FEDERAL COURT OF AUSTRALIA Georgiou v Spencer Holdings Pty Ltd (No 4) [2011] FCA 1222 Citation: Georgiou v Spencer Holdings Pty Ltd (No 4) [2011] FCA 1222 Parties: EKATERINA (KATERINA) GEORGIOU v SPENCER HOLDINGS PTY LTD ACN 096 497 148 TRADING AS PROPELL NATIONAL VALUERS (SA), KELVIN JAMES SPENCER, JAMES SPENCER, TERRI CHURCH and JANINE BACKSHALL File number: SAD 68 of 2010 Judge: BESANKO J Date of judgment: 28 October 2011 Catchwords: PRACTICE AND PROCEDURE — application pursuant to r 5.04(3) item 12 of the Federal Court Rules by respondents to proceeding for order that applicant identify discovered e-mails apparently sent by her whose authenticity she denied — whether respondents should rely on O18 r 3 of the previous Federal Court Rules — application by respondents for further particulars of claim for privilege over documents — where applicant said provision of further particulars would have effect of disclosing matters over which privilege was claimed — application by respondents for further and better discovery of information obtainable from applicant's mobile phone — application to strike out particulars inconsistent with the reply filed by applicant — application by applicant for discovery of documents evidencing arrangements by second respondent to meet women during particular period — where second respondent alleged applicant had met with him for sexual intercourse at various hotels — where respondents had discovered hotel receipts — where applicant denied meeting with second respondent — whether there were grounds to believe that relevant documents exist — whether category of documents sought too broad Held: Orders were made that the applicant identify the e-mails, provide further particulars of her claim of privilege, that further and better discovery of information relating to the applicant's mobile phone be made, that the particulars be struck out and that the respondents make disclosure of the category of documents sought by the applicant. Legislation: Sex Discrimination Act 1984 (Cth) ss 28A, 94 Federal Court Rules 2011 Federal Court Rules (as in force prior to 1 August 2011) Cases cited: Cape Wools SA v KPMG Corporate Finance (Vic) Pty Ltd [2002] VSC 571, cited Commissioner, Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, cited Georgiou v Spencer Holdings Pty Ltd (No 3) [2011] FCA 602, cited Gertig v Davies [2003] SASC 86; 85 SASR 226, cited Date of hearing: 27 September, 12 October 2011 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 59 Counsel for the Applicant: Mr P Heywood-Smith QC with Mr L Leventis Solicitor for the Applicant: Camatta Lempens Pty Ltd Counsel for the First, Second, Fifth and Sixth Respondents: Mr M Roder SC with Ms T Birss Solicitor for the First, Second, Fifth and Sixth Respondents: DLA Phillips Fox Counsel for the Fourth Respondent: The Fourth Respondent did not appear IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 68 of 2010 BETWEEN: EKATERINA (KATERINA) GEORGIOU Applicant AND: SPENCER HOLDINGS PTY LTD ACN 096 497 148 TRADING AS PROPELL NATIONAL VALUERS (SA) First Respondent KELVIN JAMES SPENCER Second Respondent JAMES SPENCER Fourth Respondent TERRI CHURCH Fifth Respondent JANINE BACKSHALL Sixth Respondent JUDGE: BESANKO J DATE OF ORDER: 28 OCTOBER 2011 WHERE MADE: ADELAIDE THE COURT ORDERS THAT: 1. The respondents bring in minutes of order reflecting the conclusions expressed in these reasons. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 68 of 2010 BETWEEN: EKATERINA (KATERINA) GEORGIOU Applicant AND: SPENCER HOLDINGS PTY LTD ACN 096 497 148 TRADING AS PROPELL NATIONAL VALUERS (SA) First Respondent KELVIN JAMES SPENCER Second Respondent JAMES SPENCER Fourth Respondent TERRI CHURCH Fifth Respondent JANINE BACKSHALL Sixth Respondent JUDGE: BESANKO J DATE: 28 OCTOBER 2011 PLACE: ADELAIDE REASONS FOR JUDGMENT 1 The applicant commenced this proceeding by application dated 18 May 2010. At that time there were six respondents. The applicant's claim against the third respondent was dismissed on 20 January 2011. The first, second, fifth and sixth respondents are represented by solicitors and counsel. The fourth respondent is separately represented by solicitors. He is not a party to the present applications. It is convenient to refer in these reasons to the first, second, fifth and sixth respondents as 'the respondents'. 2 For the purposes of the present applications it is necessary for me to give a brief overview of the nature of the proceeding. It is sufficient to repeat the overview I gave in reasons delivered in relation to applications previously made in the proceeding (Georgiou v Spencer Holdings Pty Ltd (No 3) [2011] FCA 602 at [24]-[27]). The applicant was employed by the first respondent for a period of about two and a half years between April 2007 and late 2009. The second respondent and his wife were the owners of the first respondent and the second respondent was heavily involved in the first respondent's business. The applicant's case is that the second respondent engaged in conduct towards her which was unlawful conduct by reason of various provisions of the Sex Discrimination Act 1984 (Cth) ('Sex Discrimination Act') including s 28B, s 14(2) and, in relation to later conduct, s 94. It is also alleged that the first respondent engaged in conduct in breach of its contract of employment with the applicant and that the fourth respondent committed an assault. The applicant claims damages for hurt, distress and humiliation, and a psychiatric condition, and damages for economic loss resulting from the respondent's conduct and the cessation of her employment. She makes a substantial claim. One of the respondent's 'defences' to the claim is that in fact between June 2008 and August 2008 [sic 2009] the applicant and second respondent had an affair involving the exchange of gifts and many acts of sexual intercourse. The applicant denies that she had an affair with the second respondent and she denies having sexual intercourse with the second respondent. It is clear from this very brief summary that the credit of the applicant and of the second respondent will be important issues at the trial. 3 The first application is that made by the respondents by a notice of motion filed on 21 June 2011. In that notice of motion the respondents sought the following orders: 1 That the Applicant identify any and each document discovered by the Respondents the authenticity of which is disputed by her within 7 days. 2 That the Applicant provide further particulars of her claim to privilege over documents obtained from third parties or copies thereof. 3 Consequential orders for the production of the documents referred to in paragraph 2 to be determined after those documents are properly identified. 4 That the Applicant provide further and better discovery of the documents or classes of documents referred to in paragraphs 28 to 32 of the affidavit of Thea Joy Birss herein. 5 That the Applicant make [available] the electronic image of her blackberry mobile telephone evidenced in document 101 of the Applicant's List of Documents or, if unavailable, that the Applicant make her blackberry mobile telephone available to the Respondents and an information technology expert engaged by them for inspection. 6 If the electronic image is unavailable, that the Applicant identify the circumstances of the creation of document 101 and of any disposal of the electronic image. 7 That the Applicant provide particulars of paragraph 38 of her Reply. 8 That the particulars to the Reply provided by letters dated 2 May and 1 June 2011 be struck out on the ground that they are inconsistent with the Reply. 4 The second application is that made by the applicant by notice of motion filed on 15 July 2011. In that notice of motion she sought a number of orders. However, at the hearing only the following order was pressed. 2. That the: … 2.10 first and second respondents discover all communications by email or SMS between the second respondent and any and all other women alluding to meetings with the second respondent on or about the days of the alleged sexual intercourse and encounters in the week preceding the alleged incidences of sexual intercourse in paragraph 12.5 of the Defence. 5 The respective applications were heard on 27 September 2011 and 12 October 2011. 6 In the course of the respondents' submissions, counsel for the respondents reformulated the orders they sought as follows: 1. The applicant identify any emails discovered by the respondents at item 60 of the respondents' lists of documents, the authenticity of which is disputed by her within seven days. 2. As to the documents referred to in paragraph 1.4 of the applicant's solicitor's letter dated 1 June 2011: 2.1 The applicant provide further particulars of her claim for privilege over the said documents. 2.2 The applicant state the basis for the claim for privilege in respect of each such document. 3. Not pressed at this stage. 4. That the applicant make further and better discovery of her mobile phone records for the period September 2009 to February 2010 inclusive. 5. The applicant make further and better discovery of the copy taken from her mobile phone referred to at paragraph 5 of the affidavit of Mr Du Plessis sworn on 7 October 2011 and her mobile telephone. 6. Not pressed. 7. That the Applicant provide particulars of paragraph 38 of her Reply. 8. That the particulars to the Reply provided by letters dated 2 May and 1 June 2011 be struck out on the ground that they are inconsistent with the Reply. 7 The Federal Court Rules 2011 commenced on 1 August 2011. I will refer to those rules as the Federal Court Rules. Rule 1.04(2) provides that those rules apply to a step in a proceeding that was started before 1 August 2011, if the step was taken on or after 1 August 2011. Rule 1.04(3) provides that a Court may order that the Federal Court Rules as in force immediately before 1 August 2011 apply, with or without modification, to a step taken on or after 1 August 2011. I will refer to these rules as the previous Federal Court Rules. 8 Neither party made detailed submissions on whether the Federal Court Rules or the previous Federal Court Rules applied to the hearing and determination of these applications. I think that was because they proceeded on the assumption that the nature of the orders sought were such that there would be little difference in result between an application of the Federal Court Rules and the previous Federal Court Rules. 9 The hearing and determination of the respective applications is probably a step in the proceeding. The question of what constituted a 'fresh step' was considered by the Full Court of the Supreme Court of South Australia in Gertig v Davies [2003] SASC 86; 85 SASR 226. The point of disagreement in that case concerned the meaning of 'fresh step'. At all events, I think that the hearing and determination of these applications is a step in the proceeding within Rule 1.04(2). Neither party applied for an order that the previous Federal Court Rules apply to the hearing and determination of these applications. I will decide the applications by reference to the Federal Court Rules. 10 I will deal with the respondents' application first. 1. The application for an order that the applicant identify any emails discovered by the respondents at item 60 of the respondents' List of Documents, the authenticity of which is disputed by her, within seven days. 11 On 28 February 2011 the respondents filed and served a List of Documents dated that day. In Schedule 1 Part 1 document number 60, is described under the heading 'Date' as follows: Various dates between 26 June 2008 and 11 February 2010. The description of document number 60 in the List is as follows: A seven folder bundle of email correspondence between the Applicant and others from her email address of [email address stated but not included here] and work related emails about or affecting the Applicant. 12 Order 18 rule 3 of the previous Federal Court Rules was in the following terms: 3 Admission of documents discovered (1) Where a list of documents is served on a party under Order 15 (which relates to discovery and inspection of documents), and inspection of any document specified in the list is permitted to that party under that Order, then, subject to subrule (2), the following admissions by that party in favour of the party serving the list shall have effect unless the Court otherwise orders: (a) that the document, if described in the list as an original document, is an original document and was printed, written, signed or executed as it purports to have been; or (b) that the document, if described in the list as a copy, is a true copy. (2) Where a party: (a) has by his pleading or affidavit denied the authenticity of a document; or (b) within 14 days after the time limited under Order 15 for inspection of a document, serves on the party giving inspection a notice that he disputes the authenticity of the document; subrule (1) does not work an admission by the first mentioned party as to that document. There is an equivalent rule in the Federal Court Rules: Rule 22.05. 13 The respondents do not rely on this rule for the purposes of arguing that they have some form of accrued right under the previous Federal Court Rules. Rather, they point to this rule as showing a purpose of achieving the effect of a notice to produce documents and a notice to admit authenticity of documents without the formality of serving such notices. They seek the order they do under this Court's general power in rule 5.04(3) Item 12 of the Federal Court Rules (previous Federal Court Rules O 10, r 1(2)(a)(iv)). 14 The respondents submit that the emails support their case that the applicant and the second respondent were involved in a consensual affair and that the emails are inconsistent with the applicant's implicit contention that advances by the second respondent were objectively 'unwelcome' within the meaning of s 28A of the Sex Discrimination Act 1984 (Cth). They further contend that the tone and nature of the emails are inconsistent with certain events pleaded in the applicant's Statement of Claim. 15 A number of emails which are said to have passed between the applicant and the second respondent are in fact pleaded by the respondents in their Defence (see paragraphs 59.2-59.6 inclusive, paragraph 115.2, paragraph 139, and paragraphs 168.2, 168.3, 168.4, 168.5, 168.6 and 168.8). As I understand it the emails which are pleaded are only a small part of the email correspondence which comprises document number 60. 16 The respondents contend that the applicant has not clearly stated whether she disputes the authenticity of the emails comprising document number 60. First, they point to her pleading responding to the emails which they have pleaded. Generally, the applicant's plea in her Reply to those emails is a denial and a plea along the following lines: says that any emails produced to the effect pleaded were not sent or drafted by the applicant. In addition, she pleads that in one case an email pleaded by the respondents has not been accurately translated from Greek to English. The respondent submits that the plea 'to the effect pleaded' is broad enough to cover emails other than those pleaded by them. They submit that the applicant might argue that it is broad enough to put them on notice that the authenticity of other emails, including those forming part of document number 60, is in issue. They submit that the emails comprising document number 60 will be relevant at trial and that they are entitled to know before trial whether the applicant will be challenging the authenticity of those emails. If she is challenging the authenticity of the emails then the respondents wish to engage an expert to examine the question of authenticity. Secondly, the respondents submit that there are a number of indications in the correspondence which has passed between the solicitors for the respective parties to the effect that the applicant wishes to reserve her position as to the authenticity of some of the emails. On 11 May 2011 the respondents' solicitors wrote to the applicant's solicitors and among other things they said: We look forward to receipt of the document mentioned in your paragraph 9.4. Until we are in a position to identify with precision the emails which your client contends are not authentic (and presumably therefore allegedly forged) we are unable to commence the process of obtaining relevant expert evidence on those matters. The same applies to your client's contentions about the translation of emails written by her in Greek. 17 On 1 June 2011 the applicant's solicitors wrote to the respondents' solicitors and among other things they said: 3. We understand that this point addresses paragraph 10 in your letter. Apart from those specifically addressed in the Reply and our client's further particulars, our client cannot unequivocally ascertain which other emails were not sent or drafted by her. The Applicant can recall some emails which she says were not sent or drafted by her, but during the relevant period our client was under extreme pressure and harassment and her ability to recall hundreds of emails is simply not possible. This is supported by the psychiatric and psychological assessment undertaken on our client. 18 On 10 June 2011 the applicant's solicitors wrote to the respondents' solicitors and said among other things: In the fifth paragraph you again raise issues with emails having been forged. Our client's reply sufficiently identifies relevant emails in that category. Clearly there are a large number of emails of which you have given discovery which are non-contentious. Our client identifies specifically no emails other than those identified in her reply. We reiterate that our client cannot, by way of sworn testimony, concede that she sent all emails other than those specifically identified. In respect of some emails she might allow for the possibility that she did not have a belief that she sent or drafted them. Under those circumstances our client cannot say categorically that they are forged. She is not prepared to concede that they are forged. Consistent with her oath we consider this to be a proper response. 19 Finally, the respondents refer to extracts from a report of Dr Ewer dated 14 April 2011 in which he recorded the fact that during a consultation with the applicant she denied writing certain emails which he discussed with her. 20 Despite what is alleged in her solicitors' correspondence, the applicant did not put forward any medical evidence on this application in support of the contention that her medical state was such that 'her ability to recall hundreds of emails is simply not possible'. Nor is there any evidence of that fact from the applicant herself. 21 The applicant opposed the order sought by the respondents on the basis that the exercise she would be required to perform would be too onerous and too expensive. She contended that the respondents had pleaded the important emails in their Defence and that she had stated her position with respect to those emails in her Reply. She submitted that this was sufficient for the purposes of the proceeding. 22 The emails comprising document number 60 in the respondents' List of Documents appear to be relevant to an important aspect of the respondents' defence. Some emails are likely to be more relevant than others and in any event the precise degree of relevance may not be known until the plaintiff puts on her evidence-in-chief by way of affidavit or until she answers questions in cross-examination. Understandably the respondents wish to be in a position to prove at trial (if they are able to) the authenticity of emails denied by the plaintiff. The correspondence from the applicant's solicitors suggests that it would be dangerous for the respondents to do no more than rely on some form of accrued right under Order 18 rule 3 of the previous Federal Court Rules. They could serve a notice to admit under Rule 22.01 of the Federal Court Rules 2011, but they wish to avoid the costs of doing so. Indeed, the applicant did not suggest that the order should be refused because the respondents should issue a notice to admit. 23 In my opinion, it is appropriate to make the order sought by the respondents. 2. The application for an order that the applicant provide further particulars of: 1. The documents which are the subject of the claim for privilege referred to at paragraph 1.4 of the letter of the applicant's solicitors to the respondents' solicitors dated 1 June 2011. 2. The basis for the claim for privilege in respect of each such document. 24 Paragraph 1.4 in the letter from the applicant's solicitors dated 1 June 2011 is in the following terms: 1.4 We have already discovered some of this material. Legal professional privilege is claimed over documents obtained from third parties being photocopies of documents created by third parties; Commissioner, Australian Federal Police and Another v Propend Finance Pty Ltd and Others (1997) 188 CLR 501. 25 This paragraph is in response to a letter from the respondents' solicitors to the applicant's solicitors dated 19 May 2011 which is in the following terms: We are instructed to seek the following orders and directions at the interlocutory hearing on 26 May 2011. 1. An order that the Applicant provide further and better discovery of: 1.1… 1.4 notes, memoranda and other documents used by her to identify the date and nature of the occasions pleaded in the Claim; 26 The applicant has filed two lists of documents, a List of Documents filed on 8 April 2011 and a Further List of Documents filed on 31 May 2011. In Schedule 1 Part 2 there are two categories of documents described as follows: 235 Documents recording, evidencing or otherwise referring to a confidential communication made between the Applicant and Camatta Lempens Pty Ltd Lawyers for the dominant purpose of: (a) obtaining or giving legal advice to the Applicant; or (b) obtaining and providing to the Applicant legal services relating to this proceeding. 236 Documents obtained, prepared, made, created or otherwise brought into existence (whether delivered or not) for the dominant purpose of: (a) obtaining or giving legal advice to the applicant; or (b) obtaining or providing to the Applicant's [sic] legal services relating to this proceeding. 27 There are similar categories described in the same way in the applicant's Further List of Documents. 28 Rule 20.17(2)(c) of the Federal Court Rules requires a party providing a list to describe 'each document in the party's control for which privilege from production is claimed and the grounds of the privilege' (see Order 15 r 6 of the previous Federal Court Rules). 29 The documents in question are copies in the possession of the applicant or her solicitors of original documents which are not privileged. The applicant maintains privilege over the copies having regard to the principles identified in Commissioner of Australian Federal Police v Propend Finance Pty Ltd (1997) 188 CLR 501, that is to say, the copies have been prepared for the purpose of this proceeding and show or may show the basis upon which the applicant's solicitors are proceeding in the preparation of her case. 30 The applicant appears to accept that there has not to date been an adequate description of the documents. In any event I am satisfied that that is so. However, the applicant contends that to require too precise a description would undermine the very basis of the privilege she claims (see Cape Wools SA v KPMG Corporate Finance (Vic) Pty Ltd [2002] VSC 571 at [20]-[24] per Habersberger J). Whether there is any substance in that point will best be determined (if necessary) after compliance with the order sought by the respondents, which is in quite general terms, and further argument. 31 In my opinion, it is appropriate to make the order sought by the respondents. 3. The application for the order is not pressed at this stage. 4. The application for an order that the applicant make further and better discovery of her mobile phone records for the period from September 2009 to February 2010 inclusive. 32 The applicant's last working day with the first respondent was 26 August 2009. The applicant has discovered her mobile telephone records for the period ending 20 September 2009. As I understand it, that is an arbitrary date dictated by the way in which the records are prepared. The records suggest that the applicant telephoned the second respondent on 8 September, 10 September and 16 September 2009. 33 The applicant pleads in her Statement of Claim that on 22 October 2009 the second respondent subjected her to a detriment within s 94 of the Sex Discrimination Act 1984 (Cth) (paragraph 100A). Details of the relevant conduct are pleaded. She further pleads that on 5 February 2009 she received a telephone call on her Blackberry mobile telephone around midday and that the telephone identified the caller as being the second respondent. The applicant did not answer the call. A voicemail message was left and it was a song. Again it is alleged that the second respondent's conduct constituted a detriment. Alternatively, it is alleged that it was a threat to subject the applicant to a detriment (paragraph 103). The applicant also pleads that on 10 February 2010 at 11.45 pm the applicant received another telephone call from the second respondent's telephone being the same mobile telephone referred to in paragraph 102 (paragraph 105). 34 The respondents seek further and better discovery of the applicant's mobile telephone records for the period from September 2009 to February 2010. The order is sought under Rule 20.21 of the Federal Court Rules. 35 It is reasonable to infer that such records exist, and the only issue appears to be whether they are relevant. I think that they are in view of the applicant's pleadings. It is no answer to the order sought to contend, as the applicant did, that the respondents have not discovered equivalent records in their control. If necessary that might lead to an equivalent order being made against them. 36 In my opinion it is appropriate to make the order sought by the respondents. 5. The application for an order that the applicant make further and better discovery of the copy taken from her mobile phone referred to at paragraph 5 of the affidavit of Mr Du Plessis sworn 7 October 2011 and her mobile telephone 37 It is necessary to refer briefly to some historical matters. 38 On 15 July 2011 the respondents filed an affidavit of Mr Mark Garnett sworn on 14 July 2011. Mr Garnett describes himself as a forensic consultant. In his curriculum vitae he states that he is a partner of McGrath Nicholl Forensic, the leader of its forensic technology team, and that he 'specialises in seizing and analysing digital evidence, data recovery, electronic discovery, electronic evidence preservation and conducting other computer related and fraud investigations'. 39 Mr Garnett annexes to his affidavit a copy of a document which contains a number of text messages between the applicant and the second respondent from 6 March 2009 to 2 September 2009. The document itself is document number 101 in the applicant's List of Documents dated 8 April 2011. Mr Garnett states that the document sets out certain short message service ('SMS') reports from a mobile phone and he refers to the forensic application which has been used to extract the messages from the mobile phone device. He expresses the opinion that the forensic application would have a great deal more data than that shown in the document which the applicant had discovered. He identifies that data. Mr Garnett swore a supplementary affidavit on 22 September 2011. He was asked to do so after the applicant had made further discovery of an expanded version of document number 101 and of eight photographs. He expresses the opinion that the expanded version of the document is not a complete copy of the mobile phone device or of the report produced as a result of the forensic application. Mr Garnett outlines the information he would try to obtain if he had access to the electronic report produced as a result of the forensic application. 40 On 7 October 2011 the applicant filed an affidavit of Mr Jean-Pierre Du Plessis sworn on that day. Mr Du Plessis is a partner of Ferrier Hodgson and he practises in the area of forensic IT, and financial investigations and fraud. He states that the SMS extracts comprising the expanded version of document number 101 are all of the SMSs between 26 February 2009 and 11 December 2009. In paragraph 5 of his affidavit Mr Du Plessis states: I refer to paragraph 6 of the Garnett July affidavit. I assume Mr Garnett, by not knowing the full detail of XRY extraction, refers to an 'image' (as in a physical extraction) of the mobile phone being taken. XRY version 4.5 then did not support a physical extraction of a Blackberry 9000 device and hence only a logical extraction was obtained. The date at the top of Annexure B does refer to when the extraction took place. 41 Mr Garnett swore a third affidavit on 12 October 2011. He explains the difference between a physical extraction and a logical extraction of the mobile phone device. He outlines the information which may be contained in the metadata which would be part of the logical extraction. Counsel for the applicant challenged the expertise of Mr Garnett to express some of the opinions in his evidence. I am satisfied that Mr Garnett had the expertise to express the main opinions set out in his evidence. 42 Since the hearing the Court has been provided with a letter from the applicant's solicitors to the respondents' solicitors dated 14 October 2011. In that letter the applicant's solicitors set out the matters which would be included in a further affidavit of Mr Du Plessis if the applicant was given leave to file a second affidavit of Mr Du Plessis. I have given the information careful consideration. Mr Du Plessis describes the exercise he carried out in obtaining the logical extraction. He identifies the information he was able to find and the information which was not available. The thrust of his evidence is that all the available information has been provided to the respondents. Furthermore, the applicant pointed to the fact that she had provided some of the information (that is, the date upon which photographs were taken) which the respondents said might be obtained from the logical extraction of the mobile telephone to them. 43 The difficulty with the applicant's argument is this. The applicant's mobile telephone and the logical extraction therefrom are discoverable documents. A Court may decide not to order discovery or further and better discovery where satisfied discovery is not necessary. For example, depending on the circumstances, it may not be necessary to order discovery of an original if a copy has been discovered and it is clear that there is no difference between the two. The evidence in this case including Mr Du Plessis' evidence and the other evidence advanced by the applicant falls well short of establishing that state of affairs in this case. The respondents are entitled to the order they seek. 44 In the circumstances it is not necessary for me to rule on whether the applicant should have leave to file a second affidavit of Mr Du Plessis. 45 The applicant referred to difficulties she was experiencing in obtaining discovery of the second respondent's mobile telephone or an extraction therefrom. That is not a reason not to make the order sought by the respondents. If there are grounds the applicant may bring an appropriate application. 46 In my opinion it is appropriate to make the order sought by the respondents. 6. Not pressed. 7. The application for an order that the applicant provide particulars of paragraph 38 of her Reply 47 In paragraph 168.3 of their Defence the respondents plead an email (translated from Greek to English) which they contend disproves or tends to disprove an allegation in the Statement of Claim. In paragraph 38 of her Reply the applicant pleads that the respondent's translation is not an accurate one. However, she does not plead what she contends is an accurate translation of the email. 48 The respondents are entitled to fair notice of the case they will have to meet at trial. That will mean that they, if so advised, will be able to obtain an accurate translation of the email. Notice before trial may mean that there will be no dispute or only a limited dispute at trial. 49 In my opinion it is appropriate to make the order sought by the respondents. 8. The application for an order that the particulars to the Reply provided by letters dated 2 May 2011 and 1 July 2011 be struck out on the ground that they are inconsistent with the Reply. 50 As I have said, the respondents' case is that the applicant and the second respondent had a consensual affair over a period of about 14 months and that gifts were exchanged and that there were many acts of sexual intercourse. In addition, their case is that many emails of a sexually explicit nature were exchanged between the applicant and the second respondent. 51 As I said earlier, in their Defence the respondents plead the contents of a large number of emails and other documents such as photographs. Clearly the respondents wish to know whether the applicant denies preparing and sending the emails and other documents. 52 The paragraphs in the Defence which are relevant to the order sought by the respondents are paragraphs 59.2-59.6, 115.2, 139, 168.2, 168.3, 168.4, 168.5, 168.6 and 168.8. 53 The plaintiff has responded to these paragraphs in paragraphs 13, 29, 36 and 38 of her Reply. The pleas are the same in each case, being a specific denial ('specifically denies') and a plea of 'says that any emails produced to the effect pleaded were not sent or drafted by the Applicant'. 54 By letters dated 2 May 2011 and 1 June 2011 the applicant has provided particulars of those paragraphs of her Reply. The difficulty with the particulars is that in certain respects they depart from the Reply. Examples are as follows: 1. The particulars foreshadow an amendment to paragraph 38 of the Reply to delete the reference to paragraph 168.5 and add a reference to 168.7 (in so far as it is suggested that the applicant forwarded an email chain to the Second Respondent). 2. As a particular of her Reply the applicant says that as to any photographs or communications referred to in paragraphs 59.2 and 59.3 of the Defence she contends that they were altered by the respondents and not sent from the applicant's mailbox. These particulars are probably within the pleas in the Reply but are to be contrasted with a further particular that states: As to 59.6 the Applicant has no recollection of sending an email in these terms but accepts that some emails passed on the topic of rental income on city apartments – she does not accept that they are as described. 3. In one of the particulars the applicant states that she did draft one of the emails but that she sent it to her husband. 55 There are other examples where there are departures from the Reply. Although not all of the particulars involve a departure from the Reply, a number of them do and I think that all of the particulars should be struck out. I would add that in view of the particulars provided it seems to me that the Reply will need to be amended. 56 I think it is appropriate to make the order sought by the respondents. 57 I turn now to the applicant's application. An application for an order 2. That the: … 2.10 first and second respondents discover all communications by email or SMS between the second respondent and any and all other women alluding to meetings with the second respondent on or about the days of the alleged sexual intercourse and encounters in the week preceding the alleged incidences of sexual intercourse in paragraph 12.5 of the Defence 58 Two matters are clear from the pleadings and the respondents' List of Documents filed on 28 February 2011. First, the second respondent alleges that he met the applicant at motels and other places and engaged in sexual intercourse with her. He has, he alleges, invoices and receipts to prove these events. Secondly, the applicant denies these alleged meetings. In those particular circumstances the documents described in the proposed order are relevant. However, the proposed order is very broad and in my opinion a more limited order is appropriate. I will make an order in the following terms: That the first and second respondents discover all communications by email or SMS between the second respondent and any and all other women (other than any member of the second respondent's family) alluding to meetings with the second respondent (other than meetings at the second respondent's business premises) on the days of the alleged sexual intercourse and encounters in the week preceding the alleged incidences of sexual intercourse in paragraph 12.5 of the Defence. CONCLUSION 59 I will make the orders sought by the respondents and the order set out above in favour of the applicant. As there may be a need for confidentiality undertakings I will give the respondents the opportunity to bring in minutes of order reflecting the conclusions expressed in these reasons. The order in favour of the applicant can be included in those minutes. I certify that the preceding fifty-nine (59) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 28 October 2011