Apollo Kitchens (NSW) Pty Limited v Goway Travel Pty Limited (No. 2)

1. [1]

   JOHNSON J: On 30 June 2020, I made orders vacating the final hearing of civil proceedings between the Plaintiff, Apollo Kitchens (NSW) Pty Limited (“Apollo”) and the Defendant, Goway Travel Pty Limited (“Goway”) and made associated case management orders to progress the litigation: Apollo Kitchens (NSW) Pty Limited v Goway Travel Pty Limited [2020] NSWSC 852 (“the hearing vacation judgment”).

2. [2]

   The unhappy and protracted history of this litigation was summarised briefly in the hearing vacation judgment and what follows assumes that the reader is familiar with the contents of that judgment. I will refer to parts of the hearing vacation judgment later in this judgment.

3. [3]

   Since 30 June 2020, the parties have attended to necessary steps to be taken to progress the litigation. A joint position has been reached by Apollo and Goway that, given the quantum of the claim, the proceedings should be transferred to the District Court of New South Wales pursuant to s.146(1) Civil Procedure Act 2005. At an appropriate point, I will make an order to that effect so that the progress and determination of the proceedings will occur in the District Court.

The Present Issues

1. [4]

   However, there are two areas which are appropriate to be determined in this Court before that transfer takes place. Those issues are:

2. [5]

   It is the joint position by the parties, accepted by the Court as being a sensible approach, that orders for discovery should be made in this Court with the process of discovery to be undertaken in the period when the proceedings are in the course of transfer to the District Court to facilitate the progress of the litigation during that period.

Hearing of the Applications for Costs and Discovery on 20 August 2020

1. [6]

   The hearing of the applications concerning costs and discovery proceeded on 20 August 2020. Mr Talintyre and Mr Cobb-Clark of counsel appeared for Apollo at that hearing with Mr Maroya and Ms Scott of counsel appearing for Goway.

2. [7]

   The following affidavits were read without objection for Apollo on the costs and discovery applications:

3. [8]

   In the course of submissions, counsel for Apollo referred as well to affidavits which had been filed for other purposes in the proceedings.

4. [9]

   Counsel for Goway read the following affidavits with respect to the costs and discovery issues:

5. [10]

   Counsel for Goway also referred to affidavits which had been filed in the proceedings for other purposes.

6. [11]

   In advance of the hearing on 20 August 2020, counsel for Apollo and Goway had exchanged and filed detailed written submissions on the costs issue and Apollo’s application for discovery. These written submissions served the purpose of identifying the issues in dispute and crystallising what fell for determination by the Court with respect to costs and discovery.

7. [12]

   Counsel for Apollo and Goway addressed the Court on both the costs and discovery issues at the hearing on 20 August 2020.

Costs Thrown Away as a Result of Vacation of Hearing on 30 June 2020

1. [13]

   The power to order costs on the present application lies in the discretion of the Court with the Court having power to determine by whom, to whom and to what extent costs are to be paid and whether the costs are to be awarded on the ordinary basis or on an indemnity basis: s.98 Civil Procedure Act 2005. An order as to costs may be made by the Court at any stage of the proceedings: s.98(3) Civil Procedure Act 2005.

2. [14]

   The general rule is that costs follow the event: Rule 42.1 Uniform Civil Procedure Rules 2005 (“UCPR”). Of course, the proceedings are not completed and the present application arises at an interlocutory stage and focuses upon an appropriate costs outcome concerning the costs thrown away as a result of the adjournment on 30 June 2020. The principles as to costs apply on an interlocutory application such as this: Rule 42.7 UCPR.

3. [15]

   An order for indemnity costs may be appropriate where the case involves some relevant delinquency on the part of a party to the proceedings: Oshlack v Richmond River Council (1998) 193 CLR 72; [1998] HCA 11 at [44]. In this context, some “relevant delinquency” does not mean moral delinquency or some ethical shortcoming, but delinquency bearing a relevant relation to the conduct of the case: White Constructions (ACT) Pty Limited (In Liquidation) v White and Ors [2004] NSWSC 303 at [10]-[11]. It is necessary to demonstrate some delinquency or unreasonableness on the part of the party against whom an indemnity costs order is sought: Rosniak v Government Insurance Office (1997) 41 NSWLR 608 at 616. The need for unreasonableness is an underlying feature of an indemnity costs order: Leichhardt Municipal Council v Green [2004] NSWCA 341 at [51], [57]. The power to order costs on an indemnity basis may arise in different circumstances, including the manner in which a litigant has conducted proceedings.

4. [16]

   It is not necessary to recite in any detail the submissions made in writing and orally on behalf of Apollo and Goway on the costs issue. It will suffice to set out the broad propositions put on behalf of each party before moving to the resolution of the application.

5. [17]

   Mr Talintyre, for Apollo, submitted that the appropriate outcome should be that the Court makes no order as to costs with respect to the hearing vacated on 30 June 2020. He submitted that an element of fault lay with both parties with late service of substantial material being undertaken on both sides so that a costs order should not be made in favour of either Apollo or Goway arising from the vacated hearing.

6. [18]

   Mr Maroya, for Goway, submitted that Apollo should be ordered to pay Goway’s costs thrown away as a result of the vacated hearing with the primary submission being that costs should be awarded on an indemnity basis or, alternatively, on the ordinary basis.

7. [19]

   Mr Maroya submitted that there had been failures on the part of Apollo to comply with orders of the Court over a long period of time to progress any application for discovery so that steps were being taken close to the hearing date which endangered its viability. In addition, it appears that the solicitor for Apollo only briefed counsel a week prior to the scheduled hearing listed for 30 June 2020. Thereafter, Apollo gave notice of its intention to amend the Statement of Claim to include a claim based on monies had and received with that being the principal basis upon which Apollo indicated it sought to proceed.

8. [20]

   Whilst acknowledging that Goway served a further affidavit of James David Forno sworn 29 June 2020 on the eve of the scheduled hearing, together with some 500 pages of documents, it was submitted that this material was largely responsive to Apollo’s proposed amendment to advance a claim based upon monies had and received.

9. [21]

   Mr Maroya submitted that the circumstances in which the proceedings came to be adjourned on 30 June 2020 constituted delinquency or misconduct so as to justify an order for costs on an indemnity basis.

10. [22]

    As the present ruling on costs arises from the vacated hearing of these proceedings on 30 June 2020, it is appropriate to state briefly what occurred on that day and why it happened. It is appropriate at this point to refer to the hearing vacation judgment delivered on that day.

11. [23]

    In the hearing vacation judgment, I described the subject matter of the litigation at [2]-[6]:

12. [24]

    I described the progress of the proceedings in 2019 at [8]-[12]:

13. [25]

    Thereafter, I described the chronology of events between January and June 2020. The hearing date of 30 June 2020 was fixed by the Registrar on 7 February 2020, with further directions being made with which Apollo consistently failed to comply. The chequered history of the proceedings in May and June 2020 was summarised at [19]-[23]:

14. [26]

    When the hearing was scheduled to commence on 30 June 2020, the Court was informed for the first time that Apollo was applying to vacate the hearing. That unexpected development was explained in the following way at [25]-[31]:

15. [27]

    I described the position as it then presented itself at [32]-[37]:

16. [28]

    In determining that the hearing ought be vacated, I described the matter as being “in a state of litigious semi-chaos” and said at [38]-[44]:

17. [29]

    Thereafter, a timetable was fixed for further steps to be taken by the parties including the provision of written submissions on the question of costs arising from the vacation of the hearing.

18. [30]

    It is important to keep in mind that the present costs ruling relates to a defined and limited part of the proceedings, namely costs thrown away as a result of vacating the hearing on 30 June 2020. If a broader view of the history of the proceedings was pertinent, then it could be said that Goway was not progressing the litigation meaningfully in 2019 and that Apollo was failing to comply with a number of Court orders in the first part of 2020.

19. [31]

    However, it is necessary to focus upon the conduct of the litigation insofar as it contributed to the adjournment of the hearing on 30 June 2020. It is relevant to that issue that Apollo was not acting with appropriate expedition with respect to discovery, leading to a pressured and unsatisfactory regime for discovery being put in place in May and June 2020. It is the case that counsel for Goway informed the Registrar, on more than one occasion, that Apollo’s dilatory approach concerning discovery may well warrant the 30 June 2020 listing being vacated. However, despite that warning, no such application was made by Goway so that the hearing date remained in place.

20. [32]

    For reasons that have not been explained, it appears that the solicitor for Apollo only briefed counsel to appear one week prior to the hearing. Counsel advised that an amendment ought be made to the Statement of Claim to plead a claim based on money had and received. This late development contributed to the loss of the hearing date. Added to that was the service by Apollo of a further tender bundle containing documents provided by Ms Comito to Mr Bader on 27 June 2020, together with documents from discovery provided by Goway on 26 June 2020. The late obtaining of these documents from Ms Comito, and service of them in a tender bundle, was a further contributing factor to the adjournment of the hearing.

21. [33]

    Further complicating the matter, however, was the service by Goway on 29 June 2020 of a further affidavit of Mr Forno sworn that day together with some 500 pages of documents upon which counsel for Goway intended to rely at the hearing commencing the next day.

22. [34]

    It was the case that an affidavit of Mr Forno, sworn on 21 February 2020, contained a schedule which was objected to by Apollo. In my view, the further affidavit of Mr Forno dated 29 June 2020, and the accompanying bundle of documents, may be seen as a step taken by Goway to ensure that factual matters upon which it sought to rely at the hearing were available in admissible form. In that sense, the late service of the affidavit of Mr Forno was not simply a reaction to Apollo’s late decision to rely upon a claim of money had and received.

23. [35]

    I am satisfied that the principal cause of the adjournment of the hearing on 30 June 2020 lay at the feet of Apollo, with some contribution to that state of affairs being made, as well, by Goway.

24. [36]

    To the extent that any costs order may be made in favour of Goway, I am not persuaded that costs should be ordered on an indemnity basis. It is the case that Apollo did not comply fully with its obligations under s.56 Civil Procedure Act 2005 in the period leading up to the final hearing, with a flurry of activity only being undertaken in the days before the hearing. Although that state of affairs is less than satisfactory, I am not satisfied that delinquency or unreasonableness has been established so as to warrant an order for costs being made on an indemnity basis.

25. [37]

    In the exercise of discretion, I am satisfied that Apollo should be ordered to pay a substantial proportion of Goway’s costs wasted by the adjournment of the hearing on 30 June 2020. As a contributing factor to the adjournment related to the conduct of Goway as well as Apollo, it is an appropriate outcome if Apollo is ordered to pay two-thirds of Goway’s costs thrown away by the vacation of the hearing date. The intention of the order is that Apollo should pay two-thirds of Goway’s costs calculated on the ordinary basis. An order to that effect will be made at the conclusion of this judgment.

The Discovery Issue

1. [38]

   As will be seen, a substantial part of the discovery issue in this litigation is not in contest. Apollo’s Notice of Motion filed 14 July 2020 sought an order under Rule 21.2 UCPR that Apollo give discovery of the documents within the classes specified in Annexure A to the Notice of Motion. Goway agrees with the categories of documents which Apollo proposes to discover.

2. [39]

   The Notice of Motion identified in Annexure B, categories of documents which Apollo sought that Goway discover for the purpose of the proceedings. A substantial part of the categories contained in Annexure B are not disputed by Goway. It is accepted that discovery ought be given to Apollo with the contest relating to certain parts of the proposed categories in Annexure B to the Notice of Motion.

3. [40]

   Annexure E to the affidavit of Mr Glover sworn 28 July 2020 contains a tracked version of the categories of discovery which Apollo seek from Goway, with alterations made to the categories reflecting parts to which Goway objects.

4. [41]

   The most convenient approach is to set out below the categories of discovery in Annexure B to the Notice of Motion with tracked alterations reflecting Goway’s proposed amendments:

5. [42]

   At the hearing on 20 August 2020, Mr Cobb-Clark, counsel for Apollo, noted that his client accepted Goway’s alterations to the categories of discovery as proposed in paragraph (a) so that the words “which contain any of the search terms annexed to this order” would be deleted. In addition, Apollo accepted that the entry “Harb” in the list of key words and search terms should be amended to “Joseph Harb”. Further, Mr Cobb-Clark indicated that Apollo would consent, with respect to the last three key words and search terms in the list, for those items to be searched only in conjunction with other search terms as contained in the list and not as a single or freestanding search.

6. [43]

   Beyond that, the contest between Apollo and Goway with respect to discovery is identified by Goway’s proposed redactions in the categories set out at [41] above.

7. [44]

   The Court has power under Rule 21.2 UCPR to order a party to give discovery of documents within a class or classes specified in the order. The basis for an order is that discovery is necessary in the interests of a fair trial: Percy v General Motors-Holden’s Pty Limited [1975] 1 NSWLR 289 at 292; Commonwealth Bank of Australia v Daleport Pty Limited (In Receivership) (No. 3) [2017] NSWSC 1584 at [20]. In determining whether to make an order for discovery, the Court will have regard to the applicable principles in ss.56-60 Civil Procedure Act 2005: DHR International, Inc v Challis (No. 2) [2015] NSWSC 1964 at [27].

8. [45]

   The classes of documents to be discovered may be specified by reference to one or more facts in issue or by description of the nature of the documents and the period within which they are brought into existence: Rule 21.2(3) UCPR. A document is relevant to a fact in issue if it could, or contains material that could, rationally affect the assessment of the probability of the existence of that fact (otherwise than by relating solely to the credibility of the witness), regardless of whether the document or matter would be admissible in evidence: Rule 21.1(2) UCPR. The test is similar to the relevance test under s.55 Evidence Act 1995: Zhu v Yingle Cultural Exchange (Australia) Pty Ltd (In Liq) [2010] NSWSC 107 at [10].

9. [46]

   The class of documents to be discovered must be specified no more widely than the Court considers justified in the circumstances so as to avoid the potential for discovery to give rise to oppressive and disproportionate costs and to impede the overriding purpose in s.56 Civil Procedure Act 2005: Graphite Energy Pty Ltd v Lloyd Energy Systems Pty Ltd [2014] NSWSC 1326 at [21]-[22]. There is no entitlement to “chain of enquiry” discovery: Palavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 at [101].

10. [47]

    It must be concluded that documents sought could “possibly throw light” on the issues in the case or that it is likely that the documents will materially assist on an identified issue or that there is a reasonable basis, beyond speculation, that it is likely that they will materially assist: Elanor Operations Pty Ltd v Chief Commissioner of State Revenue (NSW) [2020] NSWSC 840 (“Elanor Operations”) at [43] (Ward CJ in Eq).

11. [48]

    If compliance with an order for discovery would be too onerous, then limitations may be placed on it: Elanor Operations at [41]. The Court has a general discretion to require or limit discovery consistent with the overriding purpose in s.56 Civil Procedure Act 2005: Palavi v Radio 2UE Sydney Pty Ltd at [101]. The Court should be alive to the cost, and associated delay and complexity, associated with extensive discovery: Commonwealth Bank of Australia v Goater [2016] NSWSC 710 at [31]-[34].

12. [49]

    Mr Cobb-Clark noted that the present application for discovery is to be considered against the background where, on 23 June 2020, the Registrar ordered, by consent, that Goway give discovery of limited categories of documents. In circumstances where the hearing was vacated and the parties have since agreed that the matter should be transferred to the District Court, the parties have considered further the discovery issue giving rise to the present proposed categories as specified in Apollo’s Notice of Motion.

13. [50]

    By reference to the Amended Statement of Claim filed on 10 July 2020, Mr Cobb-Clark noted that Apollo alleges that, between September 2014 and December 2017, Apollo entered into an agreement or a series of agreements with Goway whereby Goway agreed to provide various travel packages to Apollo. Apollo claims that on or about 5 July 2018, Goway repudiated the agreement(s) without having provided to Apollo all of the travel that it had purchased in the travel packages. Apollo claims that it has suffered a loss of at least $612,133.67 by reason of Goway’s failure to provide it with the entirety of the travel packages purchased. Additionally, Apollo claims that it is entitled to refunds for travel that it had to purchase itself as a result of Goway failing to provide the travel that it had agreed to provide in the travel packages.

14. [51]

    The Amended Statement of Claim also adds a claim for money had and received. The basis of that claim is that Goway received from Apollo a total of $656,058.58. However, Goway failed to provide Apollo with travel packages to the value of $612,133.67 and has been enriched by that amount. A similar claim is made in respect of a payment of $9,384.00 which Apollo pleads it paid to Goway by mistake.

15. [52]

    Goway’s Defence to the Amended Statement of Claim filed on 16 July 2020 pleads, amongst other things, that Ms Lisa Comito did not have express, implied or ostensible authority of Goway to contractually bind Goway to the travel packages sold to Apollo. Goway also pleads that it has provided $568,684.89 in travel services to Apollo. Goway also pleads that the price paid for the travel packages by Apollo was many times less than the travel would cost Goway to supply and this would thereby cause substantial loss to Goway.

16. [53]

    Against this background, Mr Cobb-Clark submitted that the pleadings give rise to the following issues in dispute:

17. [54]

    Mr Cobb-Clark submits that the categories of discovery that Apollo proposes be given by Goway are addressed directly to these facts in issue. He submitted that they do not constitute a fishing expedition, but are targeted to produce directly related and relevant information to permit a fair trial of the issues in dispute.

18. [55]

    The written and oral submissions then addressed the categories of discovery proposed by Apollo. With respect to the dispute about the list of “Relevant Employees”, Mr Cobb-Clark submitted that the purpose of the list was to tailor or narrow the scope of the searches to be undertaken by Goway. The list of names was said to identify persons whom Apollo reasonably believes were involved in Ms Comito’s activities. The list of 16 employees sought to determine to what extent Goway had knowledge of the activities of Ms Comito in selling travel packages to Apollo. It was submitted that this went to the issue of knowledge as an element of ratification, with the issue of knowledge extending beyond persons who were directly concerned in Ms Comito’s activities.

19. [56]

    Mr Cobb-Clark noted that the persons in the list to whom objection was taken by Goway were persons nominated in notes said to have been written by Ms Comito and provided to Mr Bader, with those notes being marked Exhibit “VSP1” as part of Mr Panicker’s affidavit affirmed on 14 July 2020. Those handwritten notes refer to persons including Graziella Caruso, Chris Craddock, Carolyn Weppler, Ghila Schutte, Sue Cornwell, Anthony Saba and Lara Carmina.

20. [57]

    Mr Cobb-Clark submitted that reliance upon notes said to have been written by Ms Comito were sufficient for the purpose of the application for discovery and that it was not a precondition for an order for discovery to be made that there be an affidavit from Ms Comito.

21. [58]

    It was submitted for Apollo that the fact that Goway asserted that these named persons were not involved with retail customers did not answer the question of the role of these persons, and their knowledge of Ms Comito’s activities in circumstances where Ms Comito’s notes named the persons as pertinent in this aspect.

22. [59]

    With respect to the period of time covered by the discovery categories, Mr Cobb-Clark submitted that Goway had put in issue the question of Ms Comito’s authority to contract on its behalf with Apollo and that this raised questions of what knowledge Goway had of Ms Comito’s activities. It was submitted that the conduct of Ms Comito in relation to Apollo formed part of a system or pattern of conduct by Ms Comito which had its genesis in at least September 2012 so that the order for discovery should extend to that period.

23. [60]

    With respect to the end date for discovery, Mr Cobb-Clark submitted that the relevant period for discovery ought conclude on 12 December 2018 which was the date when Ms Comito’s employment was terminated by Goway. It was submitted that documents between August 2018 (when Apollo ceased purchasing travel packages) and December 2018 were directly relevant to the question of Goway’s knowledge of Ms Comito’s activities. It was submitted that documents from this period were particularly relevant to the issues of ostensible authority or ratification.

24. [61]

    It was submitted that, according to the affidavit of Gregory John Atkins sworn 5 December 2019 (paragraph 62), by about July 2017, Mr Atkins appeared to have had serious concerns about Ms Comito’s conduct and that this raised questions of whether, by continuing Ms Comito’s employment until December 2018, Goway authorised or ratified her conduct as part of the “Family and Friends” scheme.

25. [62]

    With respect to suggested further limitations by Goway of the categories for discovery at (d), (g) and (h) and the “TravelBox” and “TourPlan” search terms, Mr Cobb-Clark submitted that Goway’s restrictions were not appropriate having regard to the issues in dispute, particularly the question whether Goway knew of and authorised or ratified Ms Comito’s conduct. It was submitted that these categories and search terms related to master files concerning bookings made as part of the “Family and Friends” scheme and that these documents are likely to be directly relevant to the question of what travel Apollo received and at what price and whether the sale of the travel was authorised by Goway.

26. [63]

    With respect to search terms, Mr Cobb-Clark submitted that a list of search terms had been prepared for use in conjunction with Categories (a) and (d) with the intention of limiting the searches and product that Goway would otherwise have to provide to Apollo.

27. [64]

    It was submitted for Apollo that Goway appears to have misunderstood how a Boolean search string works as part of its objection to certain specified search items. Mr Cobb-Clark submitted that the search terms included on Apollo’s list were achievable and appropriate having regard to the issues in the case.

28. [65]

    Apart from the areas where Apollo accepted Goway’s amendments or proposed a modification to its own application (see [42] above), it was submitted for Apollo that Goway should be ordered to give discovery to Apollo in the terms sought in Apollo’s Notice of Motion filed 14 July 2020.

29. [66]

    Mr Maroya submitted that discovery should not be ordered against Goway in the areas where objection was taken as set out at [41] above.

30. [67]

    With respect to the “Relevant Employees” to whom objection is taken, Mr Maroya submitted that the handwritten notes said to have emanated from Ms Comito were best described as “a hearsay wish list of speculative requests that might be made of employees with little to no relevance to Ms Comito or the proceedings”. It was submitted that the evidence indicated that Mr Johnston, a director of Goway, had carried out investigations concerning the way in which Goway had functioned and that what Mr Johnston has said should be preferred to the handwritten notes attributed to Ms Comito.

31. [68]

    It was submitted that the persons nominated in Ms Comito’s notes were all junior to Ms Comito and in many instances were not employees of Goway, but employees of Goway Canada, a wholly separate legal entity. It was submitted that, of the 400-500 pages of documents produced by Goway on 29 June 2020, no reference was made to the name of Ms Cornwell. Submissions were made, as well, concerning Ms Schutte and Mr Craddock in opposition to Apollo’s proposed inclusion of those persons in the list of “Relevant Employees”. It was submitted that the persons to whom Goway objected were not relevant to these proceedings. It was submitted that Apollo’s desire to include these names offended the prohibition upon “chain of enquiry” discovery.

32. [69]

    With respect to the period of time covered by the categories, Mr Maroya submitted that the relevant issue concerned the question of Ms Comito’s authority to contract with Goway and not any other person. It was submitted that the activities of Ms Comito which predate her involvement with Mr Bader, a director of Apollo, have no relevance to these proceedings. It was submitted that Ms Comito went on indefinite stress leave from 14 June 2018 and that Mr Atkins states that, whilst on stress leave, Ms Comito was not involved in, nor did she have anything to do with, any retail bookings. Once again, it was submitted that this part of Apollo’s application contravened the prohibition on “chain of enquiry” discovery.

33. [70]

    With respect to search terms, Mr Maroya submitted that Goway is a travel agency which does not operate a sophisticated, legal search engine that allows it to run Boolean searches.

34. [71]

    Mr Maroya submitted that Mr Bruce Hodge, the founder of Goway, was permanently based in Canada and it was not clear how he was said to be relevant to these proceedings.

35. [72]

    With respect to the final search terms contained in the list (at [41] above), Mr Maroya noted that “TravelBox” is operated by Goway Philippines and is not under the control of Goway Australia so that searching that category presented other difficulties. It was submitted that “TravelBox” and “TourPlan” were booking operating systems and not a general repository of information that might touch upon the question of knowledge.

36. [73]

    With respect to the proposed narrowing of categories identified by Mr Cobb-Clark (see [42] above), Mr Maroya submitted that this proposal would not assist given the continuing difficulty, as expressed by Goway, with searching the combinations referred to in the list of search terms.

37. [74]

    It was submitted for Goway that the contested categories of discovery should not be ordered in this case as Apollo’s application involved a fishing expedition and not a legitimate use of the discovery process.

38. [75]

    I accept as accurate Mr Cobb-Clark’s summary of the issues (at [50]-[53] above) raised by the Amended Statement of Claim and Defence to the Amended Statement of Claim, both of which have been filed since 30 June 2020. I accept that this summary of the issues in the proceedings may be utilised as a touchstone for the purpose of determining whether discovery in the contested areas should be ordered.

39. [76]

    It is clear that determination of Apollo’s claim against Goway will involve an examination of contact which took place between Apollo on the one hand, and Ms Comito and Goway on the other hand, over a number of years during which there is no dispute that substantial sums of money were paid by Apollo. The live issues in the proceedings will involve findings as to express, implied or ostensible authority for Ms Comito to act for Goway and, if there was no such authority, whether Goway subsequently ratified Ms Comito’s conduct. Resolution of these issues will involve consideration of relevant documentary evidence together with oral evidence from persons within Goway who worked with, or had knowledge of, the activities of Ms Comito with Goway.

40. [77]

    I note that no affidavit has been obtained from Ms Comito and it is not suggested that she will be called by either party as a witness at the hearing. It is clear that neither party intended to call Ms Comito if the hearing listed for 30 June 2020 had proceeded.

41. [78]

    Criticism is made by Goway of Apollo’s reliance upon handwritten notes said to have been produced by Ms Comito to Mr Bader who has, in turn, provided them to Mr Panicker. No objection was taken by Goway to these notes being admitted as part of Mr Panicker’s affidavit at the hearing of the Notice of Motion. In any event, the notes form part of the evidence on the present interlocutory application and the source of the notes is identified in Mr Panicker’s affidavit: s.75 Evidence Act 1995.

42. [79]

    The present question is whether Ms Comito’s notes, taken with the evidence, provide sufficient foundation for the persons named in the notes to be included in the categories of discovery.

43. [80]

    According to Ms Comito’s notes, Ms Caruso was aware of the “Family and Friends” tickets and sent an email to Mr Lacy expressing her concerns. Although Ms Caruso was said in the notes not be involved in the booking process, Ms Comito asserts that she had knowledge of it and was aware of conversations which Ms Comito had with Mr Atkins concerning that topic.

44. [81]

    According to Ms Comito’s notes, Mr Craddock, a business development manager, did not make any “Family and Friends” bookings, but was aware that they were taking place and would speak to Ms Comito about them.

45. [82]

    According to Ms Comito’s notes, Ms Weppler was the regional manager in Toronto and Ms Bell reported to her whilst Ms Bell was based in Sydney for one year from January 2016. According to the notes, bookings were processed through “TravelBox” and Ms Bell would have had discussions with Ms Weppler and Mr Saba.

46. [83]

    According to Ms Comito’s notes, Ms Schutte was aware of the “Family and Friends” scheme and she raised concerns with Ms Comito several times that it was very stressful for Ms Comito.

47. [84]

    Ms Comito’s notes state that Ms Cornwell and Marzia Senzio would often help Ms Comito and book car rentals or domestic hotels on the “Family and Friends” bookings.

48. [85]

    According to Ms Comito’s notes, Mr Atkins would refer to the “Family and Friends” scheme with head office as the corporate account.

49. [86]

    I am prepared to proceed upon the basis that Ms Comito’s notes nominate, in broad terms, certain persons and activities which are said to relate to the “Family and Friends” scheme which lie at the centre of the present proceedings.

50. [87]

    The evidence on the present application reveals the following concerning these persons.

51. [88]

    Ms Caruso is a member of Goway’s product buying team and may be taken to have had some knowledge of the nature, extent and cost of the products being sold by Goway. Even if Ms Caruso had no involvement in the booking or issue of tickets, an issue in these proceedings concerns Ms Caruso’s knowledge of the “Family and Friends” scheme and of Ms Comito’s activities in that respect.

52. [89]

    Ms Schutte is the manager of the group’s incentive section of Goway responsible for inbound travel to Australia. From about October 2014 until July 2017, Ms Comito was the local operations manager with supervision of the inbound travel department. This period of time includes the period when Ms Comito was offering travel packages to Apollo, allegedly on behalf of Goway. The fact that the inbound team had no involvement with retail customers does not bear upon the question of what Goway knew about the “Family and Friends” scheme and Ms Comito’s involvement in it.

53. [90]

    Ms Cornwell was a member of the inbound reservations team at Goway. The reference to Ms Cornwell in Ms Comito’s notes provides a foundation for inclusion of Ms Cornwell’s name in the list of “Relevant Employees”.

54. [91]

    Mr Craddock is a business development manager employed by Goway in the inbound sales team. Like Ms Caruso, the fact that Mr Craddock had no involvement in retail bookings does not address the issue of what Mr Craddock (and Goway) knew about the scheme.

55. [92]

    The evidence reveals that Ms Weppler is the retail manager in Goway’s Toronto office and that Mr Saba and Ms Carmina are employees of Goway Canada. Ms Comito’s notes indicate that Ms Bell, a retail consultant located in Goway’s Sydney office, reported to Ms Weppler whilst she was based in Sydney during 2016.

56. [93]

    Mr Glover’s affidavit of 28 July 2020 asserts that, according to Mr Johnston’s investigations, there is no relationship between Ms Weppler, Mr Saba, Ms Carmina and Ms Comito in terms of Ms Comito’s involvement in the Sydney office retail department. Even if these persons did not have a working relationship with Ms Comito herself, Ms Comito’s notes provide a foundation for inclusion of these persons in the list of “Relevant Employees”. I accept Apollo’s submissions that the question of knowledge on that part of these specified Goway personnel of the activities of Ms Comito is relevant, at least, to the ratification issue.

57. [94]

    In my view, sufficient foundation has been demonstrated for inclusion of these persons in the list of “Relevant Employees” with the searching to be undertaken by Goway in that respect not being, at least on the evidence before the Court on this application, unduly onerous. I propose to include all names of “Relevant Employees” as sought by Apollo.

58. [95]

    With respect to the period of time covered by the discovery categories, I note that Goway has put in issue the question of Ms Comito’s authority to contract on its behalf with Apollo. This raises question of what knowledge Goway had of Ms Comito’s activities. The evidence reveals that Ms Comito did not offer travel as part of the “Family and Friends” scheme only to Apollo with the affidavit of Mr Atkins of referring to other clients having made bookings by a charity associated with Ms Comito.

59. [96]

    I accept Apollo’s submission that the conduct of Ms Comito in relation to Apollo forms part of a system or pattern of conduct by Ms Comito which appears to relate back at least to September 2012, and thus that the relevant period of discovery should commence on 1 September 2012.

60. [97]

    I also accept the submission of Mr Cobb-Clark that the relevant period for discovery in these categories should conclude on 12 December 2018, the date when Ms Comito’s employment with Goway was terminated. Although the evidence reveals that Ms Comito ceased working for health reasons prior to December 2018, I accept that documents between August and December 2018 are relevant to the question of Goway’s knowledge of Ms Comito’s activities. In circumstances where there is material pointing to Mr Atkins having concerns about Ms Comito’s conduct by about July 2017, I accept that documents up to the termination of her employment in December 2018 are relevant to issues of ostensible authority or ratification.

61. [98]

    I propose to include in the orders for discovery the period of time sought by Apollo.

62. [99]

    I am satisfied that other limitations sought by Goway to be placed upon the categories by Goway with respect to Categories (d), (g) and (h) ought not be implemented. There is a proper foundation revealed in the material for these categories to be included, extending to searches concerning “TravelBox” and “TourPlan”.

63. [100]

    The controversy concerning search terms relates, in particular, to suggested difficulty in Boolean searches for two terms. I express my satisfaction that the keywords and search terms as sought by Apollo are all appropriate to be included in an order for discovery. The Court is faced with competing submissions from the Bar table as to the ability to undertake such searches (as argued by Mr Cobb-Clark) and difficulty in undertaking such searches (as submitted by Mr Maroya). Insofar as there is said to be technical difficulty with the making of searches of this type, Goway has not provided any evidence which discloses any technical foundation for such a problem.

64. [101]

    In circumstances where I am satisfied that the search terms as sought should be included in the order, in the absence of evidence that would demonstrate that such an order is oppressive, I propose to make the order as sought.

65. [102]

    I have borne in mind Mr Maroya’s submission that, given it is Goway’s staff who would be conducting the discovery exercise, Goway is a travel agency with staff who work in that capacity and not in a legal office or a larger commercial enterprise (and that this may be a more difficult task for them). I have kept in mind, as well, that the impact of the COVID-19 pandemic is such that Goway’s travel agency is not functioning in the manner in which it ordinarily would at other times and that there are fewer staff currently working in the Goway office (affidavit of Mr Glover sworn 28 July 2020, paragraphs 23-24).

66. [103]

    In circumstances, however, where the Court is satisfied that the keywords and search terms should be included in the order for discovery to be given by Goway, it seems to me that practical factors of this type bear upon the time which Goway should be allowed for the purpose of complying with the discovery order, rather than the question as to whether the disputed keywords and search terms should be included in the order.

67. [104]

    In determining that an order for discovery should be made against Goway in the terms sought by Apollo, I express my satisfaction that the proposed areas of discovery do not constitute a fishing expedition nor a form of “chain of enquiry” discovery.

68. [105]

    In circumstances where I propose to publish the present judgment to the parties on 28 August 2020, with the matter to come before me again at 9.30 am on 2 October 2020 for further directions, the parties will have an opportunity to consider the orders I intend to make concerning discovery and to propose dates by which time Apollo and Goway should comply with their discovery obligations under the orders.

69. [106]

    If the parties cannot agree as to dates for these purposes, I will consider what orders should be made when the matter comes before me on 2 October 2020.

Conclusion and Orders

1. [107]

   With respect to the application for costs thrown away by the vacation of the hearing date on 30 June 2020, for reasons expressed earlier in this judgment, I propose to order that Apollo pay two-thirds of Goway’s costs thrown away by vacation of the hearing date on the ordinary basis.

2. [108]

   With respect to Apollo’s application for discovery, I will make orders for discovery as proposed by Apollo in its Notice of Motion filed 14 July 2020, subject to the areas of modification accepted by Apollo as noted earlier in this judgment (at [41]-[42]).

3. [109]

   Once these orders have been made, I will at an appropriate time make an order under s.146(1) Civil Procedure Act 2005 transferring the proceedings to the District Court of New South Wales.

4. [110]

   I make the following orders:

5. [111]

   I confirm that the proceedings are before me for directions at 9.30 am on 2 October 2020.