Sorrenti v Lenovo (Aust & NZ) Pty Ltd

[2022] FedCFamC2G 256

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 2)

Sorrenti v Lenovo (Aust & NZ) Pty Ltd [2022] FedCFamC2G 256

File number(s):	SYG 2317 of 2021
Judgment of:	JUDGE HUMPHREYS
Date of judgment:	4 March 2022
Catchwords:	INDUSTRIAL LAW – FAIR WORK – whether the Applicant should return a Lenovo Computer, belonging to the Respondent Company – Orders made.
Legislation:	Fair Work Act 2009 (Cth)
Division:	Division 2 General Federal Law
Number of paragraphs:	19
Date of last submission/s:	4 March 2022
Date of hearing:	4 March 2022
Place:	Sydney
Solicitor for the Applicant:	Mr Esser of Esser Legal
Counsel for the Applicant:	Mr Mahendra of Lander & Rogers

ORDERS

SYG 2317 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR ESSER

Applicant

AND:

MR MAHENDRA

Respondent

ORDER MADE BY:	JUDGE HUMPHREYS
DATE OF ORDER:	4 MARCH 2022

THE COURT ORDERS THAT:

1.The Lenovo computer (Model: T490s Serial Number: PC1A1TY5) be returned to the firm of Lander and Rogers.

2.That an undertaking be given by Mr Goonrey in relation to the holding of the computer.

3.That upon the giving of the undertaking and it being provided in writing to Mr Esser, the Applicant within 7 days return the computer to the firm of Lander and Rogers.

4.The undertaking is to be in the following terms:

(i)Mr Goonrey is to take possession of the laptop.

(ii)He is to not voluntarily provide the laptop to any other person, including employees of the Respondent.

(iii)He is not to access any files or other material contained on the laptop.

(iv)He is not to procure any other person to access any files or other material contained on the laptop.

(v)The undertaking is subject to any other order of the Court.

5.For the purposes of these orders including the undertaking:

Applicant’s documents means all documents held on the computer which belong to the Applicant in her personal capacity being her private and confidential documents and other records, correspondence, banking, financial and other data held in any form including photographs and the like relating to her in her personal capacity, any other documents belonging to her including those protected by any privilege including lawyer-client privilege, medical and similar records, test results and reports and the like produced by her treating doctors and allied medical professional such as psychologists, counsellors and the like.

Laptop means the Lenovo computer (Model: T490s Serial Number: PC1A1TY5) which was provided to the Applicant during the course of her employment with the Respondent.

Relevant Time means:

(i)From the time Mr Goonrey receives the laptop from the Applicant, or an agent or representative of the Applicant; to

(ii)The time at which Mr Goonrey meets, virtually or in –person, with Mr Kurt Esser of Esser Legal, in relation to the deletion of material claimed by the Applicant to be confidential and accessible on the laptop, whether such meeting occurs by agreement between the parties, or, by the effect of a Court order.

6.The Applicant is to provide the name of three forensic I.T computer firms to the Respondent.

7.The Respondent is to select one of the names of the forensic I.T computer firms.

8.The computer is then to be provided at a date and time that is convenient to the parties to that forensic I.T computer firm.

9.Within 7 days of the computer being provided to the forensic I.T computer firm, in the presence of the Applicant or the Applicant’s authorised representative and Mr Goonrey or another person from Lander and Rogers, the computer is to be unlocked.

10.Once the computer is unlocked:

(a)the parties’ representatives jointly direct and observe the forensic IT computer firm in identifying, isolating and quarantining the Applicant’s documents which then will be held separately and apart from other data held on the computer

(b)the forensic IT computer firm is to send the Applicant’s documents to the Applicant’s solicitor in a ZipFile

(c)ensure that at all times none of the Applicant’s documents are accessible to the Respondent or any agent of the Respondent (except for the exercise to be undertaken in 10(a) above).

11.Direct that the costs of this, noting that Mr Esser indicated that they were not likely to be large, should be paid by the Applicant.

12.Until and unless the Applicant is able to provide those funds, the computer is to be kept by the firm of Lander and Rogers in the circumstances of which the Court has indicated, that is, it is not to be accessed by any other person, or unlocked. If the Applicant is unable to provide the funds within the 7 day period referred to in order 9, the parties are to approach the Court for an alternative regime.

13.The matter is adjourned for a Further Directions Hearing at 9:30am on 22 April 2022.

14.Liberty to apply on 3 days’ notice.

Note: The form of the order is subject to the entry in the Court’s records.

Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).

REASONS FOR JUDGMENT
(As revised from the Transcript)

JUDGE HUMPHREYS

INTRODUCTION

1. This is a judgment in an interlocutory proceeding in relation to the matter of Tania Sorrenti v Lenovo (Australia & New Zealand) Pty Limited.  This matter commenced as an Application to Fair Work Division seeking general protection orders in relation to the applicant who was – and when the Court says “was”, the Court does not make a conclusion on that – an employee of the respondent company.  The respondent company, is a large computer company that is based in Australia and New Zealand, and also has international parts.  The respondent company is a computer manufacturer.  The applicant claims that she was harassed and bullied.  In relation to that, the matter originally went to the Fair Work Commission and it has now made its way to this Court. 

2. A subsidiary matter has arisen, which the Court dealt with today, which relates to a work computer that is in the possession of the applicant.  The respondent company seeks the return of that computer.  The applicant says that there is material on the computer which is personal to her, which she needs for the purposes of pursuing her legal action against the respondent company.  Despite the best entreaties of this Court, the parties have been unable to come up with a regime that would allow the return of the computer, and would allow for the applicant to identify and copy the personal material which is stored on the computer, and then for that material to be deleted from the computer. 

3. It is a matter of some concern that this has developed into an acrimonious dispute between the legal representatives who have been unable to find a way through, such that the Court has been required to actually make a formal judgment in relation to this matter, and then to make orders.  The Court actually expects much better from the legal representatives on both sides.  The situation is, irrespective of the Fair Work matter and whether or not the applicant is or was employed with the respondent company, the computer belongs to the company.  The respondent company is entitled to issue a lawful direction that the computer be returned to them.  The respondent company owns the computer, and this now comes down to a matter of detinue. 

4. The Court is satisfied that the computer the subject of this dispute does belong to the respondent company, and that they are lawfully entitled to demand of the applicant its return.  The Court is satisfied that the applicant to date has resisted that return, and it falls for the Court to make a decision as to what terms are reasonable for the return of the computer. 

5. On behalf of the respondent company, it is put forward that undertakings will be given by the partner of Lander & Rogers, the solicitors for the respondent, a Mr Goonrey, that he will take possession of the computer, and that Mr Esser, the solicitor for the applicant, and Mr Goonrey could then make themselves available to attend a meeting, either in person or via Microsoft Teams, where the computer could be unlocked, and that the files on the computer could be accessed, and then those files, if they are identified as being personal files to the applicant, could then be copied and then deleted from the computer.

6. Mr Esser objects strenuously to the basis of Mr Goonrey being involved in this matter at all, and has made a number of allegations against Mr Goonrey and the firm of Lander & Rogers.  The Court is not in a position to deal with those allegations, and is not in a position to make any findings against Mr Goonrey, other than to say that there are allegations made.

7. However, Mr Goonrey is an officer of the Court.  The Court is reasonably entitled to rely on undertakings given by an officer of the Court, noting that a breach of an undertaking would not just amount to unsatisfactory professional conduct.  It would, in fact, be professional misconduct, and in the circumstances of a situation like this, where an undertaking was to be breached, it could well involve very, very serious disciplinary action being taken against the solicitor. 

8. It is very difficult for the Court to imagine circumstances where, if an undertaking like this were to be given, that a solicitor would breach that undertaking.  The Court is entitled to accept the good standing of Mr Goonrey at this current time, as an officer of the Court. 

9. The proposal put forward by Mr Esser is that the computer be handed over to a third party, and that the third party conduct the examination of the computer, and conduct the process by which the material can be identified, and by which it can then be copied and deleted.  Mr Esser has provided three names to the respondent company’s solicitor.  The respondent company’s solicitors apparently have not agreed to that process.  Again, it is put to the Court that there is a cost involved.  Mr Esser says it would not be a particularly high cost, but he concedes that his client currently does not have any funds.

10. It appears we are at an impasse, and the Court is regrettably required to make a decision as to what is to happen, because unless the Court makes a decision as to what is to happen, this matter is going to be unable to proceed, bearing in mind that the Court is mindful that the applicant in this matter has some serious psychological conditions related to panic and anxiety, and her capacity to actually properly instruct Mr Esser may vary from time to time. 

11. That can be dealt with at a later point of time, however, the applicant is going to have to prosecute her case, and in order to do that, she is going to have to be in a position whereby she is able to give evidence and be cross-examined, and if she is unable to at some point in time, the Court may have to consider whether or not the application should be dismissed. 

12. But that is not a matter for the Court to deal with on this day.  What the Court needs to do, is to make a decision as to what happens to the computer.  In the Court’s view, the claim that the computer is the property of the respondent company is made out.  In the Court’s view, the demand for the return of the computer is not unreasonable, and that the respondent company is lawfully entitled to demand the return of the computer.  It then falls to the Court to determine what conditions the computer would be returned.

13. In the Court’s view, it is appropriate that the computer be returned to the firm of Lander & Rogers, that an undertaking be given by Mr Goonrey in relation to the holding of the computer, that upon the giving of that undertaking and it being provided in writing to Mr Esser, that the applicant should, within seven days of the date of the Court orders, return the computer to the firm of Lander & Rogers. 

14. The undertaking is to be in the following terms:  that Mr Goonrey is to take possession of the laptop, he is to not voluntarily provide the laptop to any other person, including employees of the respondent company, he is not to access any files and other material contained on the laptop, he is not to procure any other person to access the files or other materials contained on the laptop.  For the purposes of the undertaking, the laptop is Lenovo computer model T490, serial PC1A1TY5, which was provided to the applicant during the course of her employment.

15. The Court directs that the applicant is to provide the name of three forensic IT computer firms to the respondent company, that the respondent company is to select one of those names, that the computer is then to be provided at a time and date that’s convenient to the parties to that forensic IT firm or consultant, that in the presence of either the applicant or her authorised representative, and Mr Goonrey or another person from Lander & Rogers, the computer is to be unlocked, and the relevant material is to be identified, copies, and then provided to the applicant.

16. The Court directs that the costs of this, noting that Mr Esser indicated they were not likely to be large, should be paid by the applicant.  That until and unless the applicant is able to provide those funds, the computer is to be kept by the firm of Lander & Rogers in the circumstances of which the Court has indicated, that is, it is not to be accessed by any other person or unlocked. 

17. In terms of the future of this matter, there needs to be consideration as to what’s happening, in terms of who might take further carriage of the matter.  However, these are entirely matters that perhaps Lander & Rogers might want to think in the light of the fact that there are complaints against two members of their firm.  And for the sake of perception, it might be better if this matter was handed over to another principal of that firm.  However, that is a matter for the respondent company to consider.  It might also assist in re-establishing some trust. The Court does not accept the submission by Mr Esser that the entire firm of Lander & Rogers is somehow tainted. 

    CONCLUSION

18. The Court proposes to reduce the Court’s orders to writing and attach to those orders, the undertaking that is to be given. The Court will provide that to the parties on the basis that they see it as a draft prior to it being finalised as an order of the Court.  That may assist in making sure there is no ambiguity which might lead to further litigation in respect of this matter.

19. The Court notes that the parties have requested formal written reasons in relation to the Interlocutory Application, on Monday 4 April 2022.

I certify that the preceding nineteen (19) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Humphreys.

Associate:

Dated:       14 April 2022