Shakil v Goyal

[2015] NSWDC 427

District Court

New South Wales

Medium Neutral Citation:	Shakil v Goyal [2015] NSWDC 427
Hearing dates:	18 November 2015
Date of orders:	18 November 2015
Decision date:	18 November 2015
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Direct the cross-claimant to prepare a list of persons from whom the cross-claimant received payments for migration services in the period 1 July 2011 to 6 September 2013. (2)   Order the plaintiff to give discovery of the following categories of documents: (i)   All tax returns lodged by the cross-defendant for the financial years ending 30 June 2009 to 30 June 2014 but with the 2014 tax return redacted to exclude reference to income received other than from the cross-claimant. (ii)   All documents recording any payment received or fees charged by the cross-defendant, Migration Centre of Australia Pty Ltd, or Oz Immigration Services during the period 6 September 2013 to date from/to any person is named in the list referred to in order (1) hereof. (iii)   All documents falling within categories 5, 6, 7 and 8 of Exhibit 1 to the cross-claimant’s notice of motion for discovery. (iv)   All documents containing confidential information (as defined in cl 31.1 of the contract between the cross-claimant and cross-defendant dated 1 July 2013) copied or removed by the cross-defendant from the premises, as defined in paragraph 3 of the cross-claim, in the period 1 July 2013 to 6 September 2013. (3)   Note that in these orders “document” refers to a final version of a document, not to any drafts and includes information stored in either hard copy or electronic form, and includes any part of a document. (4)   By consent, orders in accordance with the Short Minutes Order document initialled by me. (5)   Order that the parties engage in a formal mediation to occur in May 2016. (6)   List the matter for hearing on Monday, 15 August 2016 at 10am before P Taylor SC DCJ with an estimate of 5 days. (7)   Order that the costs of the motion be costs in the proceedings save that the cross-claimant shall not be entitled to any costs in respect of the drafting of or correspondence regarding any list of categories of documents prior to the drafting of Exhibit 1. (8)   Liberty to the parties to re-list the matter on application to my associate on 7 days’ notice.
Catchwords:	CIVIL PROCEDURE – discovery – wide category – limited relevance - costs
Legislation Cited:	Civil Procedure Act 2005, s 56 Uniform Civil Procedure Rules 2005, r 42.1, r 42.7
Category:	Procedural and other rulings
Parties:	Farhan Shakil (plaintiff/cross-defendant) Praveen Goyal (first defendant) Neel Kamal Goyal (second defendant) Migration Centre of Australia Pty Ltd (third defendant/cross-claimant) APNA Solutions Pty Ltd (fourth defendant) MCKKR’s Pty Ltd (fifth defendant)
Representation:	Counsel: Mr N Carney with Ms A Avery-Williams (plaintiff/cross-defendant) Mr D Neggo (defendants/cross-claimant)   Solicitors: Gells Lawyers (plaintiff/cross-defendant) Holding Redlich (defendants/cross-claimant)
File Number(s):	2015/130080
Publication restriction:	None

Judgment

1. The plaintiff, Farhan Shakil, sues a number of defendants for moneys alleged to be unpaid whilst Mr Shakil was employed by the defendants or some of them in the period 2009 through to 6 September 2013.

2. The third defendant, Migration Centre of Australia Pty Ltd, has filed a cross‑claim against Mr Shakil for damages for breach of certain terms of agreements between them. 

3. Migration Centre has filed a motion dated 22 September 2015 seeking discovery of various categories of documents. Some of the categories of documents have been accepted, namely those referred to in paras 5, 6, 7 and 8 of Exhibit 1.

4. The primary dispute between the parties concerns the discovery of documents by Mr Shakil concerning his dealings with persons who may have had some relationship with the defendants during the period of Mr Shakil’s employment. This material is said to be relevant because the cross‑claim alleges that Mr Shakil misused confidential information and breached a restraint clause in his employment agreement. 

5. The documents sought by Migration Centre extend to documents recording any communications with or payments received by Mr Shakil from any person listed in a document, Exhibit 2, provided by Migration Centre.  That document lists 1,021 names, several of whom are described by a one word name. These persons are said to have had some connection with Migration Centre’s business, although not necessarily during the period from 2009 to 2013. 

6. In my view, that category of documents imposes an excessively onerous obligation on Mr Shakil to search for material. It is too widely defined, embracing within its terms documents connected to persons who may not have dealt at all with Migration Centre in the period of Mr Shakil’s employment.

7. The application by Migration Centre is not assisted by its inability to give any estimate of its alleged damages. That amount might be modest. It seems to me that s 56 of the Civil Procedure Act 2005 requires that there be some proportionality between the extent of discovery granted and the extent of possible damages to be awarded.

8. At least the category should be confined to those persons for whom Mr Shakil has done work in the period since 6 September 2013, when he left the employ of the defendants, and who are persons who made payments to Migration Centre in the period from 1 July 2011 to 6 September 2013.

9. Another category of documents - documents copied or removed by Mr Shakil - has been limited by Migration Centre to documents containing confidential information as defined in an agreement between the parties, which were copied or removed in the two months of Mr Shakil’s employment.

10. As to costs, Mr Shakil has sought an order for the costs of today. Migration Centre has sought that costs be costs in the proceedings. Bearing in mind the provisions of r 42.1 and r 42.7 of the Uniform Civil Procedure Rules 2005 and that Mr Shakil has had some success today, I was minded to order that his costs of today be costs in the proceedings and otherwise costs of the motion be costs in the proceedings, so Migration Centre would have to bear its costs of today irrespective of the result of the proceedings.

11. However, as some of the costs of today would have been incurred in any event, a lesser amount of the costs of Migration Centre should be excluded from the costs of the proceedings: the costs in respect of the drafting of or correspondence connected with any list of categories of documents prior to the drafting of Exhibit 1.

12. I will also make an order that the parties engage in a formal mediation to occur in the month of May 2016.

13. I will also make orders by consent in accordance with the Short Minutes of Order document initialled by me.

14. I will set the matter down for hearing for five days commencing 15 August 2016.

15. Thus, the orders of the Court are:

1. Direct the cross-claimant to prepare a list of persons from whom the cross-claimant received payments for migration services in the period 1 July 2011 to 6 September 2013.

2. Order the plaintiff to give discovery of the following categories of documents:

1. All tax returns lodged by the cross-defendant for the financial years ending 30 June 2009 to 30 June 2014 but with the 2014 tax return redacted to exclude reference to income received other than from the cross-claimant.

2. All documents recording any payment received or fees charged by the cross-defendant, Migration Centre of Australia Pty Ltd, or Oz Immigration Services during the period 6 September 2013 to date from/to any person is named in the list referred to in order (1) hereof.

3. All documents falling within categories 5, 6, 7 and 8 of Exhibit 1 to the cross-claimant’s notice of motion for discovery.

4. All documents containing confidential information (as defined in cl 31.1 of the contract between the cross-claimant and cross-defendant dated 1 July 2013) copied or removed by the cross-defendant from the premises, as defined in paragraph 3 of the cross-claim, in the period 1 July 2013 to 6 September 2013.

3. Note that in these orders “document” refers to a final version of a document, not to any drafts and includes information stored in either hard copy or electronic form, and includes any part of a document.

4. By consent, orders in accordance with the Short Minutes Order document initialled by me.

5. Order that the parties engage in a formal mediation to occur in May 2016.

6. List the matter for hearing on Monday, 15 August 2016 at 10am before P Taylor SC DCJ with an estimate of 5 days.

7. Order that the costs of the motion be costs in the proceedings save that the cross-claimant shall not be entitled to any costs in respect of the drafting of or correspondence regarding any list of categories of documents prior to the drafting of Exhibit 1.

8. Liberty to the parties to re-list the matter on application to my associate on 7 days’ notice.

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Decision last updated: 12 March 2018