Lift Shop Pty Ltd v Lioe (No 2)
[2023] FedCFamC2G 596
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Lift Shop Pty Ltd v Lioe (No 2) [2023] FedCFamC2G 596
File number(s): SYG 1995 of 2020 Judgment of: JUDGE CAMERON Date of judgment: 7 July 2023 Catchwords: PRACTICE & PROCEDURE – Discovery – expert report produced providing forensic imaging and analysis for previously undisclosed devices – whether report was beyond the scope of the orders – claim of confidentiality. Cases cited: Lift Shop Pty Ltd v Lioe [2023] FedCFamC2G 179 Division: General Division Number of paragraphs: 41 Date of hearing: 28 June 2023 Place: Sydney Counsel for the Applicant: Mr J. Hennessy SC Solicitor for the Applicant: Gilbert + Tobin Counsel for the Respondents: Mr A. Gandar Solicitor for the Respondents: Kerrs Law Pty Ltd ORDERS
SYG 1995 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: LIFT SHOP PTY LTD
Applicant
AND: DEVI LIOE
Second Respondent
EASY LIVING HOME ELEVATORS PTY LTD ACN 083 936 896
Third Respondent
order made by:
JUDGE CAMERON
DATE OF ORDER:
7 July 2023
THE COURT ORDERS THAT:
1.The respondents’ application in a proceeding dated 15 June 2023 be dismissed.
2.The costs of the application in a proceeding be reserved.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CAMERON
INTRODUCTION
The applicant (Lift Shop) commenced this proceeding on 24 August 2020 by an application which alleged that one of its former employees, the second respondent Ms Lioe, had received from one of its then-employees, the then-first respondent Mr Nasution, confidential information belonging to it. On 20 July 2022 Ms Lioe’s current employer and Lift Shop’s business competitor, Easy Living Home Elevators Pty Ltd (ELHE), was joined as the third respondent.
BACKGROUND FACTS
Relevantly, Lift Shop alleges in its further amended statement of claim that documents it described as the Confidential Spreadsheet, the Confidential Timesheets, the Confidential Payroll Tax Spreadsheet and the Confidential Management Summary Reports, giving them the omnibus description Lift Shop Copyright Works (together, the Documents):
(a)which contained confidential and sensitive commercial information over which it asserts copyright; and
(b)were sent by Mr Nasution to Ms Lioe who downloaded onto, and/or opened them on, unspecified devices thereby reproducing the whole or a substantial part of one or more of the Documents.
The further amended statement of claim, and its predecessor pleadings, defined the Confidential Spreadsheet to be:
The confidential spreadsheet containing information about Lift Shop’s Australian and US jobs from August 2019 to May 2020 sent by Nasution … to Lioe … on 4 June 2020.
On 24 August 2020 the Court made orders on an ex parte basis (First Discovery Orders), the relevant effect of which was to require Ms Lioe, by 2 September 2020, to identify and deliver up to Lift Shop’s solicitors for inspection by Lift Shop’s computer expert, Mr McKemmish, those Respondent’s Storage Devices that on 24 August 2020 were or had been in her possession, custody or control and held Records, which were defined to be:
… any records within any of the Respondents’ possession, custody or control relating to the use of the Confidential Spreadsheet including but not limited to records containing the names, addresses, telephone numbers, and email addresses of individuals to whom any one or more Respondent has supplied, offered to supply, distributed or offered to distribute, or sold or offered to sell the Confidential Spreadsheet, or any copy of that document, or information disclosed in that document…
Respondents’ Storage Devices was a term defined by the orders as:
… any External Storage Devices containing Records within each Respondents’ [sic] possession, custody or control …
External Storage Device was defined as:
… any desktop or laptop computer, mobile phone, tablet or electronic storage device …
The term Confidential Spreadsheet had been described in the affidavit of Darrell Teren Santos affirmed 24 August 2020 in terms similar to those used in the various iterations of the statement of claim. It may be inferred from the orders the Court made on 24 August 2020 that Mr Santos’s affidavit was read at that initial stage of the proceeding.
Mr McKemmish was ordered on 24 August 2020 to:
(a)make a forensic image of each of the Respondent’s Storage Devices (the Forensic Image); and
(b)identify the Records contained in the Forensic Image; and
(c)otherwise undertake non-destructive testing of the Forensic Image for the purpose of investigating the Respondents’ conduct in relation to the Confidential Spreadsheet.
On 2 September 2020, the Court made orders (Second Discovery Orders) applying the defined terms employed in the First Discovery Orders, that extended the time for the delivery up of the Respondent’s Storage Devices and, most relevantly, refined Mr McKemmish’s obligations. Orders 7 and 8 provided:
7. The Applicant’s independent computer expert, to:
(a)make a forensic image of each of the Respondent’s Storage Devices (the Forensic Image); and
(b)identify only the Records contained in the Forensic Image, with the specific direction that he not identify and report on any item that is not the Records within the Forensic Image; and
(c)otherwise undertake non-destructive testing of the Forensic Image for the purpose of investigating the Respondents’ conduct in relation to the Confidential Spreadsheet.
8. Subject to the process referred to in Order 9 below, the Applicant’s independent computer expert may disclose to the Applicant’s and respective Respondents' solicitors and Counsel only, the results of the investigation of the Records only, within the Forensic Image pursuant to Order 7 above, including for the purposes of preparing a report for this proceeding.
Pursuant to the Second Discovery Orders Mr McKemmish inspected forensic images of a Samsung Galaxy Sl0 and a Lenovo IdeaPad 510-J5IKB, respectively the Phone and Laptop 1 (together, the Original Devices) that had been in Ms Lioe’s possession. Mr McKemmish provided reports dated 17 September 2020 and 15 October 2020 in relation to his examination. In an affidavit referred to in an earlier judgment in this proceeding, Lift Shop Pty Ltd v Lioe [2023] FedCFamC2G 179 at [11], Mr McKemmish deposed that he did not undertake any broader analysis of the devices, such as a Standard Forensic Analysis, which he described as:
… analysis of the [devices] and their use to identify activity which is not captured by the definition of Records [ie Records] in order 9(b) of the 24 August 2020 orders,
having earlier deposed that standard computer forensic techniques include:
(a) the use of forensic software packages such as EnCase, Forensic Toolkit, Nuix, Winhex, Helix, Autopsy, Axiom, Belkasoft, Cellebrite, XRY, and Oxygen;
(b) reconstructing from electronic information user activity concerning the use of computer programs or computer data files; and
(c) the use of "data-mining" tools to identify patterns or trends in data.
The Second Discovery Orders were varied on 22 February 2022 (Third Discovery Orders) to provide for the forensic images that had been made pursuant to them to be searched further for communications between Mr Nasution and Ms Lioe and for records of any transfer or communication of Lift Shop's confidential information to ELHE (Additional Records).
On 6 April 2022 Mr McKemmish produced the results of his further forensic analysis in the form of logs of communications between Mr Nasution and Ms Lioe which Mr McKemmish recorded in Excel spreadsheets.
On 27 October 2022 Lift Shop filed an application in a proceeding relevantly seeking a Standard Forensic Analysis of the Original Devices and of two further devices that Ms Lioe had used, a desktop and a laptop, respectively the Desktop and Laptop 2 (together, the Subsequent Devices). That application was, in large part unsuccessful. In relation to the application for a Standard Forensic Analysis I said in Lift Shop Pty Ltd v Lioe :
[48]What exactly a Standard Forensic Analysis is, is not clear. It is concerned with “activity” but that is a very wide concept and much broader and intrusive into irrelevant communications than the present dispute would appear to warrant, particularly as its lack of clarity is also likely to lead to disputes over the proper scope of any scrutiny permitted by reference to it. Given the investigations which have already taken place pursuant to the wide terms of the orders of 22 February 2022, and the absence of a precise and suitably confined definition of Standard Forensic Analysis, which I do not accept Mr McKemmish’s quoted definition to be, ordering further inspection by reference to that term would not be appropriate.
…
[54]I do not agree that further, unfocussed investigations of the Original Devices should be permitted, although a search in relation to TeamViewer according to the conditions set out in the orders made on 24 August 2020 and 2 September 2020 will be. I am also unpersuaded that there is a need to submit the Subsequent Devices for forensic investigation.
On 9 March 2023 the Second Discovery Orders were varied and extended again (Fourth Discovery Orders) to permit the forensic examination that produced the report that is the subject of the present application. Relevantly the Fourth Discovery Orders provided:
1.Orders 7 and 8 of the orders made on 2 September 2020 be varied to permit the applicant’s independent computer expert, Rodney McKemmish, with the assistance of persons acting under his direction and instruction, to conduct an analysis of the Forensic Images (as defined in order 7(a) of the orders made on 2 September 2020) of the laptop computer produced by the second respondent in accordance with orders made on 24 August 2020 and 2 September 2020, for the purpose of considering the second respondent’s usage of the TeamViewer software to communicate with Handi Nasution.
...
4.Mr McKemmish will first disclose such results to the second and third respondents’ solicitors and counsel for 14 days for the purpose of a check of the results to identify material that may be subject to client legal privilege, or a claim for further or additional confidentiality orders by the relevant respondent, which material will be identified to Mr McKemmish and isolated to facilitate a privilege claim and a confidentiality claim, or either of them, by the relevant respondent.
...
Mr McKemmish performed a further examination of the Original Devices and has produced a report dated 27 April 2023 that is marked “Interim Report”. A full copy of that report has been provided to the respondents’ solicitors who have provided a redacted version to Lift Shop’s solicitors. The respondents assert that Mr McKemmish exceeded his remit, contending that his report indicates that he extended his examination to devices other than the two Original Devices and also performed a Standard Forensic Analysis rather than limit himself to undertaking what the Court’s orders permitted, namely:
… non-destructive testing of the Forensic Image for the purpose of investigating the Respondents’ conduct in relation to the Confidential Spreadsheet,
…
… for the purpose of considering the second respondent’s usage of the TeamViewer software to communicate with Handi Nasution.
The copy of the 27 April 2023 report that was provided to Lift Shop’s solicitors omitted through redaction its paras.20 and 21. It is to the contents of those paragraphs that the present debate relates.
APPLICATION IN A PROCEEDING
On 15 June 2023 the respondents filed an application in a proceeding seeking the following orders:
1.Order that Mr McKemmish not disclose to the applicant’s solicitors and counsel, or any other person, the Summary Forensic Report dated 27 April 2023 (McKemmish Report) or the results of his searches and forensic analysis conducted pursuant to order 1 of the orders made 9 March 2023, except as provided in order 3 below.
2.Order that the applicant’s legal representatives are to instruct Mr McKemmish to destroy the results of any searches or forensic analysis undertaken by Mr McKemmish, or persons acting under his direction and instruction, on the second respondent’s laptop computer and mobile phone pursuant to order 1 of the orders made 9 March 2023, except in so far as it relates to the use of TeamViewer software, only, on the second respondent’s laptop computer to connect with any of Mr Nasution’s devices.
3.Grant leave to the applicant to instruct Mr McKemmish to prepare a report for the proceeding regarding the results of his searches conducted pursuant to order 1 of the orders made 9 March 2023 for the purposes of considering the second respondent’s usage of the TeamViewer software to communicate with Mr Nasution, any such report to be limited to reporting on the use of TeamViewer software, only, on the second respondent’s laptop computer to connect with any of Mr Nasution’s devices.
4.Subject to the process referred to in order 5 of these orders, Mr McKemmish may disclose to the applicant's and the second and third respondents' solicitors and counsel only, results of his searches conducted pursuant to order 3 of these orders, including for the purposes of preparing a report for this proceeding.
5.Mr McKemmish will first disclose such results to the second and third respondents’ solicitors and counsel for 14 days for the purpose of a check of the results to identify material that may be subject to client legal privilege, or a claim for further or additional confidentiality orders by the relevant respondent, which material will be identified to Mr McKemmish and isolated to facilitate a privilege claim and a confidentiality claim, or either of them, by the relevant respondent.
6.Until further order, Mr McKemmish and the applicant's legal representatives are not to disclose to the applicant any report or affidavit prepared by Mr McKemmish pursuant to these orders or any results of any investigations conducted by Mr McKemmish under order 3 of these orders.
7.Until further order on the issue, and on the ground that it is necessary to prevent prejudice to the proper administration of justice, publication or any other form of public disclosure of the materials in Confidential Exhibit TK-2 be prohibited other than to:
a. the Court;
b. the second and third respondents’ solicitors and counsel.
8.Order that the applicant’s legal representatives are to inform Mr McKemmish of the effect of these orders.
…
At the hearing, the respondents proposed the following orders in place of orders 2 and 3 sought in the application in a proceeding:
2.Order that the applicant's legal representatives are to instruct Mr McKemmish to destroy the results of any searches or forensic analysis undertaken by Mr McKemmish, or persons acting under his direction and instruction, on the second respondent's laptop computer and mobile phone pursuant to order 1 of the orders made 9 March 2023, except in so far as it relates to:
a)the use of TeamViewer software on the second respondent's laptop computer to connect with any of Mr Nasution's devices;
b)activity on the second respondent's laptop computer during known periods of connection on the TeamViewer software with any of Mr Nasution's devices, only;
c)the use of TeamViewer software on Mr Nasution's devices to connect with the second respondent's laptop computer; and
d)activity on Mr Nasution's devices during known periods of connection on the TeamViewer software of any such device with the second respondent's laptop computer, only.
3.Grant leave to the applicant to instruct Mr McKemmish to prepare a report for the proceeding regarding the results of his searches conducted pursuant to order 1 of the orders made 9 March 2023 for the purposes of considering the second respondent's usage of the TeamViewer software to communicate with Mr Nasution, any such report to be limited to reporting on:
a)the use of TeamViewer software on the second respondent's laptop computer to connect with any of Mr Nasution's devices;
b)activity on the second respondent's laptop computer strictly limited to known periods of connection on the TeamViewer software with any of Mr Nasution's devices, only;
c)the use of TeamViewer software on Mr Nasution's devices to connect with the second respondent's laptop computer; and
d)activity on Mr Nasution's devices during known periods of connection on the TeamViewer software of any such device with the second respondent's laptop computer, only.
Lift Shop opposed the application and sought the provision of an unredacted copy of Mr McKemmish’s report.
At the conclusion of the hearing, in order to maintain the confidentiality of that material pending a ruling on the application in a proceeding, an interim order was made in accordance with proposed order 7.
EVIDENCE
Respondents
The respondents read an affidavit of Tean Kerr, solicitor, the principal value of which was to introduce Mr McKemmish’s interim report dated 27 April 2023, in both redacted and unredacted forms, into evidence.
Applicant
Lift Shop filed an affidavit of Mr McKemmish sworn on 22 June 2023. Mr McKemmish deposed in the following terms to the purpose of the TeamViewer software which was the subject of the report in question:
… TeamViewer is like a portal created between two or more computers to enable each of the computers to see what the other is doing and to switch control of the computers between the users. It is a computer software commonly used, in my experience, by organisations to enable their IT staff (such as an IT helpdesk) to connect to employee computers and carry out remote tasks on them …
and to his experience in conducting investigations into the use of TeamViewer.
Mr McKemmish deposed that a proper investigation of the use of TeamViewer:
…requires the examination of the connections made between two or more computers running Team Viewer and the activities carried on at or around the time the connections are made between the two computers …
and involved verifying that connections recorded in one of the computers were actually made to the other computer and how long the connections were in place.
Mr McKemmish deposed that he undertook a forensic analysis of Ms Lioe’s Laptop 1 based on his understanding of Order 1 of the Fourth Discovery Orders and finalised the interim draft of his report entitled “Forensic Examination of TeamViewer and complimentary activity by Devi Lioe” on 27 April 2023.
In his interim report Mr McKemmish recorded that he had:
… considered the following sources:
a) A forensic analysis of a laptop computer as used by Ms Devi Lioe (‘the Lioe laptop”) ….
b) A forensic analysis of a mobile phone as used by Ms Devi Lioe (‘the Lioe phone”) …
c) A forensic analysis of a laptop computer as used by Mr. Handi Nasution (‘the Nasution laptop’).
d) A forensic analysis of a personal computer as used by Mr. Handi Nasution (‘the Nasution computer’).
e) A forensic analysis of a laptop computer owned by Lift Shop and used by Mr. Handi Nasution (‘the Nasution work laptop’).
He deposed, however, that he had not intended to suggest by that list that he had analysed each of the images of those devices in the same way that he had analysed Ms Lioe’s Laptop 1 and, in fact, had not.
Mr McKemmish deposed that what he had done was to:
,,, carry out an analysis of the image of Ms Lioe's Laptop to identify TeamViewer activity, which is reported in paragraphs 17(a) to (e) and 17(g) and (h) of my Report.
He said that the process he had used to identify TeamViewer activity on Laptop 1 had been first, to identify Ms Lioe’s TeamViewer ID (1447602217) from the image that had been taken of Laptop 1 and then to use the device’s log files to identify other TeamViewer ID numbers to which she connected (namely 778175085 and 1060539110). He then cross-checked where those TeamViewer ID numbers appeared in the images of the devices set out in (b)-(e) of the above quotation and identified ID number 778175085 as being associated with Mr Nasution’s personal computer. In his report Mr McKemmish identified two periods when Laptop 1 was connected via TeamViewer to Mr Nasution’s personal computer, those being:
(a)4 February 2020 from 6:50 UTC (ie 17:50 AEDT) to 7:19 UTC (ie 18:19 AEDT); and
(b)5 February 2020 from 9:03 UTC (ie 20:03 AEDT) to 9:42 UTC (ie 20:42 AEDT).
Mr McKemmish deposed that he had not considered himself at liberty to examine all the images of those other devices and had only consulted the image of Ms Lioe’s Phone briefly to confirm that “it did not have the TeamViewer remote code identified in the logs of the image of Ms Lioe's Laptop”. Even with Laptop 1, he did not review Ms Lioe’s activity generally. Mr McKemmish deposed that he had considered it important to consider the activity taking place on Laptop 1 around the time that TeamViewer was being used because TeamViewer is used to control or see activity on another computer and, without examination of the activity occurring on the computer around the time of the connection, the analysis would not be complete. Mr McKemmish deposed that he analysed the use of software on Laptop 1 that was referred to in the redacted portions of his report to ensure that the reference to its use on one of the dates on which TeamViewer was used was not taken out of context. Mr McKemmish explained that he did not want it suggested that the software had only been used in connection with the use of TeamViewer.
SUBMISSIONS
Respondents
The respondents submitted that Mr McKemmish had exceeded his authority under the Fourth Discovery Orders of 9 March 2023 in two respects, namely that he had:
(a)examined the forensic images of the Phone as well as Mr Nasution’s laptop computer, desktop computer and work computer, when the orders only contemplated a forensic analysis of the image of Laptop 1; and
(b)examined “related activity” and “general activity” on Laptop 1 outside the period of any known use of the TeamViewer software which was, therefore, not rationally connected to the use of that software for the purposes of communication with Mr Nasution.
In relation to the first complaint, the respondents noted that Mr McKemmish had observed no reference to TeamViewer on the Phone and so made no further complaint in that regard. They also conceded that as, it was accepted, Mr Nasution had agreed to Lift Shop examining his devices and there being no prejudice to Ms Lioe from that examination, the respondents had no particular concern in relation to that examination.
The respondents submitted in relation to the second complaint that Mr McKemmish detailed in the redacted paragraphs of his report activity which occurred outside the known periods of TeamViewer connection and set out no observations of what had taken place during those periods. They argued that there was no rational link between any of that activity and communication with Mr Nasution by means of TeamViewer. In a directions hearing on 9 June 2023, the respondents’ counsel had said in that connection:
What has been redacted is an explanation given by Mr McKemmish of a piece of software he found on Ms Lioe’s device which creates documents. The first use of that software he finds is at 6.10 pm on 5 February, so not within any period of TeamViewer usage, nine hours later, and then what he purports to do is examine all uses of that software on her computer, and then he puts into evidence a whole series of traces of documents that she created on her software from 30 July through to the end of August 2020.
Mr McKemmish responded in his affidavit:
32.I included reference to other uses of the software solely to ensure that the reference to the use of the software on the same day as TeamViewer was not taken out of context. I did not want it to be suggested that this was the only use of the software ie. in connection with TeamViewer.
To that it was submitted that any use of any software on Ms Lioe’s laptop outside the known periods of connection was not relevant to the use of TeamViewer software to communicate with Mr Nasution and so Mr McKemmish had not been permitted to consider the activity, which was described as “private information”, or the software.
Lift Shop
Lift Shop argued that this application, although ostensibly one concerning retrospective variation of the Fourth Discovery Orders of 9 March 2023, was in fact one concerned with the confidentiality of information held on Laptop 1 which would not have been made if the respondents had followed the procedure for seeking revision of Mr McKemmish’s report provided for in those orders. It was argued that Mr McKemmish had not spied “on all manner of things within Ms Lioe’s computer” and that examining surrounding activity was consistent with the method of analysis employed in many other cases involving investigation of TeamViewer’s use. Lift Shop noted that the veracity of Mr McKemmish’s evidence had not been challenged.
Lift Shop submitted that, according to Mr McKemmish, proposed order 3 would prevent him from accessing the images of Mr Nasution's computers in order to identify a TeamViewer ID matching Laptop 1’s TeamViewer ID and logs confirming the connection. It also contended that the respondents were seeking to confine Mr McKemmish’s analysis of Mr Nasution’s devices even though Mr Nasution had consented to Lift Shop examining them in a manner not so confined.
CONSIDERATION
Redacted paras.20 and 21 of Mr McKemmish’s report were preceded by these paragraphs:
Complimentary activity
18. Whilst TeamViewer facilitates remote access and sharing between computers, it does not track or record what activity occurs between the computers. Rather it merely tracks the connection events. As part of my analysis I examined what activity was taking place on the Lioe laptop during known periods of connection. The following section details my observations.
19. It should be noted that the following commentary is based on the available system artefacts. Over time and subject to ongoing use, evidence of past activity can be overwritten or removed. Consequently, the following should not be taken as a complete record of activity, rather an indicator of activity.
In the redacted part of his report, Mr McKemmish said in substance that particular software installed on Laptop 1 had been used on one of the days when that device had been communicating with Mr Nasution’s personal computer and that it had also been used at other times but he was unable to determine when that had been. It is to be noted that the timestamp of the particular cited use fell outside the two periods when Mr McKemmish determined that Laptop 1 had been connected via TeamViewer to Mr Nasution’s personal computer.
Mr McKemmish’s concern was to ensure that his (currently redacted) observations concerning the software being used on the same day as TeamViewer ought to be seen in the context of that software also having been used other than in circumstances involving TeamViewer. However, as the software has not been shown to have been used at any time when TeamViewer was in use, its relevance is only speculative. Mr McKemmish conceded as much in para.19 of his report when he said that his comments that followed in paras.20 and 21 indicated that activity on Laptop 1 involving the software had occurred but, it seems, nothing more of use was disclosed because records of the activity were delible and updated themselves when the files were accessed. Consequently, no contextualisation is necessary and it was unnecessary for Mr McKemmish’s report to refer to the software for that purpose.
It was also unnecessary to refer to it for more general purposes. If the information in question shed no useful light on:
… the second respondent’s usage of the TeamViewer software to communicate with Handi Nasution …
then reference to it had the effect, presumably inadvertent, of side-stepping the orders made on 9 March 2023 and the orders on which they were based.
It must be kept in mind in that regard that Order 1 of the Fourth Discovery Orders of 9 March 2023, which is the presently relevant order, effected a variation of earlier orders and was made so that use of TeamViewer could be investigated: Lift Shop Pty Ltd v Lioe. As recorded earlier, the Second Discovery Orders of 2 September 2020 relevantly required Mr McKemmish to:
(a)make a forensic image of each of the Respondent’s Storage Devices (the Forensic Image); and
(b)identify only the Records contained in the Forensic Image, with the specific direction that he not identify and report on any item that is not the Records within the Forensic Image; and
(c)otherwise undertake non-destructive testing of the Forensic Image for the purpose of investigating the Respondents’ conduct in relation to the Confidential Spreadsheet.
They also enjoined Mr McKemmish to:
… not identify and report on any item that is not the Records within the Forensic Image.
Records were earlier defined in the First Discovery Orders, it will be recalled, as:
… any records within any of the Respondents’ possession, custody or control relating to the use of the Confidential Spreadsheet including but not limited to records containing the names, addresses, telephone numbers, and email addresses of individuals to whom any one or more Respondent has supplied, offered to supply, distributed or offered to distribute, or sold or offered to sell the Confidential Spreadsheet, or any copy of that document, or information disclosed in that document… (emphasis added)
The Second Discovery Orders were amended by the Third Discovery Orders of 22 February 2022 by, in effect, extending the definition of Records to permit searches for certain additional material, namely:
1.Records (including, but not limited to, messages, database references, images, files and associated data, whether deleted or not) referring or relating to communications between Handi Nasution and Devi Lioe (including but not limited to use of internet-based communication applications such as WhatsApp, WeChat, Facebook Messenger, Skype, Microsoft Teams, Instagram, iMessage, Signal, Viber, Line, Getcontact, and Telegram) and any user IDs, Phone numbers or accounts associated with them from 1 January 2015.
2.Records (including incoming and outgoing call and message logs, whether deleted or not) relating to communications between Handi Nasution and Devi Lioe and any user IDs, Phone numbers or accounts associated with them from 1 January 2015.
3.Records relating to any transfer or communication of any document or communication referring or relating to Lift Shop confidential information, including those pleaded in paragraphs 19, 30 to 35, and 37 to 47 of Lift Shop’s Statement of Claim dated 19 November 2020, to Easy Living Home Elevators Pty Ltd and any of its employees, agents, officers or representatives, including via any cloud-based storage service such as Google Drive, iCloud, Microsoft One Drive and DropBox.
However, those orders did not affect the enjoinder expressed in the Second Discovery Order.
Nothing referred to in the redacted paragraphs of Mr McKemmish’s most recent report meets the original or expanded definition of Records and so, it would appear, should not have been included in that report.
But even if that tentative conclusion were incorrect, on consideration the information contained in the redacted passages of Mr McKemmish’s interim report dated 17 April 2023 does not appear to be of any probative value. Accepting, as a consequence, that the activity in question was, in all probability Ms Lioe’s private business, a claim to confidentiality in accordance with order 4 of the Fourth Discovery Orders was always open and would have been appropriate. At this point, no firm conclusion can be reached on the confidentiality point by reason of a want of evidence on the issue but the procedure set out in that order should be engaged before the Court is asked to consider the nature or status of the activity in question and whether the suppression order made on the last occasion should be allowed to remain in place for much longer.
Notwithstanding those comments, it was reasonable of Mr McKemmish to, and indeed implicit from the nature of the Fourth Discover Orders that he had to, peruse potentially relevant software and activity found on Laptop 1 in order to determine whether it met the criteria for inclusion in his report. The problem on this occasion lay in him including in his report material uncovered in that process that had no probative value and which did not merit comment or any more than a passing reference. Further, having regard to what Mr McKemmish said in his affidavit of 22 June 2023, the evidence available to me does not persuade me that his consideration went as far as a Standard Forensic Analysis.
Although the respondents have sought to substitute order 1 of the Fourth Discovery Orders with yet more discovery orders, and to make consequential orders, it is not apparent to me that that is the best course, particularly as those orders would have the effect of limiting Lift Shop’s access to Mr Nasution’s computers in circumstances where he has given that company permission to access them and there is no need for the Court to order that access be given. Most relevantly, no reason has been advanced why Lift Shop’s access should be restricted. Rather, the Fourth Discovery Orders should remain in place and be observed and acted on by the parties having regard to the orders that preceded them.
If a consensual resolution of issues of confidentiality and the destruction of records agreed to be confidential cannot be reached, the parties may approach the Court again pursuant to the liberty granted on 9 March 2023.
CONCLUSION
For the reasons I have given the respondents’ application in a proceeding dated 15 June 2023 will be dismissed.
Lift Shop submitted that the application in a proceeding was misconceived and that the costs of the application should be reserved. I am satisfied that such an order is appropriate in the circumstance and there will be an order accordingly.
I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Cameron. Associate:
Dated: 7 July 2023
0