G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 14)

1. [1]

   The background to this matter is set out in my numerous interlocutory judgments, including that of 17 May 2022. [1]

2. [2]

   This is the Court’s 14th and my 12th interlocutory judgment in these proceedings.

3. [3]

   I will use the same abbreviations here as I have adopted in earlier judgments.

4. [4]

   The matter is now fixed for hearing for two months commencing on 19 August 2024.

5. [5]

   By notice of motion filed on 8 April 2024, MACH seeks orders that the solicitor for the plaintiffs and cross-defendants (“CDJV”), Mr Kenneth Hickman, and the general counsel for the fourth cross-defendant, DRA Global Ltd, Ms Victoria Hawkins, attend on a date to be fixed to be cross-examined on their affidavits of discovery of 4 October 2023 and 27 September 2023 respectively.

6. [6]

   There is no dispute as to the relevant principles. They have been summarised in a comprehensive and very helpful fashion by Mr Ball, who appears for MACH.

7. [7]

   The general rule is that an affidavit verifying discovery is conclusive on the question of whether there has been proper discovery and that cross-examination of the deponent will not be allowed except in three circumstances:

   1. (1)

      if it can be shown (from the pleadings, the verifying affidavit, or some other source) that there are reasonable grounds for being fairly certain that there are other relevant documents which have not been discovered; [2]

   2. (2)

      if it can be shown that the discovering party has misconceived its obligation of discovery, in which case it is not necessary to infer the existence of other relevant documents; [3] and

   3. (3)

      if the Court in its discretion considers it otherwise necessary for such cross-examination to occur - though such discretion should be exercised with the overriding purpose in s 56 of the Civil Procedure Act 2005 (NSW) in mind, including the goal of avoiding the process of discovery becoming unduly onerous. As to this point, it should be noted that cross-examination provides a tool for finally disposing issues without the drawn-out and seemingly endless process of solicitor correspondence. [4]

8. [8]

   The debate before me centred on four major topics.

Mr Crowe’s work laptop and handwritten notes

1. [9]

   Mr Michael Crowe was the managing director of the first cross-defendant from 2009 to 2019 and was the senior vice president of the fourth cross-defendant from 2019 to mid-2022.

2. [10]

   Mr Crowe had what the parties have described as a “work computer”.

3. [11]

   In relation to that computer Mr Hickman has given this evidence:

4. [12]

   Mr Ball submitted, in relation to the matters there set out, that “the admitted existence and destruction of Mr Crowe’s work computer are serious matters warranting cross-examination according to the first [category] described” at [7(1)] above. Mr Ball submitted that there is still no explanation provided as to “how Mr Crowe's laptop came to be destroyed beyond citing some ‘mistake’”.

5. [13]

   I think this overstates matters somewhat. I do not see that the matters to which Mr Hickman deposed shows that Mr Crowe’s computer was “destroyed”.

6. [14]

   However, as Mr Ball has submitted, “something” has gone “wrong”. But it has been explained.

7. [15]

   What Mr Hickman’s evidence did reveal was the existence of a “OneDrive folder” through which CDJV’s IT department could evidently access Mr Crowe’s “OneDrive account” and access the handwritten notes to which Mr Hickman referred.

8. [16]

   Further, on 22 February 2024, CDJV’s solicitor stated in regard to these matters:

9. [17]

   Mr Ball submitted the fact that Mr Crowe’s overwritten records could be accessed via the OneDrive system bespoke the possibility that there are other discoverable documents that might be available and accessible in CDJV’s OneDrive system.

10. [18]

    As Mr Ball submitted:

11. [19]

    It was on this subject, as the argument developed, that Mr Ball submitted that cross-examination of Mr Hickman and Ms Hawkins should be permitted.

12. [20]

    I propose to give CDJV a choice. Either Mr Hickman and/or Ms Hawkins can make an affidavit setting out the extent to which CDJV could have, and has sought to, access its OneDrive folder in order to comply with its discovery obligations; or I will permit cross-examination on this topic.

13. [21]

    Any such affidavits should be served and provided by email to my Associate by 5pm on 20 June 2024.

Mr Crowe's previous mobile phone

1. [22]

   Mr Crowe evidently had two mobile phones issued to him by CDJV. One was a Huawei phone issued in September 2019. There was also a “previous phone”.

2. [23]

   In relation to the Huawei phone, Mr Hickman deposed in his affidavit of discovery of 4 October 2023:

3. [24]

   As to the “previous phone”, Mr Hickman deposed in his 2 May 2024 affidavit:

4. [25]

   Mr Ball submitted that the fact that “steps were only taken with respect to the [previous] mobile phone (and messages later discovered from it) after it was physically returned to CDJV by Mr Crowe” bespoke a misunderstanding by CDJV of its discovery obligations.

5. [26]

   MACH’s concern is as to whether there are other employees or former employees of CDJV to whom telephones were issued for work use, but who have not been asked to make their telephones available in order that they be searched for discoverable material.

6. [27]

   Mr Hickman has given evidence as to the steps taken to locate mobile phones used by personnel such as Mr Crowe:

7. [28]

   In relation to that matter, on 22 February 2024, CDJV’s solicitors advised MACH's solicitors:

8. [29]

   This appears to suggest that CDJV considered that, for the purpose of discovery, it was only obliged to interrogate the telephones of its employees if its employees had voluntarily given CDJV access to its telephones. In that regard, as Mr Ball submitted:

9. [30]

   Mr Ball submitted:

10. [31]

    I see force in that submission.

11. [32]

    Once again, I propose to give CDJV a choice. Mr Hickman and/or Ms Hawkins can make an affidavit, to be served and provided by email to my Associate by 5pm on 20 June 2024, setting out what CDJV’s position is in relation to these matters. Otherwise I will permit cross-examination on this topic.

Andrew Naude's laptop

1. [33]

   Mr Naude was a director and CEO of various other cross-defendants from February 2016 to October 2022. He had an HP laptop.

2. [34]

   In that regard, Mr Hickman said in his affidavit of discovery of 4 October 2023:

3. [35]

   Evidently, proceedings are on foot in the Federal Court of Australia between one of the cross-defendants, DRA Global Ltd, and Mr Naude.

4. [36]

   In relation to those proceedings, Mr Hickman has deposed in his 2 May 2024 affidavit:

5. [37]

   Thus it appears that Mr Naude’s laptop did come into the possession of CDJV, but that CDJV has now been directed to return the laptop to Mr Naude.

6. [38]

   There is thus no longer any question of CDJV’s obligation to interrogate Mr Naude’s laptop.

7. [39]

   However, the wider question that arises is whether this is an isolated incident or whether there have been other occasions on which CDJV has not sought to obtain access to ostensibly private laptops or other devices used by its personnel during the relevant period in order to ascertain whether there is, within those devices, discoverable material.

8. [40]

   Mr Ball submitted it was necessary in the circumstances that there be cross-examination on this subject, because:

9. [41]

   Again, I propose to give CDJV the opportunity to have Mr Hickman and/or Ms Hawkins make an affidavit setting out CDJV’s position in this regard, absent which I will permit cross-examination on this topic.

10. [42]

    Again, the affidavit should be served and provided to my Associate by 5pm on 20 June 2024.

Keywords

1. [43]

   On 6 September 2023 I ordered CDJV to explain by affidavit “the substance of all searches (including details of the document repositories and data sources searched) … that have been undertaken” by CDJV.

2. [44]

   Mr Hickman made an affidavit setting out those matters and has said that he undertook keyword searches across multiple categories of documents. He identified in relation to one category of documents the keywords he used.

3. [45]

   MACH’s contention is that CDJV has not complied with my order because it has not identified the actual keywords used in relation to each category of documents discovered.

4. [46]

   However, the answer to this is that my order did not require that this be done.

5. [47]

   I do not see that what Mr Hickson has done bespeaks any misconception by CDJV as to its discovery obligations. After all, as CDJV has pointed out in its written submissions, MACH has not sought an order that CDJV provide the keywords used.

The “file list” issue

1. [48]

   During oral submissions this morning, on 18 June 2024, Mr Ball raised for the first time an issue in relation to a “file list” referred to by Mr Hickman in his 4 October 2023 affidavit.

2. [49]

   It is too late in the day for that issue to be raised and I do not propose to deal with it.

The affidavits

1. [50]

   I will stand this matter over before me to 2pm on 21 June 2024.

2. [51]

   In the event that CDJV has caused Mr Hickman and/or Ms Hawkins to make affidavits of the kind I have described, I will then decide whether to permit any cross-examination on those affidavits.

3. [52]

   If CDJV has not served any such affidavits, I will then make orders that Mr Hickman and Ms Hawkins be made available for cross-examination on the topics I have outlined.