Label Manufacturers Australia Pty Ltd v Chatzopoulos

[2023] NSWSC 646

Supreme Court

New South Wales

Medium Neutral Citation:

Label Manufacturers Australia Pty Ltd v Chatzopoulos & Ors [2023] NSWSC 646

Hearing dates:

09 June 2023

Date of orders:

09 June 2023

Decision date:

09 June 2023

Jurisdiction:

Common Law

Before:

Weinstein J

Decision:

(1) By 7 July 2023 the defendants are to serve on the plaintiff in accordance with Uniform Civil Procedure Rules 2005 r 21.3, a verified list of documents and things which or have been in any of the defendants’ possession, custody or control responding to categories of documents at Annexure “A” to these orders (which are the categories contained in the Summons but for (a)(ii) and b(ii) and (viii)).

(2) The defendants are to make the documents and things in the verified list referred to in order 1 available for inspection by 21 July 2023.

(3) The defendants are to pay the plaintiff’s costs of the Summons dated 10 October 2022, as agreed or assessed.

(4) The plaintiff is to pay the defendants’ costs of compliance with order 1, as agreed or assessed.

(5) In the event that the plaintiff commences substantive proceedings against one or more defendants, costs paid in accordance with order (4) above are to be dealt with as an expense incurred by the plaintiff in its pursuit of the substantive proceedings.

(6) Liberty to apply on 3 days notice.

Catchwords:

CIVIL PROCEDURE – application for preliminary discovery – UCPR r 5.3 – whether the plaintiff has identified that it may be entitled to a claim for relief – orders for preliminary discovery made

Legislation Cited:

Corporations Act 2001 (Cth)

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Andrews Advertising Pty Limited v Andrews [2011] NSWSC 244

Hatfield v TCN Channel 9 Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69

O’Connor v O’Connor [2018] NSWCA 214

Pfizer Island Pharmaceuticals v Samsung Bioepis AU Pty Ltd (2017) 351 ALR 103; [2017] FCAFC 193

Port of Melbourne Authority v Anshun Pty Ltd (1981) 148 CLR 589; [1981] HCA 45

Category:

Procedural rulings

Parties:

Label Manufacturers Australia Pty Ltd (Plaintiff)
Jim Chatzopoulos (First Defendant)
Reflex Labels & Packaging Asia Pacific Pty Ltd (Second Defendant)
Reflex Group Asia Pacific Pty Ltd (Third Defendant)

Representation:

Counsel:
J Glissan SC and A Guy (Plaintiff)
C P O’Neill (First Defendant)
J R Anderson (Second & Third Defendants)

Solicitors:
Vincent Young (Plaintiff)
Macpherson Kelley (First Defendant)
Addisons (Second and Third Defendants)

File Number(s):

2022/302154

Publication restriction:

Nil

JUDGMENT

1. By Summons filed on 10 October 2022, the plaintiff seeks orders for preliminary discovery and, in particular, an order pursuant to r 5.3 of the Uniform Civil Procedure Rules2005 (the UCPR) that the first defendant give preliminary discovery of eight categories of documents and that the second and third defendants give preliminary discovery of eight categories of documents which are fully described at Annexure A to this judgment. The plaintiff also seeks costs.

Background

2. The plaintiff Label Manufacturers Australia Pty Ltd (Label Manufacturers) is a company within the TMA Group of Companies Limited (TMA Group) and is apparently a leading supplier of labels and packaging in Australia. The first defendant is a former Chief Executive Officer of TMA Australia Pty Limited (TMA Australia) with whom he commenced employment in February 2017. His employment was later transferred to Label Manufacturers (in March 2018). On 21 June 2021, Label Manufacturers issued the first defendant with a notice of termination of his employment. The notice period was six months in accordance with his employment agreement. The first defendant commenced employment with Reflex Labels & Packaging Asia Pacific Pty Ltd (Reflex Labels) on 1 August 2022 and is a Director of that company. Reflex Labels is a direct competitor of Label Manufacturers. The first defendant is also a Director of the third defendant Reflex Group Asia Pacific Pty Ltd (Reflex Group), of which the second defendant is part, and he was similarly made a Director on 1 August 2022.

3. I observe that last year, in Label Manufacturers Australia Pty Ltd v Chatzopoulos [2022] NSWSC 1059 (the Restraint Proceedings), Parker J dismissed the plaintiff’s Summons for injunctions to enforce covenants in the first defendant’s employment contract which would have prevented him from undertaking work of the type undertaken in his employment with the plaintiff until December 2023, i.e. until two years after the termination of the first defendant‘s employment. No relief for beach of confidence, apprehended breach of confidence, breach of ss 182 or 183 of the Corporations Act 2001 (Cth) (the Corporations Act) or for the tort of unlawful interference with trade was sought in those proceedings. Indeed, those proceedings were concerned only with the enforcement of the employment restraints in the first defendant’s employment contract.

The Rule

4. Rule 5.3 of the UCPR provides:

(1) If it appears to the court that—

(a) the applicant may be entitled to make a claim for relief from the court against a person (the prospective defendant) but having made reasonable inquiries, is unable to obtain sufficient information to decide whether or not to commence proceedings against the prospective defendant, and

(b) the prospective defendant may have or have had possession of a document or thing that can assist in determining whether or not the applicant is entitled to make such a claim for relief, and

(c) inspection of such a document would assist the applicant to make the decision concerned,

the court may order that the prospective defendant must give discovery to the applicant of all documents that are or have been in the person’s possession and that relate to the question of whether or not the applicant is entitled to make a claim for relief.

(2) An order under this rule with respect to any document held by a corporation may be addressed to any officer or former officer of the corporation.

(3) Unless the court orders otherwise, an application for an order under this rule—

(a) must be supported by an affidavit stating the facts on which the applicant relies and specifying the kinds of documents in respect of which the order is sought, and

(b) must, together with a copy of the supporting affidavit, be served personally on the person to whom it is addressed.

(4) This rule applies, with any necessary modification, where the applicant, being a party to proceedings, wishes to decide whether or not to claim or cross-claim against a person who is not a party to the proceedings.

Evidence

5. A Joint Court Book was tendered in the hearing. It contains three affidavits that were read in the proceedings and formed the evidence in the hearing.

Affidavit of Anthony Karam 7 October 2022

6. Mr Karam is the Executive Chairman of the TMA Group. He observes that Label Manufacturers’ customers include the nation’s leading food suppliers and the Commonwealth Department of Finance and the Department of Immigration. He notes that during his employment with Label Manufacturers, the first defendant had access to confidential information and that the use of that confidential information was strictly proscribed in the first defendant’s employment contract, the obligations for which survive his termination. The first defendant also agreed, during the term of his employment, not to become engaged, interested, concerned in, assist, consult to, or promote products of another business.

7. During his notice period, the first defendant had access to his computer and work email account and was called upon to attend to matters including engaging with clients and approving invoices. A document annexed to Mr Karam’s affidavit indicates, on one view, that the first defendant accessed the plaintiff’s server on the Tuesday, Wednesday, Thursday, and Friday during his last week of employment. Mr Karam says that he holds a reasonable suspicion that the first defendant deleted emails from the inboxes of his work account.

8. In July 2022, Mr Karam engaged the IT department to perform a search of the email address operated by the first defendant during his employment with the plaintiff and the emails sent to his personal email address. A document obtained in that search appears to identify that on five occasions, the first defendant may have sent confidential information to his personal email address, including the day on which he was given his notice of termination. The content of the information appears to be described in the attachments to an email to first defendant’s personal email address. Further, other documents suggest that the first defendant did not clean out the files on his work laptop by double deleting them but rather that he sent material to his private email address.

9. Mr Karam has had conversations with a person who indicated that the first defendant has contacted current suppliers of the plaintiff, including Innovia Film and Spicers, asking for pricing information. He has also had a conversation with a current employee of TMA Australia, Lynsey Dewars, when she told him that the first defendant had contacted her by WhatsApp in June or July 2022 to have a “super super confidential conversation.” Ms Dewars would not provide Mr Karam any further information.

10. On 9 August 2022, the plaintiff’s IT department performed another search of the first defendant’s work laptop. That search identified that three documents which appeared to have information about quotes, pricing models and pricing were accessed and modified during the first defendant’s notice period, including the day that he was given notice of the termination of his employment. Mr Karam says that the first defendant had no reason to modify these documents, and that he believes that they were copied onto a USB device.

11. In September 2022, Mr Karam had a conversation with a current customer of the plaintiff, with whom the first defendant was dealing on its behalf during his employment with the plaintiff. That client requested that the plaintiff match the price offered by the first and second defendant. He says that by matching that price, the plaintiff would occur a loss of $476,000 each year for the next three years. Since the commencement of the 2023 financial year, Mr Karam has become aware that other customers with whom the first defendant was dealing during his employment with the plaintiff have ceased their business with the plaintiff, and others have spent less money in comparison with the 2022 financial year. This reduction in spending coincides with the first defendant leaving the plaintiff and commencing employment with the second defendant. If the anticipated loss trend continues, Mr Karam anticipates a loss of close to $2 million for the plaintiff. Further, since July 2022, Mr Karam says that the plaintiff’s clients Lithocraft Pty Limited, Rugby Farm Limited and 101 Warehousing Limited have left the plaintiff to go with another supplier causing the plaintiff a loss of $1,107,656. Mr Karam has requested the name of their new supplier(s), but they have refused to disclose that information.

12. By way of inference from those matters set out in paragraphs [7] to [11] above, Mr Karam believes that the plaintiff may have a claim against the first defendant for unlawful interference with trade, contravention of his obligations pursuant to ss 182 and 183 of the Corporations Act and his duty of confidence both in contract and in equity. Similarly, he believes that the plaintiff may have claims against the second and third defendants for unlawful interference with trade and contraventions of ss 182 and 183 of the Corporations Act. In order to ascertain whether or not to commence proceedings against the defendants, he says that it is necessary to obtain the documents set out in the Summons. Mr Karam says that in addition to the searches conducted by the plaintiff’s IT department on 13 July 2022 and 9 August 2022 of the plaintiff’s laptop (which was used by the first defendant when he was employed by the plaintiff), on 10 August 2022 correspondence was sent to the first, and second and third defendants’ solicitors requesting the documents sought in the Summons, which they have refused to provide. He observes that the information sought is not available in the public domain.

Affidavit of Anthony Graham Charles Gooch 28 November 2022

13. Mr Gooch is the solicitor on record for the first defendant. Annexed to his affidavit are a Notice to Produce for Inspection issued in the Restraint Proceedings, a letter from him to the solicitor for the plaintiff dated 1 November 2022, and a letter in reply from the solicitor for the plaintiff dated 4 November 2022. I infer from those documents that the first defendant has not produced any documents that were requested by the plaintiff’s solicitor.

Affidavit of Steven Antonio Mattiussi 30 November 2022

14. The second and third defendants relied on an affidavit of Steven Antonio Mattiussi, who is their solicitor on the record. His affidavit annexes an exchange of letters between him and the plaintiff's solicitor between 22 July 2022 and 12 August 2022. I observe that the second and third defendants were not parties to the Restraint Proceedings and that documents have not been produced in answer to a request made by the plaintiff's solicitor.

Principles with respect to Preliminary Discovery

15. The principles governing whether a court should make an order for preliminary discovery are well settled. In O’Connor v O’Connor [2018] NSWCA 214 (O’Connor) the court (Simpson AJA, Macfarlan and McColl JJA agreeing) held that when determining whether to grant an application for preliminary discovery pursuant to the UCPR r 5.3, a court may order a person who is not yet a party to proceedings (the prospective defendant) to give discovery of documents in his, her or its possession that would enable another person (the prospective plaintiff) to decide whether or not to commence proceedings against the prospective defendant.

16. At [21] of O’Connor, Simpson AJA said that an order may be made, if it appears to the court that:-

“i. that the applicant may be entitled to make a claim for relief against the perspective defendant;

ii. that the applicant has made reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings;

iii. that, having made those enquiries, the applicant is unable to obtain sufficient information to make that decision;

iv. that the prospective defendant may have or have had possession of a document or documents that may assist in determining whether the applicant is entitled to make a claim for relief; and

v. that inspection of such a document would assist the applicant to make the decision (that is, the decision whether or not to commence proceedings).”

17. If it appears to the court that all of those circumstances exist, the court, in an exercise of discretion, may order the prospective defendant to give discovery to the applicant of all documents in its possession that relate to the question of the entitlement of the applicant to make a claim for relief.

18. The threshold set by the rule is low. It must appear to the court that an applicant may be entitled to make a claim for relief, and that a prospective defendant may have or have had possession of relevant documents and that inspection would assist the applicant to decide whether to commence proceedings: O’Connor at [23].

19. Simpson AJA (at [27] and [30]) approved the observations of McColl JA in Hatfield v TCN Channel 9 Pty Ltd (2010) 77 NSWLR 506; [2010] NSWCA 69, to the following effect: that it is not necessary for an applicant to show a prima facie or pleadable case, that it will be sufficient if there is reasonable cause to believe that the applicant may have a right of action resting on some recognised legal ground, that the use of the word “may” indicates that the court does not have to reach a firm view that there is a right to relief, that the question posed by the rule is not whether the applicant has sufficient information to decide if a cause of action is available against the perspective respondents, but whether the applicant has sufficient information to make a decision whether to commence proceedings and that the rule is to be beneficially construed given the fullest scope that its language will reasonably allow.

20. At [30] her Honour said:-

“It may be emphasised that there is no requirement that an applicant for preliminary discovery establish even a prima facie case for relief; nor is it necessary that an applicant specify with precision the cause of action proposed, although it will be necessary, in order to make it “appear to the court” the applicant “may be entitled to make a claim for relief” that the applicant provide some particularisation of the nature of the relief in contemplation. That is so, not only to enable the court to form a view about whether the applicant may be entitled to make a claim for relief, but also to enable the prospective defendant, if an order is made, to determine which, if any, documents in possession are to be discovered.”

21. Furthermore, at [69], her Honour approved of the comments of Allsop CJ in Pfizer Island Pharmaceuticals v Samsung Bioepis AU Pty Ltd (2017) 351 ALR 103; [2017] FCAFC 193, where his Honour criticised a practice of treating applications for preliminary discovery (under the Federal Court rule) as “a form of mini trial where a form of fact finding takes place, well beyond the mandate of the words of the rule”. An application under r 5.3 does not involve a determination of the merits of any claim for relief an applicant might propound: see O’Connor at [76].

Parties’ submissions

22. In its written submissions, the plaintiff submits that it has made out a case for an order for preliminary discovery as against the prospective defendants. The plaintiff says that by the first defendant emailing what it believes to be confidential information to the first defendant’s personal email accounts, and the likely copying of Microsoft Excel documents to the first defendant’s USB drives as well as his intimate knowledge of the plaintiff’s pricing structures, it appears that he may have in his possession relevant documents or things, the inspection of which would assist the plaintiff in making a decision as to whether or not to commence proceedings and make a claim for unlawful interference with trade and/or contraventions of ss 182 and 183 of the Corporations Act and/or a breach of a duty of confidence both in contract and in equity. The plaintiff submits that it has made all reasonable inquiries, through its internal IT systems and by way of correspondence in an effort to obtain the documents which are not publicly available.

23. With respect to the second and third defendants, by virtue of the first defendant being employed by, and being a director of both of them, the plaintiff submits that they may possess information that may give rise to claims against them and in particular conduct which may amount to an unlawful interference with trade and/or contraventions of s 182 and or s 183 of the Corporations Act, in particular by virtue of the extended definition of the word “involvement” in s 79 of that Act.

24. In written submissions, the first defendant says that the Summons ought to be dismissed because the plaintiff produces no evidence upon which the court could conclude it has an entitlement to bring any fresh claim against the first defendant, that the plaintiff has failed to adduce any evidence beyond mere assertion as to why the documents it seeks are necessary for it to form a decision about whether to proceed against the first defendant, the plaintiff has adduced no evidence about any attempt it has made to locate the documents it seeks elsewhere and that the categories of documents sought are too broad and unlinked to any purported cause of action.

25. Mr O’Neill on behalf on the first defendant says that even if there were a realistic cause of action against the first defendant, it is difficult to see why the plaintiff would not be estopped from advancing it, taking into account the High Court’s decision in Port of Melbourne Authority v Anshun Pty Ltd (1981) 148 CLR 589; [1981] HCA 45 (Anshun).

22. The first defendant submits that the high point of the plaintiff’s case is taken from four allegations in Mr Karam’s affidavit, being five occasions when the first defendant sent information from himself to his other email account during his notice period, a contention about an alleged failure by the first defendant to double delete emails, being emails that were adduced by him in the Restraint Proceedings, undated contact by the first defendant with former clients of the plaintiff and access by the first defendant to the plaintiff’s documents whilst he was employed by it.

23. Mr O’Neill submits that as to the five occasions, whilst the emails are said to be confidential, there is no evidence as to why that is so. Further he submits that there is no evidence to suggest that by sharing emails between his accounts, the first defendant was doing anything untoward.

24. As to the failure to double delete, Mr O'Neill submits that the correct inference is that they derive from the first defendant’s Gmail address which he was using for business purposes. As to client contact, Mr O’Neill submits that the court could not be satisfied that it might point to a breach of any contractual or other obligation. As to the access to documents whilst employed, Mr O'Neill submits that the evidence at tab 7 of Mr Karam’s affidavit is unintelligible and cannot lead to the conclusion that the files have been copied to a USB.

25. In Mr O’Neill’s submission there has been no genuine attempt to explain how it is that the documents sought are necessary for the plaintiff to arrive at a decision to litigate, and neither is there any evidence that any genuine attempt has been made to source the documents elsewhere.

26. As to the proposed categories of documents, Mr O'Neill submits that they are impermissibly wide in scope. He submits that categories (a)(i) to (viii) all suffer from a temporal problem in the absence of any clear articulation as to how any document that might be produced could be relevant to any breach of obligation. Category (a)(v), in his submission, is not connected to any alleged breach of obligation, and he observes that it is not contended that Ms Dewars has left the employment of TMA Group.

27. In his written submissions, Mr Anderson on behalf of the second and third defendants, says that the plaintiff has not met the (admittedly) undemanding requirements for preliminary discovery and that the Summons should be dismissed.

28. Mr Anderson submits that whilst the possible causes of action need not be specified with precision, the tort of unlawful interference with trade may not exist in Australian law. Further, he submits that the evidence of Mr Karam is squarely in the realm of suspicion and conjecture. He says that to the extent that the second defendant was somehow involved in breaches of the first defendant’s duties pursuant to ss 182 and 183 of the Corporations Act by way of an involvement in a misuse by the first defendant of the plaintiff’s confidential information, then that contention is unsupported because Mr Karam only addresses the sending of various emails to the first defendant's personal email addresses. He also submits that the evidence does not sufficiently link the documents sought by way of preliminary discovery with the proposed claims for relief or explain how the information contained in the documents sought might assist the plaintiff.

29. Mr Anderson submitted that as a matter of discretion each of the categories sought should be refused. He submitted that no category relates to the question of the entitlement of the applicant to make a claim for relief.

30. As to category b(i), Mr Anderson said that the relevance of the documents sought is unclear, as was similarly argued by Mr O’Neill on behalf of his client. Mr Anderson says that the category is directed at negotiations between the second defendant’s entities with respect to its employment of the first defendant, but no complaint is made about the circumstances of the engagement of the first defendant.

31. As to category (ii), being communications between Mr Ian Kendall and the first defendant, Mr Anderson submits that the category is unconstrained by subject matter and is likely to capture irrelevant and extraneous communications which would be refused as a matter of discretion. I note here that I entirely agree with Mr Anderson about category (ii). In my opinion it is entirely irrelevant and I am unable to understand, taking into account the drafting of that category, how it could be possibly relevant to any prospective proceedings.

32. As to category (iii), being communications in relation to the first defendant’s registration of the second and third defendants, Mr Anderson submits that the relevance of the documents is unclear bearing in mind that the entities were incorporated on 8 June 2022, just short of 12 months after the first defendant’s employment was terminated on 21 June 2021 and just short of six months after that notice period expired on 20 December 2021.

33. As to category (iv), being documents recording communications with respect to the first defendant’s involvement in the purchase of United Labels by the second or third defendants, Mr Anderson submits that the first defendant's possible involvement in that acquisition is irrelevant.

34. As to category (v), being documents recording communications between Mr Darren Curry or any employee of the first or second defendants about Innovia Films, Mr Anderson submits that there has been no evidence about any request having been made of Innovia so that the court would not be satisfied that reasonable inquiries had been made to obtain these documents.

35. As to category (vi), which relates to communications with Spicers Australia, Mr Anderson repeats the submissions made with respect to category (v).

36. As to category (vii), which relates to communications with Lithocraft Pty Ltd, Rugby Farm Pty Ltd and 101 Warehousing Pty Ltd, Mr Anderson says that the logic underpinning his suspicion and conjecture founded on coincidence, that is that former clients have left the plaintiff, the first defendant has left the plaintiff, the first defendant has joined the second defendant and therefore so too have the former clients. In his submission, there is no rational basis for the drawing of such a conclusion. He says that the category is, in any event, an overreach because it seeks documents from 21 June 2021 even though Mr Karam is certain that the clients left “since July 2022”. I observe that 2021 is clearly meant to read 2022.

37. As to category (viii), which seeks documents recording any non-disclosure agreement between the second or third defendants and the first defendant, Mr Anderson submitted that it is clearly irrelevant. I agree entirely with this submission.

Consideration

42. The relevant test is whether it “appears to the court” that a cause of action “may” exist.

43. The facts as deposed to by Mr Karam are for all intents and purposes uncontradicted in these proceedings. Of course, if the plaintiff makes a decision to commence proceedings, I do not doubt that they will be defended and those matters in Mr Karam’s affidavit, if repeated, are likely to become controversial.

44. However in my opinion, taking into account the five factors set out above at [16], in my view, Mr Karam’s assertions rise above suspicion or conjecture (see Hatfield at [520]) and it appears that he may be entitled to make a claim for relief against each of the prospective defendants. That his views appear to rest upon some speculation is understandable because he does not have access to the very documents he seeks, and which gives rise to the very purpose of the application – so that the plaintiff can make a decision about whether or not to commence proceedings.

45. It is possible that Mr Karam will not make a claim against one or another of the defendants. However, based upon what he has discovered so far, in my view he has reasonable cause to believe that he may have a right of action on some recognised legal ground, or in other words that is within contemplation that he may have a claim for relief against the defendants. Taking Mr Karam’s discoveries set out in paragraphs [7] to [11] as a starting point, in my view it appears that the plaintiff may have a right of action against the first defendant with respect to a breach of confidence pursuant to his employment contract or in equity, and/or a breach of his duties as director of the plaintiff pursuant to the Corporations Act and/or with respect to unlawful interference with trade. Further, in my view it appears that the plaintiff may have a right of action against the second and third defendants with respect breaches of the Corporations Act and/or with respect to an unlawful interference with trade.

46. As to the first defendant’s submission that the plaintiff may be estopped from advancing any claim pursuant to the principles set out in Anshun, in my opinion that is a possible defence which would have to be decided at a strike out application or a final hearing, if one eventuates. In my view, it would be inappropriate to make such a determination on an application for preliminary discovery. The same can be said for the defendants’ submission that the tort of lawful interference with trade may not exist as part of Australian law. That is a matter yet to be determined by the High Court. It is a matter that should be determined on a strike out application or at a final hearing, rather than on an application for preliminary discovery.

47. I accept that the plaintiff has made reasonable enquiries to obtain sufficient information to decide whether or not to commence proceedings. Those inquiries need be no more than reasonable and do not have to be exhaustive. I accept too, that having made those enquiries, the plaintiff is unable to obtain sufficient information to make a decision whether or not to commence proceedings. I find that that the prospective defendants may have or have had possession of a document or documents that may assist in determining whether the applicant is entitled to make a claim for relief and that inspection of such a document would assist the applicant to make the decision about whether or not to commence proceedings.

48. As to the categories of documents to be produced, they must “relate to the question of whether the applicant is entitled to make a claim for relief”. I am satisfied that they do so relate, save for those categories that are set out in para (a)(ii) and (b)(ii) and (viii) on pages 2 and 3 of the Summons. In my view there are no reasons which militate against the exercise of my discretion in this matter.

Costs

49. As to costs, in his written submissions Mr Anderson says if the application for preliminary discovery is allowed, the plaintiff should pay the second and third defendants’ costs of giving discovery and he relies on UCPR r 5.8 and Andrews Advertising Pty Limited v Andrews [2011] NSWSC 244 at [54] – [57]. In that case Ball J gave Andrews Advertising its costs of the application, as it had succeeded. However, his Honour ordered (in the particular circumstances of that case, and about which there was some evidence about the costs associated with production) Andrews Advertising to pay the second, third, fourth and sixth defendants costs of production and preparation of their affidavits of discovery.

50. Rule 5.8 provides:-

5.8   Costs and other expenses

(1)  On any application for an order under this Part, the court may make orders for the costs of the applicant, of the person against whom the order is made or sought and of any other party to the proceedings.

(2)  The costs in respect of which such an order may be made include—

(a)  payment of conduct money, and

(b)  payments made on account of any expense or loss in relation to the proceedings, and

(c)  the costs of making and serving any list of documents, and

(d)  the costs of producing any documents for inspection, and

(e)  the costs of otherwise complying with the requirements of any order under Division 1 of Part 21, as applying to the discovery and inspection of documents the subject of an order for discovery under this Part.

51. Rule 5.8 permits me to make, in effect, any orders that I see fit with respect to costs and other expenses. In the present case, which was contested in an adversarial fashion, the plaintiff has been successful and should have its costs of the application. However, in my opinion, in circumstances where the plaintiff may not commence proceedings against one or any of the defendants, and there well may a search required to retrieve the documents, as they are unlikely to be readily at hand, as conceded by Mr Glisson, the plaintiff should pay the reasonable costs of the defendants’ compliance with the to produce a verified list of documents. Against the possibility that the plaintiff commences proceedings against one or more defendants, then the plaintiff should be able to recover those costs in the substantive proceedings if successful. I observe that some of the documents, the subject of the order I will make, are likely to be commercially sensitive. It is likely that a confidentiality regime will need to be put in place and I will therefore grant the parties liberty to apply.

Orders

52. I make the following orders:

1. By 7 July 2023 the defendants are to serve on the plaintiff in accordance with Uniform Civil Procedure Rules 2005 r 21.3, a verified list of documents and things which or have been in any of the defendants’ possession, custody or control responding to categories of documents at Annexure “A” to these orders (which are the categories contained in the Summons but for (a)(ii) and b(ii) and (viii)).

2. The defendants are to make the documents and things in the verified list referred to in order 1 available for inspection by 21 July 2023.

3. The defendants are to pay the plaintiff’s costs of the Summons dated 10 October 2022, as agreed or assessed.

4. The plaintiff is to pay the defendants’ costs of compliance with order 1, as agreed or assessed.

5. In the event that the plaintiff commences substantive proceedings against one or more defendants, costs paid in accordance with order (4) above are to be dealt with as an expense incurred by the plaintiff in its pursuit of the substantive proceedings.

6. Liberty to apply on 3 days notice.

Annexure A

Pursuant to Rule 5.3 of the Uniform Civil Procedure Rules 2005 (UCPR) that the:

(a) First Defendant gives preliminary discovery of the following documents:

(i) Documents, including text messages, instant messages (including WhatsApp) and emails, recording all communications since 21 June 2021 between any employee, officer or agent of Reflex Labels & Packaging Asia Pacific Pty Ltd (Reflex Labels), Reflex Group Limited (Reflex Group) or Reflex Group Asia Pacific Pty Ltd (Reflex Group Asia Pacific) and Mr Chatzopoulos, in relation to negotiations about the employment or engagement as a director, consultant, contractor or officer, of Mr Chatzopoulos by Reflex Labels, Reflex Group, Reflex Group Asia Pacific or United Labels and Packaging Pty Ltd (united Labels)

(iii) Documents, including text messages, instant messages (including WhatsApp) and emails, recording all communications since 21 June 2021 between any employee, officer or agent of Reflex Labels, Reflex Group or Reflex Group Asia Pacific and Mr Chatzopoulos, in relation to Mr Chatzopoulos’ involvement in the registration of Reflex Labels or Reflex Group Asia Pacific as a company in Australia.

(iv) Documents, including text messages, instant messages (including WhatsApp) and emails, recording all communications since 21 June 2021 between any employee, officer or agent of Reflex Labels, Reflex Group or Reflex Group Asia Pacific and Mr Chatzopoulos, in relation to Mr Chatzopoulos’ involvement in the purchase of United Labels by Reflex Labels, Reflex Group or Reflex Group Asia Pacific.

(v) Documents, including text messages, instant messages (including WhatsApp) and emails, recording all communications since 1 January 2022 between Ms Lynsey Dewars and Mr Chatzopoulos about Mr Dewars obtaining employment at Reflex Labels or Reflex Group Asia Pacific or any discussion about her leaving the employment of Label Manufacturers.

(vi) Documents, including text messages, instant messages (including WhatsApp) and emails, recording all communications since 21 June 2021 between Mr Darren Curry and Mr Chatzopoulos about Innovia Films (Asia Pacific) Pty Ltd being a supplier for Reflex Labels, Reflex Group or Reflex Group Asia Pacific.

(vii) Documents, including text messages, instant messages (including WhatsApp) and emails, recording all communications since 21 June 2021 between any employee, officer or agent of Spicers Australia Pty Ltd and Mr Chatzopoulos about Spicers Australia Pty Ltd being a supplier for Reflex Labels, Reflex Group or Reflex Group Asia Pacific.

(viii) Documents, including text messages, instant messages (including WhatsApp) and emails, recording all communications since 21 June 2022 between any employee, officer or agent of Lithocraft P/L Trustee Lithocraft Graphics Unit, Rugby Farm Pty Ltd or 101 Warehousing Pty Ltd and Mr Chatzopoulos.

(b) Second and Third Defendants give preliminary discovery of the following documents:

(i) Documents, including text messages, instant messages (including WhatsApp) and emails, recording all communications since 21 June 2021 between any employee, officer or agent of Reflex Labels, Reflex Group or Reflex Group Asia Pacific and Mr Chatzopoulos, in relation to negotiations about the employment or engagement as a director, consultant, contractor or officer, of Mr Chatzopoulos by Reflex Labels, Reflex Group, Reflex Group Asia Pacific or United Labels.

(iii) Documents, including text messages, instant messages (including WhatsApp) and emails, recording all communications since 21 June 2021 between any employee, officer or agent of Reflex Labels, Reflex Group or Reflex Group Asia Pacific and Mr Chatzopoulos, in relation to Mr Chatzopoulos’ involvement in the registration of Reflex Labels or Reflex Group Asia Pacific as a company in Australia.

(iv) Documents, including text messages, instant messages (including WhatsApp) and emails, recording all communications since 21 June 2021 between any employee, officer or agent of Reflex Labels, Reflex Group or Reflex Group Asia Pacific and Mr Chatzopoulos, in relation to Mr Chatzopoulos’ involvement in the purchase of United Labels by Reflex Labels, Reflex Group or Reflex Group Asia Pacific.

(v) Documents, including text messages, instant messages (including WhatsApp) and emails, recording all communications since 21 June 2021 between Mr Darren Curry and any employee, officer or agent of Reflex Labels, Reflex Group or Reflex Group Asia Pacific about Innovia Films (Asia Pacific) Pty Ltd being a supplier for Reflex Labels, Reflex Group or Reflex Group Asia Pacific.

(vi) Documents, including text messages, instant messages (including WhatsApp) and emails, recording all communications since 21 June 2021 between any employee, officer, or agent of Spicers Australia Pty Ltd and any employee, officer or agent of Reflex Labels, Reflex Group or Reflex Group Asia Pacific about Spicers Australia Pty Ltd being a supplier for Reflex Labels, Reflex Group or Reflex Group Asia Pacific.

(vii) Documents, including text messages, instant messages (including WhatsApp) and emails, recording all communications since 21 June 2022 between any employee, officer, or agent of Lithocraft P/L Trustee Lithocraft Graphics Unit, Rugby Farm Pty Ltd or 101 Warehousing Pty Ltd and any employee, officer or agent of Reflex Labels, Reflex Group or Reflex Group Asia Pacific.

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Decision last updated: 15 June 2023