G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 10)

[2023] NSWSC 1240

Supreme Court

New South Wales

Medium Neutral Citation:

G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 10) [2023] NSWSC 1240

Hearing dates:

On the papers; submissions received 10 and 16 October 2023

Decision date:

19 October 2023

Jurisdiction:

Equity - Technology and Construction List

Before:

Stevenson J

Decision:

No further disclosure of Mr Purnamasidi’s notebooks required

Catchwords:

CIVIL PROCEDURE – discovery – further and better discovery – notebooks of director of cross-claimants – whether whole notebooks should be disclosed – where notebooks have been reviewed by solicitor for cross-claimant and extracts responding to discovery categories identified and disclosed

Cases Cited:

G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 6) [2022] NSWSC 628

Westgate Finance v May [2012] NSWSC 806

Category:

Procedural rulings

Parties:

G&S Engineering Services Pty Ltd (First Plaintiff/First Cross-Defendant)
DRA Pacific Pty Ltd (Second Plaintiff/Second Cross-Defendant)
DRA Group Holdings (Pty) Ltd (Third Cross-Defendant)
DRA Global Limited (Fourth Cross-Defendant)
MACH Energy Australia Pty Ltd (First Defendant/First Cross-Claimant)
MACH Mount Pleasant Operations Pty Ltd (Second Defendant/Second Cross-Claimant)
J.C.D. Australia Pty Ltd (Third Defendant/Third Cross-Claimant)

Representation:

Counsel:
T J Porter (Plaintiffs/Cross-Defendants)

Solicitors:
HFW Australia (Plaintiffs/Cross-Defendants)
Corrs Chambers Westgarth (Defendants/Cross-Claimants)

File Number(s):

2019/71358

JUDGMENT

1. The background to this matter is set out in the earlier judgments of the Court, including my judgment of 17 May 2022. [1]

   1. G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 6) [2022] NSWSC 628.

2. This is the Court’s 10^th interlocutory judgment in the proceedings.

3. There is an issue in the proceedings as to whether the directors of the defendants/cross-claimants (“MACH”), including Mr Ferdian Purnamasidi, relied on representations allegedly made to MACH by the plaintiffs/cross-defendants (“CDJV”).

4. Mr Purnamasidi from time to time made notes in spiral-bound notebooks.

5. By Notice of Motion filed on 26 May 2023, CDJV sought discovery of those notebooks on the basis that they may contain notations relevant to the reliance issue.

6. I heard argument on that motion on 6 September 2023. There was then debate as to whether MACH should discover the whole notebooks.

7. Ultimately, after discussion and submissions, and by consent, I ordered that:

1. By 29 September 2023, the solicitors for [MACH] are to:

1. obtain, review and discover (where falling within the cross-defendant’s disclosure categories CDJ18, CDJ22, CDJ96, CDJ99, CDJ105, CDJ115, CDJ140, CDJ158, CDJ159, CDJ160 and CDJ161) any entries from any spiral-bound notebooks of Mr Purnamasidi including shown (in part) in the photographs of Exhibit KPH-9, pages 65-67 to the affidavit of Kenneth Hickman dated 26 May 2023; and

2. …

3. provide a copy of the notebooks redacted in relation to any entries said to be so discoverable.

2. Direct that by 6 October 2023, if [CDJV] still seek[s] production of any spiral-bound notebooks, they are to serve and provide by email to [my] Associate short submissions on that subject.

8. CDJV now seeks production of the whole of the notebooks, and the parties have exchanged submissions on that topic. It is agreed I may deal with this question on the papers.

9. The “review” contemplated by my 6 September 2023 orders was carried out by Mr Matthew Muir, a partner of Corrs Chambers Westgarth, the solicitors for MACH.

10. Mr Muir described the process he undertook as follows:

“Following the Orders on 6 September 2023, I caused for MACH to obtain from Mr Purnamasidi copies of notebooks. MACH then provided those notebooks to me.

I received from MACH three individual notebooks:

(a) a black spiral-bound notebook;

(b) a blue covered ‘Indofood’ notebook; and

(c) a yellow spiral-bound notebook.

My process for reviewing the notes was as follows:

(a) I re-familiarised myself with the categories against which the notebooks were ordered to be reviewed;

(b) I reviewed each notebook individually;

(c) I reviewed each page of each notebook;

(d) I identified entries by reference to the categories in the Orders.”

11. Following that review, MACH has now produced a further 50 pages from the notebooks.

12. MACH has declined to give discovery of the balance of the notebooks on the basis of “irrelevance”.

13. CDJV criticised that response on the basis that there is authority for the proposition that, generally speaking, parties are not entitled to redact documents produced in response to the Court’s compulsory processes on the basis of irrelevance. [2]

    2. For example, Westgate Finance v May [2012] NSWSC 806 at [22]-[28] (McDougall J).

14. But here, the form of the order to which the parties agreed contemplated a review of the diaries by MACH’s solicitor with a view to discovery of, and only of, entries falling within the identified disclosure categories. That process necessarily required an assessment to be made by the reviewing solicitor of the relevance of the entries in the diary to those categories.

15. As MACH has submitted, CDJV has advanced no reason to cast doubt on the veracity of Mr Muir’s review of the notebooks. I accept MACH’s submission that the Court is entitled to, and should, rely upon that review.

16. CDJV also contends that MACH has not produced pages from the diary that “relate to the project” and “are relevant” and that pages that “relate to the project” are “of contextual importance when seeking to read the sequence of Mr Purnamasidi’s notes as a whole”.

17. That proposition is said to be borne out of certain words which can be seen to be written on the reverse side of the diary pages that have been produced and which suggest that, in a very general way, they “relate to the project”. But whether they not only “relate to the project” but also “are relevant” will depend on whether they fall within the identified disclosure categories. And, as MACH has pointed out, CDJV does not seek to connect the words that can be seen on the reverse side of the disclosed pages to those categories.

18. I am not in these circumstances prepared to make any further orders in relation to the notebooks.

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Endnotes

Decision last updated: 19 October 2023