Federal Court of Australia Finnegan v Washington (No 4) [2024] FCA 1054 File number: WAD 429 of 2019 Judgment of: JACKSON J Date of judgment: 6 September 2024 Date of publication of reasons: 10 September 2024 Catchwords: PRACTICE AND PROCEDURE - referee appointed pursuant to s 54A(1) of the Federal Court of Australia Act 1976 (Cth) to prepare a report in respect of questions arising in interlocutory disputes - disputes involved the scope of a proposed subpoena, discovery, interrogatories and costs - issues as to scope of proposed subpoena and interrogatories not pressed - consideration of procedure on receipt of referee report - consideration of general principles applicable to the exercise of the Court's discretion to adopt, vary or reject referee report - referee report adopted in respect of certain categories of discovery and interrogatories - referee report not adopted in relation to subpoena issues not pressed - remaining questions as to balance of referee report and costs reserved Legislation: Evidence Act 1995 (Cth) Federal Court of Australia Act 1976 (Cth) ss 37N, 37M, 54A, Part VB Federal Court Rules 2011 (Cth) rr 1.41, 20.13, 20.14, 28.67, Division 28.6 Defamation Act 2005 (WA) s 36 Cases cited: Brookfield v Yevad Products Pty Ltd [2002] FCA 1376 Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 CPB Contractors Pty Ltd v Celsus Pty Ltd (No 2) [2018] FCA 2112; (2018) 268 FCR 590 Finnegan v Washington (No 2) [2020] FCA 1587 Finnegan v Washington (No 3) [2020] FCA 1654 Gulf Conveyor Systems Pty Ltd v Gulf Integrated Systems Solutions Pty Ltd [2020] FCA 1245 Kadam v Miiresorts Group 1 Pty Ltd (No 4) [2017] FCA 1139; (2017) 252 FCR 298 Mulley v Manifold (1959) 103 CLR 341 Division: General Division Registry: Western Australia National Practice Area: Other Federal Jurisdiction Number of paragraphs: 71 Date of hearing: 22 July 2024 Counsel for the Applicant: The applicant appeared in person Counsel for the First Respondent: Mr NG Olson Solicitor for the First Respondent: Wotton + Kearney Counsel for the Second Respondent: The second respondent appeared in person Counsel for the Third Respondent: Ms D Blane Solicitor for the Third Respondent: Aherns Lawyers ORDERS WAD 429 of 2019 BETWEEN: PATRICK FINNEGAN Applicant AND: TIM WASHINGTON First Respondent MATTHEW KEMNER Second Respondent RICHARD BAIRD Third Respondent order made by: JACKSON J DATE OF ORDER: 6 September 2024 THE COURT ORDERS THAT: 1. Pursuant to s 54A(3)(a) of the Federal Court of Australia Act 1976 (Cth), the referee report dated 16 May 2024 is adopted in respect of its conclusions on the following questions: (a) 'Is it necessary and/or appropriate to allow the applicant to administer interrogatories and, if so, what questions should be included in those interrogatories?'; and (b) 'What further orders, if any, should be made in relation to discovery?', in so far as those conclusions relate to discovery of documents in the designated categories 1(a), 2(b)(i), 8, 9, 10(a) and 10(b). 2. The referee report is not adopted in respect of its conclusions on the question of 'What is the appropriate scope of any subpoena that is to be served on Slack Technologies Ltd overseas?' 3. The applicant's interlocutory application accepted for filing on 15 September 2020, as revised before the referee, is dismissed in so far as it seeks: (a) orders for interrogatories to be administered; and (b) discovery of documents in the designated categories 1(a), 2(b)(i), 8, 9, 10(a), 10(b), 14, 17 and 18. 4. The questions of: (a) the adoption or otherwise of the balance of the referee report; and (b) the costs of the parties' applications in respect of the referee report; are reserved to judgment at a later date. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. REASONS FOR JUDGMENT JACKSON J: 1 On 22 July 2024 I heard applications by the parties for a number of interlocutory orders: (a) by the applicant, Patrick Finnegan, to make orders for discovery inconsistent with orders recommended in the report of a referee; (b) by Mr Finnegan, for the costs of his application for discovery and interrogatories, payable on a party-party basis forthwith; (c) by the respondents, for orders adopting the report of the referee (except in relation to the scope of a subpoena which is no longer pressed); and (d) by Mr Finnegan, for orders that the respondents be required to pay his costs of seeking the issue of subpoenas to Slack Technologies Limited, payable on an indemnity basis forthwith. 2 The referee's report, which is dated 16 May 2024, made recommendations as to what should be done in relation to a range of interlocutory disputes involving discovery, interrogatories, the scope of a proposed subpoena, and costs. All of the above orders were opposed by the parties who were not seeking them. 3 On 6 September 2024 I made orders in respect of the first three of the above subjects and reserved to a later date the question of costs, including costs issues raised by Mr Finnegan that potentially go outside the scope of the referee report. I determined that it was convenient to split the resolution of the parties' disputes in this way, so that the matter could be programmed as far as possible to trial, without being held up by the resolution of the somewhat involved issues about costs. These are the reasons for those orders. The referee's report 4 The nature and background of the proceeding were summarised in Finnegan v Washington (No 2) [2020] FCA 1587 (Finnegan (No 2)) and the summary will not be repeated here. 5 In that decision, I dismissed an application by Mr Finnegan for the service overseas of a subpoena to Slack Technologies, a company domiciled in the Republic of Ireland, essentially because the scope of the subpoena was too wide. Subsequently, under s 54A of the Federal Court of Australia Act 1976 (Cth) I referred to a registrar of this Court acting as referee the question of the appropriate scope of any subpoena to be served on Slack Technologies overseas and questions as to the costs orders that should be made in respect of an application filed by Mr Finnegan (after Finnegan (No 2)) for leave to serve a subpoena on Slack Technologies overseas, and the costs of an application by the third respondent, Richard Baird, to set that subsequent subpoena aside. 6 In Finnegan v Washington (No 3) [2020] FCA 1654 (Finnegan (No 3)) I ordered that an interlocutory application by Mr Finnegan for standard and non-standard discovery and for interrogatories was to be adjourned because it was premature. I also referred the questions of discovery and interrogatories and the appropriate costs orders to be made on Mr Finnegan's application to the referee. 7 In his report, the referee reached the following conclusions: (a) he identified the appropriate scope of the subpoena to be issued to Slack Technologies - as will be seen, this issue has fallen away so there is no need to describe that scope; (b) there should be no order as to the costs of the two interlocutory applications concerning the subpoena; (c) no further orders should be made in relation to discovery, at least not at this time; (d) it is not necessary or appropriate to give Mr Finnegan leave to administer interrogatories; and (e) Mr Finnegan should pay the respondents' costs of the interlocutory application for discovery and interrogatories on a party-party basis. 8 As to the first two of these conclusions, Mr Finnegan said that the subpoena to Slack Technologies no longer serves any useful purpose, so there is no dispute about its scope and he does not press for leave to serve it overseas. It was therefore appropriate simply not to adopt the referee's recommendations about its scope. 9 As has been said, in relation to the conclusions listed at (c) above, Mr Finnegan sought further orders for discovery, and so contended that I should vary the referee's report in that regard. 10 At the hearing, Mr Finnegan no longer pursued interrogatories and so did not oppose an order consistent with the referee's conclusion at (d) above. 11 As said above, the respondents opposed Mr Finnegan on each of the other points and sought orders which adopt and give effect to the conclusions of the referee (with the exception of the conclusions on the scope of the subpoena, as this application was effectively withdrawn). Given that orders concerning the scope of the subpoena and interrogatories are not opposed, the balance of these reasons concern the adoption of the referee's report in connection with what further discovery, if any, the respondents should give. Mr Finnegan's submissions on discovery 12 Mr Finnegan's discovery application referred to above was accepted for filing on 15 September 2020. It sought orders for standard discovery, non-standard discovery, and interrogatories. Consent orders made on 10 November 2020 required each party to give standard discovery pursuant to r 20.13 and r 20.14 of the Federal Court Rules 2011 (Cth). Each party then provided a list of documents verified by affidavit. 13 Before the referee, Mr Finnegan pressed the discovery application in respect of a revised list of categories of non-standard discovery. The referee concluded that no further discovery orders should be made, providing reasons in relation to each category of the revised list. Mr Finnegan then sought orders which vary this conclusion by making orders for discovery of some of the categories. He said that the referee 'excluded relevant evidence'. 14 Mr Finnegan sought orders for discovery of documents in categories 1(a) and 2(b)(i) of the revised list, which broadly relate to certain membership records of the Electric Vehicle Council (EVC), and communications between board members of the EVC in relation to attempts by E-Station Pty Ltd (a company run by Mr Finnegan) to join the EVC. Mr Finnegan submitted that the referee overlooked matters pleaded in the schedule to the amended defence of the first respondent, Tim Washington, which concern the reason that Mr Finnegan refused membership on behalf of E-Station (pleaded to have been because of certain views Mr Finnegan held about the membership fee). Mr Finnegan also sought to rely on new evidence which, he said, shows the membership fees offered to other entities by the EVC. The referee found that category 1(a) did not relate to an issue in dispute in the pleadings and, regardless, that the documents were not in the respondents' power, possession or control. The latter conclusion seemed to apply to both categories. 15 The issue thus raised by Mr Finnegan's submissions was: should the referee's report be varied so as to order discovery of documents under categories 1(a) and 2(b)(i) concerning membership of the EVC and communications between board members of the EVC about attempts by E-Station to join the EVC? 16 Mr Finnegan also sought an order in terms of category 8 of the revised list, which broadly relates to communications between the ACCC and the respondents. The referee concluded that this category was too broad and lacks relevance. Mr Finnegan submitted that this was a serious error, in that the referee overlooked that the category relates to evidence that would be relevant and so admissible under the Evidence Act 1995 (Cth). 17 The issue thus raised was: should the referee's report be varied so as to order discovery of documents under category 8 concerning communications between the respondents and the ACCC? 18 Mr Finnegan also sought an order in terms of category 9 of the revised list, which relates to communications between the respondents in relation to the email sent by Mr Finnegan which prompted the allegedly defamatory statements the subject of this proceeding, defined as 'The Email'. The referee concluded that this category did not relate to an issue arising on the pleadings. Mr Finnegan submitted that his amended statement of claim put malice in issue, so that communications between the respondents in respect of whether they together planned to make defamatory statements are relevant; and that the referee therefore excluded relevant evidence. 19 The issue thus raised was: should the referee's report be varied so as to order discovery of documents under category 9 concerning communications between the respondents about The Email? 20 Finally, Mr Finnegan sought orders in terms of categories 10(a) and 10(b) of the revised list, which broadly seek all documents relating to 'proper material' obtained by Mr Baird and separately by the second respondent, Matthew Kemner. This related to material that Mr Kemner and Mr Baird each referred to in paragraphs 10(e)(iii) and 7(d)(iii) of their amended defences, respectively. For this category, the referee found that no adequate explanation had been given as to why discovery should be ordered. 21 The issue thus raised was: should the referee's report be varied so as to order discovery of documents under category 10 concerning the 'proper material' referred to in Mr Kemner's and Mr Baird's defences. 22 Mr Finnegan did not seek to vary the referee's conclusion that discovery should not be ordered in respect of categories 14, 17 and 18 of the revised list, as he said he has since obtained the relevant information himself. It was therefore appropriate to make orders dismissing his application for discovery in relation to those categories. However, Mr Finnegan did challenge the referee's conclusion on the costs of the discovery application, which concerns the referee's findings in respect of those categories. So despite the orders dismissing the application for categories that are no longer pressed, it was appropriate neither to adopt nor reject the referee's conclusions about those categories at this stage, and to consider them, to the extent necessary, when dealing with questions of costs. Procedure on receipt of a referee's report 23 Section 54A(1)(b) of the Federal Court Act empowers the Court to refer one or more questions arising in a proceeding in the Court to a referee for inquiry and report in accordance with the Federal Court Rules. 24 Section 54A(3) empowers the Court to deal with a referee's report as it thinks fit, including adopting it (in whole or in part), varying it, or rejecting it. The Court may make such orders as it thinks fit in respect of any proceeding or question referred to the referee: s 54A(3)(d). 25 The report of a referee has no effect unless and until the Court chooses to adopt it: see CPB Contractors Pty Ltd v Celsus Pty Ltd (No 2) [2018] FCA 2112; (2018) 268 FCR 590 at [55] (Lee J). Under r 28.67(1) of the Federal Court Rules, after a referee's report has been given to the Court, a party may, on application, ask the Court to do any of the following: (a) adopt, vary or reject the report, in the whole or in part; (b) require an explanation by way of a further report by the referee; (c) remit on any ground, for further consideration by the referee, the whole or any part of the matter that was referred to the referee for inquiry and report; (d) decide any matter on the evidence taken before the referee, with or without additional evidence; (e) give judgment or make an order in relation to the proceeding or question. 26 However, a party 'must not adduce in the Court evidence given in an inquiry': r 28.67(2). If a party makes an application to the Court under r 28.67(1), the Court may grant or refuse the order sought or make a different order: r 1.41 of the Federal Court Rules; s 54A(3) of the Federal Court Act. 27 The discretion to adopt, vary or reject a report is broad but must be exercised in a manner consistent with both the object and purpose of Part VB of the Federal Court Act and Division 28.6 of the Federal Court Rules, and consideration should start with the overarching purpose of the civil practice and procedure provisions to promote the quick, inexpensive and efficient resolution of proceedings in the Court: Gulf Conveyor Systems Pty Ltd v Gulf Integrated Systems Solutions Pty Ltd [2020] FCA 1245 at [12], [14] (Katzmann J); Referee and Assessor Practice Note (GPN-REF) (3 November 2022) at paragraphs 2.13-2.14; see also s 37M of the Federal Court Act; Kadam v Miiresorts Group 1 Pty Ltd (No 4) [2017] FCA 1139; (2017) 252 FCR 298 at [52]-[58] (Lee J). 28 The exercise of the discretion was described by Katzmann J in Gulf Conveyor Systems at [12]-[21]. I respectfully adopt her Honour's summary of the principles and recite some of them that are relevant here. A party who is dissatisfied with a referee's report is not entitled to require the Court to reconsider and redetermine afresh matters of fact or law that the party wants to contest: Gulf Conveyor Systems at [13]. Further: (1) Such a party will generally need to point to some error of principle, absence of or excessive jurisdiction, patent misapprehension of the evidence (meaning 'a lack of understanding of the evidence and not the weight attributed to it') or perversity or manifest unreasonableness in fact finding (meaning 'a conclusion that no reasonable tribunal of fact could have reached'): Gulf Conveyor Systems at [16], quoting Chocolate Factory Apartments Pty Ltd v Westpoint Finance Pty Ltd [2005] NSWSC 784 at [7]. (2) If a party disputes a conclusion of the referee on a question of law or the application of legal standards to established facts, a proper exercise of discretion requires the judge to consider and determine that matter afresh: Gulf Conveyor Systems at [15]. (3) It is not enough for a party to point to an error of fact amenable to correction by an appellate court. The referee's findings of fact should generally not be re-agitated before the Court, and disputed questions of fact should not be reconsidered if the referee had sufficient factual material to reach their conclusions: Gulf Conveyor Systems at [17]. (4) Although the reasons given by the referee may appear to be adequate, where the party challenging the report contends that they are not because the referee did not deal with 'very significant evidence', the Court may examine the evidence to see whether the reasons were in fact inadequate because they omitted to refer to such evidence: Gulf Conveyor Systems at [20], quoting Chocolate Factory Apartments at [7]. Whether to adopt, vary or reject the referee's report as to discovery The principles to be applied 29 The referee procedure under s 54A of the Federal Court Act has been embraced by numerous judges of this Court as an efficient way of resolving interlocutory disputes, among many other things. The many and intricate issues raised by Mr Finnegan in response to the referee's report of 16 May 2024 shows that the procedure failed to achieve that end in this matter. 30 Nevertheless, in determining those issues, it remained important to have regard to the overarching purpose of the civil practice and procedure provisions as set out in s 37M of the Federal Court Act and the corresponding obligations on parties to act consistently with that purpose in s 37N. That purpose includes the objectives of efficient use of judicial and administrative resources, efficient disposal of the Court's overall caseload, and resolution of disputes at a cost that is proportionate to the importance and complexity of the matters in dispute: s 37M(2)(b), (c) and (e). Under s 37M(3), the Court must exercise its powers to dispose of the present interlocutory issues in the way that best promotes the overarching purpose, which includes those objectives. 31 The parties are entitled to justice, of course, but they are not entitled to seek it at all costs. As such, it would be inconsistent with the overarching purpose to entertain too readily any challenge to the referee's conclusions in this matter. I have proceeded on the basis that it was necessary for Mr Finnegan to show that the referee made an error of law (either in stating the law or in applying it to established facts), or overlooked or misunderstood something important, or reached a manifestly perverse or unreasonable conclusion, or that there has been a significant change in circumstances. Mr Finnegan did not identify any error in the Registrar's statements of the applicable law, so that may be put to one side immediately. 32 Similarly, it would be inconsistent with the overarching purpose to accede too readily to a claim that the respondents have failed to provide adequate discovery. The good sense of the principle found in Mulley v Manifold (1959) 103 CLR 341 at 343 (Menzies J) and similar cases is readily apparent. Both the principle and its rationale are encapsulated in Brookfield v Yevad Products Pty Ltd [2002] FCA 1376 at [21] (Mansfield J): … The corollary of the Court's acceptance of a verified list of documents is its willingness to accept the parties' own statement as to the documents in its possession custody or power. Thus, a verified list of documents is generally conclusive of its contents. The Court is concerned to prevent a contest between two competing oaths that only a trial could resolve. See generally Bray, The Principles and Practice of Discovery, 1885, pp 127, 155, 220-223; Cairns, Australian Civil Procedure, Law Book Co., 5ed 2002, p 289. Although that position has been relaxed to some extent, the principle that a verified list of documents is generally conclusive of its contents has not been abolished. The Court will only order a further affidavit or permit cross-examination of a deponent of an affidavit verifying a list of documents in limited circumstances. An early expression of those exceptions can be found in Jones v Monte Video Gas Co (1880) 5 QBD 556 at 558 per Brett LJ: 'either party to an action has a right to take out a summons that the opposite party shall make an affidavit of documents: when the affidavit has been sworn, if from the affidavit itself, or from the documents therein referred to, or from an admission in the pleadings of the party from whom discovery is sought, the master or judge is of opinion that the affidavit is insufficient, he ought to make an order for a further affidavit; but except in cases of this description no right to a further affidavit exists in favour of the party seeking production. It cannot be shown by a contentious affidavit that the affidavit of documents is insufficient.' 33 On the basis of the above principles, Mr Washington objected to certain affidavits Mr Finnegan had affirmed which sought to impugn the discovery that the respondents had given. Counsel for Mr Washington submitted that the principles rendered those affidavits irrelevant. I determined that the affidavits would be received subject to that overarching objection, which would be determined at the same time as judgment is given (more specific objections were also determined at the hearing). 34 However, I have not found it necessary to resolve that overarching objection for the purposes of these reasons, as I have determined in favour of the respondents on all the discovery issues anyway. Where it has been necessary to apply the above principles, I have done so other than on the basis of the admissibility of evidence. It is preferable to reserve the question of the admissibility of the affidavits to the costs issues that are yet to be determined, as they are likely to turn on evidence that Mr Finnegan gives in the affidavits. 35 I now turn to my determination of whether the referee's report should be adopted in relation to each discovery issue pressed by Mr Finnegan. Categories 1(a) and 2(b)(i) membership of the EVC 36 Category 1(a) of the discovery sought by Mr Finnegan as outlined in the referee report was: 'Electric vehicle council Membership Records for each of the following financial years 2016- 2017, 2017-2018, 2018-2019 and 2019-2020'. 37 Category 2(b)(i) was: All documents including letters, briefings, emails, notes, SMS messages, minutes of meetings, records of meetings, records of telephone calls, transcripts of telephone calls, records of conversations and transcripts of conversations including chat applications and social media between board members of the Electric Vehicle Council referring to attempts by E-Station to join the Electric vehicle council. 38 The referee recommended dismissal of Mr Finnegan's application for discovery of these categories on the basis of relevance. He determined that there was no plea as to the composition of the membership of the Electric Vehicle Council. 39 In his oral submissions at the hearing on 22 July 2024, Mr Finnegan submitted that the referee erred because 'under the Evidence Act, evidence is admissible or it's not. So if the evidence is admissible, it should be relevant, and relevant evidence should be admitted. And my point is that that fact is relevant'. In other words, Mr Finnegan asserted that the information he seeks was relevant. 40 However that assertion was made before the referee, who rejected it. The referee's conclusions about these categories, and about the others addressed below, need to be read in conjunction with the following overarching observation that he made on page 13 of his report: In conclusion, as confirmed by the case law, the requirements of r 20.14 include that the documents are 'directly relevant' to the issues raised in the proceeding and that is particularly so in relation to an order for non-standard discovery by way of discovery in categories and that it could not be the intent of such an order that the discovery to be provided would have a wider ambit than standard discovery. 41 Thus, the referee was conscious that this specific discovery was being sought in circumstances where standard discovery had already been ordered and given. 42 Mr Finnegan demonstrated no basis not to accept the referee's determination in relation to these categories. The referee referred to Mr Washington's defence, and so did not overlook it. Mr Finnegan simply disagreed with the referee's assessment as to relevance. 43 In any event, I respectfully agreed with the referee that the categories sought were not relevant. The pleas in the schedule to Mr Washington's defence that concern the EVC are merely by way of background to pleas of the substantial truth of the allegedly defamatory imputations. They state (bold in original): 3. In 2018, the Applicant exchanged correspondence with the EVC in relation to the possibility of E-Station becoming a member of the EVC. 4. The Applicant decided not to take up a membership for E-Station with the EVC because, in the Applicant's view, the EVC's standard membership fee of $15,000 was an anticompetitive barrier to entry which favoured the commercial interests of large operators in the electric vehicle industry at the expense of the commercial interests of smaller competitors (Applicant's Grievance). 44 This alleged grievance is then said to have led to The Email from Mr Finnegan, which led to the allegedly defamatory statements made in the 'off_topic' channel on the Slack 'workspace' which is the site of the alleged publication. 45 Mr Finnegan contended in oral submissions that the reasons why E-Station refused to join the EVC are in issue. This appears to be based on the simple fact that Mr Finnegan has not filed a reply and so has joined issue with the respondents on each of their defences. 46 But even if that is so, on their face categories 1(a) and 2(b)(i) are unlikely to shed light on those reasons, which were subjective to E-Station and, possibly, were expressed by it to the EVC or others. The disputed categories would cover a wide range of membership records and communications between board members (not with E-Station or Mr Finnegan). Also, they would likely require searches for and production of a wide range of records and so would be disproportionate to the importance of what are, essentially, allegations of matters that comprise mere background and context to the plea of substantial truth. 47 Mr Finnegan also expressed concern that if he did not challenge the allegation made in Mr Washington's pleading, the court could draw an inference against him. But with respect, even if that is so, it has no relevance to a dispute about discovery. No inference would be drawn from any omission by Mr Finnegan to seek discovery of these categories. 48 Mr Finnegan established no error of law, oversight, misunderstanding or perverse or unreasonable conclusion by the referee in relation to discovery categories 1(a) and 2(b)(i). Hence I made orders adopting the referee's report in so far as it concerns those categories. Category 8 - communications with the ACCC 49 Category 8 was: All documents including letters, briefings, emails, notes, SMS messages, minutes of meetings, records of meetings, records of telephone calls, transcripts of telephone calls, records of conversations and transcripts of conversations including chat applications and social media relating to communications between the respondents and the ACCC. 50 The referee recommended against ordering discovery of this category because it appeared to be based on a misapprehension by Mr Finnegan that there had been communications between the respondents and the ACCC. He also considered that the category was too broad and lacked relevance because it is neither alleged nor denied that the ACCC was contacted on 8 April 2019. 51 It will be recalled, as context for this issue, that the essence of the defamatory imputation said to have been conveyed by the respondents is that Mr Finnegan falsely represented in The Email that the ACCC was investigating the EVC. Since the respondents have pleaded defences of substantial truth, it is in issue in the proceeding whether such a representation, if made, was false. Mr Washington specifically alleges in his defence that on 8 April 2019, an ACCC employee described The Email as a 'scam' and said that the ACCC 'would be updating its 'Scamwatch' website to include details about the Email' (para 11(d)(v)). 52 Mr Finnegan said that category 8 goes to the issue of whether the ACCC was investigating the complaint. He claims that he has a right to ask Mr Washington, by way of a discovery request, whether Mr Washington had received any communication from the ACCC to the effect that it was not investigating the EVC. In oral submissions Mr Finnegan seemed to assert, once again, that the category was relevant under the test for admissibility of evidence. 53 None of this presents any basis to reject or vary the referee's report in relation to category 8. One ground on which the referee has recommended against ordering discovery in this category is that it is too broad. That would appear to be correct, given that it seeks discovery of a much wider range of material than any communication from the ACCC to Mr Washington to the effect that there was no investigation. 54 Nor has Mr Finnegan given any reason to think that the referee was wrong to say that there had been no communications between the respondents and the ACCC. 55 It must also be remembered that standard discovery as to issues raised by the pleadings has already been ordered; clearly any written record of the alleged statement made by the ACCC on 8 April 2019 in the possession, custody or power of any of the respondents would be relevant and would need to be discovered. Mr Finnegan has established no basis to think that it was not discovered. The principles summarised in Brookfield v Yevad were thus engaged. 56 As such, I adopted the referee's report in so far as it concerns the issue of discovery of documents in category 8. Category 9 - communications between the respondents relating to The Email 57 Category 9 was: All documents including letters, briefings, emails, notes, SMS messages, minutes of meetings, records of meetings, records of telephone calls, transcripts of telephone calls, records of conversations and transcripts of conversations including chat applications and social media relating to communications between the Respondents referring to 'The Email'. 58 The referee recommended against ordering discovery in this category because it did not arise from any issue raised on the pleadings. 59 Mr Finnegan said that the communications are relevant to the issue of malice, raised in his statement of claim as a matter supporting an award of aggravated damages. It is not clear whether Mr Finnegan raised that argument with the referee. Once again, in oral submissions Mr Finnegan merely asserted that the category was relevant. 60 Also once again, this does not give any sufficient basis to think that the referee erred in determining that the communications were not relevant. It does not suffice for Mr Finnegan to express disagreement with the referee in that regard. He has not demonstrated that the referee has made any error of law, or misunderstood anything, or overlooked or disregarded an important body of evidence. 61 In so far as malice is concerned, s 36 of the Defamation Act 2005 (WA) and cognate provisions in other jurisdictions provide: In awarding damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff. 62 It is difficult to see how communications between the respondents, even if showing malice on their part, could affect the harm that Mr Finnegan has sustained if he has not seen those communications, as must be the case in relation to documents of which he seeks discovery. 63 I therefore adopted the referee's report in so far as it concerns the issue of discovery of documents in category 9. Category 10 - the 'proper material' relied on by Mr Kemner and Mr Baird 64 Category 10(a) was as follows (italics in original): All documents including letters, briefings, emails, notes, SMS messages, minutes of meetings, records of meetings, records of telephone calls, transcripts of telephone calls, records of conversations and transcripts of conversations including chat applications and social media relating to the 'proper material' that was 'obtained by the second respondent at the time of publication in his capacity as a Tesla owner, previous independent contractor to the applicant and electronic vehicle enthusiast' 65 The 'proper material' in question is material that Mr Kemner says in his defence he had obtained that provided a basis for opinions expressed in the allegedly defamatory comments attributed to him. 66 Category 10(b) is similar, save that it concerns 'proper material' that Mr Baird alleges in his defence was the basis of the allegedly defamatory comments he made, which he says was a properly based opinion about a matter of public interest. 67 The referee determined that no adequate explanation had been given as to why discovery should be ordered in categories 10(a) and 10(b). 68 In his submissions on the application in respect of the referee's report, Mr Finnegan provided no basis to think that any adequate explanation, or any explanation at all, was given to the referee as to why discovery of these documents should be ordered. 69 It must be recalled once again that standard discovery has already been ordered and provided, which the referee clearly had in mind as set out at [40] above. Mr Finnegan's affidavit, affirmed on 27 May 2024, simply asserted that Mr Kemner and Mr Baird had not given discovery of the 'proper material'. But he pointed to no admission by those respondents, and to nothing in the affidavits of discovery, or in the documents discovered, to support those bald assertions. 70 As explained above, in the absence of evidence of that kind, the Court will not look behind the affidavits of discovery that have been provided. It will certainly not do so on the sole basis of mere assertions by the party seeking discovery. While the defences imply that the relevant respondents have (or at least had) the material, Mr Finnegan has not established that it has not been discovered. 71 For those reasons, I adopted the referee's report in so far as it concerns the issue of discovery of documents in categories 10(a) and 10(b). I certify that the preceding seventy-one (71) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Jackson. Associate: Dated: 10 September 2024