FEDERAL COURT OF AUSTRALIA Veolia Water Australia Pty Ltd v Centennial Springvale Pty Limited (No 2) [2023] FCA 1025 File number: NSD 204 of 2022 Judgment of: GOODMAN J Date of judgment: 29 August 2023 Catchwords: PRACTICE AND PROCEDURE – previous order made for discovery of data concerning samples of water taken from the Springvale and Angus Place mines – documents discovered which contained data from the mines and data from elsewhere – order made requiring the prospective respondents to identify for each identified sampling point whether the data was from the mines, in circumstances where such information was required to ensure the efficacy of the previous order and the prospective respondents identified no prejudice PRACTICE AND PROCEDURE – application for the first and second prospective respondents to provide an affidavit explaining certain matters relating to the process by which the documents were discovered, and certifying that discovery is complete – application refused Legislation: Federal Court of Australia Act 1976 (Cth), ss 23, 37P Federal Court of Australia Rules 2011 (Cth), rr 7.23, 20.16, 20.17 Cases cited: Reilly v Australia and New Zealand Banking Group Ltd (No 4) [2021] FCA 1552 Veolia Water Australia Pty Ltd v Centennial Springvale Pty Limited [2023] FCA 443 Division: General Division Registry: New South Wales National Practice Area: Commercial and Corporations Sub-area: Commercial Contracts, Banking, Finance and Insurance Number of paragraphs: 29 Date of hearing: 15 August 2023 Counsel for the Prospective Applicant: Mr G A Sirtes SC with Ms J Wright Solicitor for the Prospective Applicant: Baker McKenzie Counsel for the Prospective Respondents: Ms H Mann Solicitor for the Prospective Respondents: Herbert Smith Freehills ORDERS NSD 204 of 2022 BETWEEN: VEOLIA WATER AUSTRALIA PTY LTD ACN 061 161 279 Prospective Applicant AND: CENTENNIAL SPRINGVALE PTY LIMITED ACN 052 096 812 First Prospective Respondent BOULDER MINING PTY LIMITED ACN 112 796 308 Second Prospective Respondent ENERGY AUSTRALIA NSW PTY LTD ACN 75 163 935 635 Third Prospective Respondent order made by: GOODMAN J DATE OF ORDER: 29 August 2023 THE COURT ORDERS THAT: 1. Within 14 days, Centennial Springvale Pty Limited, Boulder Mining Pty Limited, and EnergyAustralia NSW Pty Ltd, identify, for each Sample Location, whether the raw data, analysed data, analytical data and processed data of samples and/or tests provided by the Prospective Respondent in response to the Orders, is from: (a) Bore Holes; and/or (b) Mine Water; or (c) neither Bore Holes or Mine Water. Bore Holes means all bore holes that store and/or hold Mine Water; Mine Water means water including ground water treated or untreated from Springvale Mine and/or Angus Place Mine; Orders means the orders made by the Honourable Justice Goodman on 10 May 2023 in NSD 204 of 2022; Sample Location means the locations identified in the column titled 'sampling location' in Annexure A to this Order. 2. The prospective applicant's application is otherwise dismissed. 3. The parties confer on the question of costs of the application and of compliance with order 1 and notify the Associate to Goodman J, by 8 September 2023, of any agreed position. 4. If the parties are unable to reach an agreed position concerning costs, then: (a) the parties file and serve any evidence and submissions concerning costs (limited to 3 pages) by 15 September 2023; (b) the parties file and serve any evidence and submissions concerning costs in reply (limited to 3 pages) by 22 September 2023; and (c) the question of costs is to be determined on the papers and without an oral hearing. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT GOODMAN J A. INTRODUCTION 1 On 10 May 2023, I made an order (discovery order) for the prospective respondents (Customer) to give discovery to the prospective applicant (VWA), of Data (as defined) for a Period (as defined): see Veolia Water Australia Pty Ltd v Centennial Springvale Pty Limited [2023] FCA 443 (Veolia (No 1)). Some familiarity with Veolia (No 1) is assumed in these reasons. 2 Subsequently, the Customer provided discovery to VWA. VWA now seeks a further order which it contends is necessary because of the form in which the discovery was provided. It also seeks an order requiring a solicitor of the firm acting for the Customer to make an affidavit providing an explanation of certain matters relating to the process by which the discovery was provided; and certifying that the discovery is now complete. B. BACKGROUND 3 The discovery order was in the following terms: 1. The prospective respondents give discovery to the prospective applicant of the Data for the Period where: (a) Data means any raw data, analysed data, analytical data and processed data of samples and/or tests of Mine Water and Bore Holes; (b) Mine Water means water including ground water treated or untreated from Springvale Mine and/or Angus Place Mine; (c) Bore Holes means all bore holes that store and/or hold Mine Water; and (d) Period means from 1 October 2014 to 12 November 2017. 4 The effect of the discovery order, broadly, was to require the Customer to discover data of samples of water from the Springvale Mine and/or the Angus Place Mine (together, the Mines) during the Period (Mines Data). 5 On 31 May 2023, the Customer served two affidavits of discovery (one on behalf of the first and second prospective respondents made by Ms Melinda Loh; and the other on behalf of the third prospective respondent). The 1,388 documents the subject of the lists attached to those affidavits were provided to VWA. I will refer to the discovery of those documents as the first disclosure. 6 On 8 June 2023, the Customer provided eight further documents to VWA (second disclosure). 7 On 24 July 2023, the Customer provided 92 further documents to VWA (third disclosure). 8 By the first, second and third disclosures, the Customer produced documents recording data of samples of water. For some documents, it is possible to ascertain from the information contained therein that the data is Mines Data. This is because it is clear on the face of those documents that the source of the sample is a location within the Mines. 9 However, for many other documents, it is not possible to ascertain from the information therein whether the data they contain came from samples of water taken from within the Mines or from samples of water from elsewhere (Other Data). This is due in part to the descriptors used to identify the source of the samples taken, which do not match the sampling locations within the Mines identified as part of the initial application. Indeed, many of the descriptors do not, on their face, identify a location at all. 10 There has been considerable correspondence between the solicitors for the Customer and the solicitors for VWA. It is sufficient for present purposes to note that: (1) the solicitors for the Customer indicated that the Customer provided discovery of documents which contain both Mines Data and Other Data; and (2) during the course of such correspondence the respective parties adopted, from a relatively early point, entrenched positions focused upon whether or not the Customer had complied with the discovery order in circumstances where many of the documents discovered contain both Mines Data and Other Data and VWA is not able to ascertain which of the data within particular documents is Mines Data and which is Other Data. 11 VWA took the position that the Customer, by providing discovery in that form, had not complied with the discovery order. The Customer insisted that it had complied with the order because it had provided the Mines Data as part of the information it provided on discovery and called in aid of its position the well-established practice of discovering complete documents where only a portion of the information contained in such documents meet the criteria for discovery. C. THE FIRST ORDER SOUGHT 12 The first order sought by VWA is: Within 14 days, Centennial Springvale Pty Limited, Boulder Mining Pty Limited, and EnergyAustralia NSW Pty Ltd, identify, for each Sampling Location, whether the raw data, analysed data, analytical data and processed data of samples and/or tests provided by the Prospective Respondent in response to the Orders, is from: a. Bore Holes; and/or b. Mine Water; or c. neither Bore Holes or Mine Water. Bore Holes means all bore holes that store and/or hold Mine Water; Mine Water means water including ground water treated or untreated from Springvale Mine and/or Angus Place Mine; Orders means the orders made by the Honourable Justice Goodman on 10 May 2023 in NSD 204 of 2022; Sample Location means the locations identified in the column titled 'sampling location' in Annexure A Sample Locations. 13 The reference in the chapeau to "Sampling Location" appears to be an error. I will treat it as a reference to "Sample Location". 14 The essence of this order is to require the Customer to notify VWA, for each "Sample Location", whether the water sampled came from within the Mines or not. 15 The Court clearly has power to make the further order sought by VWA: see Reilly v Australia and New Zealand Banking Group Ltd (No 4) [2021] FCA 1552 at [11] and [13] (O'Bryan J). More particularly, ss 23 and 37P of the Federal Court of Australia Act 1976 (Cth) provide ample power to make bespoke orders with respect to discovery, including orders to ensure that orders previously made by the Court concerning discovery are efficacious. Rule 20.17 of the Federal Court of Australia Rules 2011 (Cth) may provide another source of such power (noting that the order made pursuant to r 7.23(2) required the Customer to give discovery; r 20.16 provides that discovery is given by service of a list of documents in accordance with r 20.17; and r 20.17(3) enables a party to apply to the Court for particular orders after such a list of documents has been served). 16 The question whether the power ought to be exercised in the present case arises in the following context: (1) the discovery order required discovery of the Mines Data; (2) many of the documents discovered contained Mines Data and Other Data; (3) VWA is not in a position to determine which data is Mines Data and which data is Other Data; and (4) VWA asserts, and the Customer denies, that in these circumstances the Customer has not complied with the discovery order. 17 As I indicated during the course of argument, I consider that a frame of reference in which one determines whether or not there has been compliance with the discovery order is of little assistance. That is so because even if one assumes that the Customer has complied with the discovery order, a question still remains as to whether the Court should make the first order sought on this application. 18 It is regrettable that the parties in the correspondence appear to have approached the issue within such a binary frame of reference. The issue is not one that is assisted by adopting such a frame of reference and adopting polar positions. It is an issue in respect of which the Court is entitled to expect the parties to take a less confrontational approach; to identify the problem that has arisen; and to confer as to methods of resolving that problem. In this regard, see Reilly at [11]. 19 The answer is not to be found by reference to a practice of discovering the whole of documents where only part of a document meets the criteria for discovery, in circumstances where VWA is not in a position to tell which parts of the data discovered are Mines Data and which are not. 20 Nor, contrary to the Customer's submission, is the answer to be found by reference to the usual caution exercised by courts in modern litigation before ordering a party to answer interrogatories. Whilst it may be accepted that the order sought by VWA would require the Customer to answer questions concerning the information it has provided in response to the discovery order, this is of itself an insufficient reason to decline to make the order. It is also necessary to consider other factors including the efficacy of the discovery order and that the first order sought is sought in a context in which VWA is at a disadvantage to the Customer holding the data because of the knowledge imbalance between them concerning the data and, in particular, as to which of the data is Mines Data and which is Other Data. The existence of disadvantage suffered by a party seeking discovery of data in circumstances where only the party holding the data has particular information as a matter informing the exercise of the discretion was recognised in Reilly at [11]. 21 In my view, the first order sought by VWA should be made, for the following reasons. First, upon compliance with that order, VWA should have information sufficient to allow it to determine which of the data provided by the Customer pursuant to the discovery order is Mines Data and which is Other Data. Secondly, absent the making of such an order, much of the data that has been provided by the Customer pursuant to the discovery order will remain inutile to VWA in its consideration of whether to commence a proceeding against the Customer. Of course, the very purpose of the discovery order was to provide VWA with information so that it could consider whether to commence such a proceeding. Thus, the making of the order now sought is desirable to ensure the efficacy of the discovery order. Thirdly, the Customer adduced no evidence of any prejudice that it would suffer if that order were to be made. Whilst counsel for the Customer suggested that there would be some prejudice I am not prepared to conclude that there would be, absent evidence on that topic within the affidavit made by Mr Hansen, the solicitor for the Customer, in response to the present application. D. THE SECOND ORDER SOUGHT 22 The second order sought by VWA is: Within 14 days, Centennial Springvale Pty Limited and Boulder Mining Pty Limited provide an affidavit from Melinda Anne Loh which, by reference to her affidavit sworn 31 May 2023: ... d. explains why it took until 24 July 2023 for the Third Disclosure to be produced; e. explains why Centennial Springvale Pty Limited and Boulder Mining Pty Limited did not put Veolia on notice of the "technical issue" at any time before the Third Disclosure; and f. swears that all documents in the possession of Centennial Springvale Pty Limited and Boulder Mining Pty Limited that fall within the Orders have now been disclosed. 23 As noted above, the first to third disclosures occurred on 31 May 2023, 8 June 2023 and 24 July 2023 respectively, and the affidavit of discovery provided for the first and second prospective respondents in support of the first disclosure was made by Ms Loh. 24 Mr Hansen's unchallenged evidence included evidence that: (1) in order to respond to the discovery order, a pool of potentially relevant documents was identified (including from identified document repositories), collected, and placed into a discovery database; (2) keyword searches were performed; (3) each of the documents responding to the keyword searches or residing in potentially relevant sub-folders within the collected document repositories were reviewed by a legal analyst, graduate or solicitor to determine whether the document fell within the scope of the discovery order; (4) the documents which fell within the scope of the discovery order and which were not the subject of a claim of privilege were provided as the first disclosure on 31 May 2023; (5) on 2 June 2023, the solicitors for VWA raised a query, by email, concerning "host documents" referred to in "validator logs"; (6) between 6 June 2023 and 8 June 2023, in order to be able to answer that query with certainty, employees of the solicitors for the Customer individually reviewed all of the "host documents" identified in the "validator logs" attached to the 2 June 2023 email, which had not been previously reviewed because they had not been captured by the keyword searches. This was because information within images embedded in those emails was not identified by the keyword searches. This review led to the identification of the eight further documents the subject of the second disclosure; (7) between the identification of the issue described in the previous sub-paragraph in early June 2023 and 24 July 2023, to ensure the issue was fully addressed, the following steps were undertaken: (a) a Senior Associate under the supervision of Mr Hansen worked with a Senior Executive in the Alternative Legal Services (eDiscovery) team employed by the solicitors for the Customer. They implemented a secondary layer of processing over all collected documents in order to conduct searches over any text within embedded images; (b) following that secondary layer of processing, the keyword searches were re-run over all collected documents; (c) documents which were identified as responsive to the keyword searches, and which had not previously been reviewed, were individually reviewed; (d) all "family" documents (where a "host" email and its attachments comprise a document "family") of the documents produced as part of the first disclosure were individually reviewed, even if they had not responded to the keyword searches originally applied; and (e) this process produced the 92 further documents the subject of the third disclosure on 24 July 2023. 25 VWA did not seek to cross-examine Mr Hansen. Nor did it adduce any evidence that might cast doubt upon his evidence (and in particular suggesting that the steps taken between early June and 24 July 2023 could have been completed earlier). 26 I have no reason to doubt that the processes described by Mr Hansen took the time described by him. In these circumstances, I see no reason to require the first and second prospective respondents to provide the explanations sought in proposed orders 2(d) and (e). 27 I turn now to proposed order 2(f). 28 VWA submitted that it is unclear whether all documents in the Customer's possession that fall within the discovery order have been discovered. In support of this submission, VWA relied upon the history of the disclosures made, including the timing of the third disclosure. I do not accept this submission. Further, there is no basis from which to conclude that proper discovery has not been provided. Indeed, the further investigations undertaken by the solicitors for the Customer undermine, rather than support, a conclusion that discovery has been inadequate. E. CONCLUSION 29 For the reasons set out above the first, but not the second, order sought by VWA should be made. The parties should be provided with an opportunity to confer about an appropriate form of orders concerning costs. I will make orders accordingly. I certify that the preceding twenty-nine (29) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Goodman. Associate: Dated: 29 August 2023