Pastina Pty Ltd v Hosanna Excelsis One Universal Chruch Incorporated (No 2)
[2019] SADC 192
•16 December 2019
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
PASTINA PTY LTD v HOSANNA EXCELSIS ONE UNIVERSAL CHRUCH INCORPORATED (No 2)
[2019] SADC 192
Reasons for Decision of His Honour Judge Slattery
16 December 2019
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS - INTERLOCUTORY PROCEEDINGS - DISCOVERY AND INTERROGATORIES
Following provision by the defendant of particulars of a plea of estoppel, the plaintiff applied for orders under 6DCCR 145(1) for delivery up and examination by an expert of electronic devices and other computer devices.
Whether there is reason to doubt that the defendant has fully complied with its obligations to make disclosure and produce documents.
Whether orders under 6DCCR 145(1) should be made against non-party individuals who are or who have been involved as officers of the defendant body or who are identified as having controlled the email addresses through which the defendant conducted its activities and provided services.
Held:
1. There is reason to doubt that the defendant has fully complied with its obligations to make disclosure and provide documents.
2. It is appropriate in the circumstances to make orders for the delivery up of devices for examination of the contents thereof subject to claims for protection of legal professional privilege and personal confidential information that is otherwise irrelevant.
3. Based upon the evidence, it is necessary for orders also to be made against individuals who, as volunteers, have used their own electronic devices to conduct the business of and for services provided by the plaintiff.
District Court (Civil) Rules 6DCCR 145(1), referred to.
Ceneavenue Pty Ltd v Martin [2008] SASC 332, discussed.
PASTINA PTY LTD v HOSANNA EXCELSIS ONE UNIVERSAL CHRUCH INCORPORATED (No 2)
[2019] SADC 192
On 29 November 2019, I heard an application by the defendant for leave to withdraw an admission in paragraph 7 of its defence. At the time, I dismissed the application. I published my reasons for decision on 13 December 2019.[1]
[1] [2019] SADC 190.
Following my dismissal of the defendant’s application, a further application for leave to appeal against my decision was brought in the Supreme Court of South Australia. The application for leave was refused.
The trial in this action commenced on 11 December 2019. I had earlier been given to understand that it was likely that the plaintiff’s case would take no longer than half a day. It was a claim for unpaid rent and outgoings calculated under the terms of a lease between the parties and there is no challenge to the terms of the lease. There is some dispute about a number of credits that the defendant says must be allowed on the plaintiff’s claim. The case had been listed for three hearing days.
On 11 December 2019, the trial of the action was due to commence. The defendant then made an oral application for adjournment of the trial. Defendant’s counsel informed me that late in the afternoon of 10 December 2019, the plaintiff had made disclosure of some documents not previously disclosed, formally or informally. Defendant’s counsel informed me that these raise at least 7 issues of difficulty which could not be dealt with overnight and as a matter of fairness, it was necessary for the trial to be adjourned. He described these documents as highly critical to the defence of estoppel.[2]
[2] T3.4.
That plea is to be found in paragraph 10 of the defence which reads as follows:
10. Paragraph 10 is admitted only as to the fact that the defendant held over as a tenant for two and a half years but is otherwise denied and the defendant says the RCLA governed the lease and by virtue of 20B(3)(d) as the defendant had been in possession for at least 5 years section 20B could not apply and the pleaded construction of the section is untenable as a matter of law in any event (Henningsen & Anor v Nolan [2004] SASC 105 per Gray J) and clause 16, Retail and Commercial Leases (Miscellaneous) Amendment Bill 2017 (SA). The plaintiff is in any event estopped from asserting a new lease.
There were no particulars pleaded of the estoppel plea and none had been sought by the plaintiff. I informed defendant’s counsel that I imagined that it was a form of promissory estoppel plea but I could not be sure. Defendant’s counsel undertook to develop the estoppel case in submissions but, having heard submissions, I am no better informed about the defendant’s estoppel case. The basis put was that after the expiry of the first lease, the defendant acted upon an understanding shared by the plaintiff that it was, and continued to be, a holding over tenant and that it was not bound to a further 5 year term. Counsel for the defendant submitted that the understanding of the plaintiff and the defendant was the same. His instructions did not permit him to submit that an understanding had been created in the minds of the defendant by words, actions or both of the plaintiff’s positive conduct or its knowing failure to act.
It was then said that acting upon a mutual assumption, the defendant entered into a new lease of another premises. It was only after the defendant bound itself to this new lease that the plaintiff announced that it treated the defendant as bound to a second 5 year lease term. By then, the defendant had changed its position by entering into a new lease of the other premises, relying upon that mutual assumption.
At first, the essential period for this plea was September 2017 to March 2018. Defendant’s counsel asserted that no or insufficient disclosure had been made by the plaintiff of documents pertaining to this period of time and that the documents seen for the first time at or about 4.30 pm on 10 December 2019 are documents of the plaintiff that are pertinent to the estoppel issue. The defendant must have time to assess the documents, their effect, obtain instructions and formulate an approach having regard to the estoppel case.
Counsel for the defendant tendered a first bundle of documents, Exhibit DA1. They are a series of letters sent by the defendant to the plaintiff announcing an intention to leave the premises, giving 1 months notice of termination of lease and thereby, treating themselves as a monthly tenant. There is no suggestion of an understanding. One month’s notice is given. No response was said to be received. A second letter of 11 January 2018 was sent by the defendant to the plaintiff making a claim for credits for duplicated payments and the bond. It is said that no response was received to this letter. A further letter of 2 February 2018 was sent by the defendant to the plaintiff threatening legal proceedings for recovery of the debt. It was submitted that no response was received to this letter.
As I understand these submissions, they were to lay the foundation of a submission that the conduct of the defendant was consistent with its belief that it was a tenant at will of the plaintiff. Inferentially, so much may be said of the understanding of the plaintiff at the time, on the defendant’s submissions.
There are two matters for comment. The first is that nowhere within these documents is there any suggestion that the defendant was acting upon the basis of an understanding that was created by the plaintiff that could be said to be a mutual position between them. The second is that in the letter of 28 February 2018, the defendant asserts that it has legal advice that the failure of the plaintiff to pay the amounts demanded was wrongful. It is not said when the defendant may have first received its legal advice.
I was then shown the documents first said to have been seen by the defendant at or around 4.30 pm on 10 December 2019. These were the clear instructions given to defendant’s counsel at that time.
The first document is a letter of 9 October 2017 from the solicitors Tindall Gask Bentley to the defendant care of Pastor Lorraine Carter at an address in Payneham South. Defendant’s counsel submits that Pastor Lorraine Carter has not been at that address for some time and was not at that address on 21 September 2017 or thereafter.
The letter refers to a letter from the defendant to the plaintiff of 21 September 2017 announcing its attitude that it was a tenant at will. The response of the plaintiff’s solicitors was that the defendant was not a tenant at will and must continue in occupation under a 5 year term.
The letter of the solicitors of 9 October 2017 also refers to a telephone conversation between the solicitor, Mr Caruso and Pastor Lorraine Carter of the defendant. Defendant’s counsel said that because of the brevity of time, he only had preliminary instruction about this call and this was as a result of late disclosure of this material. The documents before the court in Exhibit DA2 suggest that this letter was also addressed to the defendant at a Gmail address. Defendant’s counsel made a challenge to the presumed use of that email address and informed me that this address has not been used regularly since 2010. These were the preliminary instructions held by defendant’s counsel and the time needed for full instructions had not been available.
The second relevant document is a letter of the same addressee from Tindall Gask Bentley solicitors dated 4 December 2017. It is addressed to the same addressee and it reiterates the claimed 5 year term and gives a calculation of the plaintiff’s claim. Defendant’s counsel also tendered as Exhibit DA3 a copy of an exchange of emails in 2013 to a Bigpond email address involving Mrs Rosina Alvaro, an officer of the plaintiff. The letter of 4 December 2017 was also copied to the Gmail address but defendant’s counsel asserted that this was not an email address in use, at least on his preliminary instructions. The brevity of time meant that he could not obtain full instructions.
For present purposes, the final relevant letter is a letter from Tindall Gask Bentley solicitors to the public officer of the defendant dated 9 January 2018 confirming the claimed payment of rent had not been made, the plaintiff having treated the defendant’s conduct as repudiatory, had accepted it, had treated the lease as at an end and was making claims under it.
Defendant’s counsel then turned to the legal basis of the estoppel plea and the basis of his application for adjournment. At T25.14-31.4, he set out his submissions. It is perhaps easier to set out the full transcript rather than attempt to summarise it. It is as follows:
MR HOILE: It is my submission that the disclosure of these documents at 4 o'clock on the day before the commencement of the trial is so prejudicial to the defendant and its advisors in their preparation for and conduct of their trial on the major issue in dispute that the only just remedy is to adjourn this trial so as to give the defendant a fair opportunity to investigate a range of issues which now arise from this belated discovery.
Before identifying and making a submission to your Honour about those issues which at the moment I will identify as to seven issues, I mention that which of course your Honour is well aware of; that almost three weeks ago now the defendant filed its own application to amend its defence by withdrawal of an admission to an assertion in the plaintiff's claim which was by and large and assertion of mixed fact and law, that the plaintiff opposed that application relying on caseflow management principles to the effect that the defendant's application was too late and if allowed would prejudice them in being able to prepare for and properly proceed with the trial on the listed dates.
I think it appropriate to inform your Honour as part of my duty to your Honour and this court that the defendant sought permission appeal that ruling of your Honour that rejected the application to amend from the Supreme Court and the application for permission to appeal was heard on Monday by Kelly J of the Supreme Court.
One of the matters debated and a view that her Honour expressed was that the substantive appeal could not be heard, given that, for the reasons which your Honour explained both at the time of hearing of the application and, indeed, on delivery of reasons, because of the fact that there were no reasons because your Honour did not have the opportunity for the reasons that you explained at the time to deliver reasons for the ruling.
So, as I say, that issue was debated on the appeal before Kelly J and the consideration that the appeal proper, if one likes, the substantive appeal could not be heard without receipt of those reasons, once your Honour had an opportunity to do them, form part of the reason for refusal of permission to appeal.
This application, of course, is a separate application and must stand or fall on its own. The only link is this, that I now call in aid in support of the application for an adjournment, the very same principles of caseflow management that the plaintiff so vigorously argued in its application to resist the amendment that was sought by the defendant. The very same things that were put against the plaintiff and which were accepted and applied by your Honour, apply now to the circumstances that obtained as a result of the disclosure yesterday of these documents.
It is my submission that one can hardly imagine or could hardly postulate any documents more material to the issues of estoppel, to the issue of the respective assumptions of the parties and the time at which they held them, at the critical time between September and end of year 2017, than those that were discovered yesterday. No explanation has been proffered by the plaintiff as to the reason for late discovery except the single line item referred to by my learned friend that 'Well, these had not previously been discovered through inadvertence'. That's all we know.
The late disclosure was not made openly and transparently.
HIS HONOUR: Try and cut to the chase a bit.
MR HOILE: Yes, I am concluding.
HIS HONOUR: Let me try and cut to the chase. Your estoppel case wasn't pleaded, but as I understand your estoppel case now it is this; that if the defendant had received a timely response from the plaintiff to any of its letters, for example, in September 2017, if a timely response had been received it might have changed its position.
MR HOILE: To refine that a bit -
HIS HONOUR: No, let's stay with the principles of estoppel. So the defendant was working upon a presumption or an assumption created in its mind by the inactivity of the plaintiff. This is, I understand, your estoppel case. Second, if it had known that the plaintiff took a different legal view or a different legal position in relation to those premises it would not have left the premises because the letter of - 21 September was the letter which gave the 30 days' notice, which leaves to the pleading in relation to the 21 October date in the plaintiff's statement of claim, such that, if they had known in that 30 day period that they were not to be treated as a tenant at will but, in fact, bound by a new five-year lease, it might have done something different.
MR HOILE: Yes.
HIS HONOUR: In reliance upon that inactivity or failure to address the issue, it acted in a particular way.
MR HOILE: Yes.
HIS HONOUR: And that having regard to the content of the correspondence in having acted in that particular way, as was known by the defendant, it was incumbent upon the plaintiff, in that knowledge, to have notified the defendant that it was treating it as a tenant bound by a further five-year lease and that the failure to do so would ground a form of estoppel.
MR HOILE: Yes.
HIS HONOUR: All of that arises out of Exhibit DA2.
MR HOILE: Yes.
HIS HONOUR: Because my understanding of what you're just telling me is that nobody received any of the correspondence in Exhibit DA2 because it was sent to the wrong place, except, perhaps, for that piece of correspondence of 9 January 2018 sent to the public officer, which may well have been the named address or the identified address of the public officer within the corporate records and, as a matter of law, a presumption may be made at the accuracy of the corporate record without change. However, of course, that document is irrelevant to your argument because the actions were taken between 21 September 2017 and 21 October 2017 and, therefore, everything that pretty much follows is irrelevant, as I understand your argument, because you've taken the step in reliance upon the inactivity of the plaintiff, the plaintiff having been in a position where it knew or ought to have known of the defendant treating itself as no longer bound by any form of lease and, being a tenant at will, could exercise its rights to give 30-day notice as any tenant on a 30-day account could. Am I right or am I right?
MR HOILE: With respect, on the limited information that your Honour has, your Honour is quite right. There is, perhaps, one aspect of it which I do need to develop for the assistance of your Honour when I come to what I have described as the seven particular reasons why this trial cannot proceed.
HIS HONOUR: No - we're trains on a different track. It is this; that all of those matters, as I understand your position, all of those matters that I've just ventilated are the very matters that you would raise in the connection of the estoppel plea that you've made in para.10 of the defence. In the absence of any request for particulars, that seems to be the case, so that, that is your estoppel case. Whether or not it amounts to an estoppel it is a matter for me, so that the two principal bases are, one, your client made it very clear to the plaintiff that it was treating itself as a tenant at will, it gave notice of its intention to abandon the premises, it did so in the light of the absence of any response from the plaintiff in doing so, saying, as it will in its evidence, 'I relied upon that failure to respond. Whether or not that will amount to an estoppel of any form, and I will need to hear you on that, is a matter for me.
Therefore, whether or not the solicitor sent a letter on 9 October or 4 December or any other time in 2017 or through 2018 is neither here nor there on that argument because, one, your evidence will be 'Didn't receive the document because it was sent to an address unknown to us' and, in any event, how could it have been sent to that address in circumstances where you knew the address, in any event?
So, there's your argument. Whether or not it has merit is a matter for me and I am certainly not going to decide that now nor give you any indication one way or the other, but the fact is that's a matter for trial.
Your evidence at trial, as I understand, is going to be never received, never known, if we had known, we would have done something differently. Has to have been.
Then at T33.8, I attempted to formulate the extent of the defendant’s estoppel case that if it was aware of the first letter of the plaintiff’s solicitors of 9 October 2017 then the defendant would have acted entirely differently. At T33.15-34.9, the following exchange occurred between myself and defendant’s counsel:
MR HOILE: The point, in short, is this. The letter of Mr Caruso, even if it were to be excluded from evidence on the basis that it was never received, it asserts a telephone conversation on 6 October 2017. Now the relevant mini factual matrix there is this: that the negotiations which led to the new lease at the new premises further on down South Terrace towards Hutt Street, commenced in around, as I'm instructed - and again, I only have preliminary instructions on this - sometime in about August.
HIS HONOUR: How could you only have preliminary instructions?
MR HOILE: Because the letter was only received at 4 o'clock last night.
HIS HONOUR: Let me finish my point please. How, in light of an estoppel plea, could you only have preliminary instructions on that point? Your client, as I understand it - and I'm trying to encapsulate the case - is alleging taking particular steps in reliance upon particular matters. That must be at the very heart of an estoppel plea. If you don't have instructions, for example, on what the client did in reliance upon the absence of information coming back from the plaintiff, I'm very surprised.
MR HOILE: If I'd be permitted, I will outline the instructions so as to provide your Honour with assistance.
HIS HONOUR: But that's part of your opening.
MR HOILE: No, as part of my application that this trial must now be adjourned and I wish to be heard on that.
HIS HONOUR: Well I'm not stopping you but I'm saying how surprised I am.
When confirming that position, defendant’s counsel said that there was a variable that prior to 21 September 2017, the defendant had entered an agreement to lease of other premises that it may have been able to avoid if it was earlier aware of the plaintiff’s legal position. I then asked questions about whether this agreement to lease had, for example, a trigger point for the entry by the defendant into the obligation for the lease or whether it was merely a contractual obligation.
Defendant’s counsel did not know the answer to that question. I asked to be given a copy of the documents. Defendant’s counsel did not have it with him at the time. He had not seen it and it was not in court. This was the first day of trial and it is obvious that despite this document being an essential integer of the estoppel case as it had been explained to me, it had not been disclosed to, seen by or assessed by counsel. No explanation was proffered for this remarkable turn of events. Defendant’s counsel then informed me that the new lease was executed by the defendant on 8 November 2017.
It was then submitted that the relevance of the referral by the solicitor for the plaintiff in the letter of 9 October 2017 to a telephone conversation on 6 October 2017 with Pastor Lorraine Carter struck at the heart of the estoppel plea. The defendant denies any knowledge of the letter of 9 October 2017 from the plaintiff’s solicitors and says any conversation with Pastor Lorraine Carter on 6 October 2017 was perfunctory at best because of the state of health of Pastor Carter at the time.
Thus, it is said that in the absence of receipt or any knowledge of the letter of Tindall Gask Bentley of 9 October 2017, or what is alleged to be the substance of the conversation between a solicitor and Ms Carter of 6 October 2017, the trial must be adjourned because the defendant’s estoppel case would have to be reassessed, there would need to be further disclosure and instructions would need to be taken.
Defendant’s counsel then outlined to me 7 steps he needs to take to enable his client to be in a position to meet the plaintiff’s case and to prosecute its estoppel case. All of them were underpinned by the following propositions:
1. The defendant had never before seen the letters from Tindall Gask Bentley, especially the first letter of 9 October 2017;
2. As a result, the defendant was only able to give preliminary instructions to its advisers and no time was available to give full instructions;
3. The defendant had otherwise made full disclosure and there was nothing within any papers or electronic records held by the defendant to indicate a factual position which contradicted the defendant’s case of estoppel. This included a proper search of all email addresses to which the plaintiff allegedly sent documents such as the Gmail and Bigpond addresses; and
4. There was nothing further to be disclosed by the defendant because it, apparently, had attended court on 11 December 2019 to commence a trial ready to put its estoppel defence.
In relation to 4 above, during submissions, a real doubt arose in my mind about the accuracy of this proposition. Defendant’s counsel was unable to tell me, as he did not know, what were the terms of the agreement to lease that the defendant had executed prior to 21 September 2017. Later it became clear to me that the obligation to enter into the lease was contractual such that the defendant was under a contractual obligation to enter the lease upon a specific day, 9 November 2017 upon the agreed terms to be found in the agreement to lease document. The lease to be executed by the defendant was annexed to the agreement to lease document as is usually the case.
The fundamental submissions of the defendant are largely wrong. The letter of Tindall Gask Bentley of 9 October 2017 was referred to in the indices to the tender book sent to the defendant’s solicitors pursuant to the obligations of the plaintiff under the Supplementary Rules of court. In the first application for withdrawal of the admission, a book of documents was produced by the plaintiff on 23 November 2019. The letter of 9 October 2017 from Tindall Gask Bentley to the defendant is to be found at p 165 of that book. At p 168 of that same book is the letter of 4 December 2017 from Tindall Gask Bentley to the defendant. This book was produced in hard copy to the defendant on 28 November 2019.
Further, copies of this same correspondence was sent to the defendant’s former solicitors on 9 April 2018. Copies were also sent by express post to the address of the public officer of the defendant at the address shown on the public record. This occurred on 5 March 2018.
The plaintiff contends that when proper regard is had to the actual facts of the matter, none of the prejudice claimed by the defendant could have been caused because the defendant has, through its then solicitors, been on notice of the documents since at least April 2018. I accept the submissions of the plaintiff. It is apparent that for reasons unexplained, the defendant has not given, or has been unable to give full and proper instructions to its solicitors about the documents that it has received. This gives rise to a further matter of concern. I am satisfied that the documents said now by the defendant to have never been received from the plaintiff were in fact provided to the defendant’s then solicitors. I am also told they have not been located on that solicitor’s file. There is no explanation for that position.
There is no evidence before me that the defendant has ever made an exhaustive search of its electronic records and devices to identify whether any of the documents were received into, for example, the relevant email addresses. The same position pertains to the devices used by the public officers of the defendant.
A significant concern arises because it appears that despite the claimed reliance upon the defendant’s officers in relation to the process of disclosure, there has not been a download of the material upon the electronic devices used within the defendant and by the officers of the defendant. This would inform whether, for example, a document was received into an email address and if anything was done with it. These are steps that must be taken in the usual course when dealing with a factual dispute about information which is exchanged and stored electronically. This failure, amongst others, informs the absence of clear instructions of the defendant’s counsel.
I am satisfied that the whole of the foundation of the defendant’s application for adjournment had no substance and was factually wrong, I then dismissed that application and adjourned the question of costs. At the time, it was apparent to me that at least two things were required. The defendant needed to plead out its estoppel claim and it needed to exhaustively search its electronic records and if necessary, make further disclosure. Over the objection of the plaintiff, I adjourned the hearing of the trial for two days to allow all of this to happen. I was also then informed that the plaintiff’s case would take less than half a day. Much of it could be agreed as to quantum without agreement on liability.
I made orders for the defendant to deliver particulars of its estoppel claim both to the plaintiff and to the court. No documentation was filed at court. The defendant did deliver to the plaintiff particulars of its estoppel claim. They provide as follows:
PARTICULARS OF THE ESTOPPEL
1. The defendant relies upon an equitable estoppel and upon a common law estoppel by convention.
The equitable promissory estoppel
2. The Defendant assumed at all material times that it was holding over as a monthly tenant and that the Plaintiff would not claim from the Defendant any rent or outgoings beyond one month if the Defendant gave one month's notice of intention to vacate ("the Assumption").
3. The Assumption was induced by and acquiesced to by the Plaintiff.
4. In reliance upon the Assumption the Defendant bound itself to a Lease of premises at 11 South Terrace Adelaide ("the New Lease") on or about 8 September 2017.
5. The Plaintiff knew of the Assumption at all material times.
6. By altering its position in reliance upon the Assumption and binding itself to the New Lease the Defendant will suffer detriment if the Assumption is not fulfilled.
7. The Plaintiff failed to act to avoid that detriment by disabusing the Defendant of the Assumption at any material time.
8. It would be unfair and unjust and unconscionable for the Plaintiff to be permitted to depart from or resile from the Assumption.
The common law estoppel by convention
9. The Defendant adopted the Assumption at all material times.
10. The Plaintiff adopted the same assumption at all material times.
11. Both the Plaintiff and the Defendant conducted their relationship on the basis of the Assumption at all material times.
12. Both the Defendant and the Plaintiff knew or intended that the other was acting on the Assumption at all material times.
13. Departure by the Plaintiff from the Assumption will cause detriment to the Defendant.
14. The lease between the Plaintiff and the Defendant drawn by the Plaintiff:
14.1 Contained terms including to the effect that:
·if the 5 year term was not renewed then the Defendant would hold over as a monthly tenant;
·the Defendant was not permitted to engage in activities which would attract the provisions of the RCLA
14.2 contained no terms that:
·any holding over would be other than as a monthly tenant or would result in any liability for rent or outgoings beyond one month after notice of intention to vacate;
·the provisions of RCLA applied
15. In about December 2014 Lorraine Carter on behalf of the Defendant told Rosina Alvaro on behalf of the Plaintiff that the Defendant did not wish to and would not take a further 5 year term from May 2015 and would continue only as a monthly tenant, and neither Rosina Alvaro nor anyone else on behalf of the Plaintiff at that time or at any material time thereafter disabused the Defendant of the Assumption.
16. On or about 21 September 2017 the Defendant by formal letter to the Plaintiff advised that it was leaving on one month's notice, and the Plaintiff did not at that time or at any material time thereafter formally respond so as to disabuse the Defendant of the Assumption.
The trial resumed on Friday 13 December 2019 at 2.00 pm. At that time, the plaintiff pressed an application for the following orders:
The plaintiff, PASTINA Pty Ltd, applies for the following orders:
1. The defendant pay the plaintiff’s costs of the defendant’s oral application made on 11 December 2019 and costs thrown away by reason of the adjournment of the trial on terms that:
1.1 the costs are fixed in the amount of $32,385.00;
1.2 the costs are payable on or before the close of business on Tuesday 17 December 2019; and
1.3 in the event that the costs are not paid then the defendant shall not be permitted to advance an amended defence on the issue of estoppel.
2. The defendant make further and better disclosure forthwith, and in any event before 12 noon on Monday 16 December 2019, of documents in the categories described in the letter dated 12 December 2019 which is reproduced as Exhibit CMZ14 to the affidavit of Claudia Zimmermann filed 13 December 2019.
3. The defendant forthwith, and in any event before 12 noon on Monday 16 December 2019, produce to Mr Simon Miller of Clifton Hall, acting as the IT Expert for the plaintiff:
3.1. all devices which have or since September 2017 have had access to the mailbox for the email address [email protected] and [email protected];
3.2 all devices which have or since September 2017 have had access to the mailbox for any of Moira Foreman, Lorraine Carter, Lorraine Isbister, David Gee and any other person who is or has been a member of the board or governing body of the defendant.
3.3 The device or devices on which the defendant's letters to the plaintiff dated 21 September 2017, 11 January 2018, 28 February 2018 and 5 March 2018 were created and/or modified.
4. Each of Moira Foreman, Lorraine Carter, Lorraine Ibister and David Gee forthwith produce to Mr Simon Miller of Clifton Hall acting as the IT Expert for the plaintiff:
4.1. all devices which have or since September 2017 have had access to the mailbox for the email address [email protected]; and
4.2The device or devices on which the defendant's letters to the plaintiff dated 21 September 2017, 11 January 2018, 28 February 2018 and 5 March 2018 were created and/or modified.
5. Paragraphs 3 and 4 include the following ancillary orders:
5.1A reference to a device includes, without limitation, a telephone, a tablet, a computer, a USB storage disk of any type and cloud based data storage or email server service.
5.2These orders include a requirement as necessary to provide such usernames, passwords or other codes as are necessary to access the device.
6. Mr Miller is directed to:
6.1Create a forensic image of each of the devices produced to him under paragraphs 3 and/or 4 of this order and upon having done so return each device back to the party which produced it.
6.2Search each forensic image and make a copy of documents which, to his reasonable satisfaction, fall within the categories of documents described in the letter from TGB dated 12 December 2017 which is Exhibit CMZ14 to the affidavit of Claudia Zimmermann filed 13 December 2019.
6.3Release to each of the solicitors for the plaintiff and the defendant an electronic copy of the documents found by the searches authorised by this and any subsequent order.
6.4Retain possession of and keep safe the forensic images created in accordance with these orders until further order.
6.5Report to the court, the plaintiff and the defendant if he finds any evidence of any files having been deleted from any device between 12 December 2019 the date on which the device was delivered up to him.
6.6Not access or use any forensic image for any purpose other than as authorised by orders in these proceedings.
7. Each of the defendant and the non parties Moira Foreman, Lorraine Carter, Lorraine Isbister and David Gee be restrained until further order from deleting or making any alteration to any file on any device which is the subject of this order until delivery up of that device to Mr Miller pursuant to the terms of this order.
8. The costs incurred by the plaintiff in retaining Mr Miller be the plaintiff's costs in any event.
9. Such further or other orders or directions as this Court deems fit.
10. This application be made specially returnable to the resumption of trial in this matter on 13 December 2019.
11. Costs.
By that time, there had apparently been no further disclosure by the defendant including, for example, in relation to the conduct of its businesses at the South Terrace addresses which I have referred to in my first judgment.
The plaintiff’s application was supported by an affidavit of the solicitor, Ms Zimmermann which it read without objection. At the outset, defendant’s counsel again submitted that he did not have had the opportunity to respond. I proceeded to hear the application because I was satisfied that it was based upon a number of matters but principally, the failure of the defendant to disclose the documentary material that supports its own estoppel case and whether, for example, there are further relevant documents to be disclosed.
The plaintiff criticised the paucity of the instructions held by the defendant’s solicitors about, for example, the use by the defendant of the two email addresses, Gmail and Bigpond. Plaintiff’s counsel emphasised the transcript before the court on 11 December 2019 where defendant’s counsel consistently said that in relation to the use of particular email addresses or particular documents, that he did not have confirmed instructions. In relation to the email addresses, he only had preliminary instructions, and in some, he had no instructions at all. This was notwithstanding that officers of the defendant had been in court at the time of each of the applications brought by the defendant to withdraw the pleaded admission and for the adjournment of the trial. For example, in relation to the Gmail address, the plaintiff produced documents as exhibits to the affidavit of the solicitor showing that the Gmail address is one current email address being used by the defendant. This stands in contrast to the later explanations given by defendant’s counsel of the very confined use of that address. He criticised the fact that, first the defendant’s counsel said he had no instructions on the point and then later said he had clear instructions on, for example, Exhibit DA3 tendered on 11 December 2019 which was an exchange of emails in 2013. These were three email exchanges which the defendant appears to have had no difficulty in locating and providing. That email exchange of 2013 used the Gmail address about which the defendant’s counsel said he now had no or limited instructions. That is an inconsistent position taken by the defendant because on the one hand, defendant’s counsel informs me that he has no or limited instructions about that email address and yet, having regard to Exhibit DA3, there is allegedly evidence of the exchange of emails through that address and upon which reliance is placed by the defendant as part of the particulars of its estoppel case. The same may be said about the Bigpond address through which the letter of 9 January 2018 and later letters were sent.
At T24.29, defendant’s counsel informed me that he has not had an opportunity to get instructions about that email address. At T42.16, when referring to the Gmail address, defendant’s counsel informed me that he has not had the opportunity to get instructions on where the email address emerges. He said he had some preliminary instructions that it was an email address associated with the defendant church, not necessarily the church in Adelaide but the wider church which has operations not just in Adelaide but elsewhere. His preliminary instructions were to the effect that the email address was used for informative or promotional things such as template prayers and other types of conduct and not business matters. It is apparent from those submissions that it is an email address used by the defendant.
The plaintiff criticizes this position put by the defendant because it is inconsistent. The first submission was that there was no instructions on the point, then it is said there are preliminary instructions on the point and then it is said the email address was used but not for purposes associated with the issues before the court. There was no disclosure of any of these matters and if relevant material was received at those email addresses, there has been no disclosure of it. Therefore, there was an email address in use in 2013 and there was an exchange of messages (documents) through that email address that are relied upon by the defendant for their estoppel case, yet now, nothing is known of that email address. In short, the plaintiff submitted that if it was possible for instructions to be given to defendant’s counsel that an email address was not used for business matters but apparently was used for an exchange relied upon in the estoppel case, then sufficient time had been available for the defendant to be able to say whether other relevant correspondence was received through that email address. Therefore, the defendant must be able to say whether or not it received the letter of 4 December 2017 and 9 January 2019 as well as the 9 October 2017 letter as copies through that email address.
Plaintiff’s counsel also criticised the position taken by defendant’s counsel in relation to that correspondence. As I set out above, I was informed by him that until 4.30 pm on 10 December 2017, defendant’s counsel and solicitors had never heard of these letters, insufficient time had been available to read them and to get instructions on them and, inferentially from the submissions, his client did not receive the documents. If they were received, they had never been given to solicitors, did not form part of the solicitor’s file and no disclosure was made about them. Plaintiff’s counsel then relied upon the affidavit of the solicitor Ms Zimmermann (FDN 33). The affidavit confirms at paragraphs 20 et seq that the defendant had not made disclosure of particular documents and records sent as copies through the Gmail address, notwithstanding the submission by defendant’s counsel that no opportunity had been available to obtain instructions in relation to the Gmail address.
Exhibited to the affidavit (Exhibit CMZ9) is a copy of text messages sent by the solicitor at Tindall Gask Bentley in charge of the file to a particular telephone number of Pastor Lorraine Carter, a public officer of the defendant in October 2017. There are three messages and in each, the solicitor asks Pastor Carter to ring him urgently. They are dated 6 October, 9 October and 25 October 2017. Reference was also made to a covering email dated 9 October 2017 of correspondence sent to the Gmail address. The email of 9 October 2017 encloses a copy of the solicitor’s letter of 9 October 2017 to which reference has been made above. Then in Exhibit CMZ11 is evidence of internet webpages of the defendant identifying its use of the Gmail address.
As another example of the use of particular email addresses, Exhibit CMZ12 to the affidavit of the solicitor is a copy of an email chain between the defendant and the plaintiff. It commences on 23 September 2017 and ends on Friday 6 October 2017. In particular, in the email sent by Ms Rosina Alvaro of the plaintiff to the defendant’s email address, there is an explanation why the assertion by the defendant of it being a tenant at will was incorrect and asserting that a further 5 year lease is in existence.
None of these emails have been disclosed by the defendant. There is no explanation why that is the case in light of the application made by the defendant to adjourn the trial having regard to the enquiries that would have been expected to be made by the defendant in light of its particularity of its estoppel case.
Exhibit CMZ13 is a copy of material showing letters being sent by express post to an address at Gurney Street in South Plympton which was the address shown on the public record as the defendant’s address. It was returned. A further letter of 16 March 2018 was sent to Mr Gee, the public officer.
On 12 December 2019, the plaintiff requested immediate disclosure of all documents relevant to the defendant’s claim of estoppel in order to be able to understand the case. There has been no further disclosure. In particular, there has been no disclosure on the question of reliance and or detriment referable to the case of estoppel, or in relation to the execution of the further lease which is an essential integer of the estoppel case.
A request was made by the plaintiff for disclosure of a number of documents but importantly in this context, copies of all emails and text messages before Pastor Carter and Ms Moira Foreman, two public officers of the defendant, or between any other members of the board of the defendant which are relevant to any of the following topics:
1. The circumstances of or term of vacating the subject premises;
2. The matters whereby the subject of the letters of 21 September 2017, 11 January 2018, 28 February 2018 and 5 March 2018 are discussed including discussion as to the fact of the letters themselves;
3. Any request by the plaintiff to meet with the defendant;
4. Any communications with the plaintiff’s solicitors;
5. The receipt of the plaintiff’s particulars of claim.
The same request also seeks text messages exchanged between the telephone numbers to which I have earlier referred namely the three messages between 6 and 25 October 2017, telephone records disclosing the use of that telephone number of Pastor Carter and email exchanges.
A response was received by the defendant’s solicitor on the morning of 13 December 2019. The defendant provided minutes of meeting of its board held on 28 March 2019 and addresses without answering other requests. At paragraph 4.7, the defendant’s solicitor says that the ambit of the plaintiff’s request is too vague and wide and the plaintiff accepts that criticism. Importantly for present purposes, at paragraph 4.8 and in relation to the exchange of email, it is said:
6.7If there were any such emails, your client would have them. In any event, your request is too vague and wide.
The plaintiff submits that this response is a failure to address the obligation of the defendant to make proper disclosure. It submits that the defendant wishes to run an estoppel case without making disclosure of documents as required under the rules of court. Also, the disclosure that has been made and the documentation now produced by the defendant, all of which were available and disclosed, indicate that the defendant’s application for adjournment was incorrect and was based upon wrong information.
Plaintiff’s counsel also disavowed any suggestion that what was being sought was a search order. The order sought pursuant to 6DCCR 145(1) is one that is within the discretion of the court, it having been satisfied of the contumelious failure by the defendant to make proper disclosure in light of the material before the court. I will address the rule later in these reasons but the plaintiff emphasises that it is open to me to find that there has been incomplete and inconsistent disclosure and that the only way that the plaintiff can be certain about whether there has been full disclosure is by the enquiries that are sought by the defendant.
In his submissions, counsel for the defendant attempted to reiterate that much of the material that had been used by the plaintiff in support of his application, reinforced the matters that had been raised by him in his application for adjournment of the trial. However, as I pointed out to him at the time, no comfort can be taken from that because it merely underscored the failure of the defendant to make a proper disclosure. He did not “quibble” with the assertion that there had been incomplete disclosure. He countered that submission by suggesting that if there was a conversation between a solicitor and Pastor Carter of 6 October 2017, the solicitor’s file note should be produced. I obtained no assistance from those submissions.
Defendant’s counsel also did not quibble with the suggestion that disclosure is incomplete and it is inconsistent.[3] He then informed me that the church is a voluntary organisation and is operated and conducted by volunteers who have other employment and it is difficult for the defendant to give immediate attention to requests that are made. However, that overlooks the fact that these obligations were faced by the defendant on its estoppel plea prior to 11 December 2019 and also prior to September 2019 when the trial date was set.
[3] T82.23-26; T81.24-26.
Defendant’s counsel then informed me that some of the orders sought are not opposed, there are some upon which time is needed to get instructions, some are opposed and if pressed, time will be required to provide responding material. However, defendant’s counsel was unable to inform me what would that responding material would constitute, and he said that some time would be needed to make further disclosure which is sought. Particularly in relation to the production of devices referred to in paragraph 3 of the interlocutory application, defendant’s counsel suggested that although in essence the order is not going to be opposed, the request is too wide and, for example, the defendant may wish to get advice from its own experts. Counsel was not able to inform me who the expert may be. He repeatedly said the tenor of the order is not appropriate and time needs to be given to consider it.[4] He complained also, that the order sought material from non-parties for whom he did not act. However, that is a function of the brevity of time within which the application is taken and the notice is to be given to those persons to whom the order is directed. They are all persons who are strategically involved in the church, in the giving of instructions and they are persons who have been in court during the hearing of these applications by the defendants.
[4] T84.23.
Then defendant’s counsel informed me that Mr Gee, another person to whom the order is directed, is no longer an active member of the congregation although he remains registered on the public record as the Public Officer of the defendant. Counsel for the defendant described that as ‘not ideal’.[5] Mr Gee has remained on the public records as a public officer since 2015 and there is a presumption of correctness of the public record. The defendant’s counsel also submitted that those persons had not been served with the application.
[5] T86.
In relation to the work to be done by the IT expert, defendant’s counsel informed me that it was likely that it would not be opposed. It was suggested that the orders may need to be narrowed in scope but no suggestion was made as to how that would be done.
I pointed out to defendant’s counsel that the issues being dealt with by the court all arise out of the particularity only recently provided of the defendant’s estoppel pleas which had never been provided before. Defendant’s counsel informed me that this was an application for further and better disclosure, the trial had not started and the interests of justice were that the trial should go off until such time as all of these inquiries had been made. I anticipate that this is the wrong characterisation of this application. It is an application under 6DCCR 145(1). I would not make this type of order under an application for further and better disclosure. The four individuals to whom the application is directed namely Moira Foreman, Lorraine Carter, Lorraine Isbister and David Gee all should be heard. As I have said, I am satisfied that Moira Forman, Lorraine Carter and Lorraine Isbister are still and have continually been involved in the business of the church. Ms Foreman and Ms Carter have regularly attended at the court. It is plain enough that those persons and others are giving instructions to the solicitors for the defendant.
Defendant’s counsel repeatedly made reference in submissions to the question of disclosure and the use of the email addresses. He continued to inform me that he did not have clear instructions on, for example, the use of the Gmail address. This was despite being given three months’ notice of the date set for trial, two further days in which to obtain instructions and provide to the plaintiff particulars of its estoppel plea and then to make any further disclosure that was necessary. It was apparent during the hearing on 11 December 2019 that the defendant had not given full and detailed instructions to its advisors, that it had not made full and proper disclosure in relation to, inter alia its estoppel case and that further disclosure needed to be made. That was essential to what had now become the pivotal defence of the defendant namely, estoppel.
Then, in light of the continuing difficulties of the defendant’s counsel to obtain instructions about the use of the Gmail address, I insisted that some instructions be obtained from those present at the court in relation to the use of that email address. I adjourned the hearing for five minutes to allow those instructions to be obtained. I made this request because it was only during the reply of plaintiff’s counsel on the application that defendant’s counsel informed me that he had instructions.[6] He said that his instructions were that the Gmail address was conducted by a Pastor Christopher Robson a person who has no connection with the issues before the court. It became necessary for me to ask who Pastor Christopher Robson was, where he sits within the hierarchy of the organisation and where geographically he operates. I also informed defendant’s counsel, that if for example Pastor Christopher Robson had connection with the defendant either geographically or by some other means, that it would beggar belief that he received documents on the Gmail account, he would not have passed them on. I was initially informed by defendant’s counsel that ‘no is the answer’.[7] I was unable to understand to what question this was a response. Defendant’s counsel asked for time to obtain instructions. He was then able to inform me that none of the emails transacted through the Gmail address used by Pastor Christopher Robson are accessible to anyone else. Upon returning, counsel for the defendant informed me that he was instructed that Mr Christopher Robson is a Pastor for the church congregation. He is employed fulltime. He has IT skills including data based development. He is the person who set up the Gmail address, he operates it, and its main purpose is to receive what are described as prayer requests. This makes up about 99% of the material negotiated through that address. He is the only person who has ever operated that email address. He works from home and does this work on his own computer. It is expected that he is diligent about monitoring the contents of the email and the experience of other officers of the defendant is that if anything comes onto that website which is seen by Pastor Robson he is diligent about making sure that it gets referred to an appropriate other person within the church organisation.
[6] T103.17.
[7] T105.18.
Therefore, after a five minute adjournment, defendant’s counsel was able to obtain clear instructions about the operation of the Gmail address, the person who operates it and the usual process in relation to the receipt of other information at that Gmail address apart from, for example, prayer requests. It was not clear to me why it was that this information could not have been obtained earlier. It is also unclear to me why all of this information had not been obtained by the defendant prior to the first day of trial on 11 December 2019, in aid of its estoppel plea. It must be presumed that the defendant knew what its estoppel case was before 11 December 2019 and that what understanding was created in its mind, how that understanding was created, how it acted in a particular way in reliance upon that understanding and the detriment it would suffer if the plaintiff now acted inconsistent with the understanding which allegedly created in the mind of the defendant.
In the exercise of my discretion, the following facts are pertinent:
1. The defendant came to trial with an estoppel plea which had not pleaded out any particularity. No request for particulars was made by the plaintiff;
2. No disclosure was made in respect of that estoppel plea where, for example, it is known that there is an amount of material that should have been disclosed by the defendant but which has not been disclosed for reasons which are unclear;
3. The plaintiff is required to meet an estoppel case now pleaded out by the defendant and it needs to do so in a matter of urgency in light of a trial that was due to commence on 11 December 2019 and which was adjourned for two days to enable the defendant to obtain instructions and prepare for the commencement of trial at 2pm on 13 December 2019;
4. The plaintiff wishes to press its case on its claim but it must have the further material not yet disclosed by the defendant in order to be able to meet the defendant’s estoppel case;
5. It is necessary for the defendant to have this material in order to support its pleading of its case on the estoppel point;
6. As particularity has now been provided the estoppel case has become that which was developed before the Court in the adjournment application on 11 December 2019;
7. In the course of that discussion, the Court became aware for the first time of an agreement to lease other premises that were not disclosed and, following the entry into that agreement, a letter of 21 September 2017 was sent by the defendant to the plaintiff announcing that the plaintiff was quitting the subject premises;
8. The documents disclosed by the plaintiff indicate that communications occurred by electronic means between the plaintiff and the defendant following the receipt of the letter of 21 September 2017. None of this material has been disclosed by the defendant. Also, the defendant has not disclosed, as is the fact, that documentation was sent to its then solicitors; and
9. The material that is available from the plaintiff’s side indicates that there has been a number of electronic exchanges concerning the documents sent to the plaintiff by the defendant, the legal position taken by the defendant and the communications then received by the defendant in light of all of that material.
The defendant has not yet made disclosure of any documents or other discoverable material concerning these matters. No explanation has been given about why this material has not been disclosed prior to 11 December 2019 in light of the defendant’s case on estoppel.
It is the duty of this Court to hear and determine this matter. The Court recognises the balances of the interests of fairness between the parties. However, those issues are evenly balanced. The predominant question on the estoppel case now raised by the defendant is that of unfairness to the plaintiff in not having the material that should have been disclosed by the defendant which is relevant to the estoppel case. Therefore, irrespective of any potential hardship to the defendant, full disclosure must be made of that material. A number of opportunities have been given to the defendant to make that disclosure but for reasons unexplained, the defendant has contumaciously failed or refused to make disclosure of that material.
In light of the state of the trial of the matter, a significant unfairness is suffered by the plaintiff in having to meet the estoppel case of the defendant. Also, and perhaps as significantly, it is plain that there were exchanges through email addresses such as the Bigpond address in 2013 upon which the defendant now relies. Therefore, in light of the reliance by the defendant upon email exchanges having occurred in 2013 and following, it is essential that the defendant make full disclosure of all exchanges on all relevant email accounts that are relevant to this matter.
It became clear to me in submissions made today that defendant’s counsel still did not have full and proper instructions on the estoppel plea. I give as one example, the necessity for me to give an adjournment of the hearing this afternoon to allow defendant’s counsel to obtain instructions about the use of the Gmail account. There was no explanation about why defendant’s counsel did not have those instructions at the time the application commenced today. I am satisfied that all of this information, viewed together, takes this matter out the ordinary. I accept that the orders sought by the plaintiff are extraordinary in context however I am also satisfied that in the exercise of my discretion, they are necessary for the proper administration of justice and in order to fulfil my obligation to ensure this trial proceed in an orderly fashion.
The plaintiff brings its application for disclosure under 6DCCR 145. That rule provides as follow:
145—Non-compliance with obligations of disclosure and production of documents
(1)If there is reason to doubt whether a party has fully complied with the party's obligations to disclose and produce documents under this Part, the Court may make orders the Court considers appropriate to ensure that the obligations have been fully complied with and, if necessary, to enforce those obligations.
(2) The Court may (for example)—
(a) require the party, or another person who may be in a position to provide relevant information, to appear before the Court for examination; or
(b) require the party to answer written questions relevant to ascertaining whether the party has made full disclosure.
It is necessary for me to identify whether there has been a reason to doubt that the defendant has fully complied with its obligations to make disclosure and produce and documents. For the reasons that I have set out above, I do have reason to doubt that the defendant has fully complied with its obligations to make disclosure and produce documents. I am satisfied that at the time it brought its application to adjourn the trial, no or no proper disclosure of relevant documentation had been made by the defendant to its legal advisers especially on the relevant issue of estoppel. I am further satisfied, having received the affidavit in support from Ms Zimmermann that there is a range of other documents connected with the defendant’s estoppel plea which had not been disclosed. I therefore have a reasonable basis to suppose the existence of other relevant documents which have not been disclosed because I am satisfied, having seen the material produced by the plaintiff, that the defendant does have in its possession and power a range of other documents relevant to the topic of estoppel. In Ceneavenue Pty Ltd v Martin,[8] White J held at [11]-[12] as follows:
[11] I consider that the expression “reason to doubt whether a party has fully complied with the party’s obligations to disclose and produce documents” in r 145 implies a presumption that there has been compliance with a party’s disclosure obligations. Hence, it will be incumbent upon an applicant for further and better disclosure to point to matters which indicate that the Court should not give effect to that presumption. It is not necessary for the Court to be convinced that the plaintiffs’ disclosure is inadequate, or to be satisfied on the balance of probabilities that it is inadequate. It is sufficient if the Court is satisfied that there is a reasonable basis for doubting that the disclosure made is adequate. This will require a degree of satisfaction going beyond the mere possibility that the plaintiffs’ disclosure is inadequate.
[12] An applicant may establish the doubt by demonstrating, amongst other things, that the party making the disclosure has proceeded under some form of misconception, whether as to the nature of the issues arising on the pleadings, or as to the documents which may be directly relevant to those issues, or as to the reach of the rules concerning possession. It may also satisfy the evidential onus by pointing to the documents which one would expect to have come into existence in the circumstances of the case by reason of ordinary commercial practice or experience, by reference to the pleadings themselves or by reference to other documents already disclosed.
[8] [2008] SASC 332.
I have already identified the matters which indicate that I should not give effect to the presumption that arises about the completeness of a party’s disclosure. I am satisfied that there is a reasonable basis for doubting that the disclosure made is adequate. This satisfaction goes beyond the mere possibility that the defendant’s disclosure is inadequate. I am satisfied on all of the material before the court that the defendant has not properly or at all addressed its obligations of disclosure. I am satisfied that there are a range of documents in existence both in hard copy and electronic form which inform the issue of the estoppel plea of the defendant and as well, because of other documents which have been disclosed by the plaintiff in its application.
In exercising my discretion, I am mindful of the common law rules surrounding the operation of 6DCCR 145(1). It is necessary that the further documents must be defined with certainty and precision so that substantial injustice is not caused to the defendant. It is necessary that I formulate orders that would capture the established default. I am mindful that I may make orders that I consider appropriate to ensure that the obligations of disclosure had been fully complied with by the defendant. I may make orders to enforce those obligations.
I am satisfied that because of the state of the proceedings, the evidence before the court of the failure to make proper disclosure and my satisfaction about the existence of other documentation stored upon electronic instruments coupled with the failure of the defendant to make full disclosure, it is appropriate to make orders to ensure full compliance with those obligations. I am satisfied that having regard to the dilatory approach of the defendant and in light of the present position of these proceedings, that the only appropriate means available to the court to ensure that the defendant’s disclosure obligations have been complied with is for a survey of those electronic instruments to be made by an IT specialist as proposed by the plaintiff.
I accept that these are quite invasive orders. They are unusual and they are out of the ordinary and would not usually be contemplated by a court dealing with disclosure issues. However, I consider that this is a unique case in the particular factual circumstances that I have described above and in my judgment No. 1 in this action. In my view, in the exercise of my discretion, these peculiar circumstances require quite extraordinary orders to be made to ensure that the plaintiff is in a position to meet the defendant’s now formulated estoppel claim. I am not satisfied that, left to its own devices, the defendant would comply or is capable of complying with any orders made in connection with further and better disclosure. I therefore find that there is reason to doubt that the defendant has fully complied with its disclosure obligations and that it is necessary to make orders to ensure full compliance with its disclosure obligations. I am also satisfied that the orders that I have made do not seek to capture documentation otherwise than would be necessary to cure the default of the defendant about which I am satisfied for the reasons that I have already set out above.
I have invited the plaintiff to bring in minutes of order to reflect these reasons. It is appropriate that in any minutes of order, there be protection for legal professional privilege whether solicitor-client privilege or litigation privilege and I am satisfied that there must be no interference in any confidential information passing between a parishioner and a church Pastor. All of that information is irrelevant in any event. The information sought by the plaintiff is in very short order and within a very narrow compass. It is material that should have been disclosed by the defendant, it has not been disclosed by the defendant in circumstances where there is no explanation by the defendant for that position. It is material that is relevant only to the defendant’s estoppel case. The onus upon the defendant has not been discharged and the conduct of the defendant in the applications before me indicates that there has been real difficulty in the defendant’s advisors obtaining appropriate instructions from the defendant about these matters. This works a significant unfairness to the plaintiff. It is on that basis that I have now made the orders which are reflected in the minutes of order that are attached to these reasons.
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