Robinson v Blackheart Industries Pty Ltd and Ors (No.4)
[2015] FCCA 3231
•4 December 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ROBINSON v BLACKHEART INDUSTRIES PTY LTD & ORS (No.4) | [2015] FCCA 3231 |
| Catchwords: PRACTICE AND PROCEDURE – Application for orders that applicant and his solicitor provide an affidavit disclosing information relating to the use the applicant and his solicitor, and agents of the applicant and his solicitor, made of documents (Subpoena Documents) produced on subpoena and to which the applicant and his solicitor had unauthorised access, and the steps the applicant and his solicitor took to destroy the Subpoena Documents pursuant to an order that such documents be destroyed – whether the applicant for the orders has a reasonably arguable case the Court has jurisdiction to make such orders – whether the applicant for the orders has a reasonably arguable case orders were sought in aid of some arguable legal or equitable right – no arguable case the Court has power to make orders sought – whether there was a reasonably arguable case the applicant and his solicitor failed to comply with the order requiring the destruction of the Subpoena Documents. |
| Legislation: Fair Work Act 2009 (Cth), s. 566, 568 |
| Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 Robinson v Blackheart Industries Pty Ltd (In Liq) & Ors [2013] FCCA 1829 Witham v Holloway (1995) 183 CLR 525 |
| Applicant: | PAUL ROBINSON |
| First Respondent: | BLACKHEART INDUSTRIES PTY LTD (IN LIQ) ACN 128 543 304 |
| Second Respondent: Third Respondent: | KYLE ARNOLD BEVERLEY ARNOLD |
| File Number: | SYG 2407 of 2012 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 5 March 2015 |
| Delivered at: | Sydney |
| Delivered on: | 4 December 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr T Glover |
| Solicitors for the Applicant: | FCB Lawyers and Consultants |
| Counsel for the Second Respondent: | Mr M Rivette |
| Solicitors for the Second Respondent: | Clinch Long Letherbarrow Lawyers |
ORDERS
The application in a case filed by the second respondent on 24 October 2014 is dismissed.
Subject to order 3, the second respondent pay the costs of the applicant and of Mr Matthew Robinson.
The parties have liberty to apply by application in a case filed no later than 18 December 2015 for an order for costs that is different from order 2.
The second respondent has leave to remove from the Court file the affidavit of the applicant sworn on 5 September 2013 and filed on 6 September 2013.
The second respondent have liberty to apply in relation to the implementation of order 4.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2407 of 2012
| PAUL ROBINSON |
Applicant
And
| BLACKHEART INDUSTRIES PTY LTD (IN LIQ) ACN 128 543 304 |
First Respondent
| BEVERLEY ARNOLD |
Second Respondent
| KYLE ARNOLD |
Third Respondent
REASONS FOR JUDGMENT
(Corrected)
Introduction
On 24 October 2014 the second respondent, Mr Arnold, filed an application in a case seeking orders against the applicant, Mr Paul Robinson, and against his solicitor, Mr Matthew Robinson, that they each disclose in an affidavit various matters Mr Arnold claims are relevant to determining whether Mr Paul Robinson complied with the orders I made on 8 November 2013. By those orders, Mr Paul Robinson was ordered to destroy documents (Subpoena Documents) that had been produced to the Court by Great Aussie Surfshop Pty Limited (GASS) and Telstra Corporation Limited (Telstra) in answer to subpoenas that had been issued at the request of Mr Matthew Robinson on behalf of Mr Paul Robinson, and to which Mr Matthew Robinson had gained unauthorised access.[1]
[1] Robinson v Blackheart Industries Pty Ltd (In Liq) & Ors [2013] FCCA 1829
On 21 November 2014 the application in a case was set down for hearing on 5 March 2015. On 4 March 2015 Mr Arnold applied for the hearing of the application in a case to be adjourned. I refused that application. Instead, I ordered that the only issue for determination at the hearing on 5 March 2015 be whether Mr Arnold has an arguable case for the relief he seeks in his application in a case, or for relief of a similar nature. These reasons for judgment, therefore, address that question.
Evidence
At the hearing of 5 March 2015, Mr Arnold sought to read two affidavits made by him, one made on 23 October 2014, and the other on 19 December 2014. I read the first of the two affidavits without objection for the limited purpose of determining whether Mr Arnold has a reasonably arguable case for the relief he seeks. It was agreed between counsel that, if I were to find Mr Arnold has an arguable case, and the matter goes further, Mr Paul Robinson would be entitled to object to the first of Mr Arnold’s affidavits.
The reception of the second of Mr Arnold’s affidavits raised additional issues. In that affidavit Mr Arnold responds to affidavits that were filed on behalf of Mr Paul Robinson in response to Mr Arnold’s first affidavit (applicant’s affidavits). Counsel for Mr Arnold tendered the applicant’s affidavits to rely on admissions he claimed were made in those affidavits, and also to make sense of the matters Mr Arnold deposed in his second affidavit. Counsel for Mr Paul Robinson objected on the ground of legal professional privilege. Although he did not so state, I understood the objection was based on s.119 of the Evidence Act 1995 (Cth) (E Act) which, in the circumstances stated in that provision, entitles a person not to disclose evidence that was prepared for the dominant purpose of that person’s being provided with professional legal services relating to proceedings. Again, although counsel did not so submit, I understood counsel relied on a line of authority to the effect that affidavits or witness statements served by parties pursuant to an order of a court retain the privilege they otherwise had up to the point they are read or tendered at the hearing, because the disclosure of the witness statements was made under the compulsion of an order of the court.[2] I provisionally ruled that whatever privilege was attached to the applicant’s affidavits had been waived by Mr Paul Robinson serving those affidavits on Mr Arnold’s solicitors. My ruling was provisional because, although I believed there was authority to the effect that the service of affidavits pursuant to a court order operated as a waiver of any privilege that attached to the affidavits, and although I did refer to “Cadbury” as being the relevant authority, I was not sufficiently confident in my recollection of the name of the case, or of the precise principle that case had decided, to make an unqualified ruling. I informed counsel I would confirm my ruling later or, if I were incorrect, I would give the parties an opportunity to make further submissions.
[2] The relevant authorities were referred to by Gordon J in Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88 at [13]
The authority I had in mind is the decision of Gordon J when her Honour was sitting as a judge of the Federal Court in Cadbury Schweppes Pty Ltd v Amcor Limited.[3] Gordon J referred to two conflicting lines of authority: one to the effect that “statements or affidavits filed and served in proceedings, but not read in open court, remain ... subject to legal professional privilege”;[4] and the other to the effect that “filing and service [of affidavits or witness statements], without more, operates as a full or limited waiver”.[5] Relying on dicta of the Full Federal Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd,[6] her Honour said:[7]
If it is conceded, as it must be, that a party upon whom a witness statement is served may use that statement in any way within the context of those proceedings (that is the whole reason why it is filed and served), it follows that it is conduct “inconsistent with the maintenance of the confidentiality which the privilege is intended to protect” (Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1 at [29]) and an implied waiver of privilege has occurred. Indeed, if one follows the Full Court’s reasoning to its logical conclusion, the filing and service operates as a complete, not simply limited, waiver of legal privilege.
[3] [2008] FCA 88
[4] At [13]. The passage her Honour quoted is from Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283 at [15]
[5] Cadbury Schweppes Pty Ltd v Amcor Limited [2008] FCA 88 at [15]
[6] [2005] FCAFC 3; (2005) 218 ALR 283
[7] [2008] FCA 88 at [16]. See also Australian Competition & Consumer Commission v Cadbury Schweppes Pty Ltd [2009] FCAFC 32 at [127]: “The reasoning of the Full Court, as Gordon J noted in Cadbury at [16], is persuasive and sensible and it leads to the conclusion that, save where a disclosure is made for a particular and limited purpose, the filing and service operates as a complete, and not simply limited, waiver of privilege: at [16]-[18]; for the reason that the uses that may be made of the served document in the proceedings are “inconsistent with the maintenance of the confidentiality which the privilege is intended to protect” (Mansfield, Kenny, and Middleton JJ)
Her Honour was considering the position under the common law, not under the E Act. In my opinion, however, her Honour’s analysis applies to the E Act. Under s.122(2) of the E Act, Division 1 of Part 3.10 of the E Act, which includes the litigation privilege defined by s.119 of the E Act:
does not prevent the adducing of evidence if the client or party concerned has acted in a way that is inconsistent with the client or party objecting to the adducing of the evidence because it would result in a disclosure of a kind referred to in section 118, 119 or 120.
The language of s.122(2) of the E Act closely reflects the language of the passage from Mann v Carnell[8] Gordon J quoted, and on which her Honour relied, in the passage from her Honour’s reasons for judgment I have quoted above.
[8] [1999] HCA 66; (1999) 201 CLR 1 at [29]
I should also refer to the reasons for judgment of Barrett J in Austress v Marlin[9] that were endorsed by the Full Federal Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd agreed.[10] In Austress Barrett J said (omitting references):[11]
[6] The second question is whether client legal privilege applies. The defendant’s submission that it does proceeds on the basis that, unless and until it is read in court, an affidavit filed by a party retains the confidentiality which attaches to it by reason of its being a statement by a witness brought into existence for the purposes of legal proceedings. That principle was advanced by reference to the decisions in Abigroup Ltd v Akins, Nilsen Industrial Electronics Pty Ltd v National Semiconductor, and Australian Competition and Consumer Commission v Telstra Corporation.
[7] It is important to note that all these cases – as well as others in the same line, such as State Bank of South Australia v Smoothdale (No 2 – involved attempted use in one proceeding of an affidavit or witness statement filed and served in another. The decisions in most of the cases that client legal privilege applied to prevent resort to those materials were based on the premise that filing and service in the particular proceeding had in no sense entailed consent to use of the materials in other proceedings such as to waive the applicable privilege. As the Court of Appeal emphasized in Akins v Abigroup (above), principles of proper purpose underlying Home Office v Harman operate here.
[8] I am satisfied that the principles in the cases to which I have referred do not apply where it is sought to use in particular proceedings affidavits or witness statements served by one’s opponent in those same proceedings. The purpose of the communication, in a case such as that, is to inform the recipient of the evidence the serving party intends to lead. That communication cannot carry with it any form of restriction upon the use the recipient may make of the material, save that it must be used for the proper purposes of the particular proceedings.
[9] [2002] NSWSC 958
[10] [2005] FCAFC 3; (2005) 218 ALR 283 at [25]
[11] [2002] NSWSC 958 [6] – [8]
In my opinion, therefore, by serving the applicant’s affidavits, Mr Paul Robertson waived any privilege that may have attached to those affidavits; and it was open to Mr Arnold to tender those affidavits in support of his case that he has a reasonably arguable case for the relief he seeks in his application in a case.
Following my ruling, I read the second affidavit of Mr Arnold, and the applicant’s affidavits. I read these affidavits, including Mr Arnold’s first affidavit, for the limited purpose of identifying the facts on which Mr Arnold intends to rely for the relief he seeks, and by reference to which I propose to determine whether Mr Arnold has a reasonably arguable case for the relief he seeks. In these reasons, I will assume, but make no finding, that the facts, not the opinions, alleged or stated in the affidavits of Mr Arnold are true. I will not, however, for the purposes of these reasons, assume the truth of those facts deposed in the applicant’s affidavits that do not, or may not, assist Mr Arnold’s case.
Background
Mr Arnold was the manager and executive director of the first respondent (Blackheart). Blackheart was in the business of, among other things, producing a government military magazine named “On-Duty”.[12] Mr Arnold is currently the manager of Blackheart Holdings Pty Limited.[13]
[12] Arnold affidavit 23.10.14, [5]
[13] Arnold affidavit 23.10.14, [1]
Until 14 September 2012 Blackheart employed Mr Paul Robinson as the editor of On-Duty.[14] Mr Arnold believes that within seven days of leaving Blackheart, Mr Paul Robinson, together with Mr Damien Foxton, commenced a rival business known as “The Line Publishing” for the purpose of producing a competing magazine known as “The Line Magazine”.[15] The Line Publishing, however, has not published a magazine by that name; instead, it published, and continues to publish a magazine known as “Motoline Magazine”.[16]
[14] Arnold affidavit 23.10.14, [8]
[15] Arnold affidavit 23.10.14, [9]
[16] Arnold affidavit 23.10.14, [13.a]
Although Motoline Magazine specialises in motorcycle racing, Mr Arnold says that that magazine and On-Duty operate in the same industry, have similar demographics, and deal with similar advertisers.[17] Mr Arnold must have intended to say that Motoline Magazine and On-Duty would operate in the same industry if On-Duty were in fact published. No issue of On Duty has been published after 14 September 2012 when Mr Paul Robinson and Mr Foxton resigned from Blackheart.[18] Mr Arnold says no further issue has been published for two reasons. First, following the resignations of Mr Paul Robinson and Mr Foxton, “On Duty” lost all of its staff and most of its contributors to The Line Magazine.[19] Second, the improper access to the Subpoena Documents required the reorganisation of Blackheart’s business “to take into account that a competitor or potential competitor had access to every single e-mail and most documents produced by the company over a period of a number of years”.[20]
[17] Arnold affidavit 23.10.14, [13.a]
[18] Arnold affidavit 23.10.14, [14]
[19] Arnold affidavit 23.10.14, [14a.]
[20] Arnold affidavit 23.10.14, [14b.]
On 22 April 2013 this Court, at the request of Mr Matthew Robinson, issued a subpoena to each of GASS (GASS subpoena) and Telstra (Telstra subpoena). The GASS subpoena called for “[a]ll documents sent to or from” five email addresses “during the period from 1 October 2010 to date”. The Telstra subpoena called for “[a]ll documents sent to or from” one email address “during the period from 1 October 2010 to date”. GASS and Telstra each produced the documents called for by the subpoenas issued to each of them by producing to the Court a CD and a DVD containing an electronic copy of the Subpoena Documents.
In the circumstances I have described elsewhere,[21] Mr Matthew Robinson was provided with a CD and a DVD containing an electronic copy of the Subpoena Documents. According to Mr Matthew Robinson, he assessed that the DVD and CD he received contained “thousands of emails”. He further said:[22]
I did not read all these emails however [I] undertook searches via key word searches and then filtering those emails via “sent to” or “received from” designated persons or filtering via subject line. Some of the key word searches included: Lavarack, Townsville, Williamtown, Holsworthy, AAFCAN, Onya, Martin Orr, Condon, Robinson, Foxton, Tender, Sale of Business, exchange, completion, valuation, dump, ditch, sink, underpay, overtime, timesheet, balance and P&L.
[21] Robinson v Blackheart Industries Pty Ltd (In Liq) & Ors [2013] FCCA 1829 at [14]
[22] Robinson v Blackheart Industries Pty Ltd (In Liq) & Ors [2013] FCCA 1829 at [16]
On about 11 October 2013 Mr Arnold filed an application in a case for orders to the effect of the orders I made on 8 November 2013. On 24 October 2013 Mr Matthew Robinson hand delivered to Mr Arnold’s solicitor a letter in which he said:[23]
[23] M N Robinson affidavit 28.11.14, [3]; Arnold affidavit 23.10.14, [68], annexure KA-45
I refer to the comments by His Honour Judge Manousaridis on 18 October 2013 in which he encouraged the parties to consider a mechanism to resolve the claims contained in your client’s Application in a Case dated 11 October 2013. Following the directions hearing my client has considered the utility of running a distracting and time consuming “case within a case” over materials that may not advance his interests beyond the evidence already before the Court. In this respect, and without any admissions, I have attached the following:
1.Law In Order CD containing Telstra’s Response/Explanation letter; and
2.Law In Order DVD containing email files from the Great Aussie Surf Shop Pty Ltd of “Blackheart” and “Onduty’.
I can confirm that my client has otherwise destroyed all copies of the materials arising from the CD and DVD and any notes referring to those materials The materials have otherwise not been provided to any other person in breach of the implied undertaking in FCCR 15A.2. My office has done similarly in relation to the destruction of materials and notes.
The only exception to the position stated above is in relation to the materials arising from the DVD that are referred to and exhibited to my client’s Affidavit plus the attached email. . . . My client proposes to tender all these materials at the hearing on 3-4 December 2013.
. . . . there appears no utility in any further pursuit of the current Application in a Case and in this respect attach proposed Short Minutes of Order.
Mr Arnold’s solicitors responded by letter dated 29 October 2013 stating that Mr Matthew Robinson’s proposal was not acceptable.[24] They also stated that Mr Arnold:
is entitled to the protection of an appropriately worded undertaking to the respondents and the Court that you and your client and all your servants and agents have destroyed the material and all copies and notes and references to the contents of the material.
[24] Arnold affidavit 23.10.14, [68], annexure KA-46
In reasons for judgment published on 8 November 2013, I found that Mr Matthew Robinson gained access to the Subpoena Documents without authority, and I made an order in the terms sought by Mr Arnold (Destruction Orders).[25] Those orders were as follows:
[25] Robinson v Blackheart Industries Pty Ltd (In Liq) & Ors [2013] FCCA 1829
Within seven days from the date of this order, the applicant must destroy or cause to destroy:
a)all copies of documents and discs produced to the Court by:
i)The Great Aussie Surfshop Pty Ltd (ACN 089 554 718) (GASS) in response to the subpoena for production issued by the applicant to GASS and which was returnable before the Court on 16 May 2013; and
ii)Telstra Corporation Limited (ACN 051 775 556) (Telstra) in response to the subpoena for production issued by the applicant to Telstra and which was returnable before the Court on 16 May 2013,
as are currently in the possession of the applicant and any of the applicant’s employees, servants or agents; and
b)all documents which refer to specific information contained in the documents referred to in paragraph (a) as are currently in the possession of the applicant and any of the applicant’s employees, servants or agents.
Immediately after I pronounced these orders, the following exchange occurred: [26]
[26] Arnold affidavit 23.10.14, [24], annexure KA-16
MR ROBINSON: In relation to the applicant’s evidence which is before the court became that material, how is, as a matter of practicality, that issue to be addressed in relation to order 1?
HIS HONOUR: Is that material been actually filed with the court – the actual annexures – or is it just referred to as an exhibit?
MR ROBINSON: Part of it is contained in the affidavits and part of it is actually in an exhibit which has not been filed before the court.
HIS HONOUR: . . . whatever you do, you need to consult with the respondent’s solicitors about it. It might well be that what you’ll have to do is withdraw that evidence.
MR ROBINSON: No, as not to read it or have it redacted perhaps.
HIS HONOUR: But whatever you do, make sure it’s done with the knowledge of the respondent’s legal representatives so there’s no issue about it. But if there’s any practical difficulty in [the] implementation of the orders, by all means, come back [here] and it will be sorted [out].
Mr Matthew Robinson deposes he took the following actions to comply with the Destruction Orders:
a)He deleted all soft copies of the Subpoena Documents including deleting the source materials in all locations stored by his office’s central servers and desktop computers, deleting emails and draft copies of all affidavits and draft affidavits that contained or referred to the Subpoena Documents.[27]
b)He shredded all hard copies of the Subpoena Documents and any documents referring to the Subpoena Documents, including draft affidavits, notes, emails, briefs to counsel, and working documents.[28]
c)Redacted any reference to the Subpoena Documents in Mr Paul Robinson’s affidavit of 5 September 2013 (First Redacted Affidavit), photocopied the redacted affidavit, and then shredded the affidavit on which he made the redactions.[29]
d)On or about 8 November 2013 Mr Matthew Robinson requested Mr Foxton to permanently destroy a small number of emails from the Subpoena Documents Mr Matthew Robinson had provided to him between late May and late August 2013, and Mr Foxton had confirmed he did that. Mr Foxton did not access at any time the discs that contained the Subpoena Documents.[30] This evidence is confirmed by Mr Foxton.[31]
[27] M Robinson affidavit, [5(a)]
[28] M Robinson affidavit, [5(b]
[29] M Robinson affidavit, [5(c)]
[30] M Robinson affidavit, [7]
[31] D Foxton affidavit, 3.12.14, [3]-[5]
On 18 November 2013 Mr Arnold’s solicitor sent an email to Mr Matthew Robinson in which the following was stated:[32]
On 8 November 2013, just after the Order was handed down, you requested clarity from his Honour about how best to comply with that Order. His Honour confirmed that it was up to you and your client to decide how best to comply with the Order, but that you contact our office to confirm the steps you and your client had taken [to] comply with it.
We have not received any such confirmation from you and note that 7 days from judgment passed on Friday 15 November 2013.
[32] Arnold affidavit 23.10.14, [40], annexure KA-29
This passage does not accurately describe what was said immediately after I pronounced the Destruction Orders on 8 November 2013. Mr Matthew Robinson did not ask “how best to comply with” the Destruction Orders; he only asked about the operation of the orders to such of the Subpoena Documents that had been included in the evidence on which Mr Paul Robinson intended to rely. Nor did I confirm or otherwise state or suggest that Mr Matthew Robinson contact Mr Arnold’s solicitor to confirm the steps Mr Matthew Robinson had taken to comply with the Destruction Orders. My suggestion was limited to what Mr Robinson proposed to do to implement the Destruction Orders in relation to such of the Subpoena Documents that had been included in Mr Paul Robinson’s evidence.
A few days after 8 November 2013 Mr Matthew Robinson reviewed the First Redacted Affidavit, and he directed his secretary to make further changes. That resulted in the production of a further redacted version of Mr Paul Robinsons’ affidavit, which occurred before 15 November 2013 (Second Redacted Affidavit).[33]
[33] M Robinson affidavit, [8]
By email sent on 19 November 2013, Mr Matthew Robinson informed Mr Arnold’s solicitor that “my client has complied with the Court orders. The Applicant’s evidence has been redacted, exhibit PR1 (Volume 1) has been filleted and all other hard/soft copies have been destroyed.”.[34] By email sent on 20 November 2013, Ms Beverley Arnold requested Mr Matthew Robinson provide her with a copy of the “new version of your evidence” which appears to have been intended to be a reference to the redacted affidavit and exhibit referred to in that affidavit.[35] By email sent on 20 November 2013, Mr Matthew Robinson also informed Mr Arnold’s mother, Ms Beverley Arnold, that “my client has complied with the recent Court order and redacted parts of his Affidavit and filleted the exhibit PR1- which has already been served on you”.[36] Mr Matthew Robinson said he would send to Ms Beverley Arnold “a copy of the redacted Affidavit and advise the page numbers that have been filleted”.
[34] Arnold affidavit 23.10.14, [41] annexure KA-30
[35] Arnold affidavit 23.10.14, [42] annexure KA-31
[36] Arnold affidavit 23.10.14, [43] annexure KA-30
On 22 November 2013 Mr Matthew Robinson, by his secretary, provided to Mr Arnold’s solicitors by email the First Redacted Affidavit.[37] This was an error. Rather than sending the Second Redacted Affidavit to Mr Arnold’s solicitors, Mr Matthew failed to pick up that his secretary had sent the First Redacted Affidavit.[38] By email sent on 25 November 2013, Mr Matthew Robinson also sent the First Redacted Affidavit to Ms Beverley Arnold and identified the page numbers of exhibit PR1 that were to be omitted.[39]
[37] M Robinson affidavit, [8]
[38] M Robinson affidavit, [8]
[39] Arnold affidavit 23.10.14, [47] annexure KA-32
The First Redacted Affidavit contained a number of references to Subpoena Documents.[40] Mr Arnold referred to the following passages of the First Redacted Affidavit:[41]
a)At paragraph 137 Mr Paul Robinson refers to a particular document in exhibit PR1.
b)At paragraph 139: “Following my call I understand (arising from the emails obtained by The Great Aussie Surf Shop) that . . . . licences”.
c)Although paragraphs 105, 143, and 146 refer to emails the identities of which have been redacted, statements made on the basis of those emails had not been redacted.
d)In his email of 25 November 2013, Mr Matthew Robinson indicated Mr Paul Robinson proposed to rely on documents in exhibit PR-1 including pages 146A and 146B of exhibit PR1. Pages 146A and 146B, however, are from the Subpoena Documents and should, therefore, have been destroyed.
[40] Arnold affidavit 23.10.14, [48b.]
[41] Arnold affidavit 23.10.14, [48b.]
Mr Arnold says that after noting these errors, he inferred that Mr Paul Robinson was technically in breach of the Destruction Orders, and that, because the references to the Subpoena Documents had been redacted by hand, the Subpoena Documents described in the affidavit that had been redacted by hand had not been deleted from the computer system of Mr Matthew Robinson’s Law Practice, FCB Workplace Law (FCB).[42]
[42] Arnold affidavit 23.10.14, [49]
At a directions hearing before Judge Lloyd Jones on 25 November 2013, counsel for Mr Arnold identified the continuing presence in the First Redacted Affidavit of matters based on the Subpoena Documents. It is at that point that Mr Matthew Robinson became aware that he had sent the First Redacted Affidavit rather than the Second Redacted Affidavit.[43] Mr Robinson then took steps to shred all copies of the First Redacted Affidavit and, on 26 November 2013, served Mr Arnold and Ms Beverley Arnold with the Second Redacted Affidavit.
[43] M Robinson affidavit, [9]
The Second Redacted Affidavit redacted paragraph 139, but not the assertions made in paragraphs 105, 143, and 146.[44] Mr Arnold says Mr Matthew Robinson’s omission to redact these parts of Mr Paul Robinson’s affidavit, combined with Mr Matthew’s previous omissions and assurances that he had complied with the Destruction Orders, and that the documents had been redacted by hand, gave rise to a concern that Mr Paul Robinson “was not careful and thorough in the manner in which he, and his agents, complied with the” Destruction Orders.[45]
[44] Arnold affidavit 23.10.14, [52]
[45] Arnold affidavit 23.10.14, [53]
At the hearing of the substantive matter before Judge Lucev on 3 December 2013, the Second Redacted Affidavit was read, and exhibit PR1 was tendered and accepted into evidence. To the best of Mr Matthew Robinson’s knowledge, Mr Arnold did not object to the reading of the Second Reacted Affidavit or the tender of exhibit PR1.[46] Mr Arnold, in his second affidavit, does not refer to this part of Mr Matthew Robinson’s affidavit.
[46] M Robinson affidavit, [12]
Commencing on 24 January 2014 Mr Arnold sent an email to Mr Matthew Robinson requesting that he advise “the steps you and your client have taken to destroy or redact the evidence of Mr Paul Robinson (Exhibit PR1)”.[47] Mr Matthew Robinson responded by sending an email on 5 February 2014 to Mr Arnold’s solicitor referring to an email from “your client requesting information that we have no obvious obligation to address”. Mr Matthew Robinson stated that if “your office has any concerns with the compliance with the [Destruction Orders], then please let us know specifically what they are”.[48]
[47] Arnold affidavit 23.10.14, [54], annexure “KA-35
[48] Arnold affidavit 23.10.14, [55]
Mr Arnold’s solicitor, Ms Martins, responded by email on 5 February 2014.[49] She said that Mr Arnold remained an unrepresented litigant in the substantive proceedings, and there would be no issue if Mr Matthew Robinson were to respond to Mr Arnold directly. Ms Martins said she believed Mr Arnold was seeking confirmation “that the redacted version of Mr Paul Robinson (Exhibit PR1) is the version currently on the court file, and that the previous unredacted version was destroyed once the orders to do so were handed down”.
[49] Arnold affidavit 23.10.14, annexure KA-36
Mr Matthew Robinson’s email of 5 February 2014 was forwarded to Mr Arnold who, on the same day, sent an email to Mr Matthew Robinson.[50] Mr Arnold said:
[50] Arnold affidavit 23.10.14, [56], KA-37
Perhaps if I can rephrase the question again:
·Please advise if the redacted version of Mr Paul Robinson (Exhibit PR1) is the version currently on the court file, and that the previous unredacted version was destroyed once the orders to do so were handed down by His Honour Manousaridis. The Court Registry has no record of the filing of the redacted evidence.
It could be that the redacted evidence has been updated however not yet reflected on the court file portal, if this is the case can you advise the date filed in court.
Mr Matthew Robinson responded by email sent on 6 February 2014:[51]
Thank you for clarifying the question however the underlying premise is false. The Commonwealth Court portal shows my client’s redacted Affidavit having been filed on 26 November 2013 in accordance with the orders of His Honour Judge Lloyd Jones of 25 November 2013. A sealed version of that Affidavit was served on your solicitor that day. If you do not have a copy then that is an issue for you to address with your solicitor.
In relation to the balance of your email I draw your attention to my correspondence to your solicitor on 19 November 2013.
[51] Arnold affidavit 23.10.14, [57], KA-38
There was no further correspondence with Mr Matthew Robinson in relation to the Destruction Orders until 19 September 2014, when Mr Arnold’s solicitor, Mr Woodbridge, sent to Mr Matthew Robinson a letter dated 19 September 2014.[52] After setting out the Destruction Order, Mr Woodbridge stated that Mr Arnold “is seeking your assistance to ensure that the 8 November Orders has been fully and properly complied with”. Mr Woodbridge stated:
Our client has a number of concerns that the letter and spirit of the 8 November Orders have not been complied with. Furthermore, in previous correspondence with our client and lawyers from this firm, you have been unwilling to provide any information on precisely how and when the 8 November Orders were complied with. This leads to a concern on our client’s part that, either deliberately or through inadvertence, copies of the [Subpoena Documents] remain in the possession of your client, of his employees, servants or agents or third parties. Given the importance and sensitivity of the [Subpoena Documents], not to mention my client’s obligations to the Australian Defence Force, this is not acceptable.
[52] Arnold affidavit 23.10.14, [65], KA-43
Mr Woodbridge then identified the matters he claimed raised concerns.
a)Mr Paul Robinson did not within the 7 day period specified in the Destruction Orders consult with Mr Arnold’s lawyers or with Mr Arnold or with Ms Beverley Arnold about the implementation of those orders in relation to such of the Subpoena Documents that had been included in Mr Paul Robinson’s evidence.
b)The affidavit of Paul Robinson that was filed on 25 November 2013 contained statements in paragraphs 137, 139, 105, 143, and 146 that were based on emails from the Subpoena Documents, and the exhibit to that affidavit included pages 246A and 246B which had not been removed.
c)Mr Matthew Robinson failed to communicate to Mr Arnold the steps that had been taken to destroy the Subpoena Documents.
d)Mr Matthew Robinson failed to withdraw from the Court file the unredacted version of Mr Paul Robinson’s affidavit.
Mr Woodbridge also said that, as at July 2014, the liquidator of Blackheart had possession of the unredacted version of the affidavit of Mr Paul Robinson and Mr Matthew Robinson had made no attempt to contact the liquidator to return it or to destroy the material. Mr Woodbridge said that although this was not a breach of the Destruction Orders “it raises legitimate concerns of our client about how many other individuals/entities are in possession of the [Subpoena Documents] that have not destroyed the material or been informed of the 8 November Orders”. Mr Woodbridge then stated:
Our aim is not to pursue your client for a technical breach of the Orders. Rather our concern is to make sure that all the Produced Documents have been identified and destroyed and to the extent that any of the Produced Documents have been sent to third parties, the identity of those third parties and the steps taken to contact them to have them destroy the material.
We seek a detailed explanation for the steps taken by yourself and your client to comply with the 8 November Orders, including the provision of affidavits by yourself and the Applicant with respect to the matters set out below.
There then follows eleven pages of text describing the information Mr Woodbridge sought from Mr Matthew Robinson and Mr Paul Robinson. To give the flavour of the information sought, I will quote just one of the nine classes of information Mr Woodbridge sought:
With respect to the acquisition, review and storage of the Subpoenaed Documents by FCB Law.
i.The manner in which the Subpoenaed Documents were received by FCB Law, specifically the details of any electronic transmissions or storage media by which the Subpoenaed Documents were provided.
ii.The names of the individuals with FCB Law that received, had access or may have had access as a result of their access to FCB Law computer systems to, the Subpoenaed Documents, any individual Subpoenaed Document or any copy, extract, or derivative of any Subpoenaed Document, either initially or upon their subsequent transmission or copying.
iii.The manner in which the individuals in (ii) above received the Subpoenaed Documents, any individual Subpoenaed Document or any copy, extract or derivative of any Subpoenaed Document, including specific details of any such provision, which may include but is not limited to e-mail, hardcopy, access to an electronic file server or data storage media such as a USB device
iv.Whether any of the individuals referred to in (ii) above:
- Made electronic or hard copies of the Subpoenaed Documents, any individual Subpoenaed Document or any copy, extract or derivative of any Subpoenaed Document, including but not limited to printing, photocopying or making copies of electronic files at FCB Law or elsewhere, the documents and if so, when and in what form;
- Stored the Subpoenaed Documents, any individual Subpoenaed Document or any copy, extract or derivative of any Subpoenaed Document, including but not limited to storing on any computer, file server, removable data storage media or saving the attachments of email transmissions at FCB Law or elsewhere, and if so, when and in what manner; and/or
- Sent or transmitted the Subpoenaed Documents, any individual Subpoenaed Document or any copy, extract or derivative of any Subpoenaed Document, to any other person in either hard copy or electronic form, including but not limited to email or any other form of electronic transmission; and if so, when and to whom.
v.All electronic storage devices on which Subpoenaed Documents, any individual Subpoenaed Document or any copy extract or derivative of any Subpoenaed Document were or may have been stored, either temporarily or for a longer term, at either FCB Law or elsewhere, including but not limited to user computers (either work or personal), USB devices and other removable storage devices, e-mail servers, file services, mobile devices, or any backup media, including any remote computers and storage devices such as cloud service providers.
Mr Matthew Robinson responded by letter dated 23 September 2014 in which he stated:[53]
. . . our office and our client do not hold any of the Produced Documents. Between 8 November 2013 and 15 November 2013 all of the Produced Documents were destroyed. All soft copies were deleted including deleting the source materials in all locations stored by our client and our office’s central servers and desktop computers, deleting emails and draft copies of all Affidavits and draft Affidavits. Hard copies of the Produced Materials were shredded, including draft Affidavits, notes, emails, briefs to Counsel and other working documents. The evidence you have raised as to “non-compliance” as between 15 & 25 November 2013 are minor at best and occurred some 10 months ago. Your client would be unable to point to any prejudice he has suffered arising from these minor issues.
None of the Produced Documents were sent to third parties other than the Liquidator via service of our client’s evidence on or about 5 September 2013. In addition, the orders of 8 November 2013 did not require our client to take any steps to recover the Produced Documents that were served on the Liquidator nor approach the Court to have its file altered.
[53] Arnold affidavit 23.10.14, [65], KA-44
Mr Paul Robinson has made an affidavit in which he deposes he does not have in his possession or control any Subpoena Documents, or any documents that refer to any of the Subpoena Documents. Mr Paul Robinson further deposes as follows:[54]
After I was informed of the Court Orders on 8 November 2013 I deleted all soft copies of the Subpoenaed Materials including destroying a USB key that contained the Subpoenaed Materials and also deleting the source materials in all locations stored by my home computer. I also deleted emails containing and referring to the Subpoenaed Materials along with draft copies of all Affidavits and draft Affidavits that contained or referenced the Subpoenaed Materials. I never held any hard copy versions of the Subpoenaed Materials, only soft copies. I did not ever have a hard copy of my draft Affidavits. On or about the same time I also instructed my solicitors to also destroy all the Subpoenaed Materials in their possession and believe they did so.
[54] P Robinson affidavit, [11]
Mr Foxton also made an affidavit in which he deposed the following:[55]
To the best of my knowledge between late May 2013 and late August 2013 my solicitor, Matthew Robinson, provided me with access to a small number of emails that were sourced from the material produced under Subpoena in May 2013 from the Great Aussie Surf Shop Pty Ltd and Telstra (“Subpoenaed Materials”). I looked at the small number of emails and considered whether to include them in my Affidavit for the substance of the proceedings. I did not forward these emails on to anyone else.
[55] D Foxton affidavit, [2]
Relief sought and grounds on which sought
In his application in a case Mr Arnold claims orders requiring each of Mr Paul Robinson and Mr Matthew Robinson to provide an affidavit setting out information identical to the information or to the effect of the information sought by Mr Arnold’s solicitor’s letter 19 September 2014. (For the balance of these reasons, I will collectively refer to Mr Paul Robinson and Mr Matthew Robinson as “P and M Robinson”.) The grounds on which Mr Arnold seeks those orders are that P and M Robinson have conducted themselves in a manner that “raises a reasonable belief that there may not have been compliance with the [Destruction Orders], such that warrants this court taking the next step to make more detailed orders”.[56]
[56] This was counsel’s formulation of the ground at the hearing before me - T11.5
That ground is premised on the existence of evidence and circumstances that indicate the Destruction Orders have not, or may not have been complied with or fully complied with. The matters on which Mr Arnold relies for claiming P and M Robinson have not or may not have complied with the Destruction Orders have been identified in two places. First, they are identified in a document titled “Second Respondent’s submissions on Application for affidavits to be filed and served explaining steps taken to comply with orders made on 8 November 2013” (Arnold Submissions) as follows:
a)P and M Robinson failed to communicate with Mr Arnold or his solicitors about the steps they had taken to comply with the Destruction Orders.[57]
b)P and M Robinson failed to withdraw the First Redacted Affidavit that had been filed with the Court.[58]
c)P and M Robinson did not serve a redacted affidavit until 25 November 2013, and the redacted affidavit did not completely remove all statements that were based on documents included in the Subpoena Documents.[59]
d)These breaches occurred twice, despite Mr Matthew Robinson having twice asserted he had complied with the Destruction Orders.[60]
[57] Arnold Submissions [4]
[58] Arnold Submissions, [5]
[59] Arnold Submissions, [6]
[60] Arnold Submissions, [8]-[9]
In addition to the matters identified in the Arnold Submissions, Mr Arnold himself has identified in his second affidavit matters which, he says, indicates P and M Robinson have not, or may not have complied with the Destruction Orders.
a)Mr Arnold refers to paragraph 14 of an affidavit of Mr Paul Robinson filed in these proceedings in which Mr Paul Robinson deposed that before he swore that affidavit he had destroyed all electronic and physical files and notes of the materials he had obtained from the DVD except for the copies of the emails and attachments he referred to in his affidavit of 5 September 2013 and a copy of an email dated 18 February 2013.[61] Mr Arnold claims paragraph 14 is inconsistent with that part of Mr Paul Robinson’s affidavit I have reproduced in paragraph 40 of these reasons.
b)In his letter dated 24 October 2013 to Mr Arnold’s solicitor, Mr Matthew Robinson said “my client has otherwise destroyed all copies of the materials arising from the CD and DVD and any notes referring to those materials,” and Mr Matthew Robinson repeated this to the Court at a directions hearing on 31 October 2013. Mr Arnold says that Mr Matthew Robinson’s statements could not have been truthful if what Mr Matthew Robinson and Mr Foxton had deposed in later affidavits are to be credited as being true. That is so because, in their later affidavits, Mr Paul Robinson, Mr Matthew Robinson and Mr Foxton deposed to their destroying documents after 8 November 2013.[62] Mr Arnold says that P and M Robinson have shown “a cavalier attitude to the destruction of the Subpoenaed Materials and advising me of the processes undertaken”.[63]
c)Mr Arnold refers to subpoenas for production issued at the request of Mr Foxton that had been served on Mr Arnold in other proceedings. Mr Arnold claims that those subpoenas “seek production of a series of e-mails and documents that were part of the Subpoenaed Materials and were then annexed to the affidavit of Mr Paul Robinson”. Mr Arnold also says that he “cannot see how these subpoenas, in a separate proceeding, could have been prepared without the use of the Subpoenaed Materials”.[64]
d)Mr Matthew Robinson made statements to the Court on 31 October 2013 that indicated Mr Matthew Robinson intended to use the information he obtained from the Subpoena Documents.[65]
e)Mr Arnold identifies a number of “concerns” in relation to the process Mr Matthew Robinson says he followed to delete electronic copies of the Subpoena Documents.[66] First, Mr Arnold believes it is unlikely that, being a partner of FCB, Mr Matthew Robinson would have personally deleted the Subpoenaed Materials from FCB’s central servers.[67] Second, one exhibit to Mr Paul Robinson’s affidavit of 5 September 2013 contained an email from the Subpoena Documents that seems to have been sent from an email address belonging to Mr Matthew Robinson; yet Mr Matthew Robinson has not identified any steps he has taken “to identify and delete this e-mail or any other e-mails from his personal e-mail account that were used in the preparation of evidence in this matter or otherwise contained the Subpoenaed Material”.[68] Third, FCB has or had seven employees or partners who have worked on the matter, and at least two counsel had been briefed, yet Mr Matthew Robinson has not identified these employees, has not indicated which individuals received the Subpoena Documents or whether Mr Matthew Robinson instructed these partners or employees or counsel to comply with the Destruction Orders.[69] Fourth, the deletion of soft copies of documents on a system is a complex task, requiring the identification of the documents and the proper deletion of documents both on desktops, central servers, third party servers, external devices and any backup devices; yet Mr Matthew Robinson has not identified any backup devices on which the Subpoena Documents may have been stored, and has not indicated whether he has the “technical expertise to track the whereabouts of documents through a computer system”.[70]
f)Mr Matthew Robinson’s deposing that he provided the First Redacted Affidavit on 22 November 2013 is incorrect.[71]
[61] Arnold affidavit 19.12.14, [17]
[62] Arnold affidavit 19.12.14, [25]
[63] Arnold affidavit 19.12.14, [25]
[64] Arnold affidavit 19.12.14, [26]
[65] Arnold affidavit 19.12.14, [27]
[66] Arnold affidavit 19.12.14, [29]
[67] Arnold affidavit 19.12.14, [29(a)]
[68] Arnold affidavit 19.12.14, [29(b)]
[69] Arnold affidavit 19.12.14, [29(c)]
[70] Arnold affidavit 19.12.14, [29(d)]
[71] Arnold affidavit 19.12.14, [31]
Does the Court have the power to make the orders sought?
The first question I must consider is whether the Court has power to grant the orders sought by Mr Arnold in his application in a case. Counsel for Mr Arnold and counsel for Mr Paul Robinson both submitted the Court has power to grant the orders, although they differed over what they submitted are the sources of that power.
Counsel for Mr Arnold pointed to s.566 of the Fair Work Act 2009 (Cth) which confers jurisdiction on this Court in relation to any civil matter arising under that Act, and s.14, s.15, and s.16 of the Federal Circuit Court Act 1999 (Cth) (FCC Act).[72] Section 14 of the FCC Act provides that the Court may grant:
all remedies to which any of the parties appears to be entitled in respect of a legal or equitable claim properly brought forward by him or her in the matter, so that, as far as possible . . . all matters in controversy between the parties may be completely and finally determined; and . . . all multiplicity of proceedings concerning any of those matters may be avoided.
[72] Note also s.568 of the Fair Work Act 2009 (Cth) which provides that “nothing in this Act limits the Federal Circuit Court’s powers under s. 14, 15 and 16 of the” Federal Circuit Court Act 1999 (Cth).
Section 15 of the FCC Act provides:
The Federal Circuit Court of Australia has power, in relation to matters in which it has jurisdiction, to:
(a)make orders of such kinds, including interlocutory orders, as the Federal Circuit Court of Australia thinks appropriate; and
(b)issue, or direct the issue of, writs of such kinds as the Federal Circuit Court of Australia thinks appropriate.
Subsection 16(1) of the FCC Act provides that the Court may make binding declarations of right in relation to any matter in which it has original jurisdiction, whether or not any consequential relief is sought.
Counsel for Mr Matthew Robinson submitted that the source of the Court’s power is s.17 of the FCC Act which provides:
(1)The Federal Circuit Court of Australia has the same power to punish contempts of its power and authority as is possessed by the High Court in respect of contempts of the High Court.
(2)Subsection (1) has effect subject to any other Act.
(3)The jurisdiction of the Federal Circuit Court of Australia to punish a contempt of the Federal Circuit Court of Australia committed in the face or hearing of the Federal Circuit Court of Australia may be exercised by the Federal Circuit Court of Australia as constituted at the time of the contempt.
Counsel for Mr Paul Robinson accepts that the making of orders to the effect sought by Mr Arnold are within the scope of the power conferred by s.17 of the FCC Act to punish for contempt.
It may be accepted that one or both of the powers granted by s.14 and s.15 of the FCC Act may be necessary conditions for the Court making orders to the effect claimed by Mr Arnold; but the granting of those powers are not sufficient conditions for their exercise. The Court’s power to grant a remedy under s.14 of the FCC Act is conditional on the Court being satisfied that a party is entitled to such remedy “in respect of a legal or equitable claim properly brought forward by him or her in the matter”. And the Court’s power under s.16(1) of the FCC Act to make binding declarations of right is also conditional on the Court being satisfied the party claiming the declaration has some legal or equitable right.
The Court’s power to make orders and to issue writs granted by s.15 of the FCC Act, although not expressly stated, similarly is conditional on a party demonstrating some entitlement to the order or writ before the Court will make an order or issue a writ. Section 15 of the FCC Act, however, is broader than s.14. It empowers the making of orders in addition to orders “in respect of a legal or equitable claim properly brought forward by him or her in the matter”. These include orders that support or protect the Court’s jurisdiction to effectively determine an application for relief within its jurisdiction. In particular, they include the making of orders in aid of claimed rights before the Court finally determines those claims. Those orders include interlocutory injunctions, freezing orders, and search orders. The Court, however, does not make such orders without being satisfied that the persons who seek such orders also claim in the proceedings in which they are sought some recognisable or arguably recognisable legal (including statutory) or equitable right which is to be determined by the Court at a final hearing. Gummow and Hayne JJ made this point in relation to interlocutory injunctions (references omitted):[73]
The basic proposition remains that where interlocutory injunctive relief is sought in a Judicature system court, it is necessary to identify the legal (which may be statutory) or equitable rights which are to be determined at trial and in respect of which there is sought final relief which may or may not be injunctive in nature.
[73] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 at [91]
The same applies to the making of freezing orders and search orders. To obtain a freezing order, for example, it is necessary to show that the person claiming the order has “a reasonably arguable case on legal as well as factual matters”;[74] and to obtain a search order, an applicant must show he or she “has a strong prima facie case on an accrued cause of action”.[75]
[74] Cardile v Led Builders Pty Ltd [1999] HCA 18; 198 CLR 380 at [68] (Gaudron, McHugh, Gummow, and Callinan JJ)
[75] Federal Court Rules 2011 (Cth), r.7.43(a)
Section 17 of the FCC Act raises different considerations. It deals with contempt. The expression “contempt of court” captures a number of different acts or omissions. Relevant to the application before me are acts and omissions that are alleged to constitute disobedience of an order of a court (disobedience contempt).
A finding of disobedience contempt of an order of this Court exposes the person who has committed it to penal consequences. That is made clear by r.29.09 of the Federal Circuit Court Rules 2001 (Cth) (FCC Rules), which provides:
(1)If a person fails to comply with an order that the person is bound to comply with, a party may apply to the Court for the following orders:
(a)the committal of the person;
(b)the sequestration of the person's property.
(2)If the person in default is a corporation or an organisation, a party may apply to the Court for an order:
(a)for the committal of an officer of the corporation or organisation; or
(b)for the sequestration of the property of the corporation or organisation.
(3)However, no application may be made for an order under paragraph (2)(a) unless the officer:
(a)has been served with the order in accordance with subrule 29.08(1), and the order carries the endorsement in rule 29.07; or
(b)was present when the order was made or was notified of the order in accordance with subrule 29.08(2).
(4)This rule applies if the Court has made:
(a)an injunction; or
(b)an order in the nature of an injunction; or
(c)an order in the nature of mandamus or prohibition.
Because the finding of disobedience contempt exposes a party to penal consequences, the FCC Rules have particular procedural rules that must be complied with before the Court can determine whether a party has committed a disobedience contempt. The relevant procedures are prescribed in r.19.02 of the FCC Rules. For example, under r.19.02(2), the person complaining a party has committed a disobedience contempt must apply to the Court by making an application in the approved form which states “the contempt alleged”, and which is supported by an affidavit “setting out the facts relied on”. The following procedures must be followed when the person alleged to have committed a disobedience contempt appears before the Court in answer to an application for contempt:
(6)When the person attends before the Court, the Court must:
(a)tell the person of the allegation; and
(b) ask the person to state whether he or she admits or denies the allegation; and
(c)hear any evidence in support of the allegation.
(7)After hearing evidence in support of the allegation, the Court may:
(a)if the Court decides there is no prima facie case, dismiss the application; or
(b)if the Court decides there is a prima facie case:
(i) invite the person to state his or her defence to the allegation; and
(ii) after hearing any defence, determine the charge.
(8)If the Court finds the charge proved, the Court may make an order for the punishment of the person.
There is another feature of proceedings for contempt, and that relates to the standard of proof: “all charges of contempt must be proved beyond reasonable doubt”.[76]
[76] Witham v Holloway (1995) 183 CLR 525 at page 534 (Brennan, Deane, Toohey, and Gaudron JJ)
To be entitled to the orders Mr Arnold seeks in his application in a case, therefore, Mr Arnold must demonstrate there is before the Court some claim for final relief based on an asserted legal or equitable right, and that he seeks those orders in aid of that claimed final relief. When one turns to the formal constitution of the proceedings, Mr Arnold has not filed any cross claim. From that point of view, Mr Arnold does not have before the Court a claim for final relief based on an asserted legal or equitable right; and the Court, therefore, does not have jurisdiction to make the orders Mr Arnold seeks, because the orders he seeks cannot be characterised as being in aid of any claim for final relief that is before the Court.
Counsel for Mr Arnold, however, relies on the nature of the information contained in the Subpoena Documents. He submitted the information contains confidential information that gives rise to obligations of confidentiality, not only on the part of P and M Robinson, but also on the part of Mr Arnold. Counsel further submitted that much of the information contained in the Subpoena Documents was confidential information relating to or otherwise affecting third parties. Counsel submitted that, given the nature of the information contained in the Subpoena Documents, the Court has jurisdiction to make orders to the effect of the orders Mr Arnold seeks in his application in a case if there is evidence that gives rise to “a reasonable belief that there may not have been compliance with the orders, such that warrants this court taking the next step to make more detailed orders”.[77] Counsel appealed to the increasing recognition in various areas of the law of the need to ensure the protection of the privacy of individuals. Counsel particularly referred to Australian courts having “incrementally expanded the application of breach of confidence in a way that allows this equitable cause to respond to privacy issues and, as a consequence, comply with Article 17” of the International Convention on Civil and Political Rights (1966).[78]
[77] T11.5
[78] Second Respondent’s submissions on Privacy [3]
That Australian law protects a person’s privacy through the availability of the action of breach of confidence does not by itself empower the Court in the circumstance of this case to make the orders Mr Arnold seeks in his application in a case, only because there are or may be reasonable grounds for believing P and M Robinson have not complied with the Destruction Orders. Mr Arnold must at the very least state an arguable cause of action for breach of confidence. As recorded in Mr Arnold’s written submissions,[79] those elements were stated by Gleeson CJ in Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd:[80]
A person who comes into possession of information, which that person knows to be confidential, may come under a duty not to publish it. The usual elements for an equitable remedy are, first, that the information is confidential, secondly, that it was originally imparted in circumstances importing an obligation of confidence, and thirdly, that there has been, or is threatened, an unauthorised use of the information to the detriment of the party communicating it.
[79] Second Respondent’s submissions on Privacy [6]
[80] [2001] HCA 63; 208 CLR 199 at [30]
It is relevant also to note that to maintain a cause of action for breach of confidence, the claimant “must be able to identify with specificity, and not merely in global terms, that which is said to be the information in question”.[81]
[81] Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at page 443 (Gummow J); Optus Networks Pty Ltd v Telstra Corporation Ltd (2010) 265 ALR 281 at [39] (Finn, Sundberg and Jacobson JJ).
Thus, before a court can grant any final relief based on a cause of action for breach of confidence, the party asserting the cause of action must positively assert it according to the rules of the court in which the claim is made, and some final relief must be claimed in relation to the cause of action. A court that has before it a reasonably arguable claim for final relief based on breach of confidence has, of course, jurisdiction to make orders in aid of such claim before it finally adjudicates the claim. The court may, for example, grant an interlocutory injunction or a search order if the circumstances so warrant. The court, however, will have jurisdiction to make such orders only where the person seeking the orders is able “to identify the legal (which may be statutory) or equitable rights which are to be determined at trial and in respect of which there is sought final relief which may or may not be injunctive in nature”.[82]
[82] Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63; 208 CLR 199 at [91] (Gummow and Hayne JJ)
Mr Arnold does not claim he has a presently subsisting cause of action based on breach of confidence in relation to any confidential information that is contained in the Subpoena Documents. He does not identify any particular confidential information which he alleges has been or may be misused by P and M Robinson; he has described only in global terms the information he claims is confidential; and he does not allege P and M Robinson has misused or may misuse any particular information. Mr Arnold claims no more than that there are reasonable grounds for believing that P and M Robinson have not, or may not have complied with the Destruction Orders.
Thus, not only does Mr Arnold not claim any final relief in relation to a cause of action based on misuse of confidential information; he also has not stated any reasonably arguable cause of action based on misuse of confidential information. There being no asserted reasonably arguable cause of action for final relief based on misuse of confidential information, the Court does not have jurisdiction to make orders to the effect of the orders Mr Arnold seeks in his application in a case.
There is another, and perhaps more basic, difficulty. It appears, and I find, that the immediate purpose behind Mr Arnold’s seeking the orders described in his application in a case is to determine whether P and M Robinson have complied with the Destruction Orders. As I have already noted, the FCC Rules prescribe the procedures by which a person may claim another person has committed a disobedience contempt: the claimant must make an application in the approved form which states “the contempt alleged”, and which is supported by an affidavit “setting out the facts relied on”. Even if it is assumed the Court has power to order discovery or interrogatories under s.45 of the FCC Act in aid of an application for an order under r.29.09 of the FCC Rules,[83] it is impossible to contemplate the Court would exercise such power without at the very least requiring the person alleging the disobedience contempt to comply with r.19.02 of the FCC Rules by applying to the Court using the approved form which states “the contempt alleged”, and which is supported by an affidavit “setting out the facts relied on”. And even where a person alleging a disobedience contempt were to comply with r.19.02 of the FCC Rules, the only object of an application under r.19.02 would be to obtain orders that are penal in nature. That would mean that, where the alleged contemnor is an individual, he or she may well be entitled to resist an order for discovery or an order for answering interrogatories, on the ground that complying with the order would tend to expose him or her to a civil penalty.
[83] See Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd [2015] HCA 21
I find, therefore, that by his application in a case, Mr Arnold is in effect seeking leave to administer interrogatories to P and M Robinson to obtain information for the purpose of determining whether and, if so, to what extent, P and M Robinson have complied with the Destruction Orders. There is no arguable case the Court has jurisdiction to permit the administration of interrogatories for this purpose in the absence of an application in which it is alleged that the person against whom the interrogatories are sought to be administered has committed a contempt, and that that allegation is made in an application in the approved form which states “the contempt alleged”, and which is supported by an affidavit “setting out the facts relied on”.
Reason to believe there has been non-compliance
Given my conclusion there is no reasonably arguable case the Court has power to make the orders claimed by Mr Arnold in his application in a case, it is not necessary to consider whether Mr Arnold has a reasonably arguable case that P and M Robinson have not, or may not have obeyed or fully obeyed the Destruction Orders. I will, nevertheless, consider that question by reference to the evidence on which Mr Arnold relies.
Before I do so, it would be useful to identify at the outset what would have to be shown in order to prove that P and M Robinson have not complied with the Destruction Orders. Mr Arnold would have to identify each document Mr Arnold alleges P and M Robinson have not destroyed and show that: the document was a Subpoena Document; the document was in the possession or control of P and M Robinson at the time the Destruction Orders were made; and the document still exists. It may be that these matters are capable of being proved by evidence that shows a contumacious unwillingness to comply with the Destruction Orders.
I first turn to the Arnold Submissions. Those submissions refer to the failure to fully redact from Mr Paul Robinson’s affidavit sworn 5 September 2013 all references to material obtained from the Subpoena Documents. There is an arguable case that the Destruction Orders have not been complied with in relation to some items of information contained in that affidavit. It is reasonably arguable, however, that the failure borders on the trivial. It does not reasonably ground any inference that it is reasonably arguable that P and M Robinson have failed to comply with the Destruction Orders in relation to the documents from which the information was derived or in relation to other documents, or that P and M Robinson have manifested an unwillingness to comply with those orders. It is not reasonably arguable that P and M Robinson’s failure to completely redact the affidavit would justify the making of the orders described in Mr Arnold’s application in a case.
It is appropriate that I record at this point that the parties have requested the Court make an order by consent that all copies of the affidavit of Paul Robinson sworn on 5 September 2013 filed with the Court on 6 September 2013 be destroyed. I do not propose to make an order in that form. Instead, I will grant Mr Arnold leave to remove from the Court file the affidavit sworn by Mr Paul Robinson on 5 September 2013 and filed on 6 September 2013.
I next turn to the matters identified by Mr Arnold in his affidavit of 19 December 2014.
a)As to the matters to which I refer in paragraph 44(a) of these reasons, I find it is reasonably arguable there is an inconsistency to the effect claimed by Mr Arnold. It is not reasonably arguable, however, that, because of that inconsistency, P and M Robinson have not complied with the Destruction Orders or have otherwise manifested an unwillingness to comply with those orders.
b)As to the matters to which I refer in paragraph 44(b) of these reasons, it is reasonably arguable there is an inconsistency between what Mr Matthew Robinson informed the Court on 24 October 2013 and what Mr Matthew Robinson, Mr Paul Robinson, and Mr Foxton deposed in their affidavits. It is equally reasonably arguable, however, that there is no inconsistency because, as at 24 October 2013, Mr Mathew Robinson indicated he did not destroy all documents, and in particular, those documents that were to be included as part of the evidence of Mr Paul Robinson. In any event, there is no arguable case that, on the basis of the arguable inconsistency, P and M Robinson have not complied with the Destruction Orders, or that they have otherwise manifested an unwillingness to comply with those orders.
c)As to the matters to which I refer in paragraph 44(c) of these reasons, it is not reasonably arguable that the schedules to the subpoenas were prepared on the basis of Subpoena Documents that were still in the possession or control of Mr Matthew Robinson at the time the subpoenas were drafted. At most, it would be reasonably arguable that the subpoenas were drafted at least in part on the basis of information Mr Matthew Robinson derived from reading some of the Subpoena Documents, and which had remained within his memory. It is not reasonably arguable that that by itself suggests Mr Matthew Robinson did not destroy the documents or that he has otherwise manifested an unwillingness to comply with the Destruction Orders.
d)As to the matters to which I refer in paragraph 44(d) of these reasons, it is reasonably arguable that Mr Robinson indicated to the Court that he intended to use information he had obtained from reading the Subpoena Documents. It is not reasonably arguable, however, that that indicates that Mr Robinson did not comply with the Destruction Orders or that he has otherwise manifested an unwillingness to comply with those orders.
e)As to the matters to which I refer in paragraph 44(e) of these reasons, at most they constitute a belief or suspicion that Mr Mathew Robinson did not take the steps that a computer forensic expert would take to identify every trace an electronic document would leave in a computer system and in mobile devices and, once identified, remove that electronic trace. That suspicion is not evidence of what Mr Matthew Robinson did or did not do, and, therefore, does not afford a reasonably arguable case that Mr Matthew Robinson did not comply with the Destruction Orders or that he has otherwise manifested an unwillingness to comply with those orders.
f)As to the matters to which I refer in paragraph 44(f) of these reasons, it is reasonably arguable that Mr Matthew Robinson made the error asserted. It is not reasonably arguable, however, that because of such error, assuming it was made, P and M Robinson did not comply with the Destruction Orders or that they otherwise manifested an unwillingness to comply with those orders.
Conclusion and disposition
Mr Arnold does not have a reasonably arguable case for the relief he seeks in his application in a case filed on 24 October 2014. Mr Arnold is unable to identify that he has before the Court a reasonably arguable claim for final relief based on some legal or equitable claim. There is, therefore, no reasonably arguable case for final relief in aid of which the Court could grant the orders Mr Arnold seeks in his application in a case.
In any event, subject to one exception, the factual premises on the basis of which Mr Arnold claims he is entitled to the orders described in his application in a case – namely, there are reasonable grounds for believing P and M Robinson have not complied with the Destruction Orders – are not reasonably arguable. The exception relates to the failure to redact from the affidavit of Mr Paul Robinson sworn 5 September 2013 all references to the Subpoena Documents or information derived from the Subpoena Documents. It is not reasonably arguable, however, that that failure to comply with the Destruction Orders justifies the making of any of the orders described in Mr Arnold’s application in a case.
I propose, therefore, to order that the application in a case filed on 24 October 2014 be dismissed. I also propose to order that Mr Arnold pay the costs of Mr Matthew Robinson and Mr Paul Robinson, but grant the parties liberty to apply within fourteen days for a different costs order. Finally, I will make an order authorising Mr Arnold to remove from the Court file the affidavit of Mr Paul Robinson filed on 6 September 2013. I also propose to grant Mr Arnold liberty to apply in relation to his gaining access to Mr Paul Robinson’s affidavit.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Associate:
Date: 4 December 2015
Correction (22/1/2019)
In the heading of the judgment the name of the second respondent has been changed from “Beverley Arnold” to “Kyle Arnold” and the name of the third respondent has been changed from “Kyle Arnold” to “Beverley Arnold”.
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