Lift Shop Pty Ltd v Next Level Elevators Pty Ltd (No 2)
[2023] FedCFamC2G 268
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’ costs of and arising from the Notice and the application in a proceeding dated 7 November 2022 brought by the respondents to set aside the Notice.
3.Paragraph 2 of these orders is stayed for 14 days.
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 Baird
By application in a proceeding dated 7 November 2022, the respondents, Next Level Elevators Pty Ltd and 5 others (collectively, NLE), seek to set aside Notice to Produce dated 7 July 2022 issued by the applicant, Lift Shop Pty Ltd. The Notice states that Lift Shop requires NLE to produce at the hearing of the matter on 7 July 2022 documents described in 3 paragraphs pursuant to rule 16.16(1) of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (GFL Rules).
In the event, Lift Shop did not call on the Notice during the hearing on 7 July 2022, or its continuance on 8 July 2022. Lift Shop formally called upon the Notice in the afternoon of 29 March 2023, having foreshadowed in inter partes correspondence after mid‑October 2022 that it intended to press the Notice.
In sum, NLE say that the Notice should be set aside for 3 reasons:
(a)first, it does not comply with the GFL Rules: it seeks broad categories of documents, rather than specified documents as required by r 16.16(1) GFL Rules;
(b)secondly, all the documents sought by the Notice are privileged;
(c)thirdly, the documents sought by the Notice are not sufficiently relevant. Requiring production would not be in accordance with s 191 of the Federal Circuit and Family Court of Australia Act 2021 (FCFCOA Act).
Lift Shop contends that the Notice should not be set aside. It says the Notice seeks documents that have apparent relevance, or a legitimate forensic purpose. If privilege is to be claimed, the documents must be specifically identified and listed in the usual manner, and the basis disclosed upon which privilege asserted in respect of each document; it is no excuse that production of a privilege list is disproportionate and ought not be required. Anyway, NLE has waived privilege. As to the requirements of r 16.16, the Notice is not being used as a substitute for discovery, the context is such that NLE and their solicitors would no doubt read the Notice sensibly, and there is no suggestion that they are incapable of identifying the documents required to be produced by the Notice.
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”.
As I have said, the hearing commenced on 5 July 2022. Although the cross‑examination of Mr Leslie Katz, Lift Shop’s CEO, was scheduled to commence on 6 July 2022, it did not. At least on 6 July 2022, counsel communicated about documents in NLE’s tender bundle. It is clear that Lift Shop’s counsel was made aware that documents in the tender bundle were to be deployed in the cross‑examination of Mr Katz.
On 7 July 2022, day 3 of the hearing, prior to commencing cross‑examination of Mr Katz NLE’s senior counsel, Mr Murray SC, handed up a folder of 48 documents under numbered tabs, which folder I subsequently marked MFI‑4. MFI‑4 comprises the list of documents and the documents earlier communicated by Allens to Gilbert + Tobin (see above [10]). Mr Katz’s cross‑examination was deferred until sufficient copies of MFI‑4 were made for all participants. NLE’s senior counsel then commenced cross‑examination and directed Mr Katz to certain documents in MFI‑4 by reference to their tab number. Mr Katz gave evidence that they were material from Lift Shop’s website. In relation to some of those documents Mr Katz said they had come from a part of the website he understood to be inaccessible to the public. He said they were confidential. I soon closed the Court, and much of the transcript of Mr Katz’s oral evidence has been marked as confidential.
Whilst Mr Katz was under cross‑examination Gilbert + Tobin served the Notice on Allens by email. The fact that the Notice was served (but not its content) was brought to my attention when cross‑examination concluded.
Prior to the resumption of the hearing the next day, NLE served affidavit dated 8 July 2022 affirmed by Ms Sarah Alexandra Muller (Muller 1). Ms Muller is a solicitor at Allens and part of NLE’s legal team. In Muller 1 she attests to how she found the documents in MFI-4 that Mr Katz had said were confidential on Lift Shop’s website. The cover letter from Allens to Gilbert + Tobin serving Muller 1, referred to the Notice, and said:
Ms Muller's affidavit provides sufficient detail to enable your client to recreate the process that led to the identification of and access to the relevant URLs and to confirm that the information was in fact publicly available at the time the webpages were accessed and screenshots were captured.
All of the documents sought by the Notice to Produce, other than the screenshots themselves which are included in MFI-4, are internal Allens documents or communications with Counsel created for the purpose of this proceeding and are thus protected by legal professional privilege.
The hearing continued on 8 July 2022. Lift Shop did not call on the Notice. At the end of the Court day, I adjourned the hearing part‑heard to dates to be fixed. On 18 July 2022, by consent I set dates for the continuation of oral evidence on 10 and 11 November 2022, and for closing submissions on 22 November 2022 (later varied).
Lift Shop did not refer to the Notice until October 2022. In her first affidavit read on this application Ms Miriam Stiel, partner at Allens and NLE’s solicitor on the record, states she considered it to be no longer extant.
On 17 October 2022, Gilbert + Tobin wrote to Allens saying that Muller 1 “does not provide an adequate answer to the documents sought in the [Notice], and full production responsive to the [Notice] is required”. If NLE intends to maintain their claims of privilege, “the documents must be identified and listed in the usual manner, and the basis disclosed upon which privilege is asserted in respect of each document”. Gilbert + Tobin requested such list be provided to them within 4 days. Allens responded on 24 October 2022, advising that the claims of privilege would be maintained, that none of the documents falling within the scope of the Notice were relevant, and that preparing a list of privileged documents was disproportionate. Further correspondence then ensued.
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.
The hearing of the two interlocutory applications on 6 February 2023 commenced with the s 138 Application. Various affidavits relevant to that application were read. Mr McKemmish was cross‑examined. The hearing did not conclude. After consultation with the parties, I listed the proceeding on 29 and 30 March 2023 for continuation of the interlocutory hearings.
As at 29 March 2023, of the disputed documents in MFI‑4 the subject of the s 138 Application, 4 tabs remain in dispute (these are tabs 28-31), other documents or copies having been tendered or not pressed by NLE. For convenience, in the balance of these reasons I refer to these remaining 4 disputed documents as the 4 Tabs. It follows that the s 138 Application is now limited to the 4 Tabs, and, it appears corresponding cross‑examination of Mr Katz regarding those documents.
During the hearing on 29 March 2023, remaining affidavits were read, and Ms Muller and Ms Stiel were each cross‑examined. After the conclusion of the evidence on the s 138 Application (excepting certain rulings and the possibility of a further affidavit, not relevant for present purposes), Lift Shop’s senior counsel, Mr Hennessy SC, formally called on the Notice. Ms St John, junior counsel for NLE, then moved on the present application.
In addition to the affidavits I have referred to above, NLE rely on Mr McKemmish’s cross‑examination, and Lift Shop relies on the cross‑examination of Ms Muller and Ms Stiel. Both parties rely on written submissions, and each of Ms St John, and Mr Hennessy SC made oral submissions.
The Notice to produce
The Notice seeks production of the following:
1.All Documents recording or referring to the creation of the screenshots or downloading of the documents contained in the Respondents’ bundle of documents used in the cross‑examination of Mr Katz on 7 July 2022 (the Katz Cross‑Examination Bundle).
2.All Documents recording or referring to any instruction or direction given to the persons(s) who created the screenshots or downloaded the documents contained in the Katz Cross‑Examination Bundle as to the creation or downloading in question.
3.All Documents recording or referring to the URLs (including as to their source) referred to in the screenshots or documents contained in the Katz Cross‑Examination Bundle.
It is not in dispute that MFI‑4 is the Katz Cross‑Examination Bundle defined in the Notice, nor that MFI‑4 is the list of documents and the documents comprising the proposed tender bundle NLE notified Lift Shop on 4 July 2022. The Notice has not been amended since issue.
MFI‑4
As I have adverted to above, when marked on 7 July 2022, MFI‑4 comprised 48 documents, organised under sequentially numbered tabs, and paginated, together with an index listing the documents by tab, date, and title or description. These 48 tabbed documents comprise various screenshots of pages of the Lift Shop website and downloads, documents available on Lift Shop’s social media pages and Google Reviews pages, documents produced on discovery or particularised in the Amended Statement of Cross‑Claim, and includes Lift Shop brochures, each identified as such. The index/document list identifies each document by date (either date of its generation or as otherwise identified on the document), and document title or description, including file paths of screenshots and documents accessed at the Lift Shop website, and if sourced from discovery, its discovery number. The file paths are also apparent on the screenshots within MFI‑4.
As at 29 March 2023 when the Notice was formally called, some 12 documents from MFI‑4, and two Lift Shop brochures titled ‘E1 User Manual’ and ‘E2 User Manual’ respectively from another source than the Lift Shop website had been admitted into evidence without objection as exhibits in the substantive hearing. The two documents under tabs 25 and 26 of MFI‑4 are copies of those two user manuals now in evidence, and those tabs of MFI‑4 are not now pressed.
The evidence
Ms Muller
Ms Muller’s first affidavit was made during the substantive hearing, overnight in immediate response to the Notice and Mr Katz’s claims in cross‑examination. Ms Muller made Muller 2 in the context of the present application to set aside the Notice and the s 138 Application. Lift Shop criticises her evidence and submits that Ms Muller has not, and should have, given a full and complete description and explanation of the entirety of all the reviews and searches she conducted of the Lift Shop website. Implicit in senior counsel’s criticisms are that Lift Shop should have been provided with a full and complete description by every Allens staff member of all their reviews and searches of the Lift Shop website. Those criticisms do not withstand examination.
In Muller 1, Ms Muller explains how she identified the URLs included in the pages captured by the screenshots and downloads from the Lift Shop website comprised within MFI‑4. She attests that she had no prior knowledge of the Lift Shop website or the materials contained on the website, no prior knowledge that the content included in MFI‑4 was there, and no prior knowledge of the URLs included in the screenshots in MFI‑4.
Ms Muller attests that in March 2022 she reviewed the Lift Shop website “for the purposes of (a) identifying any references to customer names and details displayed on the website; and (b) reviewing other materials on the website to consider how [Lift Shop] addresses or treats quotation materials; and (c) taking screenshots of the map feature which appears on the website, which displays locations at which Lift Shop claims it has installed a lift”.
Ms Muller attests that she undertook searches of the website and searches using the Google search engine as she then describes. She attests that as part of her review of the website, she conducted simple searches for content on the website by adding “/search/” to the URL on her internet browser followed by a search term. She was aware from her prior experience navigating and searching websites that doing this could enable a user to search content on some websites.
Ms Muller describes the searches she undertook which lead to those pages of the Lift Shop website she describes as the Library Webpages. Ms Muller attests that she took, or otherwise caused to be taken by her colleagues, the screenshots of the Library Pages and material linked from those Library Webpages which appear behind listed tabs of MFI‑4. She attests that she downloaded the documents titled ‘E1 User Manual’ and ‘E2 User Manual’ (MFI‑4, tabs 25 and 26). As I have said above at [33], copies of those two documents from another source now form part of the evidence in the substantive hearing.
Ms Muller describes circumstances where she clicked on a link to a webpage of the Lift Shop website which returned a webpage on which she observed the text “Password Protected. To view this protected post, enter the password below”. Ms Muller attests that she did not attempt to enter a password or otherwise circumvent that protection to view any content which may have appeared behind the password protection. Ms Muller attests that none of the Library Webpages she viewed, or the materials which she downloaded from them or took screenshots of, asked her to enter a password.
Each of the tabs Ms Muller identifies in Muller 1 is one to which objection was subsequently made in the s 138 Application. In Muller 2, Ms Muller states that she inadvertently omitted tab 41, and that the document behind that tab also comprised screenshots she took.
In Muller 2, Ms Muller states that she regularly undertakes searches and reviews of various websites as part of her role at Allens. Responding to Mr McKemmish’s conclusions, she states that she does not have any qualifications, or any special training, in computer technology. Ms Muller also responds to the estimates Mr McKemmish made that Allens employees spent at least 125 hours on the Lift Shop website in the period January to July 2022 (I refer to Mr McKemmish’s evidence further below). Ms Muller attests that she undertook the bulk of the work reviewing the website. She attests that whilst she cannot recall how many hours she spent, it was significantly less than 125 hours. When she opened the website, she reviewed it for a short time, and then left it open whilst she turned to other things. To the best of her recollection, she sometimes left the website open in the background of her computer (such as in a tab on her internet browser) for long periods.
In response to Mr McKemmish’s identification of a close correlation between the pages visited by Allens users and a user in the Philippines, Ms Muller states that she has not discussed the searches of the website, or anything about the case at all with anyone in the Philippines. Ms Muller attests the only people to whom she has disclosed the results of her searches are other Allens’ staff members and counsel, she did not send to anybody outside of the NLE external legal team any link to any page on the website, and she did not use those links for any purpose than the purpose of this proceeding. In cross‑examination, Ms Muller named staff members she recalls who may have accessed the website and assisted with screenshots and downloads.
Ms Muller was cross‑examined over nearly 3 hours. Ms Muller’s evidence that her disclosures were limited to Allens’ employees and counsel should be accepted.
Tested on her recollection, Ms Muller could not recall what she thought at the time of her review of the Lift Shop website 12 months earlier. Tested about her communications with other Allens’ team members variously she or her counsel claimed privilege. Whilst Mr Hennessy SC’s instructors counted the number of times these responses were made and I was told of their count, I do not place any weight on such metrics. I do not consider her responses remarkable, nor reflecting adversely on Ms Muller’s credit. Neither the lack of recollection as to her thoughts a year earlier, nor that questions asked elicited claims of privilege should have come as a surprise to the questioner.
Ms Stiel
Ms Stiel has practiced as a lawyer for 25 years. She is NLE’s solicitor on the record and has the day‑to‑day carriage of the matter. In Stiel 1, Ms Stiel sets out the procedural history of the Notice and responds to concerns raised by Lift Shop’s counsel and solicitors. She refers to the scope of the Notice, the documents falling within the categories, the likelihood that they are privileged, and the time and extent of work to comply. She annexes some inter partes correspondence updating that exhibited to Williams 7.
Ms Stiel says she understood following comments made by senior counsel in Court on 7 July 2022 following service of the Notice and a conversation she had with Mr Williams that day, that Lift Shop was concerned that Allens had accessed the documents in MFI‑4 after having been provided by NLE with the specific URLs at which those documents were accessible. Ms Stiel swears that to the extent that the Notice is directed to instructions or directions given to Ms Muller by one or more of the respondents (that is, NLE), no such documents exist and therefore, there would be nothing to produce.
Relevant to the ambit of the Notice, Ms Stiel swears to the following:
[14]Rather, all of the documents falling within the categories sought in the Notice to Produce comprise either:
(a)communications between members of the Allens team working on this matter;
(b)communications between Allens and the Respondents’ senior and junior counsel in this proceeding;
(c)documents created by members of the Allens team in connection with the conduct of this proceeding, including in the course of preparing [MFI‑4] and [Muller 1].
All such documents were created between 28 March 2022 and 7 July 2022, for the sole purpose of this proceeding.
[15]It is therefore likely, in my opinion, that if the Notice to Produce is not set aside, the Respondents will claim privilege in all of the documents caught by the Notice to Produce.
Ms Stiel swears that given the extensive categories of documents requested, it would take significant time and resources to review all of the documents that could fall within the scope of the Notice, and additional time to compile the responsive documents. Based on an initial review, she believes that there are approximately 200 emails that would need to be reviewed, and at least seven Microsoft Teams chat groups among employees that would need to be reviewed. These chats contain discussions of unrelated matters. In order to review all of them, the contents would need to be extracted, formatted, and saved into a word document, which she estimates would amount to several hundred pages.
Ms Stiel estimates that the above tasks, and compiling the responsive documents in a form for production, and drafting a discovery list setting out a claim for privilege in respect of each document, would take approximately 35 to 40 hours, in addition to the approximately 16 hours of time that has already been spent by members of the Allens team on these tasks.
Ms Stiel was cross‑examined over an hour. She was not challenged on her evidence set out above. Ms Stiel’s evidence should be accepted.
Mr McKemmish
I adverted to Mr McKemmish’s affidavit above at [18]. On 7 July 2022, Mr McKemmish was engaged to investigate access to certain pages of the Lift Shop website, and was provided with access logs for the Lift Shop website for the period 7 June 2022 to 7 July 2022, which he refers to as WordPress Logs. It appears he was provided with Muller 1 on 8 July 2022, and conducted an initial review. In early August 2022, he obtained complete back-ups of the Lift Shop website for 6, 7 and 8 July 2022. In late September 2022, he was provided with a report generated from Lift Shop’s Google Analytics online environment for the period 1 January 2022 to 31 July 2022, and a copy of MFI‑4. On 11 and 13 October 2022, he obtained further Google Analytics reports relating to specific dates he had identified as ‘Dates of Interest’, and was also provided with ‘further data’.
Mr McKemmish attests that the Lift Shop website operates in the WordPress environment, a popular platform used to create websites which creates a website dynamically in the browser on the device of the user. He identifies a third party plug‑in that Lift Shop used in its website, and the purpose for which Lift Shop used it. As a precaution, further detail is given in a confidential annexure. Mr McKemmish sets out conclusions he reached based on his investigations, makes certain observations, and responds to Muller 1. He identified patterns of behaviour he attributed to Ms Muller, and Allens. By reference to WordPress Logs and Google Analytics reports he said that individuals associated with Allens, including Ms Muller, spent at least 125 hours on the Lift Shop website in the period 1 January 2022 to 7 July 2022, 60 hours 50 minutes of which were on 10 dates between 20 June 2022 and 7 July 2022.
Ms Muller’s explanation in Muller 1 of how the disputed tabs in MFI‑4 were obtained was sufficient for Mr McKemmish to recreate it. He did not express any difficulty in so doing. He was able to explain how and why the searches produced the results. In his view it required trial and error in searches. Counsel for NLE submit, and I accept, that Mr McKemmish did not enunciate any reason to question any of what Ms Muller said. Mr McKemmish said that other internet users deploying the exact process used by Ms Muller could have accessed the same information.
Mr McKemmish’s estimates of time were challenged in cross‑examination. For present purposes it suffices to state that it became overwhelmingly apparent that Mr McKemmish had calculated his estimates by taking the first time he observed access in a day from an IP address, a browser number (or one that may have been updated by a new version), and location, or use of the ‘/search’ method he associated with Allens, and then counting the lapse of time until the last time he observed access from any of those indicia in that day.
As I have said above, in Muller 2, Ms Muller responds to some factual points made by Mr McKemmish.
Mr Williams
In Williams 7, Mr Williams responds to Muller 1, gives an account of some of the events of 4 July 2022 and 7 July 2022, the issue of the Notice, and Gilbert + Tobin’s coordination of investigations of Ms Muller’s access to the Lift Shop website, and materials to be provided to Mr McKemmish.
In Williams 8, Mr Williams provides further procedural history, and inter partes correspondence, and asserts the relevance of the Notice. Mr Williams states that the refusal of NLE to serve a list of documents over which privilege is claimed prevents Lift Shop from being able to determine whether the Notice could be narrowed. He states that in his experience, the provision of a privilege list is a usual practice in a situation such as this one. Mr Williams believes on his experience that Lift Shop would be seriously prejudiced if NLE were not required to give production in response to the Notice.
Mr Williams was not required for cross‑examination.
Consideration
First 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.
It is well established that a notice to produce cannot be used as a substitute for discovery. To do so would defeat the purpose of the rules in this Court limiting discovery, and not to give full regard to the wording of r 16.16. In this Court, discovery is permitted only with leave. Before allowing any discovery, the Court must determine it is in the interests of the administration of justice to allow the particular discovery, having regard, inter alia, to whether allowing the discovery would be likely to contribute to the fair and expeditious conduct of the proceeding: ss 176(2) and (3) FCFCOA Act. Whilst discovery may be sought of specified documents, it is not uncommon for discovery to be permitted of targeted categories of documents.
In Tony Azzi (Automobiles) Pty Ltd v Volvo Car Australia Pty Limited [2006] NSWSC 283 at [11] Brereton J, in the context of then recent changes to the Uniform Civil Procedure Rules limiting the right to general discovery, and providing for discovery by reference to classes, observed:
However, in my opinion, this does not affect the previous rule that a subpoena which seeks documents which could have been the subject of discovery is an abuse of process. The fundamental purpose of the amendments to the rules which limit discovery to classes was to avoid parties having excessively burdensome discovery obligations imposed on them, by excluding from discovery those documents which were outside the classes which were agreed or determined to be appropriate for discovery. If it remained open to a party to subpoena classes of documents which had been excluded from discovery, that would completely defeat the purpose of the rule in limiting discovery to specified classes. It would amount to using a subpoena to obtain discovery.
In Sportsbet Pty Ltd v State of New South Wales (No 9) [2010] FCA 31 Perram J discussed the discretionary difference between discovery, subpoenas and notices to produce. After discussing some of the discretionary matters that would be before him were an application for further discovery be made (which it had not), his Honour said at [9]:
Those discretionary considerations are, of course, not material to the issues which arise on the notice to produce for there is not the same discretionary ability to set aside a notice to produce. The discretionary difference between discovery, subpoenas and notices to produce constitute one of the reasons why the test of apparent relevance is tighter for subpoenas and notices to produce than the test of relevance for discovery. That difference, of course, underlies the well understood and longstanding proposition that subpoenas - and notices to produce I would add - cannot be used as a substitute for discovery: see The Commissioner for Railways v Small (1938) 38 NSWR 564 at 574‑575 per Jordan CJ.
Ms St John, for NLE, submits that the categories of the Notice are more apt for consideration in an application for discovery, and that the Notice is an attempt to circumvent the application of the Court’s processes for discovery. She points to the breadth of the prefatory and expansive words of each paragraph, seeking ‘All documents recording or referring to …’.
Mr Hennessy SC, for Lift Shop, disavows any attempt by the issue of the Notice to circumvent the process of discovery, or to sidestep the onus of a discovery application, submitting that the issue of MFI‑4 only arose on Mr Katz’s cross‑examination, long after discovery categories had been determined and discovery had been completed.
That is so, however, it does not follow that simply because a notice to produce is issued sometime after the discovery process was undertaken, or that documents came into existence subsequently, that a notice to produce should thereby be excused from compliance with the GFL Rules, or be treated more liberally than the Rule specifies. So too, it does not follow that if classes, categories or types of documents to be reviewed may be able to be discerned upon reading a notice to produce, that the notice thereby seeks specified documents. It does not.
In Self Care Corporation Pty Ltd v Green Forest International Pty Ltd (No 10) [2022] FedCFamC2G 78 (Self Care (No 10)) I stated that a prior, broader version of a notice to produce before me for determination that sought ‘all documents’ that ‘constitute’ or ‘record’ various subject matter did not comply with r 16.16 because it was not limited to specified documents. I accept Mr Hennessy SC’s submission that each case is to be decided on its particular circumstances. I also accept that the use of ‘recording’ or ‘referring to’ may not necessarily, in all circumstances, render a notice to produce non‑compliant.
It may be accepted that a recipient party will approach a notice to produce sensibly, and thus having regard to the circumstances pertaining to the instant case, however it does not follow that the recipient party can, or should, construe it other than on its terms. A recipient party cannot unilaterally read down a notice that seeks all documents recording or referring to a subject matter, to a specified document. To do so is to invite argument and likely result in further expenditure of time and cost.
I consider that the Notice does not seek specified documents. It is not capable of being read so as to identify a particular document or documents. Rather, it merely describes broad categories or types of documents by a general description of activity – creation of screenshots or downloading of a pool of documents – and expands that description outwards to encompass any documents that record or contain any reference to those activities – ‘recording or referring to …’. In so doing, the Notice travels far beyond any permissible specificity. In the case of the Notice, naming an activity is not naming the document of which production is sought. The Notice, and each paragraph, is not capable of being construed so as to identify a specified document or documents.
It follows that I do not consider that any of the phrases ‘the creation of the screenshots or downloading of the documents’ in paragraph 1, ‘as to the creation or downloading in question’ in paragraph 2, or ‘to the URLS’ in paragraph 3 of the Notice, overcome the inherent want of specificity of the prefatory words ‘all Documents recording or referring to …’ in each paragraph.
Thus, while Ms Stiel has been able to identify the universe of types of documents to be reviewed to search for documents that fall within the terms of the Notice, I do not understand her evidence to say that she has identified the documents to be produced. Her evidence well illustrates the vices inherent in the wording of each of the paragraphs of the Notice.
Each paragraph of the Notice seeks broad categories of documents, not one or more specified documents. The Notice does not comply with r 16.16. That non-compliance is substantial. The Notice should be set aside in whole.
Observing that neither party suggested that I should reformulate the Notice, for completeness, I note that it is not the function of the Court to redraft the terms of a subpoena or notice to produce: see Lowery v Insurance Australia Ltd [2015] NSWCA 303, per Basten JA at [25].
Although my conclusion that the Notice should be set aside for non‑compliance with r 16.16 GFL Rules means it is not necessary to address the remaining two grounds on which NLE seek to set aside the Notice, I consider it appropriate that I consider the parties submissions on relevance and privilege, in this order.
Third reason – Lack of apparent relevance
Applicable principles
The applicable principles do not appear to be in dispute. Each case is to be considered having regard to the below principles, and to the circumstances of the particular case.
The documents sought by the Notice must be ‘reasonably likely to add, in the end, in some way or other, to the relevant evidence in the case’: Seven Network Limited v News Limited (No 11) [2006] FCA 174 at [6]. As Perram J observed in Sportsbet at [3], that kind of relevance is often referred to as ‘apparent relevance’. His Honour explained at [4]:
Reasonable likelihood is a different concept to reasonable possibility and, to my mind, connotes a degree of certainty as to the material’s potential relevance that travels beyond the merely conjectural. It is to be distinguished from the test applicable in discovery.
I discussed the principles to be applied when the Court is considering whether documents sought by a notice to produce have ‘apparent relevance’ or a ‘legitimate forensic purpose’ in relation to an issue in the proceeding in Self Care (No 10) at [68]-[82]. It suffices to incorporate by reference what I there said.
In Self Care at [68] I cited Wong v Sklavos (2014) 319 ALR 378; [2014] FCAFC 120 at [12]. There a Full Court of the Federal Court said that a subpoena (and a notice to produce) may be set aside if it requires production of documents that do not have apparent relevance to the issues arising on the pleadings, and noted that:
Other cases have used different terminology, but with essentially the same effect, for example, by requiring that, viewed realistically, the documents sought have a bearing on an issue which is not unreal, fanciful or speculative, or that the material sought is reasonably likely to add in some way to the relevant evidence in the case, or that it be “on the cards” that the documents sought will materially assist the party at whose request the subpoena has been issued.
In Cheung Kong Infrastructure Holdings Limited v BlueScope Steel Limited [2010] FCA 739 Foster J at [32]-[38] discussed various of the principal authorities then decided and explained that the fundamental principle which drives all the statements of principle he discussed is ‘that the Court should not permit its processes to be abused and should guard against the use of its compulsive powers as an instrument of oppression’.
Lift Shop accepts that the issues which it says give rise to the Notice are not the primary issues in dispute between the parties in the proceeding.
NLE submit that what is relevant are the 2 questions that the Court will need to resolve on the s 138 Application: first, were the disputed tabs obtained improperly, and secondly, does the desirability of admitting them outweigh the undesirability of admitting evidence that has been obtained in the way the evidence was obtained. NLE submit that the first question is limited to the disputed tabs of MFI‑4. There is no application before the Court that would require me to consider the propriety of searches of Lift Shop’s website that did not lead to that material. NLE point to Ms Muller’s evidence. Ms Muller attests to her purpose in reviewing and accessing the website. NLE say that the Court already has a complete explanation of how the disputed tabs were obtained. Ms Muller has given a plain step-by-step explanation of what she did.
Lift Shop submits that the documents sought by the Notice are reasonably likely to add to the relevant evidence in the case in relation to the proposed tender of documents contained in MFI‑4 and the s 138 Application to have parts of that evidence excluded. Lift Shop says that it “ought to be able to test” Ms Muller’s contention to the effect that the searches she conducted were searches of publicly available materials, and NLE’s counsel’s submission that Ms Muller found the materials by ordinary searching.
Lift Shop says that there is “an implication” from Ms Muller’s affidavit evidence that she did not think that there was anything improper [in] her accessing the Library Webpages of the Lift Shop website, but she does not give direct evidence about what she thought at the time she accessed and downloaded the materials. Lift Shop says that the state of Ms Muller’s knowledge and that of Allens “more generally” goes to the question whether the “restricted” tabs were obtained improperly, and to matters of discretion, pointing to the mandatory factors to be considered set out in ss 138(3)(d) and (e) of the Evidence Act of the gravity of the impropriety, and whether the impropriety was deliberate or reckless.
Lift Shop says that the inquiry cannot be arbitrarily limited to the 4 Tabs, or the disputed tabs identified in the s 138 Application, whether as filed or as amended, as that would give “an incomplete picture”. The “relevant enquiry must look at totality of the conduct, insofar as it informs what Ms Muller (and others) knew or ought reasonably to have known at the time they obtained the documents”.
I consider that the circumstances in which Ms Muller and her colleagues at Allens got to access the Lift Shop website, and in which they located and took the screenshots and downloaded the documents that are the disputed tabs within MFI‑4 (per s 138 Application as filed) are clearly set out in Ms Muller’s affidavits. Ms Muller’s purpose is clearly set out, and attested to. I have no reason to doubt that purpose or those circumstances. Mr McKemmish was able to recreate the process Ms Muller and her colleagues took, and obtain the results they obtained. He did so without expressing any difficulty. The process, and the results, are known.
Lift Shop does not say that the documents sought by the Notice will disclose impropriety, or any state of mind – whether a particular or unspecific state or states of mind - of Ms Muller, or of Allens more generally. At most, Lift Shop expresses a generalised hope that some expression of Ms Muller and her colleagues’ thought processes at the time they reviewed and accessed the Lift Shop website or of those who instructed or directed them might be able to be ascertained from one or more unidentified documents within the categories of documents of the Notice. Whether any illumination may be cast is speculative. What that illumination may be has not been articulated.
A desire to look at categories of documents in the hope that something presently unidentifiable will be disclosed that may in some way enable Ms Muller’s (or Ms Stiel’s) evidence to be ‘tested’ does not satisfy the test of apparent relevance. At best, I consider that viewed realistically any apparent relevance of the material sought by the Notice is unreal, fanciful, and speculative.
As I have adverted to earlier in these reasons, NLE submits that given the categories of the Notice, the lack of apparent relevance is relevant to proportionality, and to require NLE to bear the burden of sifting through voluminous amounts of material in order to comply with the Notice would be inefficient and inconsistent with ss 190 and 191 of the FCFCOA Act.
Ultimately, the question of relevance, and relatedly whether a Notice is oppressive, is a balancing act – whether there is sufficient relevance to justify production. As Brereton J said in Tony Azzi, at [6]
The exercise of deciding whether a subpoena is or is not oppressive is a multifactorial balancing one. Where the documents called for have a high degree of apparent relevance to issues in the proceedings, the court will not shrink from requiring third parties to undertake considerable burdens to search for and produce such documents. On the other hand, where the documents are of slight or little apparent relevance, the extent of the burden cast on the party called to produce documents will weigh much more heavily against allowing a notice to stand.
Accepting that it does not follow from the standard of apparent relevance that a document will be tendered or form part of the admissible evidence in the s 138 Application, I am not persuaded that any of the material sought by the Notice is reasonably likely – that is, beyond mere conjecture - to add in some way to the relevant evidence in the s 138 Application, or that it be ‘on the cards’ that the documents sought will materially assist Lift Shop. The categories of the Notice are at, or beyond the very outer reaches of possible apparent relevance, and the burden of compliance is not inconsiderable in time and in expense.
The Notice does not have any sufficient apparent relevance to justify production, and should be set aside.
Second reason – Documents sought are privileged
In In the matter of Wetherill ParkHoldings Pty Ltd [2020] NSWSC 982, Black J said at [12]:
It seems to me that these paragraphs are framed in a way that they are calculated to, and very likely to, require the production of advice that is subject to legal professional privilege. The documents that record the seeking of legal advice will, in the ordinary course, be the client’s request for advice which is at the core of legal professional privilege, and the documents which record the obtaining of legal advice will, in the ordinary course, be the advice or any record of it. Mr Femon submits that documents can be produced, and a claim for legal professional privilege can be made in respect of them. While that is so, the Courts have regularly set aside notices to produce or subpoenas which, on the face of them, are likely to require production of largely privileged material, because a party should not be put to the wasted cost of producing documents, and then claiming legal professional privilege over them: Xinfeng Australia International Investment Pty Ltd v GR Capital Group Pty Ltd [2020] NSWSC 620 at [39]‑[40]. Those paragraphs should be set aside so far as they are targeted, on the face of them, to advice which would be subject to legal professional privilege.
NLE submit that it is plain on the face of the Notice, and reinforced by the evidence of Ms Stiel, that the documents that would be produced in answer to the Notice are privileged communications. It is in the interests of the quick, inexpensive, and efficient conduct of this proceeding that the same approach as his Honour Justice Black took in Wetherill Park should be taken here.
Lift Shop submits the documents ought to be produced and any claims for privilege formally made. It submits the absence of a list which itemises those documents in respect of which privilege is claimed, and the basis of the claims, frustrates the Court’ ability to assess the extent of any privilege claims. The documents should be produced to the Court and it should examine such documents. Lift Shop also submits it cannot test any claim for privilege in the absence of such a list of documents being produced. Ms Stiel’s evidence is no more than submission, the description of the documents falling within the Notice is merely summary, and may be incomplete. The evidence is insufficient.
Lift Shop says that to the extent that any claims for privilege are established, privilege has been waived. The test for waiver is one of ‘inconsistency, which the courts, where necessary informed by considerations of fairness, perceive, between the conduct of the client and maintenance of the confidentiality; not some overriding principle of fairness operating at large’, citing Mann v Carroll (1999) 201 CLR 1 at 13. This fairness may be described as forensic fairness.
Lift Shop says Ms Muller’s searching was not ‘ordinary’, contrary to NLE’s counsel’s submission. Ms Muller’s evidence is inconsistent with that proposition, and evidently incomplete. NLE have not lead evidence of the totality of their conduct. If they intend to maintain that the search process was ordinary, they have waived privilege in documents which reveal the basis of their contentions. If they submit that the documents were publicly available, or that there was no impropriety in their accessing and using those documents in the proceeding, they have brought into issue Ms Muller’s and others at Allens state of mind in reviewing and accessing and obtaining the documents in MFI‑4 into issue.
Lift Shop says it ought not be permitted that the respondents contend that Ms Muller was not aware she was in a restricted part of its website, and that they maintain privilege over documents that might reveal what Ms Muller and others thought or was told at the time they undertook the tasks. That inconsistency amounts to waiver.
I consider that the Notice is targeted to client and solicitor communications, and internal Allens and counsel’s documents and communications. Ms Stiel’s sworn evidence is that there are no documents comprising instructions or directions from NLE to Allens responsive to the Notice. She gives sworn evidence as to the nature of the documents falling within the categories sought in the Notice, and that all such documents were created for the sole purpose of the proceeding (see above at [47]). Whilst Ms Stiel does not list the responsive documents, and by her subsequent paragraphs of her evidence makes clear that the identification of the particular documents has yet to be determined, she clearly identifies the universe of documents from which those documents will be ascertained. I am satisfied by the detail given by Ms Stiel in her evidence. I do not consider it incomplete. I have no reason to go behind her evidence.
Ms Stiel gives evidence of the burden that will be placed upon NLE and its legal representatives in responding to the Notice, preparing a list of responsive documents, and formally claiming privilege. As I have stated, this burden is not inconsiderable. I am persuaded that it is appropriate in these circumstances, and for the reasons that follow, to follow the course adopted by Black J in Wetherill Park.
For the following reasons, I find privilege has not been waived. Having regard to my conclusions on waiver which follow, I consider it is inefficient, and inconsistent with the overarching purpose set out in s 190 of the FCFCOA Act, to allow the Notice to stand. The Notice should be set aside.
As stated above, whether privilege in a document or information in a document is waived depends on whether the requisite inconsistency exists between the conduct of the party and the maintenance of the confidentiality in the document or information. That inconsistency may arise where the party claiming privilege has disclosed or deployed the relevant information in order to achieve some forensic or other advantage for itself, or to disadvantage another person in a similar way: College of Law v Australian National University [2013] FCA 492 at [24(g)] (Griffiths J); Commissioner of Taxation v Rio Tinto Ltd (2006) 151 FCR 341; [2006] FCAFC 86, and principles discussed by me in an earlier interlocutory decision in this proceeding, Lift Shop Pty Ltd v Next Level Elevators Pty Ltd [2020] FCCA 3063 [16]‑[18], [20]‑[25].
The documents NLE has deployed in the cross‑examination of Mr Katz are those in MFI‑4. Privilege is not claimed by NLE over those documents, confidentiality is asserted in deference to Lift Shop’s claims.
I accept Ms St John’s submission that it is Lift Shop that has sought by the s 138 Application to bring into issue Ms Muller and her colleagues’ states of mind when reviewing and accessing the website and undertaking the tasks of creating the screenshots and downloading the documents in MFI‑4.
It is not open to another party to litigation to force the other party (here Allens) to waive their clients’ legal professional privilege by seeking to put in issue state of mind. Allens’ denial of Lift Shop’s allegations made in the s 138 Application, and Ms Muller’s evidence of the purpose for which she reviewed the website, and of going about the above tasks is not a waiver of privilege, and her explanation of the process she followed does not constitute an assertion about the contents of an otherwise privileged communication: see generally In the matter of Idaport Pty Ltd (in liq)(recs apptd); National Australia Bank Limited (& Ors) v John Sheahan (& Ors) [2012] NSWSC 58 at 67.
The question is not simply whether the holder of the privilege has put that person’s state of mind in issue but whether they have directly or indirectly put the contents of the otherwise privileged communication in issue in the litigation, either in making a claim or by way of defence – relevantly, by the evidence read responding to the s 138 Application, or this application, correspondence or submissions: see Rio Tinto at [65]; Macquarie Bank Limited v Arup Pty Limited [2016] FCAFC 117, and cases discussed at [28]-[37].
It is necessary to show that Ms Muller’s state of mind must have been informed by the material sought by the Notice. Lift Shop has not established that assertion.
Muller 1 and Muller 2 are explanations of what Ms Muller did; there is no mention by Ms Muller of any document that might be encompassed by the categories of the Notice, nor is any use of any such document readily discernible in her explanation. That she looked at time records in the course of preparation of her affidavits, as is apparent from her cross‑examination, does not constitute a waiver of privilege in time records, or of any other internal Allens or counsel communication or document. Counsel submitting that the searching was ordinary does not waive privilege in any documents encompassed by the Notice. Ms Muller’s evidence that none of the materials in MFI‑4 required her to enter a password, and NLE’s legal representatives earlier contention that pages accessed were accessed from publicly available parts of the website do not waive privilege in any documents encompassed by the Notice.
NLE has not disclosed or deployed any documents sought by the Notice. It cannot be said that NLE has necessarily laid open to scrutiny any of the material sought by the Notice. No inconsistency or forensic unfairness arises.
Disposition
The Notice should be set aside. The applicant should pay the respondents’ costs of and arising from the Notice and the application to set aside the Notice. I so order.
I certify that the preceding one hundred and thirteen (113) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Baird. Associate:
Dated: 12 April 2023
SCHEDULE OF PARTIES
SYG 1318 of 2020 Respondents
Fourth Respondent:
DANIEL MAWSON
Fifth Respondent:
DAMIEN BOYLE
Sixth Respondent:
EDWARD HUME
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