Neilson v City of Swan [No 3] - [2008] WASC 222

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NEILSON -v- CITY OF SWAN [No 3] [2008] WASC 222

CORAM: TEMPLEMAN J

HEARD: 24 SEPTEMBER 2008

DELIVERED : 16 OCTOBER 2008

FILE NO/S: CIV 1341 of 2002

BETWEEN: MARK JAMES NEILSON
LISA JEAN LOGGIE
Plaintiffs
AND
CITY OF SWAN
Defendant

Catchwords:

Practice and procedure - Discovery - Plaintiffs claim defendant should provide more documents - Inherent jurisdiction - Whether grounds for being fairly certain other documents ought to have been disclosed - Whether utility and proportionality in trouble and expense of defendant's provision of more documents - Case turning largely on objective facts in light of construction of legislative instrument - Remainder of case turning on correspondence and statements identified in statement of claim

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Firstnamed Plaintiff     :     In person
Secondnamed Plaintiff :     No appearance
Defendant:     Mr G A Rabe

Solicitors:

Firstnamed Plaintiff     :     In person
Secondnamed Plaintiff :     No appearance
Defendant:     Downings Legal Pty Ltd

Case(s) referred to in judgment(s):

Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia [2007] WASC 65

TEMPLEMAN J: In this action, the plaintiffs claim against the City of Swan, as defendant, that its approval of an Outline Development Plan (ODP) was unlawful. The plaintiffs claim further that they were denied procedural fairness in the approval process: and that there was a misfeasance in public office by one of the defendant's senior officers. The plaintiffs claim 'general, aggravated and exemplary damages' and a declaration as to the unlawfulness of the defendant's approval of the ODP.
The parties were ordered (without dissent) to give discovery. The first‑named plaintiff (Mr Neilson) now complains that the defendant has not given proper discovery in that it has discovered only very few relevant emails.
The plaintiffs are acting in person. Mr Neilson made his complaint in a letter dated 9 September 2008 to the defendant's solicitors. He said that in June 2005 he had foreshadowed a request for 'full discovery of emails since 1998'. He sent the solicitors a copy of a CCH article dealing with the discovery of emails. The article referred to cases, which, he said, supported his request for a keyword search of emails in the defendant's email system. Mr Neilson went on in his letter to say that:
A recent significant example will illustrate the deficiency of the discovery process adopted by the [defendant] to date.
The example to which Mr Neilson referred was an email sent on 15 February 2008 by one of the defendant's managers to an external consultant. The email contained a statement that the ODP in issue had 'no legal standing' as the defendant had no record that it had been endorsed by the Western Australian Planning Commission (WAPC), this being a requirement under the defendant's Town Planning Scheme No 9.
Mr Neilson contends that the defendant's chief executive officer, who made the defendant's primary affidavit of discovery, and the defendant's mayor, who witnessed the chief executive officer's signature should be presumed to have been aware that the affidavit was materially deficient, in not disclosing this email.
In my view, this contention is ill‑founded. That is because the plaintiffs' claim that the ODP was approved unlawfully is not based on an allegation that the ODP was not endorsed by the WAPC. Because this is not an issue in the action, the email referred to above is not relevant and is therefore not discoverable.
That is not the end of the matter, however. It is clear from correspondence which has passed between Mr Neilson and the defendant, that it has not given discovery of any emails generated in the period 1998 to 2004, other than those which now exist in hardcopy. That is to say, the defendant has not carried out a search of what might be described as its electronic archives.
Mr Neilson's application was made informally by letter dated 18 September 2008 to my associate. He requested
further and better discovery using a keyword search of the [defendant's] email system.
Counsel for the defendant responded to the request on the assumption that it was made under the inherent jurisdiction of the court, and that the principles set out in Seaman on Civil Procedure at [26.6.4] were therefore applicable. In my view, this is the correct approach.
So far as relevant, that passage in Seaman is in the following terms:
In an application to the court's inherent jurisdiction the applicant, when seeking to displace the conclusive nature of the affidavit of discovery, is confined to information emanating from the opponent's affidavit and list, the documents the opponent discloses and the opponent's admissions, and may not rely upon a contentious affidavit. Limited to those materials the court may make an order if it has reasonable grounds for being fairly certain that there are other documents which ought to have been disclosed, or if it is practically certain that the party making the affidavit has misconceived his or her case and that if he or she had acted upon a proper view of the law he or she would have disclosed further documents …
The defendant has filed affidavits in opposition to Mr Neilson's application. In particular, there is an affidavit of Jim Kuan, the defendant's acting manager, information services. Mr Kuan deposes to the difficulty and expense involved in complying with Mr Neilson's request in relation to emails generated within the defendant's organisation from 1 January 1997. The affidavit therefore contains an 'admission' that discovery has not been given of any such emails. It is not, of course, an admission that the system contains discoverable emails.
Mr Kuan's evidence is that the defendant has changed its systems of electronic document and records management.
It is not necessary to refer to the post‑2002 system or to the steps which it would be necessary to take in order to access it now. That is because at the hearing of his application, Mr Neilson, apparently accepting that the exercise would be difficult and expensive, said, in substance, that he wanted to be reasonable and was therefore content to restrict his application to emails generated between 1998 and 2002 (ts 79).
The period from 1998 to 2002 was the subject of a request made by Mr Neilson in an undated letter apparently written on or about 11 July 2002 containing a request made under the Freedom of Information Act 1992 (WA) (FOI Act). The request and subsequent correspondence are annexed to Mr Kuan's affidavit. It appears that Mr Neilson's initial request was met with the response that it would involve a considerable cost 'in the thousands of dollars'. Mr Neilson therefore narrowed the scope of his request. However, even on that basis, compliance with Mr Neilson's request would have involved, very approximately, 218 hours of operator time over a period of months. Further, the search would not necessarily have resulted in the recovery of emails which had been deleted. That would depend on when the deletion took place in relation to any relevant backup period.
Mr Neilson did not pursue the matter because he was informed that the cost would be approximately $6,540 and that, because the number of emails matching his search criteria was unknown, it was not possible to estimate the cost of assessing each email.
Counsel for the defendant submits, in substance, that because Mr Neilson did not pursue his application in 2002, he should not be permitted to pursue it now. Mr Neilson told me from the bar table, over objection by counsel for the defendant, that he abandoned his 2002 application because the cost was prohibitive.
Counsel submitted that there was no evidence that Mr Neilson had been asked to make any payment in respect of his application under the FOI Act: that the amount of $6,540 was the expected cost to the defendant.
I do not accept that to be the case. Section 16 of the FOI Act makes it plain that the cost of complying with a request for information is to be borne by the applicant.
Having regard to the principle set out in [26.6.4] of Seaman, I have to consider whether there are reasonable grounds for being fairly certain that there are in existence, in the defendant's electronic archives, emails which ought to have been disclosed. Clearly, it is impossible to answer that question either affirmatively or negatively: there is simply no evidence on the point.
The next question, therefore, is whether the defendant should be put to the trouble and expense of undertaking the search sought by Mr Neilson. That, in turn, depends on the utility of the exercise, having regard to the issues in the case. It depends also on considerations of proportionality: as Le Miere J said in Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia [2007] WASC 65:
That principle may be generally expressed in terms of requiring the court to deal with cases, so far as practicable, in ways that are proportionate to the importance of the issues involved, to the value of the subject matter involved, to the complexity of the issues, and to the financial position of each party, consistently with the overriding obligation of the court to deal justly with its cases [19].
As I have noted above, the first issue in the case is the question whether the approval of the ODP was unlawful. The plaintiffs contend that the defendant breached a number of clauses in its town planning scheme when it approved the ODP on 10 February 1999. In order to determine this issue, it will be necessary to consider what the defendant actually did (or failed to do) by reference to the obligations imposed on it by the town planning scheme. The question will therefore turn largely on the objective facts, considered in the light of the true construction of the town planning scheme. In my view, it is unlikely that any emails generated or received by the defendant's officers or councillors would assist in the resolution of this issue.
The plaintiffs next complain that the defendant breached its obligation to allow them procedural fairness in the process which led to the approval of the ODP. The plaintiffs complain about the conduct of Messrs Richardson and Lumsden, senior officers of the defendant. The plaintiffs rely on correspondence identified in the statement of claim, telephone conversations and threats and statements made to them at the material time. In these circumstances, I think it unlikely that the plaintiffs would be assisted by any emails.
The plaintiffs' claim of misfeasance in public office is directed only to the conduct of Mr Richardson. There are three allegations. First, an alleged failure to bring the advice of the Department of Environmental Protection dated 9 February 1999 to the attention of the defendant's councillors; secondly, providing to the defendant's council a biased and deficient assessment of the plaintiffs' written submission dated 10 December 1998 in relation to the ODP and thirdly, providing to the defendant's council on 10 February 1999, a report in relation to the ODP that was not in accordance with the requirements of the town planning scheme.
In the circumstances as pleaded, it is said that Mr Richardson either made conscious decisions not to act in accordance with the relevant duty imposed upon him, or was recklessly indifferent to the existence of such duties.
As pleaded, the plaintiffs' case appears to be based on the drawing of inferences from objective facts. Clearly, it would assist the plaintiffs to prove their case if (for example) Mr Richardson had written an email in which he revealed that he had the state of mind the plaintiffs attribute to him. Having regard to the principles applicable here, before acceding to Mr Neilson's application, I would have to be satisfied that there were 'reasonable grounds for being fairly certain that there are other documents' of this nature. However, there is no evidence on which I could reach that degree of persuasion. Furthermore, as I have already noted, the search requested by Mr Neilson does not include the word 'Richardson': and it cannot be said with confidence that emails which had been deleted would be restored.
In these circumstances, I consider that there is likely to be very little utility in requiring the defendant to search its previous email system. I accept that, having regard to the defendant's resources, the cost would not be prohibitive, although it would no doubt be considerably greater now than it would have been in 2002. However, that is only one of the relevant considerations.
In all the circumstances, I do not think the plaintiffs will be denied justice by the order I propose to make, which is that Mr Neilson's application for further discovery be dismissed.
The application having been unsuccessful, I see no reason to depart from the usual rule that costs should follow the event. Mr Neilson must therefore pay the defendant's costs of the application. I fix them at $1,500.