Rice v Accor Australia and New Zealand Hospitality Pty Ltd - [2020] SASC 102

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
RICE v ACCOR AUSTRALIA AND NEW ZEALAND HOSPITALITY PTY LTD
[2020] SASC 102
Judgment of The Honourable Justice Parker
16 June 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - APPLICATION AND ORDER - APPLICATION
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - PRELIMINARY DISCOVERY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - DISCRETION OF COURT AND POWER TO ORDER
Application for an Investigation in Anticipation of Action (“Investigation Application”) under r 32 of the Supreme Court Civil Rules 2006 (SA).
David and Janet Rice, the plaintiffs, filed the Investigation Application on 1 August 2019 seeking further information in the form of a schedule of documents, which are said to be required so they may properly formulate their claim against the defendant, Accor Australia and New Zealand Hospitality Pty Ltd (“Accor”). The plaintiffs own an allotment in a Queensland Community Title Scheme entitled Triton Street — Palm Cove. The property is known as Villa 114 (“the Villa”) and located at Sea Temple Resort and Spa, Palm Cove (“the Resort”). The plaintiffs intend to claim damages for the unauthorised use of their premises. The Investigation Application and the attached schedule of documents was subsequently amended so as to extend significantly the classes of documents covered by the application (“the Amended Application”). The defendant opposes both the amendment and the Investigation Application.
On 19 December 2019, the plaintiffs filed an Interlocutory Application seeking leave to file an Amended Application for Investigation. The plaintiffs seek that for the period from 24 January 2005 until 30 June 2019, the defendant provide the following categories of documents:
1. Documents concerning the Villa, being:
1.1. Any record within the booking database which enable the Villa as a “Room” to be booked and against which booking records were made (including the updating of that record, any removal of that record, and any metadata for that record);
1.2. Documents, including photographs, used to promote the Villa to prospective occupants;
1.3. Internal documents provided to Accor staff related to either the availability of the booking of the Villa, and its features and qualities;
1.4. Booking records for the Villa;
1.5. Communications relating to reservations, occupancy, and use, of the Villa;
1.6. Survey responses received in relation to the Villa;
1.7. Invoices issued for use of the Villa and associated communications;
1.8. Payments and associated communications;
2. Documents showing cleaning and maintenance of the Villa and room service or deliveries of food to the Villa;
3. Documents regarding the output from the electronic door reader on the Villa, including all recordings of when a pass-key was used to open the door lock;
4. Internal correspondence or documents about the proposed entering of an agreement with the plaintiffs to permit Accor to let the Villa;
5. All correspondence between Accor and the plaintiffs for the Villa;
6. Documents (including, specifically, the accounting ledger) showing a running balance of accounts receivable and accounts payable in respect of the Villa; and
7. Documents in the form of financial records showing the flow of payments by those that paid for occupancy of the Villa into the accounts of Accor (and their accounting treatment within those accounts) and including their subsequent payment out.
The plaintiffs submit that they require the requested documents under a r 32 pre-action investigation on the basis that they require further information to: determine whether their identified causes of action exist, formulate their claim properly, and determine against whom the claim lies. The plaintiffs submit that an important consideration is that they cannot compile the information themselves. The defendant has exclusive possession of the relevant information.
The defendant contends that the plaintiffs have sufficient information on which to plead their case. The defendant submits that investigative orders under r 32 have been recognised as invasive, such that a party is only entitled to the benefit of an order in limited circumstances confined by the language of r 32. There is nothing in the material adduced by the plaintiffs to support a departure from the ordinary inter partes approach on either grounds of efficiency or the interests of justice.
Held per Parker J, approving the Amended Application, subject to the deletion of certain paragraphs:
1. Access to documents in categories 1.1 to 1.8 would assist the plaintiffs to formulate their claim, save for the following exceptions:
a. The documents in category 1.4 are a duplication of category 1.1, and as such their production will not be ordered;
b. The obligation to produce documents in category 1.2 should be limited to promotional material relating specifically to the Villa (and not the Resort more generally) that was published in the period between 25 January 2005 and 31 December 2014 when the defendant was not authorised to make use of the Villa; and
c. The production of the survey responses sought in category 1.6 is declined.
2. Production of the documents in categories 2, 3, and 4 is allowed.
3. Production of the documents in category 5 is declined.
4. Production of the documents in categories 6 and 7 is allowed.
Supreme Court Civil Rules 2006 (SA) s 32; Australian Consumer Law s 18, referred to.
Lifeplan Australia Friendly Society Pty Ltd v Ancient Order of Foresters in Victoria Friendly Society Ltd [2013] SASC 5; Ministry of Defence v Ashman [1993] 2 EGLR 102, applied.
Inverugie Investments Ltd v Hackett [1995] 1 WLR 713; Ministry of Defence v Thompson [1993] 2 EGLR 107, discussed.

RICE v ACCOR AUSTRALIA AND NEW ZEALAND HOSPITALITY PTY LTD
[2020] SASC 102

PARKER J: This is an Application for an Investigation in Anticipation of Action (“Investigation Application”) under r 32 of the Supreme Court Civil Rules 2006 (SA). The plaintiffs also seek to amend the Application.
David and Janet Rice, the plaintiffs, filed the Investigation Application on 1 August 2019 seeking further information in the form of a schedule of documents, which are said to be required so they may properly formulate their claim against the defendant, Accor Australia and New Zealand Hospitality Pty Ltd (“Accor”). The plaintiffs own an allotment in a Queensland Community Title Scheme entitled Triton Street — Palm Cove. The property is known as Villa 114 (“the Villa”) and located at Sea Temple Resort and Spa, Palm Cove (“the Resort”). The plaintiffs intend to claim damages for the unauthorised use of their premises. The Investigation Application and the attached schedule of documents was subsequently amended so as to extend significantly the classes of documents covered by the application (“the Amended Application”). The defendant opposes both the amendment and the Investigation Application.
For the reasons that follow, I grant approval for the Amended Application, subject to the deletion of certain paragraphs.
The orders made by Kelly J
The Application initially came before Kelly J on 20 December 2019. Her Honour determined that the Investigation Application should be heard together with the defendant’s Interlocutory Application for transfer to the Supreme Court of Queensland. The Application later came before me. Subsequently, the defendant did not pursue the transfer application, but indicated that it may be pressed again later.
The amended application
On 19 December 2019, the plaintiffs filed an Interlocutory Application seeking leave to file an Amended Application for Investigation. They now seek the provision of classes of documents identified in an annexure to the second affidavit of Mr Ian Maitland filed on 18 December 2019. The plaintiffs seek that for the period from 24 January 2005 until 30 June 2019, the defendant provide:
1.   Documents concerning the Villa, being:
1.1Any record within the booking database which enable the Villa as a “Room” to be booked and against which booking records were made (including the updating of that record, any removal of that record, and any metadata for that record);
1.2Documents, including photographs, used to promote the Villa to prospective occupants;
1.3Internal documents provided to Accor staff related to either the availability of the booking of the Villa, and its features and qualities;
1.4Booking records for the Villa;
1.5Communications relating to reservations, occupancy, and use, of the Villa;
1.6Survey responses received in relation to the Villa;
1.7Invoices issued for use of the Villa and associated communications;
1.8Payments and associated communications;
2.   Documents showing cleaning and maintenance of the Villa and room service or deliveries of food to the Villa;
3.   Documents regarding the output from the electronic door reader on the Villa, including all recordings of when a pass-key was used to open the door lock;
4.   Internal correspondence or documents about the proposed entering of an agreement with the plaintiffs to permit Accor to let the Villa;
5.   All correspondence between Accor and the plaintiffs for the Villa;
6.   Documents (including, specifically, the accounting ledger) showing a running balance of accounts receivable and accounts payable in respect of the Villa; and
7.   Documents in the form of financial records showing the flow of payments by those that paid for occupancy of the Villa into the accounts of Accor (and their accounting treatment within those accounts) and including their subsequent payment out;
8.   Documents means anything that records information, and includes:
8.1Material in written or symbolic form;
8.2A visual image, such as a map, graph, drawing or picture;
8.3A photographic plate, film, or microfilm from which writing or visual images can be reproduced;
8.4Reports;
8.5Emails;
8.6Letters;
8.7SMS messages;
8.8Invoices;
8.9Drawings;
8.10Recordings; and
8.11CDs, USB drives, and hard drives.
Background
The plaintiffs allege that when they purchased the Villa in 2004, it was subject to a Lease with Mirvac Hotels Pty Ltd as the holder of the management rights for the Resort. However, the defendant asserts that the Lease was actually with Juniper Realty Pty Ltd. According to the defendant, the latter company managed the Resort until early 2007, when Mirvac Hotels Pty Ltd was assigned the relevant leases and the management and letting rights. The defendant has also indicated that Mirvac Hotels Pty Ltd subsequently changed its name to Accor. The plaintiffs have also referred to other issues relating to the identification of the correct defendant. I refer further to that matter at paragraph [65] below.
The Lease originally operated under a “letting pool” arrangement whereby the holder of the management rights had the right to offer the Villa to guests. Revenues from bookings were pooled with the revenue from other proprietors in the letting pool. Income was distributed to the individual proprietors based on pre-set unit entitlements. By letter dated 25 October 2004, the plaintiffs gave notice of termination in accordance with the Lease. The termination was effective from 24 January 2005.
On several occasions after 2012, the defendant invited the plaintiffs to re‑enter the Villa into the letting pool. On each occasion, they declined.
In late 2014, the parties entered an agreement whereby the defendant could make a request to the plaintiffs to rent the Villa to its guests on certain dates (“the Rent Agreement”). The plaintiffs retained a discretion to grant or refuse the request. On those occasions where the plaintiffs acceded to the defendant’s request, the plaintiffs would issue an invoice to the defendant at a rate set by the plaintiff. The rate was around $500 (plus GST) per night.
On approximately nine occasions between January 2015 and September 2018, the plaintiffs agreed to requests by the defendant to use the Villa. The plaintiffs then issued invoices in accordance with the Rent Agreement.
In February 2019, the plaintiffs became aware that the defendant had been making use of the Villa without their permission. The defendant confirmed that the Villa had been used without the plaintiffs’ approval on some occasions. On about 27 February 2019, the defendant produced an Excel Spreadsheet prepared at the plaintiffs’ request. The spreadsheet covers the period from 17 April 2017 to 18 November 2018 (“the Spreadsheet”). It records the dates upon which the defendant admits that the Villa was used without the plaintiffs’ authority, and indicates the revenue the defendant received for that usage. The Spreadsheet also records the dates upon which the Villa was used with the consent of the plaintiffs.
On 18 April 2019, the plaintiffs’ solicitors sent the defendant a letter outlining these allegations, and seeking further evidentiary material. In response to the plaintiffs’ request, on 9 May 2019, the defendant produced:
·A bundle of emails to and from the plaintiffs relating to the use of the Villa;
·Bundles of documents containing screenshots of the reservation cards relating to the Villa;
·A bundle of documents containing Account Summaries for the Villa;
·A bundle of documents containing Account Summaries for works to the Villa;
·A document titled “Locklink transfer lock events”; and
·A bundle of documents containing various invoices from the plaintiffs to the Resort.
(“the May Disclosure”).
The plaintiffs contend that the May Disclosure does not meet the request they made on 18 April 2019. It is apparent from the documents that have been provided that other documents should exist. For example, numerous documents have been provided by the defendant that appear to be screenshots of electronic booking records. The screenshots suggest that there are multiple ancillary records or windows under a number of headings that have not been provided.
The Spreadsheet identifies 79 nights in the period from 21 May 2017 to 18 November 2018 when the defendant used the Villa without the knowledge or approval of the plaintiffs. There were a further five nights where the Spreadsheet recorded that the plaintiffs had been paid. However, they deny any knowledge of usage or payment on those five occasions.
The plaintiffs assert that there are errors in the information contained in the Spreadsheet. The errors include recording the use of the Villa as having been authorised when it had not been authorised and when no payment had been made to the plaintiffs. Further investigations made by the plaintiffs also suggest that the unauthorised use had pre-dated 17 April 2017.
No further documentation was provided by the defendant until its General Counsel for Apartments and Leases, Mr Kenneth St John Lord, set out in an affidavit dated 11 February 2020, a list of the occasions between 31 January 2005 and 12 April 2019 when, according to the records of the defendant, the Villa was, or may have been, occupied. The information supplied was the family name—and in most instances also the given name—of the occupant and the dates that they were in occupation. Mr Lord deposed that this information, particularly the names, was commercially sensitive and subject to confidentiality and privacy obligations.
On many of the occasions listed by Mr Lord the occupant was recorded as having the same family name as the plaintiffs. Seven further entries were in the name of “McCaffery”, which I understand to be a reference to McCaffery Nominees Pty Ltd, a company associated with the plaintiffs.[1] However, I also note that on 57 of the occasions listed by Mr Lord, the Villa was occupied by persons not using names apparently connected with the plaintiffs. The length of their occupancy ranged in duration from overnight to 11 days. The affidavit of Mr Lord indicates that the Villa was occupied on a total of 233 nights by persons who are not obviously connected with the plaintiffs. However, according to the analysis[2] compiled by the plaintiffs (which is based upon documents disclosed by the defendant) they received payment from the defendant for only 46 of those nights. The same analysis also suggests that the Villa was used on 202 nights without the permission of the plaintiffs.
[1] I note that correspondence dated 29 June 2019 sent by the former solicitors for the plaintiffs, Iles Selley, to the defendant, indicated that the title to the Villa was held by McCaffery Nominees Pty Ltd.
[2] Exhibit ILM 14 to the fourth affidavit of Mr Ian Maitland.
Mr Lord asserted in his affidavit that “putting aside some possible differences in transcription of names and dates, and some possible ‘double entries’… there does not appear to be any substantial disagreement …” between the information previously provided by the defendant and that contained in his affidavit.
The plaintiffs assert that they have reason to believe that, even in instances where they had authorised the use of the Villa, in many cases it was used for a period longer than that requested by the defendant and approved by the plaintiffs. The fourth affidavit sworn by Mr Maitland, the solicitor for the plaintiffs, provides an example in support of that contention. An email dated 4 July 2017 sent on behalf of the defendant to the daughter of the plaintiffs (who had been authorised by her parents to deal with the defendant in relation to the Villa) sought permission to accommodate “only a couple” for four days. In fact, other documents disclosed by the defendant indicate that on this occasion the Villa was occupied by six adults for seven days. They were charged at the rate of $1,049 per night.
The plaintiffs have been provided with many documents in the form of screenshots extracted from an electronic booking records system. The screenshots suggest that there are multiple ancillary records or windows under a number of headings that have not been provided. By way of example, Mr Maitland has referred in his fourth affidavit to a screenshot relating to a booking for a person named Stephanie for the period from 25 September 2008 to 5 October 2008. The record provided contains only the main “reservation checked out” tab and the “reservation comments”. An entry held under the latter tab reads “POA/gst pay 699pn/100pn to owner”. While somewhat cryptic, I infer that the entry is intended to record that the plaintiffs were to be paid $100 per night from the $699 per night paid by the guest. The plaintiffs are concerned that they have not been provided with internal correspondence that may explain how the figure of $100 per night was arrived at. The plaintiffs’ analysis suggests that they were not paid for this stay.[3]
[3] Exhibit ILM 14 to the fourth affidavit of Mr Ian Maitland.
Another entry referred to by Mr Maitland, by way of example, is a booking for persons described as Luke and Malcolm from 4 August 2005 to 10 August 2005. This document bears a handwritten notation “conference guest”. Two separate account summaries issued under the names of Malcolm and Luke record that they were not charged for their accommodation. However, the screenshot relating to the booking for Malcolm includes a comment “all to FUNC NSTR”. While Mr Maitland has not referred to the fact, I also note that the screenshot relating to the booking for Luke contains an entry of “AFG conference” under the title “group”. That entry is consistent with Mr Maitland’s suggestion that there may have been a conference at the Resort and the conference organiser was charged for accommodation. However, no invoices relating to the conference have been provided by the defendant. The plaintiffs’ analysis suggests that no payment was made to them for this stay.[4]
[4] Ibid.

The plaintiffs have also expressed concern about the handwritten notation “conference guest” referred to in the preceding paragraph. That notation was not present when the original record was created. The Court was informed from the bar table by counsel for the defendant that this notation would have been added after the document was printed. The document as printed includes the current corporate and business names and contact details of the defendant even though it relates to events 15 years ago when, according to the defendant, Juniper Realty Pty Ltd managed the Resort. According to the information provided from the bar table, use of the current letterhead is the default position when a document is printed from old records held in the defendant’s computer system.
The plaintiffs submit that this document highlights the basis for their Amended Application. If the invoices and other materials provided have been generated and printed in a way that no longer relates to, or resembles, their original form, it cannot be said that there has been a proper investigation, as clearly no one has checked the documents. It is unknown how many files have been “corrupted” in this sense. There is an implication that there is more material available. The plaintiffs submit that the fact that the information furnished is not in the original form, and they were not informed of this fact, amounts to deception.
The information available to the Court falls far short of what would be required to make a finding that the defendant has been deceptive, either by reference to the “conference guest” document or more generally. However, for the reasons that follow, I accept that there are deficiencies in the information supplied.
I am satisfied from the information supplied to the Court in the fourth affidavit of Mr Maitland that the plaintiffs have proper grounds to be concerned about the accuracy and comprehensiveness of the information supplied to them by the defendant. I refer to the matters discussed at paragraphs [19], [20] and [21] above.
Rule 32
Rule 32 provides as follows:
32—Investigation
(1) If the Court is satisfied, on application by a person (the plaintiff) that the plaintiff may have a good cause of action and requires further information—
(a)to determine whether a cause of action exists; or
(b)to formulate the claim properly; or
(c)to determine against whom the claim lies,
the Court may exercise the investigative powers conferred by this rule in anticipation of an action.
The Lifeplan case
Both parties have referred to the judgment of White J in Lifeplan Australia Friendly Society Pty Ltd v Ancient Order of Foresters in Victoria Friendly Society Ltd (“Lifeplan”).[5] His Honour’s judgment appears to be the leading authority on the application of r 32.
[5] [2013] SASC 5.
The plaintiffs and the defendant in the Lifeplan case both sold prepaid funeral plans. Two senior employees of Lifeplan had resigned and taken up employment with the defendant. Those employees were alleged to have taken, without permission, confidential information and intellectual property. The plaintiffs sought an order under r 32(2) requiring the defendant to disclose and produce evidentiary material relating to four potential causes of action. The supporting affidavit indicated that the plaintiffs sought this information so as to determine whether the four causes of action existed against the defendant, to formulate their claims properly and to determine against whom their claims may lie. By consent, a Master made orders under r 32(2).
The defendant was required to verify its disclosure of documents on oath. Subsequently, the plaintiffs alleged that the disclosure was inadequate and sought an order under r 32(3) that the Chief Executive of the defendant attend for cross‑examination. The Master dismissed that application and an appeal came before White J.
The plaintiffs acknowledged that they did not require further information to determine whether a cause of action existed. They therefore did not rely on r 32(1)(a). Amongst other matters, White J considered the interrelationship between sub-rules (1), (2) and (3) of r 32, and the meaning of the term “formulate the claim properly” in r 32(1)(c). His Honour noted that before the discretion conferred by r 32 may be exercised, the Court must be satisfied, on an objective consideration, of two conditions.[6]
[6] Ibid at [16].
Those conditions are, first, that the applicant may have a good cause of action and, secondly, that the applicant requires further information for at least one of the purposes set out in r 32(1). It is necessary for an applicant to put before the Court satisfactory evidence to establish that the two pre-conditions that enliven the discretion have been met. His Honour also noted that the Federal Court had held that the equivalent rule should be construed beneficially and given the full scope that the language will reasonably allow.[7] The Federal Court held that the exercise of the Court’s discretion in the circumstances of a particular case acts as a proper brake on any excess use of the power. His Honour found that this approach was also appropriate when construing r 32.[8]
[7] Ibid at [17].
[8] Ibid at [17].
White J noted that it is necessary to recognise that the exercise of the powers conferred by r 32 involves a coercive intrusion into the right that a person subject to the order would otherwise have to keep their documents and information private.[9] The intrusive effect of an order under r 32 is an important consideration when applying the rule.
[9] Ibid at [18].
Against that background, White J stated that the investigative powers conferred by r 32 may only be exercised if the Court is satisfied that the two pre‑conditions are met. His Honour observed that the purposes specified in r 32(1) do not include enabling a plaintiff to assess their chance of proving a proposed cause of action, or obtaining evidence to assist in the proving of a proposed claim.[10]
[10] Ibid at [22].
White J also held that disclosure must be confined to “relevant evidentiary material” as defined in r 4.[11] However, the power to order disclosure only relates to such evidentiary material as is relevant to the matter for which the plaintiff requires further information.
[11] Ibid at [23].
White J also considered the meaning of the phrase “formulate the claim properly” in r 32(1)(b). His Honour observed that the formulation of a claim extends beyond the mere ability to plead the claim. The use of the term “formulate” denotes something wider than the mere pleading of a claim.[12] The term has been used “in the sense of articulating or constructing a claim more generally”.[13] The inclusion of “properly” serves to incorporate a notion of appropriateness.
[12] Ibid at [29].
[13] Ibid.
On that basis, White J held that the effect of r 32(1)(b) is that a plaintiff who has a good cause of action, but requires further information to articulate or construct the claim appropriately, will have established the threshold requirements for the making of an order.[14] However, it is important to note that White J also held that “[t]his does not mean that a plaintiff who needs further information to articulate or construct a claim perfectly or completely will establish the threshold requirements”.[15] His Honour stated that a plaintiff who can formulate a claim appropriately, but less than perfectly, will not ordinarily be entitled to an order under r 32.
[14] Ibid at [30].
[15] Ibid at [31].
White J observed that r 32 is part of the overall regime providing means by which a party may obtain information and documents from their opponent.[16] A plaintiff may plead in as much detail as is possible, but also state that it will provide further particulars later, following disclosure. That possibility will be very relevant to the assessment of the Court under r 32(1), and also the exercise of the judicial discretion under r 32(2).
[16] Ibid at [32].
The plaintiffs’ submissions
The plaintiffs submit that the purpose of the Amended Application is: to determine whether a cause of action exists; to formulate their claim properly; and to determine against whom the claim lies. They seek further production so that their potential claims can be evaluated and formulated against all prospective defendants.
The plaintiffs submit that an important consideration is that they cannot compile the information themselves. The defendant has exclusive possession of the relevant information and that fact informs each of the plaintiffs’ submissions.
The plaintiffs contend that they have an arguable case to obtain relief against the defendant. They have identified four potential causes of action relating to the defendant’s use of the plaintiffs’ property without approval: (1) breach of contract (for the periods when there were agreements to use the Villa); (2) trespass to land; (3) in equity; and (4) misleading or deceptive conduct in the course of trade or commerce contrary to s 18 of the Australian Consumer Law (“ACL”). The plaintiffs also contend that there are proper grounds for the Court to make orders under r 32.
The plaintiffs state that they have only provided the Court with some of the documents and information they were given in the May Disclosure. They say that they have attempted to strike a balance between the practicalities of presenting voluminous materials to the Court, and the effective communication of their arguments about the deficiencies in what they have been provided.
The defendant’s submissions
The defendant states that it has provided the dates and occasions when the Villa was occupied and the identity of the occupants. It has conceded that the plaintiffs had not expressly consented to the use of the Villa on a number of occasions. On that basis, the defendant submits that the plaintiffs already have sufficient information to plead their case. The defendant has also disclosed in the affidavit of Mr Lord each of the parties whom may be potentially liable to the plaintiffs.
The defendant acknowledges that the cause of action in breach of contract is actionable per se. However, the proposed causes of action under the intentional tort of trespass and also under the ACL require the plaintiffs to demonstrate actual loss. In other words, it is necessary for the plaintiffs to demonstrate that they have suffered a quantifiable commercial detriment due to the conduct of the defendant.
The defendant further submits that none of the obvious causes of action that may be available in the present circumstances allow for asset stripping remedies. Those remedies will require an understanding of any benefit which may or may not have accrued to the defendant due to its conduct.
The defendant observes that investigative orders under r 32 have been recognised as being invasive. Thus, a party is only entitled to the benefit of such an order in limited circumstances, which are carefully confined by the language of r 32. As a matter of public policy this is the case because a party made subject to a r 32 order must surrender its information without the range of procedural responses and protections available to a defending party when inter partes proceedings are on foot.
There is nothing in the material adduced by the plaintiffs to support a departure from the ordinary inter partes approach on either grounds of efficiency or the interests of justice. The plaintiffs have simply embarked on a “fishing expedition” to obtain information that goes beyond the scope of r 32. Furthermore, the information sought by the plaintiffs is private and commercially sensitive.
For these reasons, the defendant submits that the Court should decline to make the orders sought. If the plaintiffs wish to pursue the matter they should plead their case in the ordinary way. Upon that occurring, the plaintiffs will be able to pursue disclosure of any documents that are directly relevant, and also indirectly relevant if it is in the interests of justice. Accordingly, the application should be dismissed with costs.
In the alternative, the defendant submits that any order made by the Court should be confined to those categories of documents that are necessary to give effect to the limited purpose of r 32.
The operation of r 32
Before considering the specific categories of documents sought by the plaintiffs, I will refer to the submissions by the parties concerning the operation of r 32 and its application to the facts of this case.
Rule 32(1)(a): ‘Determine whether a cause of action exists’
The plaintiffs maintain that each cause of action needs equally to be investigated, whether or not one appears more significant than another. They submit that, while the May Disclosure gives some information about the defendant’s use of the Villa, it is insufficient to determine all the circumstances in which the causes of action exist.
The plaintiffs also contend that the affidavit of Mr Lord is similarly deficient. In particular, the plaintiffs submit that Mr Lord has merely summarised information given to him by the defendant. The original materials upon which his summary is based have not been provided. Thus, the plaintiffs are being asked to rely upon Mr Lord’s belief without knowing whether the information is correct. However, the affidavit alludes to further information that may or may not be available from the defendant. In effect, the plaintiffs contend that the defendant’s reluctance to provide information or original documentation indicates their desire to control and “drip feed” the materials to the plaintiffs on their terms.
The plaintiffs have also expressed concern about evidence of additional occasions of misuse of the Villa. The question therefore arises as to whether this additional misuse would give rise to several individual causes of action based on separate occupancies or, alternatively, a single action covering several time periods during which the defendant appears to have treated the Villa as its own by assuming possession and control. The plaintiffs drew support for the latter approach from the advice of the Privy Council in Inverugie Investments Ltd v Hackett,[17] where the defendant was found liable to pay the plaintiff a reasonable rent for the wrongful use of its property regardless of whether the plaintiff had actually suffered any loss, and notwithstanding that the defendant had not been able to derive any income from use of the property due to low occupancy rates. The plaintiffs also allege that, on multiple occasions, the defendant failed to pay them in accordance with the Rent Agreement.
[17] [1995] 1 WLR 713.
The plaintiffs further note that the nature of the proceedings that they institute will have implications for the assessment of damages, for example, there may possibly be an entitlement to damages on a gains basis.
The defendant submits that the plaintiffs are seeking to conduct a “fishing expedition” to obtain information beyond the intended purpose of r 32. This ground of objection is reinforced by the fact that the information sought by the plaintiffs is private and commercially sensitive. The categories of documents sought are too broad. Thus, the Court ought not make the orders sought.
Rule 32(1)(b): ‘To formulate the claim properly’
The plaintiffs rely upon White J’s characterisation of r 32 in Lifeplan, which has been set out at paragraphs [32] to [37] above.
The plaintiffs note that while the affidavit of Mr Lord corroborates the defendant’s account, it is not an independent source. Verification is required as this may influence whether they initiate several causes of action for the separate occupancies or make claims covering several periods. The plaintiffs submit that this difference in approach is significant enough for the Court to find that an order to produce these materials is warranted.
Similarly, the plaintiffs submit that the door reader data in category 3 is necessary for the same reasons. It will establish a correlation between the bookings and the times at which the Villa was used. It may also shed light on any occupancies beyond those arranged through the booking system. Otherwise, the plaintiffs may not know the full extent of the defendant’s misuse.
The plaintiffs observe that the defendant described the May Disclosure as containing “limited material on some of the matters requested”.[18] The defendant has failed to indicate the scope or thoroughness of their search, and the extent of the limitations to which they refer. The plaintiffs contend that they have identified clear gaps in the May Disclosure in that it fails to include: contact details for the persons whom the defendant has admitted occupied the Villa; any emails making enquiries or confirming bookings; information showing payments; information explaining the Villa’s availability; and the processes staff undertook to make it available or what those staff knew. In particular, the plaintiffs submit that the limited quality and quantity of the screenshots that have been provided from the reservations booking system raises further questions as to the breakdown of payments and exactly whom was involved in the process. The plaintiffs submit that it can be inferred from the May Disclosure that further information could be obtained from the defendant under the Amended Application, in addition to that already disclosed. Each category of documents requested is based upon such inferences.
[18] Exhibit ILM 6 to the fourth affidavit of Mr Ian Maitland, letter from Accor dated 9 May 2019.
The plaintiffs further submit that the appropriate causes of action cannot be identified simply by the provision of the occupants’ names. More information is needed, not only contact details, but also the nature of the occupancy, and the type of action to which that may give rise. The plaintiffs assert that it cannot be gleaned from the limited materials that have been disclosed how and when staff made the Villa available. The nature and extent of the limited search that has been conducted remains unresolved, even with the addition of Mr Lord’s affidavit. He has only stated that the office undertook a search of the defendant’s records. Mr Lord was not, himself, part of the review.
The plaintiffs contend that as the cause of action for trespass can be ongoing, if the defendant exercised control over the Villa for certain periods—including by permitting or preventing entry—the plaintiffs would be entitled to damages during any such period. This would also entitle them to an assessment of damages on a gains basis, being the amount that the plaintiffs were entitled to receive, as well as what the defendant actually received in mean profits.[19]
[19] Inverugie Investments v Hackett [1995] 1 WLR 713.
The defendant has conceded that the plaintiffs have proper grounds to institute proceedings in contract and in tort, based on the four causes of action they have identified. The defendant submits that the plaintiffs have been provided with sufficient information to plead their case properly in contract and trespass. If the plaintiffs proceed with their proposed claim, the discovery process should proceed in the ordinary way. Should they consider it necessary after discovery is completed, the plaintiffs could seek to amend their statement of claim.
The defendant also submits that the plaintiffs’ entitlement to gain stripping remedies is without foundation. The availability of gain stripping remedies in equity is speculative. The fact the plaintiffs are seeking both compensatory and gain stripping remedies is contrary to the approach in equity. The usual course is that the party seeking the remedies would argue them as alternatives, and then choose between the two. The plaintiffs should not be awarded compensation twice.
The defendant is correct in so far as it submits that compensatory and gain stripping remedies cannot be awarded simultaneously. In Ministry of Defence v Ashman,[20] Hoffmann LJ explained in the context of proceedings for trespass:[21]
A person entitled to possession of land can make a claim against a person who has been in occupation without his consent on two alternative bases. The first is for the loss which he has suffered in consequence of the defendant’s trespass. This is the normal measure of damages in the law of tort. The second is the value of the benefit which the occupier has received. This is a claim for restitution. The two bases of claim are mutually exclusive and the plaintiff must elect before judgment which of them he wishes to pursue. These principles are not only fair, but… also well established by authority
[Emphasis added]
[20] [1993] 2 EGLR 102; see also Ministry of Defence v Thompson [1993] 2 EGLR 107.
[21] Ministry of Defence v Ashman [1993] 2 EGLR 102 at 105.

Thus, while it is possible for the plaintiffs to plead a claim for these remedies in the alternative, they must ultimately make an election as to which they pursue. However, at this preliminary point, the question of election has not yet arisen. The plaintiffs are entitled to pursue disclosure of documents to the extent permitted by r 32 so as to assist them to formulate their claim properly.
Rule 32(1)(c): ‘To determine against whom the claim lies’
It is accepted by the parties that control of the Resort transferred from Mirvac Hotels Pty Ltd to the defendant during the period covered by the potential claim. Consequently, the duration and nature of the impugned conduct affects whether the claim should be brought against both entities, or solely the defendant. Furthermore, Mr Lord’s affidavit suggests that the parties to the original Lease of the Villa entered in 2004 were the plaintiffs and Juniper Realty Pty Ltd. The plaintiffs contend that this is simply untrue and has created further confusion. On this basis, the plaintiffs request access to the original documents so they may ascertain against whom the claim should be brought.
The documents sought
Against that background, I turn to the specific categories of documents sought by the plaintiffs.
Submissions concerning categories 1.1 to 1.8 generally
Although a potentially large volume of documents has been sought in categories 1.1 to 1.8, save for the exceptions indicated below, I am satisfied that access would assist the plaintiffs to formulate their claims in the sense identified by White J in Lifeplan.
The fundamental basis upon which the plaintiffs seek access to the documents is to provide an independent means of establishing whether the defendant’s account, as expressed in the May Disclosure and the affidavit of Mr Lord, is reliable. I have found that the plaintiffs have proper grounds to be concerned about the reliability and comprehensiveness of the information supplied to them thus far.
The plaintiffs submit that the screenshots supplied by the defendant suggest that it was possible to book the Villa through an electronic booking system. This implies that some form of profile would need to be added to the system. It is also reasonable to infer from the booking process and the substantial rate payable that staff would need to explain the features of the Villa to prospective occupants. It is known that there are: booking records; communications between those making bookings and the defendant; invoices; and payments. It also likely that there are survey responses. The documents sought in categories 1.4 to 1.8 are relevant to occupancy and the identification of the extent to which the property has been used beyond the permission granted by the plaintiffs.
The defendant contends that the requests for further information are phrased too broadly. This arises from the use of phrases such as: “documents concerning”, “any records”, and the reliance placed upon an extensive, but not exhaustive, definition of “documents”. The plaintiffs simply do not require this level of information to plead their case properly. The reference to promotional materials in category 1.2 is also very wide and amounts to a “fishing expedition”.
The defendant submits that access to its internal records as to the availability of the Villa are similarly unnecessary for the proper formulation of the plaintiffs’ claim. That is because their central contentions relate to the misuse of the Villa. The documents in categories 1.4 and 1.5 are already captured by the reference to “any records” in category 1.1. The request for “survey responses” in category 1.6 is, on its face, an ambiguous request. There is no evidence that such responses exist.
Categories 1.1 and 1.4
Both categories 1.1 and 1.4 refer to booking records. While category 1.1 contains a detailed description of the records being sought, category 1.4 simply seeks booking records without any attempt to elaborate upon what that term is intended to mean. The apparent intention and effect of the two clauses is the same, but category 1.1 has the advantage of greater certainty. Because of the duplication, I will not order production of the documents referred to in category 1.4.
Category 1.2
Category 1.2 seeks documents used to promote the Villa to prospective guests. For a period up until 24 January 2005, and from late 2014 onwards, the plaintiffs had an arrangement with the defendant whereby they could accommodate guests in the Villa with the agreement of the plaintiffs and pay an agreed fee to them. During those periods, the publication of promotional material about the Villa designed to attract guests would have been to the benefit of the plaintiffs. The promotional material will not disclose if the Villa was used by the defendant outside the terms of their arrangement. Such material would only be relevant if it was published during a period when the defendant was not authorised by the plaintiffs to make use of the Villa. If that has occurred, it might possibly support the plaintiffs’ foreshadowed claim based on trespass over a period of time.
I consider that the obligation to produce should be limited to promotional material relating specifically to the Villa (and not the Resort more generally) that was published in the period between 25 January 2005 and 31 December 2014 when the defendant was not authorised to make use of the Villa.
Category 1.3
Category 1.3 seeks internal documents provided to the staff of the defendant relating to the availability of the Villa for booking and its features and qualities. I consider that these documents would assist the plaintiffs to formulate properly their claim in contract and trespass, and in particular, the claim for trespass over periods of time (as distinct from individual occasions). Given that finding, it is unnecessary to consider whether the documents would also assist with the formulation of claims in equity and for misleading and deceptive conduct.
Categories 1.5, 1.7 and 1.8
I also consider that documents sought in categories 1.5, 1.7, and 1.8 will assist the plaintiffs to formulate their claim properly. However, an issue arises because of the likely overlap between the documents sought in category 1.5 and in category 5.
Category 1.5 refers to “communications relating to reservations, occupancy, and use, of the Villa”, while category 5 refers to “all correspondence between Accor and the plaintiffs for the Villa”.[22] Category 5 is much broader and is likely to encompass a substantial component of the documents in category 1.5. Thus, for example, an email message from the defendant to the plaintiffs seeking permission to use the property on a particular occasion will fall within both category 1.5 and category 5. However, by way of further example, correspondence advising that maintenance needs to be carried out on the Villa would be within category 5 but not category 1.5.
[22] It is not entirely clear to me what the words “the plaintiffs for the Villa" are intended to mean. Possibly, a word has been omitted.
I have held at paragraph [89] below, that the defendant should not be required to produce the documents in category 5 unless that is required under the ordinary process of discovery upon proceedings having commenced.
Category 1.6
Category 1.6 seeks survey responses received in relation to the Villa. There is no evidence that any relevant surveys were undertaken, nor is there any evidence that the survey responses, if they exist, will relate to a specific apartment rather than the Resort generally. However, I consider that the practice of accommodation providers forwarding surveys to recently departed guests is so widespread that the Court can take judicial notice that such a practice exists. It can also be accepted that such surveys are performed online, and usually request a guest to indicate a points rating, and also invite comment about the quality of the accommodation and services, dealings with staff and the like. Accommodation providers and the operators of online booking services commonly publish the results of such surveys on their websites.
Even if surveys were undertaken by the defendant, and the results retained for a substantial period, I am not persuaded that access to such information is necessary for the plaintiffs to formulate their claim. The content of survey responses by individual guests is irrelevant to the proposed claim. At best, the fact that a survey response was received may reveal that a particular guest stayed in the Villa during a particular period and might thereby be used by the plaintiffs to crosscheck against other records. However, I do not consider this information to be necessary for the plaintiffs to properly formulate their claim, particularly given the extent of other disclosure that is to be ordered. For that reason, and so as to minimise intrusion into the defendant’s affairs, I decline to order production of the survey responses sought in category 1.6.
Category 2
The plaintiffs submit that access under category 2 to room service, cleaning and maintenance records for the Villa will help verify use, and also assist with the identification of further trespass by the defendant. The defendant contends that the plaintiffs have already been provided with the names of the persons who occupied the Villa and the duration of their stay. No further information should be required.
I accept the correctness of the plaintiffs’ contention concerning production of the records in category 2. While the defendant asserts that they have produced sufficient records to enable the plaintiffs to formulate their claim properly, for the reasons noted at paragraph [25], I am not persuaded as to the reliability of the information that has been produced.
Category 3
The plaintiffs submit in relation to category 3 that the electronic card reader facilitated the defendant’s ongoing use of the Villa. I note that in a letter sent to the plaintiffs’ former solicitors dated 9 May 2019, Mr Lord stated that the “data from the door lock is required to be downloaded from the lock”.[23] Because the lock has been removed, the requested information cannot be provided until the lock is returned. That issue has not been mentioned again by the defendant. If in fact the data is no longer in the possession or control of the defendant, that will be a proper response to an order for production. The parties otherwise make the same submissions in relation to category 3 as they have advanced in relation to category 2.
[23] Exhibit ILM 6 to the fourth affidavit of Mr Ian Maitland.
I hold the same view in relation to the production of the documents identified in category 3 as I have indicated above concerning category 2, that is, I will order production.
Category 4
The defendant sought at various times to enter an agreement with the plaintiffs for use of the Villa. The plaintiffs submit that internal correspondence relating to the negotiation of such an agreement will help establish the defendant’s state of mind about using the Villa at times not contractually agreed upon, and may also reveal the desirability of the Villa for the defendant’s business. The defendant contends that its intention is not an element of the cause of action in trespass, but may be relevant to establishing whether the trespass was aggravated. Even so, more than a mere assertion of aggravation should be required before the defendant is required to hand over sensitive internal documents.
The fact that the defendant made use of the plaintiffs’ property without permission while it was trying to negotiate an agreement for use of that property gives rise to a possibility that the defendant acted in contumelious disregard of the rights of the plaintiffs. If the necessary facts were to be established to the satisfaction of the Court, such conduct may potentially sound in aggravated or exemplary damages. In my view, that possibility is a live issue, although the defendant’s conduct might potentially be shown not to be contumelious. Because the possibility of aggravation is distinctly more than a theoretical possibility, I reject the defendant’s submission.
I will order production of the documents sought in category 4.
Category 5
The parties communicated about contracting to use the Villa and subsequently about bookings. The plaintiffs contend they have some, but not all, of this past correspondence. The defendant submits the plaintiffs received all correspondence, and no correspondence has been identified as missing.
On balance, I accept the correctness of the defendant’s submission that there is no basis to order it to produce copies of correspondence it had addressed to the plaintiffs. I have previously also noted that the documents referred to in category 5 substantially overlap with category 1.5. In my view, it is sufficient for the purpose of including the plaintiffs’ claim that they are provided with the documents in category 1.5. Discovery of the correspondence referred to in category 5 can be considered in the ordinary way upon proceedings having commenced. For that reason, I decline to order production of the documents sought in category 5.
Categories 6 and 7
The plaintiffs contend that the defendant must have kept financial records of payments received for use of the Villa. These documents are relevant to occupancy, and will assist in understanding the nature of the defendant’s actual (and wrongful) gain. Conversely, the defendant submits that the request is too expansive, as it seeks financial records broadly. The defendant should only be ordered to supply that information if the Court is satisfied there were grounds to give disclosure in relation to a gain stripping remedy. That matter has not been established.
I have found that the plaintiffs will not be required to elect in their statement of claim whether they seek a remedy by way of damages or restitution. The form of relief sought can be pleaded in the alternative. As Hoffman LJ noted in Ministry of Defence v Ashman,[24] that election only needs to be made prior to judgement, that is, in closing submissions.
[24] Ministry of Defence v Ashman [1993] 2 EGLR 102 at 105.
I note that the analysis[25] prepared by the plaintiffs based on the documents thus far disclosed by the defendant, alludes to financial arrangements that may possibly be clarified by the production of documents in categories 6 and 7. I refer here to entries such as “conference client”, “50% staff discount”,[26] “Le Club Rewards” and “no cost”. These entries, particularly that of “no cost”, would appear to be potentially relevant to a pleading that the defendant had been treating the property as its own, and is thus potentially liable on the basis referred to by the Privy Council in Inverlugie Investments Ltd v Hackett.[27] Accordingly, I consider that production of the documents in categories 6 and 7 would assist the plaintiffs properly to formulate such a claim. I also reject the submission by the defendant that the class of documents sought in categories 6 and 7 is excessively wide. Both categories expressly refer only to documents relating to the Villa, and not more generally.
[25] See Exhibit ILM 14 to the fourth affidavit of Mr Ian Maitland.
[26] The 50% staff discount may possibly only relate to food and beverages but the document is not definite on that point.
[27] [1995] 1 WLR 713.
Conclusion
I will order that the defendant provide documents in terms of the Amended Application for Investigation save that categories 1.4, 1.6, and category 5 are to be deleted, and category 1.2 is to be modified to cover only the period from 22 January 2005 to 31 December 2014 (inclusive).
I will order that costs be in the cause.