De Beer v Transitcare LTD

[2015] FCCA 3506

FEDERAL CIRCUIT COURT OF AUSTRALIA

DE BEER v TRANSITCARE LTD & ORS [2015] FCCA 3506

Catchwords:
PRACTICE AND PROCEDURE – Application for declaration as to disclosure and orders for disclosure.

Legislation:

Federal Circuit Court Act 1999 (Cth), s.45(1)

Federal Circuit Court Rules 2001, r.14.03

Applicant: LOUIS DE BEER

First Respondent: TRANSITCARE LTD

Second Respondent: PETER MARK EMERY

Third Respondent: MARIAE LECKIE

Fourth Respondent: TERENCE O'TOOLE

Fifth Respondent: FRANCINE WICKS

File Number: BRG 368 of 2015

Judgment of: Judge Jarrett

Hearing date: 23 September 2015

Date of Last Submission: 23 September 2015

Delivered at: Brisbane

Delivered on: 23 September 2015

REPRESENTATION

Counsel for the Applicant: Mr P.A. Hastie QC

Solicitors for the Applicant: HopgoodGanim Lawyers

Counsel for the Respondent: Mr S.R. Grant

Solicitors for the Respondent: McCullough Robertson Lawyers

ORDERS

THE COURT DECLARES THAT:

1. It is appropriate, in the interests of the administration of justice, to allow discovery pursuant to section 45(1) of the Federal Circuit Court of Australia Act 1999 in this proceeding.

THE COURT ORDERS THAT:

1. The first respondent discover and produce to the applicant:

   (a)all emails in the mailbox of the application for the addresses [email protected] and [email protected] to and from the applicant between 1 July 2013 and 16 February 2015 held by the first respondent;

   (b)emails sent or received in the period between 1 July 2013 and 16 February 2015 by Peter Emery relating to TransitCare entering:

   (i)the services agreement with TransLynx and the variation to it;

   (ii)the master services agreement with itXpress and the related bank guarantee;

   (c)copies of reports to and minutes of the meetings of the recruitment, review and remuneration committee, and the audit finance and risk committee of the first respondent held between 1 July 2013 and 16 February 2015;

   (d)reports on the Mananoa project held by David Taschke of the first respondent;

   (e)copies of any electronic versions of documents relating to the IT issues of the first respondent as they existed in 2013 and presently exist and the procurement and tender process in eventually awarding the contract to itXpress;

   (f)copies of two reports by 99 Consulting which were provided to the first respondent between in or about September 2013 and January 2015;

   (g)all draft documents and other records of Peter Emery relating to the negotiation and documentation of the services agreement between the first respondent and TransitLynx;

   (h)the attendance records of the applicant held by the first respondent for the period 1 April 2013 to 16 February 2015.

2. It is sufficient compliance with order that the discovery be in electronic form.

3. Dispense with r.14.03 of the Federal Circuit Court Rules 2001.

4. The application be adjourned to 7 December 2015 at 9.30 a.m. for directions in the Federal Circuit Court of Australia sitting at Brisbane.

5. The application be adjourned to 14 March 2015 at 10.00 a.m. for final hearing (with an estimated hearing time of 5 days) in the Federal Circuit Court of Australia sitting at Brisbane.

6. Costs reserved.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 368 of 2015

LOUIS DE BEER

Applicant

And

TRANSITCARE LTD

First Respondent

PETER MARK EMERY

Second Respondent

MARIAE LECKIE

Third Respondent

TERENCE O'TOOLE

Fourth Respondent

FRANCINE WICKS

Fifth Respondent

REASONS FOR JUDGMENT

ex tempore

1. There will be orders in terms of the draft prepared by the applicant for these reasons.

2. In my view, it is in the interests of the administration of justice in this case for there to be a declaration for disclosure.  I come to that conclusion for a number of reasons.  First, all of the documents in this case are held by one side, not the other.  The first respondent holds them all and there is nothing surprising in that, because the nature of the claim pursued by the applicant and the circumstances out of which it arises clearly show that the first respondent must hold all the documents.  The applicant has few.

3. Second, whilst it is right to say that the applicant the has been provided with documents by the first respondent, both in terms of the first respondent’s evidence, affidavits and the like, and some other documents upon the request of the applicant, not all of them have been provided.  There are a great many number of categories of documents that are sought by the applicant and, in respect of each of those categories, having regard to the submissions for the applicant and the submissions for the respondents, in particular the written submission for the respondents, the documents sought in each category are relevant to issues raised in the pleadings.

4. Third, it is not the case, it seems to me, that it is necessary for the applicant to identify with precision the issues to which each of the particular documents sought by him relates.  It is sufficient to identify issues by reference to the pleadings.  So in respect of that part of the counter-claim that relates to repayment of the applicant’s salary for a particular period because he did not devote himself entirely to the first respondent’s business and the fact that the applicant has put that in issue:  that is sufficient, in my view, to identify the issue.  It is not the case that the applicant must then go further and say what it is that he was doing to further define the issues so that documents relating to those very matters might be the subject of discovery.

5. Fourth, having read the material I get the impression that, as CEO of the first respondent, the applicant’s duties were very broad indeed and whilst it might be possible, indeed, probable, that he could identify particular projects to which he was devoting much of his time, it says nothing about all of the little things that no doubt somebody in his position would have to deal with on a day-to-day basis and which would, taken with all of the other evidence, go to show that he was, by and large, devoting his time to the first respondent.  The level of detail to which the first respondent asks the applicant to descend in the identification of the issues is inappropriate.

6. The first respondent opposes the orders sought by the applicant, at least in respect of some of the categories of documents, on the basis that they would require extensive searches and work to be undertaken by the first respondent and that will be costly, particularly given that the first respondent is said to be a not-for-profit organisation.

7. There are a few things to say about that proposition.  The first is that the evidence of Mr O’Toole is argumentative.  No objection was taken to it, but there is very little evidence in his material and much argument and submission. Just because he asserts a position does not demonstrate that it is so. There is a lack of particularity about the costs said to be likely to be incurred in making the sought after disclosure, the extensive nature of the inquiries and the like, and that is particularly so given that most of the documents sought by the applicant are likely to be held electronically. The notion that there would be significant and expensive searches undertaken of a database containing emails is really not something that I can accept at face value. Email databases can be copied very easily, at least in my experience, having regard to the way in which emails are generally produced in this Court, and there is nothing in the evidence of Mr O’Toole which would suggest to me that that can not happen in this case.

8. The applicant suggests that the documents should be produced to him electronically.  That is a convenient, efficient and, in these days, a regular occurrence.  There is nothing, it seems to me, in the suggestion that an order for discovery of any of the categories of documents sought by the applicant would be oppressive, time-consuming to produce or excessively costly.

9. The interests of the administration of justice spoken about in section 45(1) of the Federal Circuit Court Act are designed to ensure that proceedings are conducted in a fair way. In the circumstances of this case, it seems to me that the only way the proceedings can be conducted in a fair way, having regard to the very serious allegations that are made in the counter-claim and the difficult position in which the applicant finds himself with respect to meeting those allegations, is to make an order for disclosure as the applicant seeks in respect of the categories of documents that are set out in the draft order handed up by Senior Counsel for the applicant, save for those categories that are conceded to be no longer pressed. They are the documents in categories 4, 8, 9, 10, 11, 13, 14 and 15.

10. Otherwise orders as per draft.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Jarrett

Deputy Associate: 

Date:  12 January 2016