Major v Woodside Energy Ltd
[2008] WASC 40
•9 APRIL 2008
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MAJOR -v- WOODSIDE ENERGY LTD [2008] WASC 40
CORAM: NEWNES J
HEARD: 28 FEBRUARY 2008
DELIVERED : 9 APRIL 2008
FILE NO/S: CIV 1186 of 2007
BETWEEN: STEVEN MAJOR
Plaintiff
AND
WOODSIDE ENERGY LTD (ACN 005 482 986)
Defendant
Catchwords:
Practice and procedure - Discovery - Adequacy of description of documents in second schedule - Relevant principles - Claim of risk of adverse consequences to third party if identified as author of documents - Whether relevant consideration - Whether discovery inadequate - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 26
Result:
Order that documents in second schedule be properly described
Order for particular discovery
Category: B
Representation:
Counsel:
Plaintiff: Mr B Goldsmith
Defendant: Ms C Galati
Solicitors:
Plaintiff: Goldsmiths Lawyers
Defendant: Edwards Wallace
Case(s) referred to in judgment(s):
Beecham Group Ltd v Bristol‑Myers Co [1979] VR 273
Lazenby v Zammit [1987] Tas R 54
Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34
NEWNES J: I have before me an application by the defendant for an order that the plaintiff provide a proper description of certain emails listed in the plaintiff's list of documents and also for an order, pursuant to O 26 r 6(1) or the inherent jurisdiction of the court, that the plaintiff provide particular discovery of any documents that were created by the plaintiff in responding to those emails.
At the same time, the plaintiff applied pursuant to O 26 r 6(1), for an order that the defendant give discovery of any emails sent to employees of the defendant regarding improper use of the defendant's email system.
The defendant's application was heard on 28 February 2008. I subsequently received written submissions and further affidavit evidence in respect of the plaintiff's application, the last of the submissions being received on 27 March 2008. On 1 April 2008, I was informed by the plaintiff's solicitors that in light of the affidavits very recently filed on behalf of the defendant dealing with the subject matter of the plaintiff's application, that application was no longer pressed. The only outstanding matter is therefore the defendant's application.
The background
In respect of that application, it is necessary, in order to set the contentions of the parties in context, first to say something about the circumstances in which the application arises.
Put shortly, in the action the plaintiff alleges that each of three senior employees of the defendant sent to other employees of the defendant emails which were defamatory of the plaintiff. The alleged contents of those emails relate to the plaintiff's attitude and work performance as an employee of the defendant. The emails are alleged to have been sent by the chief executive officer and managing director of the defendant, the director of operations of the defendant, and the engineering services manager of the defendant.
The plaintiff also pleads that it was a natural and probable consequence of the publication of two of those emails that all or part of them would be republished, and that the substance of one was republished in The West Australian newspaper on 6 December 2006 and the other on 9 December 2006.
In its defence, so far as relevant, the defendant denies that the emails were defamatory of the plaintiff and further denies that it was a natural and probable consequence of the publication of the two emails in question that all or part of them would be republished. It says that the emails were republished by an (unknown) employee of the defendant and such conduct was unlawful and contrary to the defendant's policies and procedures.
The plaintiff has given discovery but the defendant contends that his discovery is deficient in two respects. First, the defendant says that the description of certain emails received by the plaintiff, which are set out in the plaintiff's list of documents, is inadequate and the defendant seeks an order that the plaintiff file an affidavit identifying the sender of the emails. Secondly, the defendant says that the plaintiff's discovery is inadequate in that the plaintiff has not discovered any replies he sent to those emails, in circumstances where it is reasonable to infer that he would have replied to at least some of them, and the defendant seeks an order for discovery of any such replies.
In the second schedule of the plaintiff's list of documents, annexed to his affidavit of discovery sworn on 10 September 2007, the plaintiff has (so far as relevant) set out the following in respect of the documents that he had, but does not now have, in his possession, custody or power:
2.One email sent by 'A' in November 2006. The email was subsequently deleted by the plaintiff from his computer.
3.Four emails sent by 'B' between October 2006 and April 2007. The emails were subsequently deleted by the plaintiff from his computer.
4.One email sent by 'C' in November 2006. The email was subsequently deleted by the plaintiff from his computer.
5.Three emails sent by 'D' between October and December 2006. The emails were subsequently deleted by the plaintiff from his computer.
6.Three emails sent by 'E' in and from December 2006. The emails were subsequently deleted by the plaintiff from his computer.
7.Eight emails sent by Michael Weir, journalist, in and from November 2006. The emails were subsequently deleted by the plaintiff from his computer.
The plaintiff has since disclosed the identity of 'A' and 'B' but has refused to disclose the identity of the persons referred to as 'C', 'D' and 'E'. The plaintiff has declined to do so on the ground that the persons referred to either still work for the defendant or alternatively have business dealings, or will potentially have business dealings, with the defendant and they fear they will be prejudiced if their identities are revealed.
In opposition to the application the plaintiff swore an affidavit on 4 February 2008 in which he said that, after receiving advice from his solicitor on his obligations in respect of discovery, he contacted each of the senders of the relevant emails. The plaintiff says that three of those persons, whom I assume to be those identified as 'C', 'D' and 'E', told him they would not like their identity disclosed. One said, in effect, that he did business with the defendant and it 'may not take kindly to my having passed on information to you'; another said that he still worked for the defendant and if it had found out that he had passed information on to the plaintiff his job could be in jeopardy; and the third said that he would hate to be on the wrong side of the defendant.
The defendant's submissions
It was submitted on behalf of the defendant that the omission of the respective authors of the emails rendered the description of the emails wholly inadequate. A proper description of each document is important, particularly in circumstances where inspection of the documents cannot be given and the defendant is therefore unaware of their contents. It is not the case that a party is entitled to refuse to disclose the identity of the author of a discovered document simply because that author fears they will suffer some personal or commercial prejudice if their identity is disclosed. Moreover, as the authors described as 'C' and 'D' are said to be employees of the defendant, if their identities are known the defendant has the ability to search for and possibly locate the documents.
It was also submitted that there are reasonable grounds for being fairly certain that the plaintiff would have responded to at least some, if not all, of the 20 emails which comprise the documents in items 2 to 7 of the second schedule. Counsel for the defendant referred specifically to an article in The West Australian newspaper on 2 March 2007, under the joint by‑line of Mr Weir and a Mr Prior, in which express reference is made to statements said to have been made by the plaintiff to The West Australian. Although the article does not say that the statements by the plaintiff to The West Australian were made in writing, in the circumstances there are reasonable grounds for being fairly certain that the plaintiff replied by email to at least some of the eight emails sent to him by Mr Weir.
The plaintiff's submissions
It was submitted on behalf of the plaintiff that, given the circumstances, the emails concerned were clearly sent to the plaintiff in confidence. Counsel for the plaintiff referred, by way of analogy, to the power of the court to decline to make an order for the production of discovered documents to the other party where the documents contain highly sensitive commercial material. He referred to Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 [38] and contended that, as with the disclosure of sensitive commercial documents to a trade rival, once the identities of the authors of the emails were disclosed to the defendant the damage would be done. The confidentiality of their identities would be destroyed once and for all. It was submitted that each of the senders had a legitimate concern as to reprisals by the defendant if their identity were disclosed.
Counsel further submitted that the identities of the senders were not material to the matters in issue in the action. He also argued that there was no substance in the defendant's submission that if the identities of the senders were disclosed, the defendant could itself search for copies of the emails sent by the employees concerned to the plaintiff. As part of its own discovery, the plaintiff would have to search for and discover any such documents, in any event.
On the application for particular discovery, it was submitted on behalf of the plaintiff that the defendant had not overcome the presumption of conclusiveness of the plaintiff's affidavit of discovery. In any event, even if such replies existed, they were not relevant to any matter in issue, whereas any emails sent to the plaintiff were relevant to the question of republication.
The disposition of the application
The obligation of a party required to give discovery is to 'enumerate the documents in a convenient order and as shortly as possible, but describing each of them or, in the case of bundles of documents of the same nature, each bundle, sufficiently to enable it to be identified': Rules of the Supreme Court 1971 (WA), O 26 r 4.
A document is not identified sufficiently unless it is so described that, if a document is produced, it can be determined simply by looking at it whether it is the document enumerated in the list of documents: Lazenby v Zammit [1987] Tas R 54. In the case of a bundle of documents, the documents in the bundle should be described in a manner, or by reference to some indicia, that will enable a court to determine objectively whether any particular document is included in the bundle: Lazenby v Zammit.
In respect of documents in the second schedule, there will obviously be cases where the precision of the description the party is able to give is limited by the passage of time since they last had possession of or access to the document. In those circumstances, the obligation of the party can go no further than doing the best they can. The plaintiff does not, however, suggest that this is a case of that sort.
The defendant is satisfied that the inadequacy of the description of the documents numbered 2 and 3 has been overcome by the subsequent disclosure of the identities of the authors and the application is not now pressed in relation to those. In relation to those numbered 4, 5 and 6, however, in the absence of something further, such as the identification of the author, in my view the description of each of the emails is plainly not sufficient. As those documents are currently described, if a particular email were produced it would be impossible to say by looking at it whether it was one of those referred to in the second schedule.
I do not consider it is an answer for the plaintiff to say, in effect, that in each case the description is the best he can give because if the identity of the author were disclosed it would put the author at risk of adverse consequences. While for present purposes I accept there may be circumstances in which the prospect of adverse consequences to a third party would be a relevant consideration on an application of this nature, on the material before me there is simply no basis upon which any assessment could be made as to the reasonableness of the apprehensions apparently expressed by the three individuals identified as 'C', 'D' and 'E'. Whether there is any basis for their concern could be no more than a matter of speculation, particularly in circumstances where there is no indication as to the nature of the content of the emails. Thus it is not apparent, for instance, whether the apprehensions arise from the fact that the sender has disclosed confidential information that he or she was not permitted to disclose to the plaintiff, or whether they arise on some other more general basis, and if the latter, whether the concerns are reasonably held. I do not consider it is sufficient that the individuals involved simply express vague concerns as to possible repercussions from the disclosure of their identity.
I am therefore satisfied that the documents numbered 4, 5 and 6 are not adequately described in the list of documents and that no grounds have been made out as to why those documents should not be properly described. By including the documents in the second schedule of the list of documents, the plaintiff concedes their relevance. There is nothing to suggest that the emails were confidential in any relevant sense that might provide grounds upon which the court should decline to order a more complete description of them.
I should say that the plaintiff's solicitors offered to disclose the identities of 'C', 'D' and 'E' in confidence to the defendant's solicitors, but that invitation was declined. In the circumstances, I do not think it was unreasonably declined.
I would not be prepared at this stage specifically to order that the plaintiff identify the senders of the emails. Although it is not immediately obvious how it could be done, it might be possible for the plaintiff adequately to describe the emails without doing so. I would therefore order that the plaintiff file a further list of documents, verified by affidavit, describing each of the documents numbered 4, 5 and 6 in the second schedule of his current list of documents in a manner that enables the document to be identified. If that involves disclosure of the identity of the persons currently referred to as 'C', 'D' and 'E', so be it. I will turn now to the application for particular discovery.
The test on an application for discovery of particular documents is well established. The conclusiveness of an affidavit of discovery will be displaced only where the court is fairly certain that there are further documents which ought to be disclosed: Beecham Group Ltd v Bristol‑Myers Co [1979] VR 273, 279. I accept the defendant's submission that in the circumstances there are reasonable grounds for being fairly certain that the plaintiff would have replied to at least some of the emails in question sent to him. No replies have been discovered by the plaintiff, even in response to the eight emails sent to him by Mr Weir. In the ordinary course of events it would be reasonable to expect that the plaintiff would have replied by email to at least some of the 20 emails he received.
I would therefore order that the plaintiff file and serve an affidavit deposing to whether he has or has had in his possession, custody or power any documents that were created by him in response to, or in the course of responding to, any of the documents referred to in pars 2 to 7 of the second schedule of the list of documents annexed to his affidavit of 10 September 2007.
I will hear the parties on the costs of both the defendant's and the plaintiff's applications.
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