Hanks v Johnston (No 3)

The case of Hanks v Johnston (No 3) involved a dispute between the plaintiff, Hanks, and the defendant, Johnston, regarding the discovery of evidence, specifically text messages, as part of the ongoing litigation. The matter was heard in the Supreme Court of Victoria. Hanks sought to compel Johnston to provide access to a software license to recover text message backups stored in Hanks' Apple iCloud account, which required specialist software to access. The court was tasked with determining whether Johnston was obligated to provide the necessary software and whether Hanks' search efforts were adequate under the Civil Procedure Act 2010 (Vic) and the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

The primary legal issues included whether Johnston was required to provide the specialist software to access text message backups stored in Hanks' iCloud account, and whether Hanks was under an obligation to search for deleted text messages on his current device. The court also needed to consider whether legal professional privilege was lost by copying emails to third parties and whether a common interest existed between the plaintiff and the third parties to maintain privilege. These issues were addressed under the Civil Procedure Act 2010 (Vic), the Supreme Court (General Civil Procedure) Rules 2015 (Vic), and the Evidence Act 2008 (Vic).

In its decision, the court ruled that Johnston must provide the necessary software for Hanks to access his iCloud account, as this was part of the reasonable search obligation under the Civil Procedure Act. The court held that while Hanks had conducted a reasonable search effort, the obligation was expanded to include the use of specialist software at Johnston's expense. The court found no obligation for Hanks to search for deleted messages on his current device. Regarding legal professional privilege, the court determined that privilege was not lost by copying emails to third parties, provided a common interest was established. In this case, the third party did not share a sufficient common interest with Hanks, and thus, privilege was not lost.

The court's orders mandated that Johnston provide the necessary software for Hanks to access his iCloud account by a specified date and that Hanks use this software to search for and obtain any relevant text messages. Furthermore, Hanks was to file an affidavit detailing the results of this search. Additionally, certain documents were to be produced to Johnston for inspection.