Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2)

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2) [2023] FedCFamC2G 268

File number(s): SYG 1318 of 2020
Judgment of: JUDGE BAIRD
Date of judgment: 12 April 2023
Catchwords: PRACTICE AND PROCEDURE – application to set aside notice to produce – proceeding part heard – respondents assert non‑compliance with rule 16.16 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (GFL Rules), privilege, and lack of apparent relevance – Rule 16.16(1) of the GFL Rules requires specified documents – notice to produce sought categories not specified documents – no apparent relevance – notice to produce sought privileged documents – notice to produce set aside  
Legislation:

Evidence Act 1995 (Cth) ss 135, 138

Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 rr 1.04, 16.16

Federal Circuit and Family Court of Australia Act 2021 ss 176, 190, 191

Cases cited:

Cheung Kong Infrastructure Holdings Limited v BlueScope Steel Limited [2010] FCA 739

College of Law v Australian National University [2013] FCA 492

Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; [2006] FCAFC 86

In the matter of Idaport Pty Ltd (in liq)(recs apptd); National Australia Bank Limited (& Ors) v John Sheahan (& Ors) [2012] NSWSC 58

In the matter of Wetherill ParkHoldings Pty Ltd [2020] NSWSC 982

Lift Shop Pty Ltd v Next Level Elevators [2020] FCCA 3063

Lowery v Insurance Australia Ltd [2015] NSWCA 303

Macquarie Bank Limited v Arup Pty Limited [2016] FCAFC 117

Mann v Carroll (1999) 201 CLR 1

Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 10) [2022] FedCFamC2G 78

Seven Network Limited v News Limited (No 11) [2006] FCA 174

Sportsbet Pty Ltd v State of New South Wales (No 9) [2010] FCA 31

Tony Azzi (Automobiles) Pty Ltd v Volvo Car Australia Pty Limited [2006] NSWSC 283

Wong v Sklavos (2014) 319 ALR 378; [2014] FCAFC 120
Division: Division 2 General Federal Law
Number of paragraphs: 113
Date of hearing: 6 February 2023, 29 and 30 March 2023
Place: Sydney
Counsel for the Applicant: Mr J Hennessy SC with Mr M Fleming
Solicitor for the Applicant: Gilbert + Tobin
Counsel for the Respondents: Mr N Murray SC with Ms F St John
Solicitor for the Respondents: Allens

ORDERS

SYG 1318 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:

LIFT SHOP PTY LTD ACN 109 724 647

Applicant
AND:

NEXT LEVEL ELEVATORS PTY LTD ACN 161 047 016

First Respondent

COMPACT LIFTS PTY LTD ACN 609 124 405

Second Respondent

NEXT LEVEL COMPACT LIFTS PTY LTD ACN 625 302 007 (and others named in the Schedule)

Third Respondent

order made by:

JUDGE BAIRD

DATE OF ORDER:

12 April 2023

THE COURT ORDERS THAT:

1.The Notice to produce dated 7 July 2022 issued by the applicant be set aside. 

2.The applicant to pay the respondents’…

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Details
Case
[2023] FedCFamC2G 268
Decision Date

CaseChat Overview and Summary

In Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2), the plaintiff, Lift Shop, sought to exclude certain documents from evidence and requested the setting aside of a notice to produce documents issued by the defendant, Next Level Elevators (NLE). The primary legal issue before the court was whether NLE's notice to produce documents complied with the relevant procedural rules, specifically rule 16.16 of the General Federal List (GFL) Rules. This rule mandates that a party may require another party to produce a specified document at the hearing of the proceeding, provided it is in the possession, custody, or control of the other party. The court was also tasked with determining if there were grounds to set aside the notice under the general discretion provided by the Evidence Act 1995 (Cth).

The court examined the notice in question and found it did not explicitly mention each document sought, which was a requirement under rule 16.16. The court held that the term "specified document" meant that each document must be specifically, definitely, or explicitly named in the notice. Although the detail required could vary depending on the case, the essential requirement of explicit naming was not met by NLE's notice. Consequently, the court ruled that the notice was non-compliant with the rule and granted the application to set it aside. The court also noted that NLE's failure to comply with the procedural rules warranted the setting aside of the notice.

Orders

Orders of the court

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Background

Background to the litigation

Lift Shop accepts that as the issuing party it bears the onus of establishing that the documents the subject of the Notice are sufficiently relevant to justify production. As the parties seeking to set aside the Notice, it is for NLE to establish that it ought be set aside, in the present case for the reasons identified above.Background Lift Shop markets and sells home elevators (that is, lifts) in Australia. Each of the first, second and third respondents - the corporate respondents - are also involved in the supply of home lifts in Australia, the fourth and fifth respondents are co‑directors in each of the corporate respondents, and the sixth respondent is a former employee of Lift Shop who since March 2020 has been an employee of Next Level Elevators Pty Ltd, the first respondent. Lift Shop has brought proceedings in this Court against NLE, inter alia, for breach of confidence in certain ‘confidential information relating to the business of Lift Shop’ which it alleges includes certain quotation documentation, client project information and installation and servicing documentation used on‑site. NLE deny the claims of confidence in the alleged confidential information and deny any breach. The final hearing (by consent, limited to issues of liability and non‑pecuniary relief only) is part‑heard before me. The hearing commenced before me on 5 July 2022, with an initial estimate of 3 plus days, reserving also 8 July 2022 for the hearing. It did not conclude within that time. The hearing resumed on 10 November 2022 for 2 days of lay oral evidence. The hearing then continued on 22 November 2022 for the cross‑examination of expert witnesses. Closing submissions have yet to be put on. My pre‑trial directions (as extended by consent on 28 April 2022) included directions for the preparation of an Agreed Tender Bundle, in furtherance of which Lift Shop was directed to serve a list of its documents for the Agreed Bundle by 4:00pm, 24 June 2022, and NLE to serve its list and any objections to Lift Shop’s listed documents by 4:00pm, 28 June 2022. From correspondence before me it appears Lift Shop did not serve any such list as directed. On 4 July 2022, NLE’s solicitors, Allens, sent Lift Shop’s solicitors, Gilbert + Tobin, an email attaching a list of 48 documents that NLE proposed to tender at trial to be included in the Agreed Bundle, and advising that due to their size they would separately send a Zip file of the documents. They promptly did so. Gilbert + Tobin emailed within 2 hours, acknowledging receipt, proposing that given the proximity of the hearing the parties prepare separate tender bundles, and sufficient copies for the Court and the other party, and advised that it did propose to tender documents and a list would follow in due course. Gilbert + Tobin extracted NLE’s proposed tender documents from the Zip file that afternoon. Before me complaint is made that the documents did not “form a continuous bundle, e.g. a PDF – and the pages were not numbered sequentially”.

Evidence

Evidence Before The Court

On 25 October 2022, Lift Shop filed an application in the proceeding seeking pursuant to s 138 of the Evidence Act 1995 (Cth) that certain documents in MFI‑4 not be admitted into evidence on the ground that the evidence was obtained improperly, and/or under s 135(a) of the Evidence Act in the exercise of my general discretion to refuse to admit evidence, and that parts of the transcript of Mr Katz’s cross‑examination on 7 July 2022 be struck from the record (s 138 Application). Lift Shop served affidavit made 25 October 2022 by Mr Rodney McKemmish, a computer forensic expert, who had examined Muller 1, recreated her search process and gave his conclusions, and an affidavit made 25 October 2022 by Mr Michael Williams, Gilbert + Tobin partner, and Lift Shop’s solicitor on the record (Williams 7) in which he set out some procedural history. In response to the s 138 Application, Allens wrote to Gilbert + Tobin on 3 November 2022. Of the 23 disputed documents of MFI‑4 the subject of the s 138 Application, Allens said it would tender 8, and, narrowing the tender, confirmed NLE would not tender the balance of the disputed tabs (15 documents). The remaining documents in MFI‑4 were not encompassed by the s 138 Application. In their letter Allens advised:to avoid unnecessary debate, our clients [NLE] will not submit that the documents at tabs 28 to 31 and 41 [5 of the remaining disputed tabs] were publicly available on your client’s website. However, those documents demonstrate that your client [Lift Shop] obtains, keeps and uses competitors’ quotes in the conduct of its business, and the evidence of Mr Katz is that there is nothing improper in such conduct. That is directly relevant to [Lift Shop’s] breach of confidence case. [NLE] intend to rely on the oral evidence of Mr Katz relating to those documents for the same purpose. Gilbert + Tobin in turn responded by letter dated 4 November 2022 saying it did not agree with the revised tender list from MFI‑4, and that it intended to call on the Notice at the case management hearing then listed before me on 9 November 2022. In the event there was no case management hearing on 9 November 2022. There was some further correspondence, which did not change the parties’ positions. To complete the chronology, Allens then filed and served the present application dated 7 November 2022 to set aside the Notice, affidavit of Ms Miriam Anne Stiel made 8 November 2022 (Stiel 1), and affidavit of Ms Muller made 9 November 2022 (Muller 2). Relevant to the present application, Lift Shop filed and served an affidavit made by Mr Williams on 10 November 2022 (Williams 8). Lift Shop also relies on Williams 7 (identified in written submissions as read for this application). The s 138 Application was amended on 10 November 2022, narrowing the number of disputed documents in MFI-4. So amended, it reflects the position communicated by NLE on 3 November 2022 (see [19]-[20] above). On 11 November 2022, inter alia, by consent I listed the s 138 Application and this application for hearing on 6 February 2023.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Mr Williams was not required for cross‑examination.ConsiderationFirst reason – non‑compliance with r 16.16 GFL Rules NLE submits the Notice should be set aside as it does not comply with r 16.16 GFL Rules. Rule 16.16 of the GFL Rules Rule 16.16 of the GFL Rules provides:(1)A party may, by notice in writing, require another party to produce, at the hearing of the proceeding, a specified document that is in the possession, custody or control of the other party.(2)Unless the Court otherwise orders, the party given notice to produce must produce the document at the hearing. It is arguable that r 30.28 of the Federal Court Rules 2011 (FCRules) governing notices to produce in that Court is broader than r 16.16 GFL Rules, as it allows the service on another party of a notice to produce ‘any document or thing in the party’s control’, rather than ‘a specified document …’ as provided under the rules of this Court. Cases decided under r 30.28 of the FCRules should be approached bearing in mind that different wording. For present purposes it suffices to observe that r 16.16(1) is to be construed in aid of the objects set out in r 1.04 GFL Rules, and so is to be interpreted and applied in the way that best promotes the overarching purpose – as provided in s 190 of the FCFCOA Act, to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. The word ‘specified’ is to be given full weight in the phrase ‘a specified document’, and to be interpreted having regard to the ordinary meaning of the word. Thus, the Macquarie Dictionary Online defines ‘specify’:verb (t) 1. to mention or name specifically or definitely; state in detail.2.to give a specific character to. 3to name or state as a condition.–verb (i) 4. to make a specific mention or statement. The Oxford English Dictionary. 2nd ed. defines ‘specify’ similarly as meaning:1. intr. To speak or make relation of some matter fully or in detail. Obsolete. 2. trans. To mention, speak of, or name (something) definitely or explicitly; to set down or state categorically or particularly; to relate in detail. Usually said of persons, but sometimes of an act, document, etc. The OED defines ‘specified’ as meaning ‘that is or has been definitely or specifically determined’, and the OED Online defines ‘specified’ as ‘… that is or has been definitely or specifically mentioned, determined, fixed or settled…’. Guided by the overarching purpose and the above definitions, I consider that the phrase ‘a specified document’ in r 16.16 means that the notice to produce must mention or name the document specifically, definitely, or explicitly, and if more than one document is sought, the notice must mention or name each such document explicitly, albeit that the amount of detail or particularity with which each mentioned document is set out in the notice to produce may differ from case to case, depending upon the circumstances of the instant case.