NHB Enterprises Pty Ltd v Corry (No 3)

[2020] NSWSC 425

Supreme Court

New South Wales

Medium Neutral Citation:	NHB Enterprises Pty Ltd v Corry (No 3) [2020] NSWSC 425
Hearing dates:	16 April 2020 and 20 April 2020
Date of orders:	20 April 2020
Decision date:	20 April 2020
Jurisdiction:	Equity
Before:	Williams J
Decision:	Orders made varying the terms established by previous orders of the Court on which the first and fifth defendants in the proceeding are permitted to access certain computers, devices and documents.
Catchwords:	PRACTICE AND PROCEDURE – search orders – access regime – certain computers and devices seized in executing a search order – where limited, supervised access to those computers and devices granted to the first and fifth defendants in the proceeding by previous orders of the Court – where first defendant filed a motion seeking orders to vary the existing access regime – motion partially resolved by consent – orders made in terms consented to and granting fifth defendant first access before the first defendant for the purpose of maintaining confidentiality in material that is privileged or personal to the fifth defendant and unrelated to the proceedings.
Category:	Procedural and other rulings
Parties:	A Corry (Applicant/First Defendant) NHB Enterprises Pty Ltd (First Respondent/First Plaintiff) Finn Pharmaceuticals Pty Ltd (Second Respondent/Second Plaintiffs) Rimon Ghaly (Third Respondent/Fifth Defendant)
Representation:	Counsel: A Corry (In person) (Applicant/First Defendant)    A T S Dawson SC with T B Senior (on 16 April 2020 only) and K Howard, solicitor (on 20 April 2020 only) (First and Second Respondents/Plaintiffs) E A J Hyde (on 20 April 2020 only) (Third Respondent/Fifth Defendant)   Solicitors: HWL Ebsworth (First and Second Respondents/Plaintiffs) Hall & Wilcox (Third Respondent/Fifth Defendant)
File Number(s):	2019/54125
Publication restriction:	N/A

Judgment – Ex tempore

1. This matter was listed for hearing before me on 16 April 2020 for the purpose of hearing the notice of motion filed on 7 April 2020 by the first defendant in these proceedings, Mr Corry, seeking orders varying earlier orders made by the Court as to the terms on which Mr Corry is permitted to have access to certain documents, devices and databases seized in the execution of a search order in this proceeding.

2. Mr Corry is the first defendant in the proceeding and also the first respondent to an amended notice of motion filed on 20 December 2019 by the plaintiffs seeking a declaration that Mr Corry and the third respondent to that motion, Mr Ghaly, have engaged in contempt of court. Mr Corry seeks access to the documents and materials that I have referred to for the purpose of defending that notice of motion.

3. Mr Ghaly did not appear at the hearing on 16 April 2020. At a hearing on 14 April, the Chief Judge in Equity had made a note that if there was to be an access regime following the determination of Mr Corry's motion, first access would be by Mr Ghaly.

4. Immediately after the evidence on Mr Corry's motion was read and tendered at the hearing on 16 April, Mr Dawson SC for the plaintiff articulated a proposal for access. The matter was then adjourned to allow the plaintiffs and Mr Corry to have a discussion about that proposal. When the matter resumed, the parties informed the Court that an agreement had been reached. The terms of that agreement were then outlined by Mr Dawson.

5. In outlining those terms, Mr Dawson said (at T 14.25):

“We have also agreed to make available the two MacBook Pros which are the subject of the orders which I have said something about this morning, subject to Mr Ghaly having, as the parties have agreed, first access to those two Apple devices in order to remove any privileged items or personal items. Obviously an appropriate list will need to be prepared by Mr Ghaly's representatives in the course of doing that.”

6. Mr Dawson then proceeded to outline other terms of the agreement and, at the end of his explanation of the terms, he invited Mr Corry to indicate whether he had left anything out of the summary. I then invited Mr Corry to say anything he wished to say in addition to or different to what had been said by Mr Dawson about the terms of the agreement (T 16.30). Mr Corry replied, "No, it was adequately summarised".

7. The matter was then adjourned for orders to be prepared reflecting the agreement.

8. On 17 April 2020, email correspondence sent to my Associate by the parties indicated that an agreement had not been reached in relation to two of the proposed orders. It is in that context that the matter was re-listed this morning.

9. Before the Court this morning are two sets of competing short minutes of order disposing of the first defendant's motion. The first set is a version containing eight paragraphs that was emailed to my Associate by the plaintiffs' solicitors at 4.41pm on 17 April 2020. That version is the version propounded by the plaintiffs and Mr Ghaly but it is convenient to refer to it as "the plaintiffs' version". The second version is the version in annexure “F” to the affidavit of Mr Corry dated 19 April 2020 which contains seven paragraphs. It is convenient to refer to that as "Mr Corry's version".

10. The devices covered by both versions of the orders include devices referred to as "the First MacBook" and "the Second MacBook".

11. In an affidavit of Mr Ghaly’s solicitor, Stephen Howard Klotz, affirmed on 11 February 2020 and read in Court this morning, Mr Klotz deposes to being instructed by Mr Ghaly that he is the owner of the First MacBook and the Second MacBook and that those devices contain personal documents belonging to Mr Ghaly and his wife that are unrelated to these proceedings.

12. The difference between orders 7 and 8 in the plaintiffs' version and order 7 in Mr Corry's version of the proposed orders is as follows.

13. The plaintiffs propose that Mr Ghaly have first access to the First MacBook and Second MacBook in the presence of his legal representative at the office of the plaintiffs' solicitors and that Mr Ghaly be permitted to remove any documents from the First MacBook and/or the Second MacBook on the basis that the documents are personal in nature or subject to a claim of legal professional privilege.

14. The plaintiffs’ version provides, in order 8, that any such documents removed are to be saved on to a USB and a list is to be prepared of those documents which include the basis for any privilege claim. That list is to be provided to the plaintiffs and to Mr Corry, and the USB and the list is to be provided to the Court in a sealed envelope.

15. By contrast, order 7 of Mr Corry's version of the short minutes provides for Mr Ghaly to have first access to the First MacBook and Second MacBook in the presence of his legal representatives at the plaintiffs' solicitor's offices only for the purpose of claiming privilege.

16. Order 7 of Mr Corry's version will require Mr Ghaly to detail the classes of documents that are the subject for any such privilege claim and the basis of the claim and to file and serve the claim on the parties. Mr Corry's version does not provide for Mr Ghaly to have first access to the First MacBook and Second MacBook for the purpose of identifying documents that are personal in nature. Nor does Mr Corry's version of the short minutes provide for Mr Ghaly to remove any privileged or personal documents from the First MacBook and Second MacBook and to copy and preserve them in another form in the manner provided by the plaintiffs’ version.

17. As the difference between the parties about the orders that should be made to dispose of Mr Corry's notice of motion is limited to the differences between them that I have just outlined, I heard the parties about those matters this morning.

18. Mr Corry submitted, firstly, that Mr Ghaly had chosen not to appear on 16 April and was now seeking to vary a concluded agreement reached by seeking first access to the First MacBook and Second MacBook for the purposes of not only identifying privileged material and making privilege claims but removing any such material and also identifying and removing information of a personal nature. I reject that submission. It is not correct that the position taken by Mr Ghaly in this morning's hearing is contrary to a concluded agreement said to have been reached on 16 April.

19. Mr Ghaly's position this morning and the plaintiffs’ version of the short minutes of order are consistent with the agreement announced to the Court by Mr Dawson on behalf of the plaintiffs on 16 April and agreed to by Mr Corry at that time, to which I have earlier referred.

20. Secondly, Mr Corry submitted that Mr Ghaly should not be allowed to remove any material from the MacBooks as this would be contrary to an earlier order of the Court made on 16 May 2019. Mr Corry referred to that earlier order in paragraph 3 of his affidavit dated 19 April 2020 which was read in Court this morning. The terms of that order provide that:

“…the parties are, until further order, restrained from deleting, moving, transferring or in any way editing any document within a Device.”

21. I note that the terms of the order are only until further order. That order itself does not impede an order being made in terms of paragraphs 7 and 8 of the plaintiffs’ proposed version of the short minutes which would facilitate documents being removed from devices but preserved in another form in order to reserve to the parties an ability to make applications to access those documents should there be a proper basis for doing so.

22. The regime provided for by paragraphs 7 and 8 of the plaintiffs’ version would preserve any documents removed from the First MacBook or the Second MacBook by Mr Ghaly in a separate form on USB to be provided to the Court in a sealed envelope. With the benefit of the lists of documents to be prepared by Mr Ghaly as proposed by paragraph 8 of the plaintiffs’ version, Mr Corry would be able to see the identity of any documents so removed and determine whether he wished to make a claim to have access to any of those documents and to take steps to prosecute that claim.

23. For those reasons, I do not accept that paragraphs 7 and 8 of the plaintiffs’ version are contrary to the order of the Court made previously on 16 May 2019.

24. Thirdly, Mr Corry submits that Mr Ghaly has already had first access to the First MacBook and Second MacBook in order to identify personal information. He refers, in paragraph 10 of his affidavit dated 19 April 2020, to an entry in an exhibit to an affidavit of the plaintiffs’ solicitor, Neil Martin Wallman, sworn on 4 October 2019. The entry is dated 25 June 2019 and refers to "attending to preparation of devices for Mr Ghaly’s attendance to review devices for personal information" and to the copying of such documents. That supports the submission made by Mr Hyde of counsel on behalf of Mr Ghaly this morning that Mr Ghaly's access to the First MacBook and Second MacBook to date has been for the purpose of copying material and not for the purpose of removing any material.

25. In paragraph 7 of Mr Klotz's affidavit of 11 February 2020, Mr Klotz deposes that he is instructed by Mr Ghaly that the personal documents contained on the First MacBook and Second MacBook include private information relating to his financial circumstances, tax returns, banking details, passwords, personal research, photographs, membership details of a not-for-profit organisation, his wife's personal files, studies and future plans with his wife.

26. Having regard to that evidence about the nature of the personal information, I am satisfied that, notwithstanding Mr Ghaly may have already had an opportunity to copy such information from the devices for his own purposes, it is appropriate that he be permitted to remove and preserve it in another form in the manner contemplated by paragraphs 7 and 8 of the plaintiffs’ version of the short minutes of order. The nature of the information is such that it would not appear to have any relevance to the forthcoming contempt motion. Of course, as noted earlier, if Mr Corry forms the view that it is material that is relevant to that motion and to which he requires access, having seen the list of documents required by paragraph 8 of the plaintiffs’ version, it would be open to him to make an application to obtain access to those documents. His interests are therefore appropriately protected by the regime proposed by the plaintiffs’ version.

27. Fourthly, Mr Corry asserted that Mr Ghaly wants to remove documents from the First MacBook and Second MacBook which inculpate him in the alleged contempt of court. That is a serious allegation which was not supported by any evidence and I reject it.

28. For all of those reasons, I am satisfied that the plaintiffs’ version of the orders are an appropriate way in all the circumstances to afford procedural fairness to Mr Corry by facilitating access to documents that he seeks for the purpose of preparing his defence of the plaintiffs’ contempt motion and, at the same time, to protect the legitimate interests of Mr Ghaly in maintaining any claims for legal professional privilege, maintaining the confidentiality of material the subject of those claims pending any determination of those claims and maintaining the confidentiality in information of a personal nature of the kind described in paragraph 7 of Mr Klotz's affidavit.

29. I therefore make the orders in the plaintiffs’ version initialled by me, dated and placed on the court file, noting that orders 1 to 6 were consented to by the plaintiffs and Mr Corry and were also consented to by Mr Ghaly subject to orders 7 and 8 in the plaintiffs’ version also being made. The terms of the orders are set out in the Annexure to these reasons.

30. The orders refer to the parties by reference to their role in the plaintiffs’ amended notice of motion filed on 20 December 2019: the plaintiffs in these proceedings are referred to as “the Applicants”, Mr Corry is referred to as “the First Respondent” and Mr Ghaly is referred to as the “Third Respondent”.

Annexure

Orders

31. The Court orders, that:

1. The First Respondent’s motion filed on 7 April 2020 (Motion) be dismissed.

2. The costs of the Motion be reserved to the judge hearing the Plaintiffs’ Amended Notice of Motion filed on 20 December 2019 (Contempt Motion).

Further to the orders made on 25 November 2019 (the November Orders):

The Court notes the agreement between the parties that:

3. The Plaintiffs’ solicitors, HWL Ebsworth, will make available, at the Plaintiffs’ cost, a solicitor from that firm of their choosing (Appointed Solicitor) for a period of up to 4 hours (Review Period) to undertake the supervision of the First Defendant in his review as permitted by the November Orders of:

1. the devices referred to in order 2 of the November Orders;

2. the Office 365 Account as defined in the Motion;

3. the First MacBook and the Second MacBook as defined in the Motion; and

4. confidential Exhibit NMW-1 referred to in the affidavit of Neil Martin Wallman of 18 December 2019

(Devices and Documents).

4. the Appointed Solicitor is to be a solicitor with no prior involvement in the matter, and appropriate protocols are to be in place so as to ensure there is no disclosure between the Appointed Solicitor and the solicitors at HWL Ebsworth with carriage of these proceedings of matters relating to the First Respondent’s review of the Devices and Documents other than in order to facilitate that review and as otherwise provided for in the orders set out below.

AND

The Court orders, that:

5. Access to the Devices and Documents by the First Respondent is to be in accordance with the November Orders, subject to the following:

1. Order 3(g) of the November Orders is not applicable during the Review Period;

2. the First Respondent is only able to review the confidential Exhibit NMW-1 and the Office 365 Account on a HWL Ebsworth computer supplied and connected to the internet;

3. The First Respondent is not to use the computer supplied by HWL Ebsworth in accordance with (b) for any other purpose (except as to the extent the First Respondent wishes to type the index referred to below);

4. the First Respondent may copy but not remove, delete or otherwise manipulate, documents from the Devices and Documents by placing those documents onto a USB;

5. the First Respondent is not to remove the USB from the offices of HWL Ebsworth;

6. the Appointed Solicitor may make two copies of the USB;

7. the Appointed Solicitor is to place the original USB in a sealed envelope and deliver the USB to the Court;

8. the First Respondent is to make an index of the documents contained on the USB (Index);

9. a copy of the Index is to be provided to the Appointed Solicitor who will provide a copy of the Index to the Court in the sealed envelope containing the USB (see (g) above);

10. the First Respondent may retain a copy of the Index;

11. the First Respondent is to provide the USBs necessary to facilitate these orders; and

12. neither the USBs nor the Index are to be reviewed by the Plaintiffs, the HWL Ebsworth solicitors with conduct of the proceedings or the Court unless and until the First Respondent serves an affidavit in respect of the Contempt Motion which refers to documents contained in the USB.

6. The Review Period shall occur between the hours of 9am and 5pm on reasonable notice at a time agreed between the First Respondent and HWL Ebsworth between 9:00am Tuesday 21 April 2020 and 5:00pm Friday 24 April 2020.

7. The Third Respondent is to have first access to the First MacBook and Second MacBook in the presence of his legal representative at the offices of HWL Ebsworth until 5:00pm Monday 20 April 2020.

8. Notwithstanding any previous orders made in the proceedings, the Third Respondent is permitted to remove any documents from the First MacBook and/or the Second MacBook on the basis that the documents are personal in nature or subject to a claim of legal professional privilege, and the Third Respondent is to save a copy of all such documents onto a USB and prepare a list of those documents which includes the basis for any privilege claim, and by 5:00pm on Tuesday 21 April 2020 provide:

1. a copy of the list of documents to the Plaintiffs and the First Respondent; and

2. the USB and the list of documents to the Court in a sealed envelope.

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Decision last updated: 21 April 2020