Boaden v Mahoney
[2023] NZHC 2878
•13 October 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2022-404-413
[2023] NZHC 2878
BETWEEN DREW BOADEN
Plaintiff
AND
TIMOTHY MAHONEY
Defendant
Hearing: 11 October 2023
(Telephone Conference)
Counsel:
N G Lawrence for Plaintiff T J P Bowler for Defendant
Judgment:
13 October 2023
JUDGMENT OF ASSOCIATE JUDGE LESTER
This judgment was delivered by me on 13 October 2023 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
BOADEN v MAHONEY [2023] NZHC 2878 [13 October 2023]
[1] Mr Mahoney, on 30 May 2023,1 was ordered to give access to his computers, cell phones, email messages and messaging applications. Mr Mahoney had sworn an affidavit in which he said he had 22,578 emails in his inbox and that it would be a big job to look through them for the relevant emails and then list them.
[2] I referred the parties to a judgment as an example of the type of orders that might be put in place for an independent expert to conduct an examination of Mr Mahoney’s electronic devices. Mr Mahoney did not comply with the Court’s orders.
[3] Mr Mahoney claimed that both his desktop and his laptop were stolen from his car. He then claimed that his cell phone became inoperative and had to be disposed of and in the course of doing so, the SIM card in the cell phone was broken.
[4] Given that unsatisfactory state of affairs, Mr Lawrence, counsel for the plaintiff Mr Boaden, sought unless orders that Mr Mahoney provide access to his Gmail account by providing the independent IT expert with his password so that the 22,578 emails referred to by Mr Mahoney could be searched using keyword searches for relevant dates. An unless order to that effect was made by a Minute of 24 August 2023.
[5] A further telephone conference was held on 13 September 2023, following a report from the IT expert, it appeared there were virtually no emails in Mr Mahoney’s Gmail account. From the IT expert’s report, it appeared Mr Mahoney had deliberately deleted his emails in his Gmail account, however, the report did not expressly say so. Given the seriousness of this conclusion which is in contravention of his obligation to preserve evidence and in breach of the unless order, I requested the IT expert provide his opinion as to whether the emails had been deleted.
[6] The IT expert’s second report became available to the parties on 25 September 2023 and concludes that in the expert’s view, it is most likely that Mr Mahoney has accessed the Gmail account and deleted all the emails. I note the IT expert was instructed as a joint exert by the parties.
1 Boaden v Mahoney [2023] NZHC 1318.
[7] On the day of the telephone conference (11 October 2023), to address the second IT report, Mr Bowler, counsel for Mr Mahoney, filed a memorandum in which he sought to describe the IT expert’s conclusions as inconclusive. The expert expressed his view as follows. He said that based on the evidence he had seen, his review: “… suggests Mr Mahoney has most likely accessed the [email account] via his Samsung Galaxy A54 device on the 31st August 2023 and deleted all emails”. Mr Bowler sought to characterise this as a “suggestion only”.
[8] In the context of the original IT report and the second report, I cannot accept that the IT report can be dismissed as a “suggestion only”. Firstly, the IT expert dismisses the possibility that the email account has been accessed by devices other than Mr Mahoney’s cell phones.2
[9] Secondly, the IT report does not suggest any other reason for the missing emails. It records there is no automatic deletion setting and of course, such would be inconsistent with Mr Mahoney’s sworn evidence that there were over 22,000 emails in his account.
[10] Accordingly, this is not a case of there being multiple reasons for the missing emails with the report “suggesting” one option is more likely than others. Deletions by Mr Mahoney, is the only reason put forward.
[11] Thirdly, as noted the IT expert was instructed on a joint basis and he sought and obtained information from Mr Mahoney. Had the emails “disappeared” for some reason unrelated to Mr Mahoney, no doubt Mr Mahoney would have raised that with the IT expert or the Court earlier. I am quite satisfied that Mr Mahoney deliberately deleted his emails to frustrate his discovery obligations and the unless orders made by the Court.
[12] This is the most flagrant and deliberate breach of a Court order that I have encountered.
2 Mr Bowler in his memorandum, communicated something Mr Mahoney wished to raise being that his stolen computers referred to at [3] above, may have been used to access his email account. But this is not a possibility given the report’s conclusion that the Gmail account was only accessed through Mr Mahoney’s cell phones.
[13] The unless order was clear. It was deliberately breached by Mr Mahoney. The sanction is also clear. There is an order that Mr Mahoney’s statement of defence is struck out. The plaintiff may proceed to judgment by formal proof. The plaintiff is to file evidence in support of the formal proof application by way of affidavit within 15 working days, along with submissions in support. Once received, the Registrar is to refer those papers to a Justice who will determine whether the application for formal proof can be dealt with on the papers or whether a hearing is required.
Costs
[14] Mr Mahoney is to pay costs on the discovery orders made on 30 May 2023 on a 2B basis plus disbursements as fixed by the Registrar.
[15] There is an order that Mr Mahoney is to pay costs on an indemnity basis in respect of all steps in this proceeding after that date. If counsel cannot agree the level of those costs then Mr Lawrence is to file a memorandum detailing those costs with the usual supporting information. The submissions in support of costs are not to exceed three pages. Mr Bowler, counsel for Mr Mahoney, may file reply submissions within five working days. I will then deal with costs on the papers.
[16] For the avoidance of doubt, I confirm that there is no criticism of Mr Bowler implicit in this Ruling or in relation to the events that have led to Mr Mahoney’s defence being struck out.
Associate Judge Lester
Solicitors:
Holland Beckett Law, Tauranga (for Plaintiff) Neilsons Lawyers, Auckland (for Defendant)
Copy to counsel:
B Hollyman KC and N G Lawrence, Barristers, Auckland (for Plaintiff)