedings.

2. On 20 May, 2014 Mr Holmes deposed that on 22 April – so about a month prior to the swearing and filing of the affidavit – the first respondent provided to the solicitors for the first respondent remote access to what is described as the “restored TSA work email account of” the applicant.

3. He swears in paragraph 5 of the affidavit:

   I undertook a search of the applicant’s restored email account and obtained copies of the following emails.

4. Thereafter appears a range of documents exhibited to the affidavit: DAH1 through to DAH15.  Some of those documents were the subject of objection yesterday and, ultimately, the tender and reliance on those documents was not pressed.  Some are pressed and so remain relevant for present purposes.

5. By a notice to produce that was the subject of argument yesterday, the applicant sought production of all of the documents in the email account. That was resisted. It seemed to me, however, that notwithstanding the difficulties with the procedure that had been adopted by the applicant, that there was a role for rules 14.10(1) and (2) of the Federal Circuit Court Rules. Subrule 14.10(1) provides that if a document or affidavit filed by a party refers to another document, another party may request in writing a copy of the document or for it to be produced for inspection. Arguably, the notice to produce did that and it is refreshing to hear that the respondents this morning accept that the Court has power to make an order under rule 14.10 if it decides, as a matter of discretion, it ought to do so.

6. The affidavit of Mr Holmes filed on 20 May, 2014 refers to another document.  In fact, it refers to a number of other documents but, relevantly, it refers to the restored TSA work email account. 

7. Yesterday the argument – or at least the exchange between me and the bar table – was on the basis that the restored email account was some form of database or data repository.  I suggested that a database or computer record was a document for the purposes of the FCCR.  As it turns out, there is authority that supports that proposition.  I was taken to it this morning.  In any event, it seems comfortably within the definition of document as set out in the Acts Interpretation Act1901 (Cth), which definition applies to the Federal Circuit Court Act 1999 and the FCCR. 

8. The focus, at least as far as I am concerned, is not upon the individual emails that are set out in the affidavit but rather on what is described in the affidavit in paragraphs 4 and 5, as the applicant’s “restored TSA work email account”, it being a computer record of, or something from which a document, image or writing is capable of being produced with or without the aid of some other piece of machinery.  That is the document that is in question.  Not the individual emails.  It is that document which ought to be produced. 

9. There is an affidavit relied upon by the first respondent this morning, which tends to confirm that the relevant document – the restored email account -  can be provided without giving the applicant access to the computer systems operated by the first respondent.  That is to say, the relevant data can be reduced to what is described as a “.PST file” and placed onto a portable hard drive.  It might take some time but there will be time for it to happen, no doubt.

10. However, I do not quite understand what is meant by the statement: “It would strain our servers significantly while I do it.” set out in the affidavit filed this morning.  That really is not explained in the evidence.  But, as far as I can tell from the evidence of Ms Hennessey, what is being talked about is simply copying some files. 

11. I accept that there is a question of fairness involved.  Production of voluminous amounts of material might be oppressive or costly.  I appreciate that the authorities make it clear that the primary focus of the rule is to enable a person to look at the primary evidentiary material that is referred to in an affidavit and it is not really about letting the other party go on a fishing expedition to look at other documents that might be referred to in annexures of affidavits.  But that is not this case.  The restored email account is the primary document referred to in the affidavit.  It is from this document that the deponent of the affidavit says that evidence has emerged.  Evidence in the form of emails.  I think I can safely say that, taken out of context, written communications and oral communications can convey false meanings.

12. Written communications in the form of emails often occur within a particular context.  A context which is made clear by the emails or communications which precede and follow the subject communication.  Whether that is the case here; whether the emails, that have been selectively extracted by the respondents need to be read within a particular context is not clear.  But that is the point.  One would have thought that fairness, apart from anything else, would dictate that the applicant should be in a position to consider whether those emails have any accompanying communications which would provide context and thereby show their meaning more fulsomely.

13. One is always concerned and circumspect about particular communications being extracted and put into evidence without context.  It may be that one might say, in this case, that there are email trails that are apparent from the exhibits to Mr Holmes’ affidavit.  But that hardly answers the point because the applicant is entitled to satisfy himself that the communications are not being taken out of context. 

14. The document referred to in paragraphs 4 and 5 of Mr Holmes’ affidavit is the document in question.  It is the primary evidence and it is the document that the applicant is entitled to see under FCCR 14.10.

RECORDED  :  NOT TRANSCRIBED

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 12 June 2014

Associate: 

Date:  23 July 2014