[2023] NSWSC 1240

G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 10)

No further disclosure of Mr Purnamasidi’s notebooks required

Catchwords

CIVIL PROCEDURE – discovery – further and better discovery – notebooks of director of cross-claimants – whether whole notebooks should be disclosed – where notebooks have been reviewed by solicitor for cross-claimant and extracts responding to discovery categories identified and disclosed

Cases cited

G&S Engineering Services Pty Ltd v MACH Energy Australia Pty Ltd (No 6)[2022] NSWSC 628
Westgate Finance v May[2012] NSWSC 806

Judgment

[1]
The background to this matter is set out in the earlier judgments of the Court, including my judgment of 17 May 2022. [1]
[2]
This is the Court’s 10th interlocutory judgment in the proceedings.
[3]
There is an issue in the proceedings as to whether the directors of the defendants/cross-claimants (“MACH”), including Mr Ferdian Purnamasidi, relied on representations allegedly made to MACH by the plaintiffs/cross-defendants (“CDJV”).
[4]
Mr Purnamasidi from time to time made notes in spiral-bound notebooks.
[5]
By Notice of Motion filed on 26 May 2023, CDJV sought discovery of those notebooks on the basis that they may contain notations relevant to the reliance issue.
[6]
I heard argument on that motion on 6 September 2023. There was then debate as to whether MACH should discover the whole notebooks.
[7]
Ultimately, after discussion and submissions, and by consent, I ordered that:
1. (1)
  By 29 September 2023, the solicitors for [MACH] are to:
2. (2)
  Direct that by 6 October 2023, if [CDJV] still seek[s] production of any spiral-bound notebooks, they are to serve and provide by email to [my] Associate short submissions on that subject.
[8]
CDJV now seeks production of the whole of the notebooks, and the parties have exchanged submissions on that topic. It is agreed I may deal with this question on the papers.
[9]
The “review” contemplated by my 6 September 2023 orders was carried out by Mr Matthew Muir, a partner of Corrs Chambers Westgarth, the solicitors for MACH.
[10]
Mr Muir described the process he undertook as follows:
[11]
Following that review, MACH has now produced a further 50 pages from the notebooks.
[12]
MACH has declined to give discovery of the balance of the notebooks on the basis of “irrelevance”.
[13]
CDJV criticised that response on the basis that there is authority for the proposition that, generally speaking, parties are not entitled to redact documents produced in response to the Court’s compulsory processes on the basis of irrelevance. [2]
[14]
But here, the form of the order to which the parties agreed contemplated a review of the diaries by MACH’s solicitor with a view to discovery of, and only of, entries falling within the identified disclosure categories. That process necessarily required an assessment to be made by the reviewing solicitor of the relevance of the entries in the diary to those categories.
[15]
As MACH has submitted, CDJV has advanced no reason to cast doubt on the veracity of Mr Muir’s review of the notebooks. I accept MACH’s submission that the Court is entitled to, and should, rely upon that review.
[16]
CDJV also contends that MACH has not produced pages from the diary that “relate to the project” and “are relevant” and that pages that “relate to the project” are “of contextual importance when seeking to read the sequence of Mr Purnamasidi’s notes as a whole”.
[17]
That proposition is said to be borne out of certain words which can be seen to be written on the reverse side of the diary pages that have been produced and which suggest that, in a very general way, they “relate to the project”. But whether they not only “relate to the project” but also “are relevant” will depend on whether they fall within the identified disclosure categories. And, as MACH has pointed out, CDJV does not seek to connect the words that can be seen on the reverse side of the disclosed pages to those categories.
[18]
I am not in these circumstances prepared to make any further orders in relation to the notebooks.