Francis v Draybi

[2020] NSWSC 1111

Supreme Court

New South Wales

Medium Neutral Citation:

Francis v Draybi [2020] NSWSC 1111

Hearing dates:

18 June 2020

Date of orders:

20 August 2020

Decision date:

20 August 2020

Jurisdiction:

Equity

Before:

Robb J

Decision:

(1) The plaintiffs’ summons, filed on 15 May 2020, is dismissed.

(2) Order the plaintiffs to pay the defendants’ costs of the proceedings.

Catchwords:

EQUITY — Claim by plaintiffs for orders for production of documents and information in the possession, custody or control of the defendants belonging to the plaintiffs, produced under contract for the plaintiffs, or containing the plaintiffs’ confidential information — where defendants have made a credible and conscientious effort to disclose all of the documents and information within the stipulated categories — where the Court accepts the evidence given for the defendants that all reasonable searches have been carried out — whether the Court should order the defendants to permit the plaintiffs’ information technology professional to image and search the defendants’ computers and electronic data storage facilities, and if so on what terms — where there is insufficient likelihood that the investigations would yield additional documents or information to justify the intrusion upon the defendants’ private rights — summons dismissed

Cases Cited:

Anton Piller KG v Manufacturing Processes Ltd [1976] Ch D 55

Category:

Principal judgment

Parties:

Hanna Elias Francis (first plaintiff)
Hayat Francis (second plaintiff)
Sympathy Funerals Pty Ltd (third plaintiff)
Raymond Draybi (first defendant)
Draybi Accountants Pty Ltd (second defendant)

Representation:

Counsel: D Smallbone (plaintiffs)
C O’Neill (defendants)

Solicitors: RJI Legal (plaintiffs)
Fortis Law Group (defendants)

File Number(s):

2020 / 145440

Judgment

1. The plaintiffs in these proceedings are Hanna Elias Francis, Hayat Francis and Sympathy Funerals Pty Ltd.

2. The plaintiffs commenced the proceedings by summons filed on 15 May 2020, by which they sought orders that the defendants provide various forms of information to the plaintiffs by affidavit, by delivery up of books and other records, and by making available the defendants’ computer and other electronic means of storing information for inspection and the copying of records.

3. The defendants are Raymond Draybi and Draybi Accountants Pty Ltd. At material times, Raymond Draybi provided accountancy services to one or more of the plaintiffs through Draybi Accountants Pty Ltd.

4. These proceedings have arisen in an unusual way. In April 2018, Tony Draybi and Draybi Bros Pty Ltd commenced proceedings in this Court against the plaintiffs in these proceedings (April 2018 proceedings). The plaintiffs in the April 2018 proceedings sought to enforce alleged debts owed to them by one or more of the plaintiffs in these proceedings.

5. The April 2018 proceedings were set down to be heard before me commencing on 11 May 2020 for a period of five days. On that date, on the application of the present plaintiffs, I made an order vacating the hearing. That order was made because the plaintiffs in the April 2018 proceedings had served upon the present plaintiffs, very soon before the hearing, a statement of proposed evidence that they expected would be given by Raymond Draybi in those proceedings. The present plaintiffs had not been given any prior notice of the intention to call this evidence from Raymond Draybi.

6. Raymond Draybi had not only provided accountancy services for the present plaintiffs for a considerable number of years, but he was also related to Tony Draybi and another plaintiff in the April 2018 proceedings. In circumstances that are not known, Raymond Draybi agreed to provide evidence for the plaintiffs in the April 2018 proceedings. That evidence included spreadsheets that Raymond Draybi claimed to have prepared contemporaneously with the provision of accountancy services to the present plaintiffs. It is not necessary to relate in detail the possible forensic effect of this new evidence for the purposes of the April 2018 proceedings. It is sufficient to note that the evidence was capable of significantly undermining the defence of the present plaintiffs. The evidence was sufficiently adverse to the defence that the present plaintiffs were not in a position to consider how they might respond to it, and there was really no basis for the Court to deny them the adjournment that they requested. The present plaintiffs were in effect ambushed.

7. The information that Raymond Draybi disclosed to the plaintiffs in the April 2018 proceedings was almost certainly provided to him by the present plaintiffs under an express or implied condition of confidentiality. Raymond Draybi did not seek to be relieved by the present plaintiffs of his obligation to keep the information confidential before he disclosed it.

8. Apparently on 13 May 2020, the solicitor for the present plaintiffs sent by email to Raymond Draybi and Draybi Accountants Pty Ltd a letter which attached an authority dated 11 May 2020, signed by each of the present plaintiffs, authorising and directing the recipients to provide categories of information described in the authority. It is a sufficient description of the categories, for the purpose of these reasons, that they encompassed all documents, books, records and things “prepared by you for or on behalf of” each named plaintiff, were “provided to you” by each named plaintiff “for the purpose of you advising, assisting or acting for” that plaintiff, or “that otherwise belong to” that plaintiff “that are in your possession, custody or control”. The authority also required the recipients to provide “copies of all records of Information that were made, acquired or received by you in the course of acting as an accountant, adviser or agent for” each plaintiff.

9. The present plaintiffs have not been required to specify to the Court any specific purpose for their attempt to obtain these categories of documents from the defendants. It is reasonably evident that the objective of the present plaintiffs is to obtain all of the documents in the possession, custody or control of the defendants falling within the categories. This may throw some light on the evidence that Raymond Draybi may give in the April 2018 proceedings, and which may allow the present plaintiffs to challenge that evidence in some manner advantageous to their defence.

10. The present plaintiffs did not put their claim to be entitled to require the defendants to comply with the authority and direction on a basis arising out of the Court’s power to order third parties to litigation to produce information relevant to the issues in that litigation. The plaintiffs put their entitlement on the basis of claimed proprietary rights to documents in the possession of the defendants, rights arising out of their retainer of the defendants or one of them, and finally their right to protect information provided to the defendants under obligations of confidence.

11. The defendants responded by email from their solicitor to the solicitor for the present plaintiffs dated 14 May 2020. The defendants disputed the present plaintiffs’ entitlement to production of the documents claimed.

12. Consequently, the present plaintiffs filed their summons by leave in Court in these proceedings on 15 May 2020. The defendants were represented by their solicitor at the hearing in which leave was given to file the summons. At the request of the parties, I made an order that the summons be returnable before me on 18 June 2020, for the purpose of final hearing if that was then convenient to the Court. I also made appropriate case management orders.

13. A hearing took place of the claims in the present plaintiffs’ summons on a final basis on 18 June 2020.

14. At the hearing, the plaintiffs relied upon the affidavit of Hanna Elias Francis sworn 14 May 2020 and affidavits of their solicitor, Mr Patrick Woods, sworn on 22 May 2020 and 14 June 2020. The plaintiffs also relied upon an expert report of Mr Nicholas Zoras dated 1 June 2020. Mr Zoras is a chartered accountant, who gave evidence relevant to the fact that the defendants provided accountancy services to the plaintiffs for the financial years ended 30 June 2004 to 30 June 2011. The evidence concerned the common practices of chartered accountants over that period in relation to the use of computer software for the purpose of preparing financial reports and saving data. Broadly, the objective of Mr Zoras’ evidence was to provide the foundation for a finding by the Court that there was a sufficient likelihood that the defendants continued to have the possession, custody or control of the documents and information the subject of the prayers for relief in the summons to justify the Court in making the orders sought by the plaintiffs.

15. The defendants relied upon an affidavit of Raymond Draybi sworn on 16 June 2020.

16. Mr Draybi explained his understanding of the engagements by the three plaintiffs of the services of Draybi Accountants Pty Ltd to perform specific professional tasks over periods between 30 June 2003 and 30 June 2010. Mr Draybi gave evidence of the company’s usual practice concerning the maintenance of hard copy document files, and the limited nature of its practice in maintaining soft copy client files. Mr Draybi said that, up until about 2012, the company was using the MYOB accounting system, which was not connected to the internet. In about 2012, the company upgraded its software server. Mr Draybi said that during this process “all non-existing client files were overwritten by the new server”. Mr Draybi said that the company would back up electronic data files onto a CD which was kept with the physical file. He said that it was the usual practice of the company to dispose of the files of clients who had ceased to retain the company after seven years. The company caused the hard copy files to be shredded.

17. Relevantly, Mr Draybi said that in 2015, the company moved its primary place of business and that during this move he disposed of all records of what he called non-existing clients. This included all of the plaintiffs’ files that exceeded the seven-year period. Mr Draybi said that he was not aware of any requirement for an accountant to maintain client files beyond the seven-year period.

18. Mr Draybi further said that, in or about 2017, the company upgraded its server and its software. It was at this time that the company started to scan and maintain all of its files electronically. Similarly to the upgrade in 2012, all non-existing client files were overwritten by the new server if over seven years old.

19. Finally, in relation to Draybi Accountants Pty Ltd’s file retention practices, Mr Draybi said that at the time of each of the server upgrades he would only backup the data of the non-existing clients which were less than seven years old onto a CD. After the expiry of the seven-year period, he would destroy the CD containing the non-existing client data files. The company has a shredding machine on the premises that he would use to shred the CDs.

20. The conclusion expressed by Mr Draybi was that, after Draybi Accountants Pty Ltd’s engagement was terminated, any data was most likely overwritten in the server change in 2012, if not 2017.

21. In essence, Mr Draybi’s evidence was that he had diligently searched for all of the information, and that he had provided all documents and material that he has been able to locate upon a detailed review of the defendants’ computer and hard copy records.

22. Mr Draybi gave evidence about the response of the defendants to subpoenas received in the April 2018 proceedings. The thrust of his evidence appears to be that the documents annexed to his outline of evidence dated 7 May 2020 were not documents that fell within the categories of documents required to be produced by the subpoenas, primarily because they were not “Financial Statements”. Mr Draybi did not offer any explanation of the circumstances in which he apparently cooperated with the plaintiffs in the April 2018 proceedings to prepare the outline of evidence, or to disclose to those plaintiffs the documents that were annexed to the outline of evidence.

23. Mr Draybi annexed to his affidavit and marked RD1 a document that he described as the Production Schedule. Mr Draybi said that the Production Schedule listed all of the documents that are in the possession or control of the defendants that relate to the plaintiffs. He also said that, in respect of all documents that he had been able to produce under compulsion in the April 2018 proceedings, save for the spreadsheets contained in the outline of evidence and Fortis Law Group’s letter dated 3 June 2020, they were “documents which I was able to locate through other active client hard copy files”.

24. Finally, in relation to the spreadsheets and the letter dated 3 June 2020, Mr Draybi said in his affidavit:

1. With respect to the spreadsheets contained in the outline of evidence and Fortis Law Group’s letter dated 3 June 2020 to the plaintiffs’ solicitor, I located the subject spreadsheet while preparing to give evidence in the 2018 Proceedings.

2. Following discovery of this documents (sic), I undertook a comprehensive search of my computer to locate any further material. I was unable to locate any other documents but for an incomplete spreadsheet which is effectively the same as the spreadsheet contained in my outline of evidence served in the 2018 Proceedings.

   25. Mr Draybi also included in his affidavit a detailed response to Mr Zoras’ report. In essence, Mr Draybi responded to Mr Zoras’ various opinions as to why the defendants should have retained and be able to produce at least some of the documents in the categories sought by the plaintiffs, if there accountancy practice had been conducted in a usual or proper manner, by explaining why in fact the information and documents were simply not available to be produced.

   26. Mr Draybi was cross-examined by counsel for the present plaintiffs over some 38 pages of transcript. Notwithstanding the thoroughness of the cross examination, Mr Draybi steadfastly adhered to the evidence that he had given in his affidavit. Mr Draybi gave his evidence in a satisfactory and credible way. As he is a professional man, he evidently took great care as to how he responded to questions.

   27. Before the commencement of the parties’ submissions, counsel for the plaintiffs tendered a consent to act as information technology professional by Mr Nigel Carson. It appears, from a comment made by counsel for the defendants when the consent was tendered, that the defendants had been given little warning that the plaintiffs would seek orders to facilitate the search of the defendants’ computer and electronic storage systems by an information technology professional.

   28. The plaintiffs’ opening written submissions provided to the Court before the hearing put the plaintiffs’ claim on essentially two bases. The first was a proprietary claim to documents produced or retained by the defendants that were the property of the plaintiffs by reason of the circumstances in which they were produced. This basis depended upon the principles that govern when documents produced by a professional accountant are the property of the client, and when the documents are the property of the accountant by reason of the fact that they are created for the accountant’s own purposes in providing the services for which the accountant has been retained by the client. The plaintiffs also relied upon the proposition that particular documents might be their property because the subject matter of the contract of retainer was the production of the documents for the plaintiffs.

   29. This basis of the plaintiffs’ claim derived particular support from the description in par 4 of the submissions of the particular work undertaken by the defendants in performance of their retainer from the plaintiffs. In particular, the defendants, in effect, acted as the ‘back-office’ for the third plaintiff’s funeral business by undertaking such tasks as maintaining its registered office, receiving bank statements and other correspondence, attending to banking, preparing invoices to customers, making available an eftpos facility, acting as a repository for client financial records, and other tasks generally beyond the services ordinarily provided by accountants. The plaintiffs’ case was that, consequentially, there was a higher likelihood that the defendants had produced and received, and ought to have retained, documents that were the property of the plaintiffs.

   30. The second basis of the plaintiffs’ claim arose out of the contract of retainer, and essentially was that the defendants had duties of record-keeping and disclosure and that, as stated in par 39: “It is inconceivable in such a situation that the accountant and tax agent could withhold that information from the client or dispose of it without the client’s sanction”.

   31. The plaintiffs submitted that the defendants’ case that few records have been retained “should meet with some skepticism (sic)”. The plaintiffs made a number of submissions in support of this assertion, including that the defendants had retained some records in circumstances inconsistent with the claim that records of that type were systematically destroyed after seven years, one would expect that the electronic records would have survived, at least in backups, unless there has been a total system failure, there was inadequate evidence of due search and enquiry, and it was not suggested that destruction was authorised by the plaintiffs. The plaintiffs also submitted that, because of the family relationship between Mr Draybi and the individual plaintiffs in the April 2018 proceedings, there was a motive for concealment. The plaintiffs submitted that there was a clear failure by the defendants to comply with the accountant’s obligation of confidence in making available to the plaintiffs’ adversaries in the April 2018 proceedings documents that were received or produced in the course of the retainer from the plaintiffs, without seeking the plaintiffs’ permission.

   32. The defendants’ outline of submissions dated 17 June 2020 noted that the defendants had, in effect, voluntarily complied with prayer 1 of the plaintiffs’ summons, because Mr Draybi’s affidavit of 16 June 2020 complied in substance with the plaintiffs’ request that he swear an affidavit, and it set out in the annexed schedule all of the documents in the possession, custody or control of the defendants falling within the categories listed in prayer 1.

   33. The defendants’ submissions noted that, although Mr Draybi’s affidavit did “not satiate the Plaintiffs’ appetite”, the plaintiffs had not provided any explanation as to their purpose in seeking the orders in the summons or how compliance by the defendants with those orders would advance the plaintiffs’ defence in the April 2018 proceedings. That observation is true.

   34. The essential thrust of the defendants’ submissions was to treat the plaintiffs’ application for the relief sought in prayers 6 to 8 of the summons, which would require the defendants to permit an information technology professional to enter upon the defendants’ premises, and to inspect and take copies of “all computers and data storage devices, including laptops” owned or controlled by them, as in substance a request for an Anton Piller order, which was not permissible in the circumstances: see Anton Piller KG v Manufacturing Processes Ltd [1976] Ch D 55.

   35. Following the reception of the evidence and the cross-examination of Mr Draybi, the plaintiffs’ submissions focused on the appropriateness of the Court, in the circumstances, making the orders sought by the plaintiffs to enable an information technology professional to review the defendants’ computer and electronic data recording systems to exclude any possibility that the searches carried out by Mr Draybi had been inadequate, notwithstanding his own sworn evidence that he had carried out all of the searches that were possible.

   36. The plaintiffs informed the Court that they would bear all of the costs of the examination by the independent expert, so that the exercise will be carried out at their expense.

   37. The plaintiffs made the following submission at T 48.27 to T 48.49:

So these are matters, problems which mean that it is not impossible that an accountant might incautiously adopt the system that has been described, but which I submit would make your Honour hesitate to accept that he has adopted that practice exactly as described and recalled it correctly and applied it rigorously and quite exhaustively to eliminate everything.

…

Putting that with the existence of the conflict and the nature of the obligations undertaken by the accountant when these records were created in the first place, and the absence of any attempt at any stage to get permission to destroy them it is, I submit, inescapable that there is a duty to make available reasonable facility to check and ensure these records have not been destroyed and that, if and to the extent that they still exist, they can be made available now.

For those reasons I submit that it is appropriate to direct independent examination of the machines under the supervision of the Court.

38. During the course of the plaintiffs’ oral submissions, I raised with counsel the difficulty that the summons in prayer 1 defined the documents the subject of the prayer (which included electronic documents, communications and data files) by reference to the documents having been prepared on behalf of the plaintiffs, or that were provided by the plaintiffs, or were provided to the defendants by way of service on the plaintiffs, or which belonged to the plaintiffs. The essence of the difficulty was that the relevant documents and other information were defined by reference to historical facts and issues of proprietary entitlements. I suggested at T 51.10 that the Court could not contemplate making an order giving an information technology professional a right to carry out the search required by the plaintiffs “without there being a definition of what it is that he is looking for and that has to be precise”.

39. The oral submissions took the course of the Court identifying that the application before the Court was not a conventional Anton Piller application, in the sense that the Court might act on an urgent interlocutory basis to obviate a real risk that a party in possession of documents or other information capable of being evidence in proceedings might destroy that material. The present case arguably involved Mr Draybi volunteering to provide evidence to the plaintiffs in the April 2018 proceedings in circumstances that involved a breach of a duty of confidence owed to the plaintiffs. Furthermore, there was a possibility that the defendants had destroyed property of the plaintiffs without being authorised to do so.

40. In the course of the submissions, I indicated to counsel for the plaintiffs that I would not make orders as sought in the summons in respect of the investigation by the information technology professional, because of the intrusiveness of the orders and the lack of specificity concerning the parameters of the search.

41. Counsel for the plaintiffs responded by saying, at T 63.19:

What we would propose, is we have ordered the transcript, we would like to show it to Mr Carson and get him to formulate a list of search terms which we would then provide to my friend and your Honour as a proposed basis for the interrogation of the computers by Mr Carson; and ask for the orders to be framed on the basis of that.

42. I formally reserved judgment and costs on the application, and gave leave to the parties to communicate with my Associate by agreement or alternatively by arrangement to relist the matter, in order to further consider the plaintiffs’ application.

43. After some delay, the plaintiffs sent to my Associate an affidavit of their solicitor made on 15 July 2020, which annexed a report of Mr Carson dated 15 July 2020. Mr Carson expressed the view that the least disruptive and most complete way to examine Mr Draybi’s personal computer and the server to which the files of Draybi Accountants Pty Ltd have been saved will be to have a technician attend Mr Draybi’s office at the end of the working day to start the making of an image of each of the personal computer of Mr Draybi and his server, leaving both images to be completed overnight. Mr Carson gave a persuasive explanation as to why, if the convenience of the defendants is considered paramount, it would be least disruptive for an image of the computer and the server to be made overnight, rather than requiring employees of Mr Carson’s firm to conduct the investigation on site during business hours.

44. Mr Carson also gave a satisfactory explanation as to how the confidences of the defendants and their clients could be preserved.

45. Mr Carson explained that the search would be carried out using a number of specific search criteria comprising the names and parts of the names of the plaintiffs, and the address of the third plaintiff’s business. Mr Carson added that it may also be necessary to refine or widen the search to other matter specific terms as the investigation proceeds.

46. The defendants responded by submissions provided by their counsel to my Associate dated 23 July 2020. The defendants maintained their opposition to the Court making any orders for the purpose of authorising Mr Carson to carry out the proposed investigation of the contents of the defendants’ computer and server, as contemplated in Mr Carson’s report. Counsel observed:

The Carson Report offered no bespoke arrangement, but simply a conventional full imaging, taking overnight, before an extensive search process. While there is no doubt Mr Carson is experienced, his method still involves the complete imaging of every hard drive and server. The risk of error or accident which could intrude upon client confidence far outweighs any potential legitimate forensic concern. Given the likely minimal return, the process proposed by Mr Carson would overwhelmingly capture more confidential and irrelevant data than otherwise.

47. The defendants’ submissions annexed the email instructions given to Mr Carson by the plaintiffs’ solicitor on 14 July 2020. They pointed out that one instruction given to Mr Carson was in the following terms:

If possible, I want to know if the metadata, or anything else observable by you examining the two actual spreadsheet files on Mr. Draybi’s computer, supports as being factual the creation of the two Spreadsheets in 2006, and their modification from time to time until 2010, or indicates instead that the documents have been created more recently, or are in fact some other document actually created in 2006 then wiped to create the new documents as a spreadsheet that looks like it dates back to 2006.

48. Another observation made by the plaintiffs’ solicitor in the instructions was:

…we would very quickly find out whether Mr. Draybi is being truthful when he says all of those files have been deleted from his computer and server.

49. The defendants submitted that the objectives of the search of their computer and server disclosed in the preceding two paragraphs are impermissible and not the subject of the application made in the plaintiffs’ summons.

50. I begin with the observation that I accept the defendants’ submission that the plaintiffs are not entitled to any order that has the effect of authorising Mr Carson to conduct an investigation of the defendants’ computer and server for the purpose of determining whether the spreadsheets annexed to Mr Draybi’s statement of proposed evidence in the April 2018 proceedings are a fabrication. Nor are the plaintiffs entitled to cause the investigation to be carried out for the purpose of finding available evidence to discredit Mr Draybi.

51. The plaintiffs’ summons sought the provision and disclosure of documents and information, on the basis that they were the property of the plaintiffs, or were required to be disclosed as an incidence of the retainers given by the plaintiffs to the defendants. The basis of the plaintiffs’ claim was that they were entitled by law to be given the documents and the other information. It would then be a matter for them as to whether, and if so how, they deployed those documents and that information in their defence of the April 2018 proceedings.

52. The summons in these proceedings was not an application under the Court’s rules for the disclosure of documents or information on the basis that those documents and that information were of sufficient apparent relevance to the proper conduct of proceedings in the Court.

53. Consequently, if the investigation of the defendants’ computer and server proposed to be carried out by Mr Carson was permitted, the plaintiffs would only be entitled to be given documents that were their property or information that was required to be disclosed to them by the defendants. It is likely that, even if, contrary to Mr Draybi’s evidence, the defendants retained undisclosed documents and information that would be caught by the search terms proposed by Mr Carson, many of those documents and much of that information would be the property of the defendants, or not required to be disclosed to the plaintiffs. Consequently, even if the investigation were permitted by the Court, and even if it yielded documents that were caught by the use of the search terms, it would remain to be determined whether the plaintiffs were entitled to the production of the documents or the provision of the information.

54. That process is entirely foreign to the investigation having the purpose of verifying the authenticity of the spreadsheets or yielding documents or information tending to discredit Mr Draybi.

55. It is to be noted that, in the April 2018 proceedings, the Court gave the plaintiffs in these proceedings leave to issue a subpoena, which was returnable on the hearing on 18 June 2020. That subpoena sought the production of substantially the same documents as were included in the categories of documents in the prayers in the summons. The defendants sought to respond to the subpoena by the information contained in Mr Draybi’s 16 June 2020 affidavit.

56. The proceedings in this case on the plaintiffs’ summons are really an adjunct to the procedural step taken by the plaintiffs in the April 2018 proceedings, by the issue of the subpoena, whereby the plaintiffs have sought orders to obtain documents and information that they have a separate legal right to obtain from the defendants.

57. The reason why the objective of the plaintiffs in obtaining orders for the purpose of investigating the authenticity of the spreadsheets and obtaining information tending to discredit Mr Draybi is impermissible, is that it blurs the distinction between the circumstances in which the Court will make orders against third parties for the proper purposes of the provision of information that may be used in evidence in proceedings, and when the Court will enforce private rights of litigants to be given documents and information to which they are independently legally entitled.

58. It may be that procedures are available that would lead to the Court making an order authorising the investigation of the defendants’ computer and server to determine whether the relevant metadata are consistent with the authenticity of the spreadsheets. That would require a separate application supported by proper evidence. It may be that it would be necessary for the plaintiffs to tender evidence credibly denying the truth of the information contained in the spreadsheets. That is not a question that arises on the present application.

59. However, it is not the practice of the Court, following the issue of a subpoena to a third party to litigation, and an apparently credible response to the subpoena by that party, to authorise the party issuing the subpoena to retain an information technology professional to investigate the third party’s computer and any electronic data storage system to determine whether there has been proper production in response to the subpoena. The Court would not readily take that course.

60. The real question on this application is whether, on the whole of the evidence, the plaintiffs have demonstrated that there is a sufficient likelihood that the defendants have failed to produce to them documents and other information that is the property of the plaintiffs, or which consists of documents and other information that the plaintiffs have an independent legal right to receive from the defendants.

61. On this question, I am satisfied that the defendants, by means of Mr Draybi’s 16 June 2020 affidavit, and the information contained in the annexures, have made a credible and conscientious effort to disclose to the plaintiffs and to the Court all of the documents and information that could reasonably be considered to fall within the categories in the prayers to the plaintiffs’ summons. Mr Draybi was subjected to thorough cross-examination, and the effect of his responses was to persuade me that he had in fact carried out proper searches. I am also persuaded that Mr Draybi’s explanation as to why further documents and information have not been retained is credible.

62. In my view, on the balance of the evidence, there is insufficient likelihood that the investigation proposed to be carried out by Mr Carson will yield additional documents and information to which the plaintiffs are legally entitled to justify the relatively extreme intrusion on the defendants’ private rights that would be inherent in the conduct of the investigation.

63. The present case is a far cry from the circumstances that usually justify the making of an Anton Piller order. As the Court has accepted Mr Draybi’s evidence, there is no question of a risk existing that the defendants will act improperly to destroy documents or information to which the plaintiffs are entitled, and which they may properly deploy in their defence of the April 2018 proceedings. The only issue is whether there is a sufficient risk that something to which the plaintiffs are entitled has been missed, notwithstanding the searches carried out by Mr Draybi. I am not satisfied that the risk is sufficient to justify the Court in making the orders sought by the plaintiffs.

64. The orders of the Court will be:

1. The plaintiffs’ summons, filed on 15 May 2020, is dismissed.

2. Order the plaintiffs to pay the defendants’ costs of the proceedings.

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Decision last updated: 21 August 2020