TOSKAS v WALDRON - [2020] SADC 76

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
TOSKAS v WALDRON
[2020] SADC 76
Decision of His Honour Judge Burnett
19 June 2020
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - NON-COMPLIANCE
The applicant claims damages for personal injuries suffered in an accident in which a motor vehicle driven by the respondent collided with the applicant, whilst the applicant was performing duties as a traffic controller. The applicant has suffered physical injuries to his spine, shoulders and knee and psychiatric injuries. The applicant claims that he has suffered and continues to suffer loss of enjoyment of the amenities of life and has suffered a total incapacity in relation to his pre-accident employment and employment duties generally.
The respondent has brought an application for further and better discovery of the Facebook and other social media posts of the applicant in the period from the date of the accident to the date of any Order that the Court might make.
The applicant opposes that application on a number of bases. Firstly, he claims that the respondent has not established that there is reason to doubt that the applicant has made proper disclosure and relies upon the presumption that he has done so. Secondly, the applicant claims that not all documents sought would be directly relevant and therefore an order should not be made requiring disclosure of the class of documents sought. Thirdly, he claims that the request is oppressive (or fishing in the modern sense). Fourthly, he claims that in the discretion of the court an order for further and better disclosure should not be made.
Held: An order is made that the applicant make further and better discovery by discovering all social media posts and documents recording or evidencing the applicant engaging in domestic, household, recreational, physical, sport or social activities or undertaking a holiday.
The evidence produced by the respondent which annexed certain posts that were clearly directly relevant established that there was a reason to doubt that the applicant had made proper discovery. This was confirmed by the evidence that the applicant had not turned his mind to discovery of social media posts until recently. The class of documents, as framed in the Order, are all directly relevant. In any event, an order should be made given the failure of the applicant to make proper disclosure. The applicant has been on notice of the request for further disclosure since 23 April 2020. It is not oppressive in the circumstances that he provide discovery of the documents specified in the order when he was and remains under an obligation to do so. The order should not be refused in these circumstances in the exercise of the Court’s discretion.
Uniform Civil Rules 2020 (SA) r 73.15, 73.7, , referred to.
Scott v Johnson & Ors [2010] SASC 277; Ceneavenue Pty Ltd v Martin [2008] SASC 332; Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd [2002] SASC 374; Southern Equities Corporation (in liq) v Arthur Anderson & Co (No 5) [2001] SASC 335; TAL Life Ltd v Shuetrim, MeLlife Insurance Ltd v Shuetrim [2016] NSWCA 68; Hellessey v Metlife Insurance Ltd [2017] NSWSC 1284; Finsbury Print Pty Ltd & Anor v CPI Graphics Ltd & Ors (No 2) [2006] SASC 352; Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250; Lane v Channel Seven Adelaide Pty Ltd [2003] SASC 391; Channel Seven Adelaide Pty Ltd v Lane [2004] SASC 225; (2004) 234 LSJS 231; Moss v Cave [2010] SASC 72; Gavan v FSS Trustee Corporation [2019] NSWSC 667; Proude v Visic [2012] SASC 184; Bailey v Beagle Management Pty Ltd [2001] FCA 60, considered.

TOSKAS v WALDRON
[2020] SADC 76
Introduction

By interlocutory application dated 5 June 2020, the respondent seeks an order that the applicant make further and better discovery of all social media posts (including but not limited to posts on Facebook) for the period from 12 October 2013 to the date of the order.
The respondent opposes the application.
It does so on a number of bases:
1.   The applicant submits that the respondent has not established that the applicant has failed to comply with his discovery obligations and that the evidence put forward by the respondent does not rebut the presumption that the applicant has complied with his discovery obligations;
2.   Not all documents that are being sought by the respondent are directly relevant. Where the respondent is seeking the disclosure of documents in a particular class, all documents in that class must be directly relevant or the Court must be persuaded that it is just in all the circumstances to make such an order. The circumstances of this case, it is submitted by the applicant, do not show that it is just to make an order;
3.   The request for disclosure should be refused as it involved fishing, at least in the modern way that term is used, because it is oppressive in that it requires the applicant to examine a great many documents to assess whether they are directly relevant and therefore discoverable.
4.   The respondent has delayed in bringing the application and in the exercise of the court’s discretion, the application should be refused.
Background facts
The applicant’s claim is for damages for personal injuries sustained in an accident on 12 October 2013. The applicant was a pedestrian, acting as a traffic controller, at Dequetteville Terrace, Kent Town. The vehicle driven by the respondent collided with the applicant.
The applicant claims in his Second Statement of Claim that because of the accident he suffered, inter alia, injuries to his lumbar spine and cervical spine, injuries to both shoulders, injury to his right knee and psychiatric, digestive and dental injuries. The applicant claims that he has suffered a total incapacity in relation to his pre-accident employment and employment duties and has suffered and will continue to suffer:
1.   significant impairment of his ability to lead a normal life;
2.   loss of enjoyment of the amenities of life;
3.    difficulties in carrying out his usual domestic household and gardening duties;
4.   an impaired ability to enjoy and participate in social and recreational activities.
In his Second Statement of Loss, (the statement of loss is regarded as an extension of the pleadings)[1] the applicant says that he continues to experience symptoms including pain, discomfort and restriction of movement of the lower back which are heightened with activities including prolonged standing, sitting, bending, lifting and walking. The Second Statement of Loss further states that the applicant continues to experience symptoms including pain, discomfort and restriction of movement in his right shoulder, which is heightened with activities including certain movements in attempting to lift and carry heavy items. The applicant says that he continues to experience symptoms including pain, discomfort and restriction of movement in his right knee which are heightened with activities including walking on inclines and walking for a prolonged period generally. The applicant says that his participation in recreational activities including fishing and playing social soccer continue to be substantially reduced. He says that he has sometimes tried to kick a soccer ball with his son, but after a few kicks of the ball his physical symptoms have been heightened. He says he has continued to experience difficulty and heightening of symptoms when he is attempting to take care of his children, including driving them to and from school and sport.
[1] Taylor v Santos (No 10) [1999] SASC 527; Bowden v Colbey [2005] SASC 387 at [76] (Full Court)
The respondent, in his Defence, denies the allegations made by the applicant in his Second Statement of Claim in relation to his alleged injuries and pleads inter alia that the applicant no longer suffers pain or loss of amenity or alternatively, if the applicant does suffer pain or loss of amenity, such pain, suffering and loss of amenity is minimal and/or does not preclude the applicant from resuming his pre-collision, domestic, household, gardening, social and recreational activities.
Both parties have made discovery.
The applicant has not discovered any social media or Facebook posts, except possibly a few posts incidentally when they were part of his Return to Work Section 180 files and his WorkCover s 107B files.
On 23 April 2020, the respondent’s solicitors sent an email to the applicant’s solicitors requesting that the applicant make full disclosure of any Facebook or social media posts from the time of the accident to the present time. There was no response to that request.
The applicant’s solicitors, in opposing the application for further disclosure, have filed an affidavit in which they depose to having been given access to the applicant’s Facebook account following the application for further disclosure. They further depose to there being an extensive volume of material of the applicant on Facebook, including some 1760 photographs in one section and a further seven hundred and fifty-seven in another section. There are eight hundred and forty-nine pages of posts (which is not exhaustive). The applicant’s solicitors depose to examining this material close to trial as being an extremely burdensome task.
The trial is listed to commence on 6 July 2020.
Legal principles
Both parties agreed that the application should be determined under the Uniform Civil Rules 2020 (UCR). There is no substantive difference between the UCR and the District Court Civil Rules 2006 (DCR) for the purposes of this application.
UCR 73.7(5) (formerly DCR 136) provides that a document is discoverable if it is directly relevant to an issue raised in the proceeding, such issues being defined by the pleadings.
An application for further and better disclosure is made under UCR 73.15 (formerly DCR 145) which states:
(1) If there is reason to doubt whether a person has fully complied with an obligation to disclose, produce for inspection or copy a document under this Part (whether under the rules in or an order or agreement under this Part), the Court may make such orders as it thinks fit to determine whether there has been full compliance or to ensure or enforce full compliance.
(2) For example, the Court may order that—
(a)a person’s list of documents be verified on oath;
(b)a person make specific discovery of specified documents, or categories of documents, in their possession, custody or power;
(c)a person file an affidavit, or give oral evidence, deposing to whether a person has specified documents or categories of documents in their possession, custody or power;
(d)a person answer written questions; or
(e)a person appear before the Court for examination.
There is a presumption that parties filing their lists of documents have discharged their obligations under the Rules and there is an onus on parties seeking further discovery to point to matters which indicate that a Court should not give effect to that presumption.[2] An order for further and better disclosure will only be made once the presumption has been displaced. The Court will require a degree of satisfaction that the disclosure has been inadequate before making an order for further discovery, beyond the mere possibility that it is inadequate.[3]
[2] Ceneavenue Pty Ltd v Martin [2008] SASC 332 at [11]; Lane v Channel Seven Adelaide Pty Ltd [2003] SASC 391 at [16]; Technomin Australia Pty Ltd v Xstrata Australasia Operations Pty Ltd [2010] WASC 218 at [3]-[8]
[3] Ceneavenue Pty Ltd v Martin [2008] SASC 332 at [11]; Moss v Cave [2010] SASC 72 at [18].
In Ceneavenue v Martin[4] White J held:
I consider that the expression ‘reason to doubt whether a party has fully complied with the party’s obligations to disclose and produce documents’ in r 145 implies a presumption that there has been compliance with a party’s disclosure obligations. Hence, it will be incumbent upon an applicant for further and better disclosure to point to matters which indicate that the Court should not give effect to that presumption. It is not necessary for the Court to be convinced that the plaintiffs’ disclosure is inadequate, or to be satisfied on the balance of probabilities that it is inadequate. It is sufficient if the Court is satisfied that there is a reasonable basis for doubting that the disclosure made is adequate. This will require a degree of satisfaction going beyond the mere possibility that the plaintiffs’ disclosure is inadequate.
An applicant may establish the doubt by demonstrating, amongst other things, that the party making the disclosure has proceeded under some form of misconception, whether as to the nature of the issues arising on the pleadings, or as to the documents which may be directly relevant to those issues, or as to the reach of the rules concerning possession. It may also satisfy the evidential onus by pointing to the documents which one would expect to have come into existence in the circumstances of the case by reason of ordinary commercial practice or experience, by reference to the pleadings themselves or by reference to other documents already disclosed.
[4] [2008] SASC 332 at 11-12.
A document is discoverable under Rule 73.7(5) as directly relevant if it tends to prove or disprove a matter which is in issue on the pleadings.[5] A document will be discoverable as directly relevant if it constitutes circumstantial evidence, tending along with other evidence to prove or disprove a matter in issue on the proceedings.[6]
[5] Scott v Johnson & Ors [2010] SASC 277 at 6; Channel Seven Adelaide Pty Ltd v Lane & Hurley [2004] SASC 177 at [22]-[25]; (2004) 234 LSJS 225 at 230
[6] Quenchy Crusta Sales Pty Ltd v Logi-Tech Pty Ltd & Anor [2002] SASC 374 at 10; Southern Equities Corporation (in liquidation) v Arthur Anderson & Co (No 5) [2001] SASC 335.
A document will not be directly relevant if it merely tends to prove or disprove something that may be relevant to a matter in issue or if there is merely a chance that the document will prove or disprove a matter in issue.[7]
[7] Scott v Johnson (above) at 5 and the cases cited therein.
Determination of the application
I am satisfied in the present case that the respondent has persuaded the court that, for the purposes of UCR 73.15(1) there is reason to doubt that the applicant has fully complied with his discovery obligations by his failure to discover social media documents. I am satisfied for two reasons.
First, the evidence adduced by the respondent in the second affidavit of John Michael Ward in which he annexes documents from the applicant’s Facebook page, which were, but are not now, publicly available. Those documents show the applicant lifting a large fish (and engaging in fishing) and also engaging, it seems, in soccer.
These Facebook posts are directly relevant to the issues in dispute, as defined by the pleadings. They tend to disprove some of the allegations made in the Second Statement of Claim that the applicant has suffered a significant impairment of his ability to lead a normal life and has suffered and continues to suffer the loss of enjoyment of the amenities of life. These Facebook posts also tend to disprove the statements in the Second Statement of Loss that he sometimes tried to kick a soccer ball with his son but after a few kicks of the ball his physical symptoms have been heightened. The Facebook posts also support the defence of the respondent that the applicant is not precluded form resuming his pre-collision domestic, household, gardening, social and recreational activities.
The Facebook posts referred to above have not been discovered and therefore provide reasonable doubt that the applicant has complied with his discovery obligations.
The pleadings in the Second Statement of Claim are very wide in relation to the injuries that have been sustained by the applicant and their impact on his ability to engage in recreational and social activities. The defence filed by the respondent pleads that the applicant can do all things without pain. Therefore, photographs of the applicant engaging in the activities are directly relevant. Facebook and social media posts that show the applicant engaging in various activities tend to disprove the claims of the applicant, in the absence of evidence of the applicant. Similarly, the applicant engaging in social and recreational activities would tend to disprove the allegation that he has significantly impaired ability to engage in such activities.
Secondly, it is apparent from the affidavit of the applicant’s solicitor, sworn in opposition to the application for further and better disclosure, that it was only after being served with the respondent’s application seeking disclosure of the applicant’s Facebook records, that the solicitor was given access by the applicant to his (the applicant’s) Facebook account. It is clear therefore that in providing discovery in the first instance, the applicant and his legal advisers did not turn their mind to potentially directly relevant material being on Facebook.
I am therefore satisfied there is a reasonable basis for doubting that the disclosure made is adequate.
The conclusion that Facebook and other social media posts are (at least in personal injury cases) discoverable is confirmed by various authority. In TAL Life Ltd v Shuetrim, MetLife Insurance Ltd v Shuetrim[8], the NSW Court of Appeal accepted that Facebook documents as being relevant (that being the test being considered in that case) to the matters in dispute. Lemming JA held:
there was ample basis for evaluating critically whether what Mr Shuetrim said in his affidavit and his statement about his capacity to return to relevant work should be taken at face value, or alternatively be discounted by reference to much of the medical and psychological opinions as well as to his own Facebook posts.
[8] [2016] NSWCA 68 at [198]
Lemming JA concluded that the appropriate finding should have turned upon evaluating all of the evidence, which included the Facebook posts and said that the Facebook posts confirmed at least in some respect some of the matters that applicant in that case said that he was unable to do or confirmed that he had exaggerated his claims and therefore provided the evidentiary basis for a submission that the medical opinions had proceeded upon incorrect premises.
In Hellessey v Metlife Insurance Ltd,[9] Robb J accepted that people can make admissions on Facebook no less than on any other form of medium and once a statement has been made it may be taken to be real evidence.
[9] [2017] NSWSC 1284 at 964.
These cases were approved in Gavan v FSS Trustee Corporation[10]. In that case, in refusing to set aside a Notice to Produce, Ward CJ in Eq referred to the issues raised on the pleadings as to the plaintiff’s mental health and the severity of the symptoms of her condition and held that the documents had obvious relevance to the principal issue in dispute.[11]
[10] [2019] NSWSC 667 at [46]-[48] (in the context of an application to set aside a notice to produce)
[11] Ibid at [55].
The second argument advanced by the applicant was that the Court should not make an order for specific discovery of the Facebook and other social media posts as it could not be demonstrated that all such posts would satisfy the direct relevance test and therefore should be discovered. The applicant submitted that an order for discovery of a specific category of documents should not be made unless all documents within that category were discoverable[12] or it was demonstrated that it was in the interests of justice that such an order be made.
[12] Finsbury Print Pty Ltd v CPI Graphics Ltd (No 2) [2006] SASC 352 at [34].

I do not accept that submission for two reasons. First, whilst I accept that not all Facebook and social media posts will be directly relevant (clearly the applicant simply posting a “like” would not be directly relevant), a limited sub-group of the posts will be directly relevant. I consider that all Facebook or other social media posts that record or evidence the applicant engaging in physical, sporting social, domestic, household and recreational activities or undertaking holidays are directly relevant by reference to the pleadings. I therefore consider that it is appropriate to make an order for further and better disclosure of such posts. Further, for the reasons stated above, I am satisfied that there is reason to doubt that the applicant has complied with his discovery obligations for the purposes of UCR 73.15(1). Therefore, the Court has power to make such orders as it thinks fit to enforce full compliance by the applicant with his discovery obligations. In the present case, I consider that an order that the applicant make further disclosure of the specified posts the appropriate way to enforce the obligation. If necessary, I would find that it is in the interests of justice that those posts be discovered so as to facilitate the applicant’s obligation to make proper disclosure. I refer to my reasons set out below in which I address why the request is not oppressive.
The applicant further opposes the application on the basis that it is fishing in the sense that it is oppressive for the applicant at this stage to make the further and better discovery. The applicant makes that submission based on the time that would be required to examine all the Facebook and other social media posts and determine whether they are directly relevant.
I do not consider that the respondent is fishing in the traditional sense for documents, given the Facebook posts that have been already obtained by him. In Associated Dominions Assurance Society Pty Ltd v John Fairfax Pty Ltd[13] the court held:
the fishing expedition in the sense in which the phrase has been used in the law means, as I understand it, that a person who has no evidence that fish of a particular kind are in a pool desires to be at liberty to drag it for the purpose of finding out whether there are any there or not. If however, there is material before the court pointing to the probability that the party to litigation has in its possession documents tending to destroy his case or to support the case of his opponent and that privilege from inspection of such documents has been wrongly claimed, an application by that opponent to be allowed to inspect them cannot be properly described as a mere fishing expedition.
[13] (1952) 72 WN (NSW) 250-254
In Proude v Visic[14], Blue J cited with approval a passage from the Full Federal Court in Bailey v Beagle Management Pty Ltd[15] which observed that often what is described as fishing is more a question of oppression in requiring a party to produce a great number of documents. The respondent clearly points to the probability of directly relevant documents being in the social media posts which have not been disclosed.
[14] [2012] SASC 184 at [55].
[15] [2001] FCA 60 at [27]-[32]; (2001) 105 FCR 136, 143-133
I accept that it will take some time for the applicant to examine the Facebook and other social media posts to make the further discovery. However, the applicant has been on notice of the request from the respondent that he do so from 23 April 2020. Further, the posts or at least a large number of them are clearly directly relevant. I do not consider that the applicant can rely upon his own failure to comply with his discovery obligations and ignore requests of the respondent to make that disclosure and now claim that he ought not be required to make disclosure of directly relevant documents. The applicant has a continual obligation to make disclosure of directly relevant documents. What he seeks to do in making this submission is that he be relieved of that obligation. I find no reason to relieve the applicant of his obligation.
The applicant also submitted that I should not make an order for disclosure in the exercise of my discretion, because of the timing of this application. The application was made on 5 June 2020, about a month before the trial is listed to commence on 6 July 2020. I am not persuaded that I should exercise my discretion to refuse the respondent’s application. The obligation is on the party, in this case the applicant, to make proper discovery of all directly relevant documents. The applicant has not satisfied that obligation because, until recently, he did not examine his Facebook and other social media posts. The applicant therefore cannot benefit, in my opinion, from his own failure. Further the respondent, by email dated 23 April 2020, requested that the applicant make disclosure of his Facebook and social media posts. Again, the applicant did not respond to that request nor did he make disclosure of social media posts. Again, it is the applicant’s failure to comply with a proper request that that causes him to find himself in this current position of having to divert resources in the preparation of trial. There is no suggestion that he will not be able to do so.
The applicant submits that the respondent has known of his (the applicant’s) failure to make disclosure of the Facebook and social media posts for a period of two years, but has held off making this application until just prior to the trial. I do not accept this submission. It is clear from the second affidavit of Mr Ward that the applicant previously had made publicly available his Facebook posts, but that at some time between 2018 and the present time, he has denied the public access to his Facebook posts. Now, the Facebook posts cannot be read by the public. I infer that it is for this reason that the respondent now makes the application for further and better disclosure. In any event, I consider that the applicant received the request for further and better disclosure on 23 April 2020, but did not respond to that request. The timing of that request provided the applicant with sufficient opportunity to respond.
Conclusion
I therefore propose to order that the applicant make further and better disclosure of all Facebook or other social media posts or documents recording or evidencing the applicant engaging in domestic, household, physical, sporting social, recreational activities, including as a spectator or undertaking holidays.