District Court New South Wales Medium Neutral Citation: Thompson v Department of Defence t/as Commonwealth of Australia [2023] NSWDC 475 Hearing dates: 7 November 2023 Date of orders: 7 November 2023 Decision date: 07 November 2023 Jurisdiction: Civil Before: Abadee DCJ (as List Judge) Decision: See paragraphs [41]–[42] Catchwords: CIVIL PROCEDURE – late application for directions regarding the adducing of expert evidence – hearing scheduled for March 2024 - consideration of multiple objections by respondent – discretionary considerations Legislation Cited: Defence Force Discipline Act 1982 (Cth), s 101X(2) Uniform Civil Procedure Rules 2005, rr 15.7, 15.8, 31.19, 31.20 Evidence Act 1995, s 79 Category: Procedural rulings Parties: Sophie Louise Thompson (plaintiff/applicant) DEPARTMENT OF DEFENCE trading as Commonwealth of Australia as represented by Department of Defence (defendant/respondent) Representation: Counsel: Mr A Khoury (plaintiff/applicant) Ms L Johnston (defendant/respondent) Solicitors: Operational Legal Australia for the plaintiff Thompson Cooper Lawyers for the defendant File Number(s): 2023/00110053 Publication restriction: Nil Ex Tempore Reasons for JUDGMENT Background 1. The plaintiff was at all material times a Private in the Australian Army and member of the Australian Defence Force. On 13 February 2020, a warrant was issued for the seizure of the plaintiff's mobile phone under s 101X(2) of the Defence Force Discipline Act 1982 (Cth) ('DFD Act'). This was after the Joint Military Police Force (JMPF) commenced an investigation, on or about 18 February 2019 into suspected fraud committed by the plaintiff relating to a rental allowance concerning a lease that was entered in June 2019. The plaintiff's mobile phone was seized on 17 February 2020. Eventually it was returned to her in December 2022. 2. By this proceeding, which commenced on 5 April 2023, the plaintiff sues the Department of Defence, trading as the Commonwealth of Australia (the 'Commonwealth') for different causes of action under the rubric of Trespass to Goods. She contends that the warrant was unlawfully issued and therefore the seizure of her mobile phone was not justified; that if the seizure was justified, then this was only conditional upon its return by a certain point, and that persons within the Department committed the torts of detinue and conversion after she had demanded the return of her mobile phone. 3. Part of the applicant's argument appears in sub-paragraph 10(b) of her amended pleading. This part of her case is premised upon acceptance of the Commonwealth's argument that seizure of her mobile phone was authorised. On that premise, she alleges that a trespass was committed since the mobile phone was retained 'for a period longer than was authorised'. Specifically, at sub-paragraph 10(b)(iii), as an alternative, she alleged that there was a trespass in 'continuing the passing of a time reasonably necessary to allow data to be extracted from the mobile phone, and continuing until the mobile phone was returned.' 4. The plaintiff sues for damages, including aggravated and exemplary damages. I note however, that contrary to rr 15.7 and 15.8 of the Uniform Civil Procedure Rules 2005 ('UCPR'), no particulars appear to have been supplied to the Commonwealth to support claims of exemplary and aggravated damages, respectively. By the same token, no point has been taken by the Commonwealth about these omissions. 5. The Commonwealth admits that the plaintiff's mobile phone was seized, but denies liability. In particular, it contends, as a complete answer to the claims, that it had lawful excuse to possess and examine the plaintiff's mobile phone under s 101X of the DFD Act. 6. The Commonwealth requested further and better particulars generally on 10 May 2023. Amongst other things, the Commonwealth requested particulars about sub-paragraph 10(b). In answer to a request as to how long the warrant authorised retention of the mobile phone for, the plaintiff said that this was a matter for evidence. Asked for the time and date when the trespass commenced, the plaintiff responded, as one alternative, that it followed and continued after the time reasonably necessary to allow data to be extracted from the phone and continued until the time the phone was returned. 7. The Commonwealth did not, so far as I am aware, dispute the adequacy of those, or any other answers to requests for particulars. 8. In relation to the part of plaintiff's argument that I have singled out, being sub-paragraph 10(b) of her amended pleading, the Commonwealth said that the mobile phone was brought to the Executive Officer of the plaintiff's then unit on 24 November, but otherwise denied the allegations. 9. This proceeding has been fixed for hearing for 18 March 2024, with an estimate of 4 days. 10. On 13 October 2023, the plaintiff (who I will henceforth refer to as the applicant), filed a notice of motion in which she sought an order from the Court under r 31.19(2) of the UCPR to make directions to facilitate the plaintiff in leading expert evidence at trial. It appears from the Court file that the applicant had suggested such evidence might be led at the Status Conference on 20 September 2023, which was the date that the Judicial Registrar fixed the hearing. 11. The motion was returnable before me, when sitting as Civil List Judge, on 30 October 2023 and I made directions for the exchange of evidence and submissions. Evidence 1. The applicant relied upon two affidavits of her solicitor, Paul James, affirmed on 13 October 2023 and 2 November 2023, respectively. The key paragraph in his first affidavit was expressed as follows: "It is necessary to adduce expert evidence so as to determine the time it would reasonably take for the Military Police, and/or any police unit, and/or any reasonably competent mobile phone technician, to extract the data from a mobile phone." 1. Mr James believes that the answer to this question "will be of assistance" to the Court when dealing with the proceeding. 2. In his second affidavit, Mr James deposed to having found a digital forensics company, Forensic IT Solutions Pty Ltd, which has indicated its willingness to provide expert evidence. The individual expert identified is Andrew Le. Mr James deposes on the basis of information presumably supplied by that company that Mr Le is capable of explaining what it means to extract data from a phone, and, amongst other things, to estimate the amount of time it might reasonably take for a technician to perform the extraction; upon the assumption that technology was available to him. 3. An initial draft letter of instruction (which is partly incomplete) has been drafted and directed to the attention of the director of the company (David Caldwell). By paragraph 13 of that draft letter, an indication has been supplied to the company that the application is made jointly with the Commonwealth, but that indication is arguably qualified by the incomplete part of the letter, which deals with who is responsible for payment of the expert's fees. 4. The Commonwealth, who I will henceforth refer to as the 'respondent', relies upon the affidavit of its solicitor, Patrick Riordan, sworn on 3 November 2023. 5. Mr Riordan points out the following: * As at 6 September 2023, the applicant's lawyer had indicated, by email, that she expected she would rely upon the evidence of one expert witness, subject to reviewing the respondent's Defence; * Mr Riordan became personally aware of the applicant's intention to adduce oral evidence by 13 September, although no expert report had been served by that stage; * On 15 September, Mr Riordan wrote to Mr James and set out the respondent's grounds for objecting to the applicant adducing expert evidence. Those grounds included the circumstance that no directions for such evidence had, to that stage, been sought; that the applicant's Counsel had represented (earlier) that the only witness in the applicant's case would be the applicant herself; the procedural requirement that expert reports must be in writing and served before the Status Conference to be admissible; and that this is a case where expert evidence is not reasonably required to resolve the proceeding. This elicited, in reaction, an indication by the applicant that she might call Dominic Giles, a former Military Police member, and sought the respondent's consent. That consent was not forthcoming. * After the exchange of correspondence between the lawyers, on 19 September, the Judicial Registrar indicated that no leave had been granted to the applicant to rely upon expert evidence. * Mr James' affidavit of 2 November 2023 was the first occasion that the respondent had learned that the applicant was proposing a joint expert report and although he had not actually obtained instructions, he anticipated that the respondent would not agree to a joint engagement of an expert. The respondent's position was to oppose in principle the engagement of any expert. * Mr Riordan has expressed various concerns about the implications, in time, and delay if, contrary to the respondent's position, leave was granted to the applicant to serve evidence. We are now in early November. No concrete indication has been given as to when a single expert's report could be prepared and he estimated that the respondent might need 8 weeks to respond to such report (and that estimate is highly provisional) which, on the assumption that the applicant's report was prepared expeditiously, would clash with the Court vacation. After that, in light of the Court's standard expectation of at least considering whether the evidence of competing experts can be given concurrently, there will need to be additional delay in arranging for an expert conclave and joint report. * Mr Riordan estimated that the respondent would likely incur costs in the range of between $5,000 to $10,000 (plus GST) in obtaining its own evidence and the joint expert report. 1. The respondent also handed up correspondence (Exhibit 2) indicating that the applicant was on notice for a need for evidence going back to 2021. Submissions The applicant's submissions 1. The applicant recognises that she has brought this application late, but submits that the question it wishes to have expert evidence about is important: it may help to resolve the proceeding and is something which should be answered by an expert. 2. The applicant says that the timing for how long the mobile phone was seized is an issue in the proceeding. She says it is difficult how the Court can determine the case without the evidence. 3. The applicant has cited the willingness of a company to provide expert evidence. The company is said to be experienced in litigation. 4. The questions proposed in the letter attached to Mr James' second affidavit are limited, precise and pertinent. 5. The circumstance that the matter was set down for hearing on 19 September should not bar the applicant's capacity to rely upon the report. The delay has not been substantial, noting the hearing that is to occur is scheduled for 18 March. The respondent's submissions 1. The respondent complains of lateness, in two particular respects. The first is a change of position, in terms of the applicant representing whether she wanted to rely upon expert evidence; the second is an indication of the proposed expert she wanted to adduce evidence from. 2. The respondent refers to rules of Court which emphasise the importance of expedition in obtaining expert reports or directions for them. It complains, in particular, that the applicant's evidence provides no indication as to when the report could be served and points to the time that Mr Riordan estimates that the applicant would be able to respond to. 3. The respondent contests the argument that expert evidence is reasonably required to resolve the proceeding. It is only the actions of the military police that are in issue, so it is irrelevant how long it might have taken to extract data from the mobile phone that was seized. The respondent refers the Court to the way that the applicant pleads her case. This emphasised seizure for 'longer than was authorised'. This is a legal question. Alternatively, what time is reasonably necessary for extraction must be pegged to the time it took to examine the phone. 4. The respondent says that the question of how long a step in a military police investigation should reasonably takes fall outside the domain or expertise of a digital forensic expert. It is not shown that the proposed expert is properly qualified in having experience as a military police officer. In this way, there is a concern that the evidence given might be inadmissible under s 79 of the Evidence Act. 5. There are certain other matters of form that raise concern, such as the make or model of the mobile phone; the point of time at which data is extracted; or the purposes for the examination, including any encryption or access control, being so far omitted from the draft letter of instruction. Consideration 1. It is common ground that the application is late and, by itself, that factor weighs against its acceptance. But the more important question is whether the respondent would be materially prejudiced if the application was granted. 2. To determine whether the respondent is materially prejudiced draws attention to the importance of the evidence. 3. I do not find persuasive the respondent's submission that the evidence which the applicant proposes to adduce is so obviously likely to be irrelevant such as to justify rejection of all the other arguments. The respondent may ultimately be right in its construction of the scope of its authority under the search warrant, but that should not preclude the applicant from obtaining evidence to support her construction of the scope of authority. The respondent has not sought to strike out or have summarily dismissed sub-paragraph 10(b) of the amended pleading. Nor did it take issue with the adequacy of the further particulars that the applicant supplied (see now the postscript). 4. Nor do I find persuasive the respondent's points that the evidence would so obviously be inadmissible under s 79 of the Evidence Act. In particular, it would not be conclusive, at the point of admissibility, whether the expert that the applicant wishes to adduce evidence from has military experience. There is force in the applicant's point that the issue of how long data could be extracted from a mobile phone was a question of fact beyond the competence of the average lay person. 5. Further still, a concern that the applicant's proposed expert may not have necessary or sufficient instructions to opine is not decisive. The Court would expect that if the expert felt that he did not have sufficient information, and consistently with the expert's obligations under the Code of Conduct, he would indicate as much. Further, anticipating, as I do, that the respondent would have the opportunity to serve evidence in response, it may be that a greater, or more reliable amount of relevant information at that expert's disposal may mean that greater weight might be invested in the opinions of any expert called by the respondent. 6. The force of the respondent's argument, such as it is, rests in concerns about time; given the proximity of the hearing and in particular, the likely effect of the looming Court vacation. It is a concern that the applicant's evidence of when its expert could provide that expert's opinion is not disclosed; although Mr Khoury indicated in Court that it could be prepared "in a short time." The Court is concerned with the prospect that whatever estimate that the applicant's proposed expert might give might blow out in a way that severely limit the time for the respondent to adduce its own expert evidence. 7. However, in my view, the solution to that prospect is to impose a tight time constraint upon the applicant to have its expert provide his opinion, failing which the applicant may require the Court's leave to rely upon the opinion. After all, as the applicant says in her submissions, the proposed questions are relatively succinct. 8. What is important, is that there be opportunity for the parties' experts to confer and produce a joint report before the hearing commences. 9. I acknowledge that what I propose may cause inconvenience to the respondent, probably involving some part of the time of the vacation. This is not, however a weighty consideration when many Courts, and therefore legal practitioners, are back at work, as it were, from about the middle of January 2024. It ought to be possible for the Commonwealth, with its resources, to find an expert who can respond to a report received from the applicant before the end of term this year at a reasonable point next year. Indeed being apprised of the questions which the applicant wishes to ask the expert, there seems to be no obvious reason why the respondent could not take preliminary steps now to seek out its own expert and, having regard to the period in which it has had the mobile phone in its possession, it may be thought it has much information about the qualities or characteristics of the mobile phone (in question) that it might brief such an expert with. 10. Estimates as to how long the process of obtaining reports can take are somewhat rubbery, but I consider that the task should be manageable. In the event that the respondent, in particular, simply cannot comply in a way that will put it in a position to ready itself for the hearing next year, it would be expected that it might bring a timely application and, if the evidence is good enough, it might be that such application is viewed somewhat sympathetically. That, however, is to anticipate matters which may never occur. 11. In the face of the respondent's opposition, the expert evidence will not be given by a single or joint expert. 12. In summary, the applicant is late, but the dictates of justice indicate that this vice can, on balance, be rectified. The respondent is not materially prejudiced, but the applicant could be prejudiced if its application fails. Orders 1. Subject to hearing from the legal representatives, I propose the following orders and directions: 1. Subject to a qualification, pursuant to r 31.19 and 31.20, I direct that the plaintiff be permitted to adduce expert opinion evidence from the firm Forensic IT Solutions Pty Ltd and the expert Andrew Le on the questions identified in paragraph 6 of the draft letter prepared by the plaintiff's solicitors. The third question should be varied to read, "please provide an estimate as to how long the process of extracting data from this mobile phone should have taken." In your answer please feel free to express what contingencies, qualifications or other circumstances may affect that estimate. 2. Such report is to be served on the defendant by 12 December 2023. 3. In the event that the plaintiff does not serve an expert's report by the date in order (2), the plaintiff is not permitted to rely upon it without obtaining the leave of the Court. 4. The defendant is to serve any expert report in response by 19 February 2024. 5. The experts for the parties are to confer in a conclave by 28 February 2024 and produce a joint report identifying points of agreement and points of disagreement by 6 March 2024. 1. The plaintiff brought this application late. However, it was unsuccessfully opposed outright by the Commonwealth. The costs of the plaintiff's notice of motion dated 13 October 2023 are costs in the cause. Postscript 1. After the Court orally delivered its reasons, Counsel for the respondent pointed out, in purported discharge of the Commonwealth's obligations as a Model Litigant, that contrary to what I stated in my reasons, the Commonwealth did, by correspondence, 'take issue' with the adequacy of the particulars the plaintiff supplied on request. When asked by the Court whether the Commonwealth took the step of applying to strike out the statement of claim (as amended) (on account of defective particulars), Counsel said it had not. This point did not affect the respondent's position in relation to the proposed orders I raised. Those orders were made. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 November 2023