Millard v Collins (No 2)
[2023] ACTSC 106
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | Millard v Collins (No 2) |
| Citation: | [2023] ACTSC 106 |
| Hearing Dates: | 3, 17 February, 3 March, 14 April 2023 |
| Decision Date: | 11 May 2023 |
| Before: | McWilliam J |
| Decision: | See [34] |
Catchwords: | PRACTICE & PROCEDURE – DISCOVERY – application for further discovery – competing application to limit disclosure obligations – whether discovery given was inadequate – where orders for further discovery previously made – whether further discovery would be oppressive – further discovery ordered |
| Legislation Cited: | Court Procedures Rules 2006 (ACT) rr 605, 606 |
| Cases Cited: | Cossey v Canberra Airport Pty Ltd [2022] ACTSC 70 Millard v Australian Capital Territory [2020] ACTSC 138 Mulley v Manifold (1959) 103 CLR 341 Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 |
| Re McGorm; Ex parte Co-operative Building Society of South | |
| Australia (1989) 20 FCR 387 Richardson Pacific Ltd v Fielding (1990) 26 FCR 188 | |
| Stephens v Trustees of the Roman Catholic Church for the | |
| Archdiocese of Canberra and Goulburn [2023] ACTSC 88 Su v Kumal [2022] ACTSC 161 Wang v HMG Capital Pty Ltd [2022] VSC 748 | |
| Parties: | Jamie Damien Millard (Plaintiff) Alexandra Collins (First Defendant) |
| The Government Solicitor for the Territory (Second Defendant) | |
| The Australian Capital Territory (Third Defendant) | |
| ACT Human Rights Commissioner (Intervenor) | |
| Representation: | Counsel |
| S Tierney (Plaintiff) | |
| N Oram (Defendants) | |
| Solicitors | |
| Ken Cush & Associates (Plaintiff) | |
| The Australian Government Solicitor (Defendants) | |
| File Number: | SC 186 of 2021 |
| McWilliam J: |
1. In May 2020, there was a car accident involving a woman (Ms Khayla Reno) and two
other children in the car. The woman and one of the children died as a result of injuries
sustained in the accident.
2. Ms Reno was 19 weeks pregnant at the time of the car accident. The plaintiff in this
proceeding, Mr Jamie Millard, was the father of the unborn child. In the days following
the accident, the woman was on life support at Canberra Hospital. Mr Millard brought
urgent proceedings seeking initially to restrain the Hospital from turning off the life
support. Those proceedings resolved, with each party later ordered to pay their own
costs: Millard v Australian Capital Territory [2020] ACTSC 138.
3. In May 2021, the plaintiff commenced the present proceeding seeking declarations that
each of the defendants breached his human rights in the course of those fraught days
following the car accident.
4. The proceeding has stalled at the discovery stage, with the defendant seeking to
pursue orders for further discovery that were previously made and the plaintiff now
seeking to limit its obligations to documents already discovered.
5. For the purpose of understanding what follows, it suffices to state that two of the
matters that will be in issue at the final hearing of the matter are:
(1) The nature, commencement, and status of the relationship between the
plaintiff and Ms Reno.
(2) Whether there was a valid enduring power of attorney held by the plaintiff for Ms Reno. 6. In respect of the second of those issues, the plaintiff relied upon a document dated
7 May 2020, just over a week before the car accident, to say that he held a power of
attorney in respect of health decisions to be made. He contends the execution of a
power of attorney by Ms Reno was witnessed by two people, Bradley Etchels and
Maggie Hamilton-Curran. The defendants challenge the validity of the power of
attorney, with issues arising as to the timing and validity of signatures on the document.
The present interlocutory applications for determination
7. Orders were made by Elkaim J on 29 August 2022 requiring the plaintiff to make further
discovery of documents that fell within the following categories:
(a) The purported signing (and the purported witnessing of the signing) of the enduring power of attorney dated 7 May 2020;
(b) The nature, commencement and status on 16 May 2020 of the relationship between the plaintiff and Ms Reno;
(c) The living arrangements of the plaintiff and the woman from March 2020. 8. The defendants have filed an application dated 15 November 2022 applying for orders
that, in effect, enforce the above orders made by Elkaim J for the plaintiff to provide
further discovery.
9. The plaintiff has filed an application dated 23 November 2022 seeking to limit his
obligation to give discovery. Because of their overlapping nature, the applications will
be determined together.
Applicable principles
10. I have recently set out the applicable principles when considering whether to make an
order for further discovery in Stephens v Trustees of the Roman Catholic Church for
the Archdiocese of Canberra and Goulburn [2023] ACTSC 88 (Stephens) at [9]-[13].
The following replicates much of what was there set out.
11. Under r 606(1)(c) of the Court Procedures Rules 2006 (ACT) (Rules), the Court may
make an order for further disclosure if it “considers that a party has not, or may not
have, adequately disclosed discoverable documents”. The Court also has power under
r 606(1)(g) to make any other order about disclosure or nondisclosure of documents
that the court considers appropriate.
12. It has been recently said that orders for further discovery are “discretionary and are not
to be made lightly”: Wang v HMG Capital Pty Ltd [2022] VSC 748 at [24]. In this
jurisdiction, Kennett J described the power to order further discovery as one to be
exercised sparingly: Cossey v Canberra Airport Pty Ltd [2022] ACTSC 70 (Cossey) at
[5]. Ordinarily, the affidavit of discovery is conclusive: Mulley v Manifold (1959) 103
CLR 341 at 343–344.
13. However, there are cases in which the likely existence of undiscovered documents can
be inferred. Such an inference may arise, for example, from documents that have
been discovered or from material already filed in the proceeding: Cossey at [8], cited by
McCallum CJ in Su v Kumal [2022] ACTSC 161 at [19]-[20].
14. Before making any order for further discovery, the Court must have regard to a number
of mandatory, but not exhaustive, considerations specified in r 606(3). With slight
rephrasing, they are as follows:
(a) the principle that disclosure of documents in a proceeding should be limited to disclosure that is reasonably necessary for fairly disposing of the proceeding,
or part of the proceeding;
(b) the likely relevance and significance of the documents that may be discovered; and
(c) the likely time, cost and inconvenience of disclosing documents or particular documents that may discovered.
15. Those mandatory matters do not limit other matters to which the Court may have
regard: r 606(4).
16. The defendants also drew attention to r 605(1) of the Rules and the obligation to
disclose discoverable documents that have at any time been in the possession of a
party to a proceeding. What constitutes a discoverable document in the party’s
possession has been discussed in Stephens at [15]-[17]. “Possession” includes
custody or power, with power being a presently enforceable legal right to examine the
document.
Arguments of the parties
17. The defendants identified what they say are clear deficiencies in the plaintiff’s
discovery to date. They include the absence of:
(a) The plaintiff’s mobile phone records, including the present location of his mobile phone (although a mobile phone was obtained through other means
during the hearing of these applications);
(b) The plaintiff’s email account and Facebook records; and (c) Documents evidencing the plaintiff’s living arrangements. 18. All of these matters fall clearly within the terms of the orders made by Elkaim J in
August 2022 and the defendants say they are merely seeking that the plaintiff comply
with the orders that have been made for further discovery.
19. The defendants submitted they are pursuing discovery from the plaintiff fully before
exploring subpoenas or other third-party disclosure processes because of the principle
that orders for third party disclosure are generally not made unless the party seeking
the orders has exhausted their rights in respect of discovery: Richardson Pacific Ltd v
Fielding (1990) 26 FCR 188 at 189.
20. The defendants argued further that the relevant Rules are consistent with that principle,
reflecting the position that if it is in a party’s power to give discovery, they must give it.
If not, the party must show that they have done their best to procure the means of
giving it, relying on Re McGorm; Ex parte Co-operative Building Society of South
Australia (1989) 20 FCR 387 at 390. The defendants submitted that the steps
disclosed as having been taken by the plaintiff did not establish that he had done his
best to procure the means of giving discovery.
21. The plaintiff initially submitted that he had complied with his obligations for discovery
and argued that at least in respect of the power of attorney, he had nothing further to
produce on that issue.
22. He argued the defendants’ application was incompetent and oppressive. The basis for
the complaint of oppression arises from the fact that the plaintiff is currently
incarcerated and has had some difficulty in accessing the documents that he is
required to produce pursuant to the orders of Elkaim J. The fact of his incarceration
has limited his ability to access electronic data on a computer or his mobile phone, and
he says he has also now forgotten his passwords to enable him to access his email
and Facebook records.
23. The plaintiff relied on Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 where
Allsop P (when his Honour was in that Court) referred at [101] to discovery being a
“highly expensive exercise” and that courts should be:
…astute to ensure that it is not used as a weapon of oppression by wealthy litigants to
oppress less well-funded parties. Even when all parties are well resourced, over- enthusiastic and unnecessary use of discovery impedes the due administration of justice
and undermines confidence in the court system’s ability to resolve disputes justly, quickly
and cheaply. Parties should understand that there is no entitlement to “chain of inquiry”
discovery. If discovery is being used abusively, the courts can and should control it.
In the plaintiff’s view, the discovery being sought by the defendants was not further
discovery within the scope of the existing orders made by the Court, but an expansion
of those orders.
Determination of the applications
25. The hearing of the applications was adjourned on a number of occasions, either to
permit further steps to be taken by the plaintiff or for further argument. During that
process, it became clear to me that the plaintiff has not yet fully complied with the
orders for further discovery made by the Court. The likely existence of further records
is readily to be inferred from the fact that the plaintiff is yet to provide (at the very least) his phone records, the details of his email and Facebook accounts, or the records that
may be accessed from those accounts.
26. In part, that is because the plaintiff did not appear to have understood the broad nature
of what it means to have a discoverable document in his “possession” under the Rules.
27. By way of example, during the hearing, it transpired that the plaintiff knew where his
phone was, but that he had not yet taken sufficient steps to provide it to his lawyers so
that it could be discovered in this proceeding. A subpoena was ultimately issued which
brought a mobile phone device to court. It was then disclosed that, for reasons not
entirely clear at the time, the phone had been run over by an excavator prior to it being
produced. When the phone arrived during the hearing, it was in a particularly damaged
state. The potential tampering with evidence in a court proceeding is a serious matter
about which I will not presently comment, and I note that the phone was being held by
a third party known to the plaintiff prior to its production to the Court. It suffices to say
that regardless of the present state of the device, what occurred in relation to the
plaintiff’s mobile phone did nothing to give the Court any confidence that the plaintiff
had yet fully complied with the existing orders.
28. As the plaintiff pointed out, the orders for discovery were carefully crafted by Elkaim J
with a view to compliance with the orders being manageable. However, contrary to the
submission made by the plaintiff, all that the defendants are seeking to do is to have
the plaintiff comply with the terms of the orders already made.
29. To the extent that the orders now sought are more detailed, that is an attempt by the
defendant to specify, and therefore clarify, obligations that the plaintiff already had (and
has) under the existing orders. In light of the confusion to date as to exactly what the
plaintiff was required to do under the previous discovery regime, including the
information that was required to be provided in respect of discoverable documents no
longer in the plaintiff’s possession, such clarification is appropriate (under r 606(1)(g) of
the Rules).
30. This is not a case where discovery is being used as a tool of oppression in respect of a
vulnerable and less well-funded party. The plaintiff is clearly at a disadvantage by
virtue of his incarceration limiting his ability to do things, but he does have lawyers who
he can authorise to act on his behalf. Further, the evidence established that he has
been provided with a direct point of contact within the Alexander Maconochie Centre,
who is aware of the need for the plaintiff to provide access to his social media, phone
records and email accounts in order to comply with court orders for further discovery. That avenue of enquiry was still in the process of being pursued by the plaintiff at the
conclusion of the hearing of the applications.
31. The material that is sought is directly relevant to key issues in the proceedings, is
reasonably necessary to fairly dispose of the matters in dispute, and the effort required
to discover the material are not disproportionate, in my view.
32. First, the categories of discovery are already limited by reference to the issues stated.
Second, the documents sought fall within a relatively short time-period. At the most, it
extends between March and May 2020. Third, the majority of the discoverable
documents that are likely to exist within the categories already ordered should be
information that the plaintiff can either readily either access himself or authorise his
lawyers to obtain to work around the fact that he is incarcerated. To the extent that he
cannot access his now damaged phone or has forgotten passwords that may make it
difficult for him personally to log on to certain social media accounts (assuming the
prison access issue is resolved as anticipated), he is able to at least provide the means
of discovery to the defendants in a further verified affidavit of discovery, so that the
defendants can then issue subpoenas to a third party, such as Facebook or a named
phone service provider in respect of any particular mobile phone.
33. I am therefore prepared to accede to the defendant’s application to require further
discovery in accordance with the existing categories and without further limitation of the
plaintiff’s obligations under those orders.
Orders
34. The Court orders as follows:
(1) Subject to Order 2, by 31 May 2023, the plaintiff is to make further discovery by verified affidavit of the discoverable documents falling within the following categories:
(a) The purported signing (and the purported witnessing of the signing) of the enduring power of attorney dated 7 May 2020;
(b) The nature, commencement and status on 16 May 2020 of the relationship between the plaintiff and Khayla Reno; and
(c) The living arrangements of the plaintiff and Khayla Reno from March 2020.
(2) The further discovery specified in Order 1 is limited to discovery of documents of the following nature:
(a) Documents recording communications between the plaintiff and Khayla Reno during the period 1 April 2020 to 16 May 2020
(inclusive) including text messages, messages on social media
platforms and other messenger services, and records of telephone
calls made and received by the plaintiff to and from Ms Reno;
(b) Documents recording or evidencing communications between the plaintiff and Bradley Etchells and/or Maggie Hamilton-Curran during
the period 1 April 2020 to 28 May 2020, including text messages,
messages on social media platforms and other messenger services,
and records of telephone calls made and received by the plaintiff to
and from Mr Etchells, and/or Maggie Hamilton-Curran;
(c) The plaintiff’s mobile telephone records for the period 1 April 2020 to 28 May 2020; and
(d) The plaintiff’s Facebook information for the period 1 January 2020 to 28 May 2020 including:
(i) Messages the plaintiff has sent to, or received from, other people on Messenger;
(ii) Posts shared by the plaintiff on Facebook;
(iii) Comments posted by the plaintiff on Facebook; and
(iv) The plaintiff’s Facebook profile information.
(3) For any discoverable document referred to in Orders 1 and 2 that is no longer in the plaintiff’s possession, the plaintiff is to include in the affidavit of further discovery:
(a) When and how the document stopped being in the plaintiff’s possession; and
(b) To the best of the plaintiff’s knowledge, information and belief, the identity of any person who now has or is likely to have possession
of the document.
(4) For the avoidance of doubt, where any discoverable document is no longer in the plaintiff’s possession because of an inability to access the material on a social media platform or website, or the lack of access to a working mobile phone, the affidavit of further discovery referred to in Order 1 is to identify the following (to the extent applicable):
(a) Each and every mobile phone previously in the plaintiff’s possession (as defined in the Court Procedures Rules 2006), by
make, model and colour.
(b) Each of the plaintiff’s email accounts in existence over the period March to May 2020, by the email address pertaining to the
account.
(c) Each of the plaintiff’s social media and social messaging accounts, by naming the relevant platform and the plaintiff’s username on
that platform.
(5) The plaintiff’s application in proceeding filed 23 November 2022 is dismissed. (6) The plaintiff is to pay the defendants’ costs of and incidental to the defendants’ Application in Proceeding filed 15 November 2022 and the plaintiff’s Application in Proceeding filed 23 November 2022 with such costs not to be recoverable pending the conclusion of the proceeding. I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.
Associate:
Date: 11 May 2023
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