Supreme Court New South Wales Medium Neutral Citation: Skytraders Pty Ltd v Ian Wallace Meyer (No 2) [2024] NSWSC 1528 Hearing dates: 30 October 2024 Date of orders: 29 November 2024 Decision date: 29 November 2024 Jurisdiction: Equity - Applications List Before: Kunc J Decision: Defendant's documents privileged; Defendant to pay plaintiff's costs thrown away by reason of IT expert's error Catchwords: EVIDENCE — Privileges — Client legal privilege — No issue of principle Legislation Cited: Evidence Act 1995 (NSW) ss 117, 119 Uniform Civil Procedure Rules 2005 (NSW) Pt 21, r 21.1 Cases Cited: Hancock v Rinehart (Privilege) [2016] NSWSC 12 Rickard Constructions Pty Ltd v Richard Hails Morretti Pty Ltd [2006] NSWSC 234 Skytraders Pty Ltd v Ian Wallace Meyer [2021] NSWSC 1670 Category: Procedural rulings Parties: Skytraders Pty Ltd (Plaintiff /Applicant) Ian Wallace Meyer (First Defendant /First Respondent) Air Affairs (Australia) Pty Ltd (Second Defendant/Second Respondent) Pel-Air Aviation Pty Ltd (Third Respondent) Premier Aviation (Holdings) Pty Ltd (Fourth Respondent) Representation: Counsel: A R Zahra SC (Plaintiff /Applicant) M Davis (First Defendant /First Respondent) B Mostafa (Second Defendant/Second Respondent) D Birch (Fourth Respondent) Solicitors: Gilbert and Tobin (Plaintiff/Applicant) Arnold Bloch Leibler (First Defendant/First Respondent) Ashurst (Second Defendant/Second Respondent) Clayton Utz (Fourth Respondent) File Number(s): 2021/75965 JUDGMENT Summary 1. On 30 October 2024 the Court heard an amended notice of motion filed by the plaintiff in these proceedings, Skytraders Pty Ltd on 27 August 2024. 2. By the time the motion was heard, there were only two prayers of the motion left for determination: 1. Prayer 2 of the motion required the Court to determine whether the solicitors for the defendant and first respondent on the motion, Mr Ian Wallace Meyer, should be required to provide the plaintiff's solicitors with a Forensic Image containing certain documents over which claims for privilege have been made by Mr Meyer; and 2. Prayer 3 of the motion which concerned whether Mr Meyer should be required to pay Skytraders' indemnity costs (or in the alternative its ordinary costs) of and incidental to the application of incorrect search terms which were applied by Mr Meyer's IT expert during the discovery process to these proceedings. 1. For the reasons which follow, the Court does not accept Skytraders' submission that all of the disputed documents should be disclosed by Mr Meyer. It was accepted by Skytraders during oral submissions that the only ground of objection to the claim of privilege was that there was insufficient evidence available to establish such a claim. The Court is satisfied that the evidence does demonstrate the documents are privileged and should not be disclosed. 2. As to who should bear the costs of the error by Mr Meyer's IT expert, the Court concludes that these costs should be Skytraders' costs thrown away in the proceedings. No case has been made out for those costs to be other than on the ordinary basis. Skytraders contended for their costs thrown away to be defined by specific categories of costs (see [75] below). The Court declines to adopt such a course for two reasons: first, because costs assessors are experienced in identifying which costs are thrown away in the proceedings without being confined to identifying specific categories of costs thrown away; and, second, the determination of which costs are thrown away should be considered at the end of the proceedings without the Court attempting at this stage to identify any categories of such costs. 3. Mr A Zahra of Senior Counsel appeared for Skytraders, Mr M Davis of Counsel appeared for Mr Meyer. General background of proceedings and motion 1. These proceedings have had a long and complicated history since their commencement by summons before Robb J sitting as Duty Judge. Since that time the parties have been at loggerheads over the implementation of various interlocutory orders and disputes have been heard by several judges of this Court. 2. In December 2021, the matter came before Rein J who considered competing motions by both parties as to whether Skytraders' forensic expert should have access to documents seized as part of a search order to conduct a 'mapping process' or whether Mr Meyer should be entitled to provide discovery to Skytraders in the ordinary course (see Skytraders Pty Ltd v Meyer [2021] NSWSC 1670 (Skytraders (No 1)). 3. In Skytraders (No 1) Rein J provided a helpful overview of the factual background to the proceedings which I gratefully adopt: 1. The First Defendant, Mr Ian Wallace Meyer, was employed by the Plaintiff, Skytraders Pty Ltd ("Skytraders"), as a flight operations manager for a number of years. In December 2019, Mr Meyer announced his resignation from Skytraders, and he ended his employment with Skytraders on 12 January 2020. On 13 January 2020, he commenced employment with the Second Defendant, Air Affairs (Australia) Pty Ltd ("Air Affairs"). 2. In March 2021, Skytraders became aware that Mr Meyer still had access to its Dropbox account ("the Skytraders Dropbox Account") and it became aware that he had accessed a number of documents in the period since he had left Skytraders's employment. Skytraders became aware that Air Affairs, a competitor of Skytraders, had become, or appeared to be, interested in several significant contracts that were up for renewal and which Skytraders was keen to retain or apply for. 3. Skytraders commenced proceedings on 17 March 2021 and obtained, from Robb J sitting as the Duty Judge, search orders against Mr Meyer and Air Affairs ("the First March Orders"). Those orders required Mr Meyer and Air Affairs to hand over documents physically held and also to hand over or permit access to documents and information stored on various identified devices for the purpose of copying those devices. The process involved, as is usual, the intervention of independent solicitors and independent forensic computer experts. 4. The initial aspect of the process was carried out and the forensic experts have made digital copies of the devices of both Mr Meyer and Air Affairs. The First March Orders required assessment of the images made but this process has been held up by reason of the applications of the Defendants. 5. Skytraders seeks to have the forensic experts proceed with what is described as a "mapping process" which will involve the identification of the file paths of folders and the nature of the files contained on each drive. That process will not reveal the content of any document, but it will, Skytraders believes, on the basis of the forensic experts' evidence, enable the work of "interrogation" of the digital information to be cut down to a more manageable size which may reduce the costs involved since it is likely to remove a number of the digital devices from further consideration. The cost of conducting the mapping process is said to be in the order of $20,000: see T.92.37-38. Skytraders will, at least for present, bear that cost. 6. At the hearing before me on 19 November 2021, Skytraders filed a Statement of Claim ("STOCL"). The STOCL pleads no case against Air Affairs. At the hearing, agreement was reached between Skytraders and Air Affairs that the proceedings as against Air Affairs would be discontinued, Skytraders would pay Air Affairs's costs and Air Affairs would undertake to maintain the integrity of all images on identified devices for two years from 19 November 2021. The application for access to the copy of Air Affairs's server is no longer made and the only material belonging to Air Affairs in respect of which Skytraders seeks mapping to be carried out is the laptop owned by Air Affairs but in the possession of Mr Meyer. 7. Mr N Hutley SC with Mr A Zahra SC appeared for Skytraders. Mr A Bannon SC with Mr M R Davis appeared for Mr Meyer. Mr I Jackman SC with Mr P Knowles appeared for Air Affairs. 8. Mr Meyer, by his Notice of Motion, seeks to preclude access by Skytraders to the material obtained through the First March Orders. He does not now press for an order for destruction of the images made by the independent forensic experts. He contends that the usual process should now be followed; namely, that he file a defence and that he give discovery in the ordinary course. 9. Mr Meyer contends that Skytraders, in its application before Robb J, misstated or failed to disclose two matters of significance. This issue has been characterised as the "non-disclosure issue" and I shall refer to it as that. 10. The non-disclosure issue has two separate and discrete elements: 1. the manner in which Mr Meyer's access to the Skytraders Dropbox Account was described to the Court; and 2. the claims of confidentiality made by Skytraders in respect of the documents which Mr Meyer had accessed since his departure from Skytraders. 12. Mr Meyer also contends that even if his non-disclosure contentions are not accepted, there should be no mapping process conducted since that would provide, to Skytraders, an advantage or control over Mr Meyer's documents that it should not have. Seizure orders, he submits, should only be used to safeguard material from destruction and should not be used to put the Plaintiff in a better position than it would have been had no seizure order been sought and obtained. I shall refer to this as "the status quo point". He relies in support of this contention on Microsoft Corp v Goodview Electronics Pty Ltd (1999) 46 IPR 159; [1999] FCA 754 ("Microsoft Corp"), Metso Minerals (Australia) Ltd v Kalra (No 3) [2008] FCA 1201 ("Metso (No 3)") and Findex Group Ltd v Mckay [2019] NSWCA 93 at [26] per Basten JA (with whom Sackville and Emmett AJJA agreed) ("Findex CA"). He contended that what should occur is the following: 1. that the First March Order be set aside on account of the alleged material non-disclosure; or, in the alternative, 2. that a timetable be put in place for Mr Meyer to file a defence and, thereafter, for the proceedings to continue in the ordinary course, which may include, at an appropriate (later) time, discovery. 1. At the conclusion of that hearing, Rein J made the following orders: 1. The First Defendant's Notice of Motion filed on 20 October 2021 be dismissed. 2. The Independent Computer Experts identified in the orders of Robb J on 17 March 2021 are to: 1. undertake a data overview (mapping) analysis in respect of the Search Devices identified in the schedule annexed to these orders and marked "A" so as to identify in respect of each of those devices: 1. a list of folders together with associated data volumes and, if possible, date ranges; 2. a list of data types together with associated data volumes and, if possible, date ranges; 3. a list of any Dropbox folders together with associated data volume and, if possible, date ranges; 2. prepare a report detailing the results of the mapping analysis undertaken with respect to each of the Search Devices but not disclosing the contents of any specific documents ("Mapping Report"); and 3. provide the Mapping Report to the independent solicitor, Neil Wallman of HWL Ebsworth ("Independent Solicitor"), on or before 31 January 2022. 3. The First Defendant be granted first access to the Mapping Report on or before 5:00pm on 7 February 2022. 4. If the First Defendant objects to the Plaintiff having access to the Mapping Report or any part of it, he is to notify the Independent Solicitor of the objection by 5:00pm on 14 February 2022. 5. In the absence of any objection by the First Defendant, the Independent Solicitor is to provide a copy of the Mapping Report to the Plaintiff by 5:00pm on 15 February 2022. 6. In the event that the First Defendant objects to the Plaintiff having access to the Mapping Report (or any parts of it) on the basis of a claim for privilege, confidentiality or for some other reason, the First Defendant is to file and serve an affidavit before 5:00pm on 14 February 2022 setting out: 1. each part of the Mapping Report that is the subject of such objection; and 2. the basis of each objection, together with a brief explanation in support of it. 7. The First Defendant pay the Plaintiff's costs of the First Defendant's Motion and of the Plaintiff's application. 8. The proceedings be listed for directions before the Registrar in Equity on 21 February 2022. 1. The Independent Expert provided their mapping reports in January and February 2022. In July 2022 the parties agreed a regime for Mr Meyer to provide verified discovery. As part of those orders, Mr Meyer was required to prepare and serve a list of documents which included identification of any documents which related to specific search terms, including all documents recording or evidencing any sharing of Skytraders' documents. Mr Meyer was also required to identify any documents which were subject to claims of privilege or confidentiality by himself or third parties. Mr Meyer then had to make available to Skytraders all documents that were not the subject of such claims. 2. On 9 May 2023, Skytraders filed and served a Notice of Motion seeking orders which authorised the parties' independent IT experts to search Mr Meyer's devices, orders requiring the production of certain documents to Skytraders and orders requiring Mr Meyer's solicitors to identify all privileged materials. Richmond J heard this notice of motion on 23 May 2023. On 4 July 2023 (4 July orders), His Honour made orders requiring, among other things: 1. Provision to Skytraders of a database of all documents from a set of documents previously created by the IT expert engaged by Mr Meyer, based upon keyword searches for terms agreed by the parties, which were dated or created on or prior to Mr Meyer's resignation on 16 December 2019; 2. Mr Meyer's solicitors were to conduct a review of all documents which were dated or created after Mr Meyer's resignation on 16 December 2019 to identify any confidentiality or privilege claims and then to provide Skytraders with a list of the documents which may be subject to those claims; and 3. If Skytraders sought access to any documents subject to a claim for confidentiality or privilege, Skytraders was to file and serve a motion and supporting evidence on the relevant person(s) on whose behalf the claim had been made. 1. On 30 August 2023, the 4 July Orders were varied, relevantly so that a particular subset of documents created prior to Mr Meyer's resignation on 16 December 2019 could also be withheld by Mr Meyer's solicitors for consideration of any confidentiality and privilege claims that may arise. These orders also required Mr Meyer's solicitors to serve an updated list of documents which were the subject of claims of confidentiality or privilege. 2. On 18 October 2023, further orders were made requiring the list of claims with respect to certain documents created after Mr Meyer's resignation to identify the "basis for and/or the entity making each claim" for privilege or confidentiality. 3. The motion and dispute before me arise from controversies which occurred during this extensive and intricate discovery process. There were initially three matters in dispute. 4. First, a dispute arose between Skytraders and two third parties to the proceedings, namely Air-Affairs (Australia) (the Second Respondent) and Premier Aviation (the Fourth Respondent) concerning access to documents marked as potentially confidential in several lists of documents also prepared by Mr Meyer's solicitors and to which those third parties press confidentiality claims. These were documents that were identified during the discovery process using search terms agreed by the parties. However, Skytraders' solicitors were prevented from showing these documents to their clients and were thereby prevented from obtaining instructions about them. 5. Skytraders resolved all issues concerning confidential documents with Pel-Air Aviation Pty Ltd (the Third Respondent) prior to the hearing. As a result, no appearance was required for Pel-Air before me. 6. Second, a dispute arose between Skytraders and Mr Meyer as to whether there was a legitimate basis for Mr Meyer to claim privilege over certain documents. 7. Finally, on 17 April 2024, Mr Meyer's solicitors wrote to Skytraders' solicitors that they had discovered that Mr Meyer's IT Expert had used historical search terms which were different from the search terms required by consent orders made on 21 July 2022 by Registrar Walton to conduct the search required by the 4 July orders. The effect of this error was that there were inaccuracies in the lists that Mr Meyer's solicitors had prepared over several months concerning claims for confidentiality and privilege. There is now a dispute between Skytraders and Mr Meyer as to who should pay the costs associated with the error made by the third party IT expert. 8. As a result of the disputes summarised at [15]-[18] above, Skytraders filed a notice of motion on 27 March 2024, which was amended on 27 August 2024. As noted at [2] above, by the time the motion came before me the only issues remaining in dispute were whether Mr Meyer could properly maintain his claims for privilege and who should bear the costs of the error by Mr Meyer's IT expert. 9. I should also record that on 5 April 2024 the matter appeared before me in the Applications List (5 April 2024 orders). The parties handed up short minutes which provided for a regime for the parties to access confidential documents to see whether the dispute could be narrowed. Orders (4) and (5) related to the privilege dispute. The orders required an affidavit from Mr Meyer in support of his claim for privilege. They also provided for Mr Meyer's solicitors to describe the documents to Mr Meyer generally so they could obtain instructions to facilitate the preparation of the affidavit. Orders (4) and (5) are: 4 In respect of the documents detailed in paragraphs 2(a) to 2(k) of the Notice of Motion filed on 27 March 2024 (Motion), the Defendant is directed on or before 15 April 2024 to: (a) file and serve an affidavit in support of any claim for privilege he seeks to maintain in respect of those documents; (b) provide to the Plaintiff a Logical Forensic Image (being an electronic image or copy in a file format such as Encase L01 which preserves any metadata associated with files contained within a source forensic image) containing each of the documents which are no longer the subject of a claim for privilege, save that where any of those documents are still subject to a claim for confidentiality, those asserted confidential documents are to be provided only to the Plaintiffs legal representatives after the giving of confidentiality undertakings by those legal representatives in the form annexed and marked "A". 5 The legal representatives for the Defendants are permitted to communicate and generally describe the documents detailed in paragraphs 2(a) to 2(k) of the Notice of Motion, and information in respect of those documents, to the Defendant for the purpose of complying with order 4(a), notwithstanding any previous orders in these proceedings or confidentiality undertakings signed by the legal representatives for the Defendant. For the avoidance of doubt, the Defendant is not to be provided with the documents and any confidential information contained within the documents is not to be disclosed to him. 1. At the hearing of the motion on 30 October 2024, Skytraders, Air-Affairs and Premier Aviation resolved their dispute concerning the confidential documentation. Mr B Mostafa of Counsel appeared for Air-Affairs and Mr D Birch of Counsel appeared for Premier Aviation. Both were excused from the hearing after the confidentiality dispute was resolved. The Court made the following orders pursuant to short minutes agreed by the parties to give effect to an agreed access regime: Confidentiality – re the Second Respondent 1 The solicitors for the Second Respondent are directed to provide to the solicitors for the Plaintiff, within 21 days of these orders, copies of the documents identified in Annexure A to these orders with appropriate redactions of only the confidential parts asserted by the Second Respondent to be of such a confidential nature that those parts cannot be disclosed to either Mr Calum Mackay (Commercial Manager at the Plaintiff) and/or Mr Daniel Burnaby (Director of Commercial and General Counsel of the Plaintiff) (the Redacted Confidential Documents). 2 Upon the giving of confidentiality undertakings by Mr Calum Mackay and Mr Daniel Burnaby in the form of the undertaking which is Annexure A to the Plaintiff's Amended Notice of Motion dated 27 August 2024, the Plaintiff's solicitors may disclose to Mr Calum Mackay and Mr Daniel Burnaby each of the Redacted Confidential Documents and they are released from any confidentiality undertaking previously given that prevented them from making such disclosure. 3 In relation to the documents identified in Annexure A to these orders, the Second Respondent's legal representatives be permitted to disclose those documents to Patrick Polis, Principal Legal Counsel in Australia of QinetiQ Group Plc (the Second Respondent's ultimate holding company), subject to Mr Polis first giving a confidentiality undertaking substantially form annexed to the Amended Notice of Motion. Confidentiality – re the Fourth Respondent 4 Subject to orders 1 and 2 above, the Plaintiff's solicitors may disclose to the Plaintiff each of the documents identified in Annexure B to these orders and they are released from any confidentiality undertaking previously given that prevented them from making such disclosure. For abundance of clarity, this order does not permit the disclosure of a document with the same Document ID in Annexure A to these orders which has been dealt with by orders 1 and 2 above. Costs as between the Plaintiff and the Second and Fourth Respondents 5 The Plaintiff pay the Second Respondent's reasonable legal costs of undertaking the redaction exercise the subject of order 1 above. 6 The Plaintiff pay the Second Respondent's costs thrown away by reason of the amendment of the Notice of Motion filed on 27 March 2024. 7 The Plaintiff pay the Second Respondent's reasonable legal costs incurred in reviewing for claims of confidentiality and privilege the documents the subject of the Amended Notice of Motion identified by the Defendant as being confidential or potentially confidential to the Second Respondent. 8 Subject to order 7 above, there be no order as to costs as between the Plaintiff and the Second Respondent as to the Amended Notice of Motion. 9 The Plaintiff pay the Fourth Respondent's reasonable legal costs incurred in reviewing for claims of confidentiality and privilege the documents the subject of the Amended Notice of Motion identified by the Defendant as being confidential to the fourth respondent. 10 Subject to order 9 above, the Fourth Respondent pay the Plaintiff's costs of the Amended Notice of Motion in respect of the issues in dispute between them. 11 The Court reserves on costs. Close Privilege dispute Privilege – general background 1. The affidavits of Mr Meyer's solicitor, Ms Susanna Ford, dated 16 April 2024 and 26 April 2024, identify that privilege is claimed over three categories of documents. 2. The first category relates to emails (and attachments) sent between Mr Meyer and Mr Terrence Vickers. Mr Vickers was a director and employee of Skytraders until around October 2019. Mr Vickers is the sole director and shareholder of Premier Aviation which is a 30.8% shareholder of Skytraders. Mr Vickers agreed to fund Mr Meyer's defence and to keep confidential communications with Mr Meyer in respect of facts, issues and advice received in connection with these proceedings. 3. The second category of documents comprises emails and attachments sent by Mr Meyer between his own email accounts. These emails and attachments are contended to have been prepared and sent by Mr Meyer for the purpose of collating material to be used for the provision of legal advice in relation to the proceedings. 4. The third category of documents are standalone documents created by Mr Meyer. The documents are contended to have been created by Mr Meyer at the request of his lawyers and were brought into existence for the purpose of Mr Meyer being provided with legal advice. 5. Both parties accepted that all of the documents which were the subject of the privilege claim were created after the commencement of the proceedings. They also accepted that documents created after the commencement of proceedings are not normally discoverable (see Uniform Civil Procedure Rules 2005 (NSW) r 21.1(1)(c)). Despite this, it was submitted by Mr Zahra SC that Skytraders would still be entitled to see the documents, subject to any legitimate claim for privilege by Mr Meyer, because they were discovered pursuant to search terms ordered by Richmond J on 4 July 2023 and Mr Meyer's solicitors had formed the view that they are relevant to the issues in the proceedings. Privilege – relevant legal principles 1. Section 119 of the Evidence Act 1995 (NSW) provides: 119 Litigation Evidence is not to be adduced if, on objection by a client, the court finds that adducing the evidence would result in disclosure of— (a) a confidential communication between the client and another person, or between a lawyer acting for the client and another person, that was made, or (b) the contents of a confidential document (whether delivered or not) that was prepared, for the dominant purpose of the client being provided with professional legal services relating to an Australian or overseas proceeding (including the proceeding before the court), or an anticipated or pending Australian or overseas proceeding, in which the client is or may be, or was or might have been, a party. 1. Section 117 of the Evidence Act defines a 'confidential' communication' as follows: confidential communication means a communication made in such circumstances that, when it was made— (a) the person who made it, or (b) the person to whom it was made, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. 1. Section 117 also defines a 'confidential document' as follows: confidential document means a document prepared in such circumstances that, when it was prepared— (a) the person who prepared it, or (b) the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law. 1. Both Mr Zahra SC and Mr Davis relied on the decision of Brereton J (as his Honour then was) in Hancock v Rinehart (Privilege) [2016] NSWSC 12 to outline the principles of how a claim for litigation privilege must be proven. At [35] of the judgment Brereton J provided a summary of the principles applying to applications to maintain legal professional privilege [35] Thus in my view: (1) Legal professional privilege is a privilege from production, including from production to the court. Such a claim should be made at the first of the Waind & Hill stages, before the documents are produced to the court. To voluntarily produce the documents to the court for the purpose of use in evidence on the application is inconsistent with maintaining a claim for privilege. (2) A claim for privilege must be made on sworn direct evidence – not inadmissible hearsay or opinion – proving the facts on which the claim is founded. This is unaffected by the court's discretionary power to require production in order to enable inspection for the purpose of adjudicating the claim, which exists to enable a claim for privilege 1. His Honour's judgment elaborates on the principles summarised above (emphases added): [5] It was not in issue that Mrs Rinehart, as the person making the claim, bears the onus of proving the facts on which the claim for privilege is said to be founded, [1] and that that involves establishing that the disputed documents comprised or contained confidential communications made for the dominant purpose of obtaining legal advice and/or conducting anticipated or pending litigation. [2] … [7] To sustain a claim of privilege, the claimant must not merely assert it; but must prove the facts that establish that it is properly made. Thus a mere sworn assertion that the documents are privileged does not suffice, because it is an inadmissible assertion of law; the claimant must set out the facts from which the court can see that the assertion is rightly made, [6] or in other words "expose … facts from which the [court] would have been able to make an informed decision as to whether the claim was supportable". [7] The evidence must reveal the relevant characteristics of each document in respect of which privilege is claimed, [8] and must do so by admissible direct evidence, not hearsay. [9] … [16] The plaintiffs also objected that there was no affidavit of Mrs Rinehart personally making or proving the claim for privilege. If there were evidence from another source which proved the facts that established a claim for privilege, the absence of an affidavit from Mrs Rinehart personally would not be fatal: the question must be whether the requisite facts are proved, not by whose evidence they are proved. In a large enterprise, it may well be someone other than Mrs Rinehart personally who would have the best knowledge of the relevant facts. Mrs Rinehart legitimately points to the circumstance that Mr Solomon, through whom she dealt with Sceales, and who may well have been the most pertinent witness, is deceased. That said, as it is Mrs Rinehart's purpose when the documents were created that is central, and it is plain that she was closely involved in giving the relevant instructions, one might think that her evidence as to her purpose would have been important. The plaintiffs also observed that Mr Ross, who apparently had responsibility for coordinating Mrs Rinehart's production of documents and had sworn affidavits on the subject in response to the 3 September motion, was also not called. However, I accept that his current responsibilities in connection with production of documents do not necessarily make him the appropriate person to depose to the relevant facts, which occurred many years before his involvement. Nonetheless, no-one involved has deposed to the purpose for which the disputed documents were created, which leaves Mrs Rinehart devoid of testimonial evidence on the essential fact she must prove to establish her claim of privilege. In those circumstances, not only will the court not readily infer a dominant privileged purpose in the absence of evidence from those who might have illuminated it, [13] but it may infer from the failure to call the witnesses who could have done so that their evidence would not have assisted the claim. [14] Privilege – evidence 1. The evidence for the claim of privilege was set out in Ms Ford's affidavit affirmed on 16 April 2024. That affidavit provided a description of all the documents or communications which were said to be privileged and the reason for that claim. 2. It is important to note that Ms Ford did not specify in the affidavit that the description of the documents was based upon her own personal examination of the documents. However, Mr Zahra SC was prepared to accept Mr Davis' instructions that the descriptions of the disputed documents and communications were based upon her examination of the documents. 3. Equally critical to note is that Mr Meyer was never allowed to see the actual documents or communications over which privilege is now claimed. The 5 April 2024 orders agreed by the parties (see [20] above) only enabled Mr Meyer's lawyers to generally describe the documents to him so they could obtain the necessary instructions to produce the affidavit in support of any privilege claims. 4. This is significant because [25] of Ms Ford's 16 April 2024 affidavit states that '…in respect of the of the privilege maintained by the Defendant, I am instructed as follows.' On one view, as Mr Zahra SC contended, this suggests that the assertions of privilege in the affidavit were simply Ms Ford repeating instructions given by her client who was not even able to view the documents. This would not be sufficient evidence to satisfy the evidentiary onus described by Brereton J at [16] of Hancock. 5. The situation would be juridically very different if it was the case that Ms Ford's description of the purpose for which the document was created was a product of an inference she had drawn from personally reviewing the documents. It is the Court's experience, and was accepted by Mr Zahra SC, that many solicitors will draft affidavits on behalf of their clients who claim privilege over documents on the basis that the purpose of the document is clear on its face or is capable of being identified by inference from the terms of the document. Subject to the Court being satisfied such an inference is properly capable of being drawn, this would be sufficient to satisfy the evidentiary onus which rests upon the person claiming the privilege, as described in Hancock at [16]. 6. As a result, it became necessary during the hearing for the Court to be informed of how Ms Ford formed the view that the documents were privileged. That process was described to the Court by Mr Davis based on his instructions from Ms Ford in court on the day of the hearing. While evidence in this form is ordinarily inadmissible, no objection was taken by Skytraders to the Court accepting these instructions as evidence. Mr Davis' explanation was (Tcpt, 30 October 2024, p. 56(35) – p. 57(42)): DAVIS: There was a requirement to create the list that are the subject of the current dispute. I'm instructed there was a review of the documents by the solicitors in the preparation of the lists and some of those documents were considered during that review to be potentially privileged. It is at that point that Ms Ford took instructions from Mr Meyer about how the docs came to be created and the reason and purpose for their creation. And it is the instructions that Ms Ford received at that stage that find their way into those general background paragraphs of the affidavit, such as paragraph 50 and paragraph 69. HIS HONOUR: Yes. DAVIS: The lists were then served which contained the list documents over which privilege was asserted. Then your Honour made the 5 April 2024 orders. That included order 4(a) for the filing and serving of an affidavit that we've dealt with previously. It also included order 5. I don't know if your Honour has had reference to that. HIS HONOUR: Yes. DAVIS: "The legal representatives for the defendant are permitted to communicate and generally describe the documents detailed in paragraphs 2(a) and 2(k) of the motion." So it is the privilege documents in dispute, "for the purpose of complying with order 4(a)". So the position we're in at that point is not the usual, your Honour, but because of confidentiality regimes and orders Mr Meyer wasn't permitted to look at these documents. That was carve out that was obtained by my solicitors to allow them to prepare this affidavit. HIS HONOUR: Yes. DAVIS: In preparing the affidavit Ms Ford reviewed each of the documents, and on the basis of having looked at the documents, and in the context of those earlier instructions she received at the time of creating the lists, she inferred what she has put in each of the individual paragraphs about the documents, about the purpose and confidential nature of the documents. HIS HONOUR: Thank you. DAVIS: She then availed herself of order 5 in the 5 April orders to generally describe the documents to Mr Meyer by reference to what she said in her affidavit, to confirm that what she said aligned with Mr Meyer's instructions, and he then swore the affidavit. HIS HONOUR: That is to say including in relation to each document? DAVIS: Yes, your Honour. HIS HONOUR: Thank you. DAVIS: Then the affidavit was sworn. 1. Mr Zahra SC's essential submission was that the evidence relied upon was insufficient to justify the claim for privilege because the affidavit should have been provided by Mr Meyer himself and not his solicitor. Mr Zahra SC relied on [16] of Hancock to suggest that it was only Mr Meyer who would have knowledge of the relevant purpose for which the documents and communications were created and the absence of his voice in this dispute meant he had not satisfied the evidentiary onus required to maintain a claim for privilege. 2. The Court rejects Mr Zahra SC's submission that the general description of the documents provided to Mr Meyer would have been enough for Mr Meyer to have put on his own affidavit and that if the descriptions were insufficient he should have taken further steps to obtain Skytraders' agreement to vary the order. The orders on 5 April 2024 were consent orders and were formulated to balance the need for Mr Meyer to prepare an affidavit supporting his privilege claim whilst also respecting the confidentiality claim asserted by Skytraders to the documents. It lies ill on the part of Skyraders now to submit that Mr Meyer should have taken further steps to amend an already negotiated position to produce the affidavit. 3. For the avoidance of doubt, to the extent it was pressed by Skytraders, the Court also rejects any submission that Order 4 of the 5 April 2024 orders which stated that "[the defendant file and serve an affidavit in support of any claim for privilege he seeks to maintain in respect of those documents" required Mr Meyer personally to depose an affidavit. When the orders were handed up to the Court, Skytraders did not specifically suggest that Mr Meyer had to depose the affidavit personally. It is also the Court's experience that solicitors will often provide affidavits on behalf of their clients to maintain claims for privilege. In any event, the orders only required an affidavit to be made in support of the privilege claim: Mr Meyer was free to choose from whom and the form in which that affidavit was provided. 4. Finally, as noted at [23] above, some of the documents over which privilege is claimed concern communications between Mr Meyer and Mr Vickers. Ms Ford's affidavit affirmed 16 April 2024 at [31] outlines the nature of the relationship between these individuals: [31] When ABL was retained by the Defendant to take over his defence of these proceedings, Mr Vickers agreed to continue to fund the Defendant's defence and to keep confidential communications with the Defendant in respect of the facts and issues arising, legal advice received in connection with these proceedings and in assisting in the defence of these proceedings. Mr Vickers was then provided with confidential communications in respect of these proceedings by the Defendant directly or via their respective solicitors. Mr Vickers also provided the Defendant either directly or via their respective solicitors with confidential communications in respect of the Premier Proceedings insofar as that information was considered relevant to the defence of these proceedings, on the basis that the Defendant and his solicitors would keep those communications confidential. 1. It was accepted that Mr Meyer's firm of solicitors, Arnold Bloch Liebler (ABL) were first retained in this matter on 30 May 2022. Mr Zahra SC contended that there was no evidence to support the confidentiality of the communications for the purposes of sections 117 and 119 of the Evidence Act (See [27]-[29] above). This submission was premised on ABL not being able to provide support for the confidentiality of the communications prior to their involvement in the matter. However, I accept Mr Davis' submission that the Court can infer a pre-existing obligation for communications between Mr Vickers and Mr Meyer to be kept confidential from the reference in [31] of Ms Ford's affidavit that 'Mr Vickers agreed to continue to fund the Defendant's defence and to keep confidential communications with the Defendant'. Privilege – emails between Mr Meyer and Mr Vickers 1. The first category of documents in dispute concerns emails and attachments sent between Mr Meyer and Mr Vickers. It was agreed by the parties that only the documents at [33]-[45] and [46]-[49] of Ms Ford's affidavit were disputed in relation to this category. 2. As noted at [23] above, Mr Vickers was a director and employee of Skytraders until October 2019 and is the sole director and shareholder of Premier Aviation. As Ms Ford's affidavit notes (see [41] above) Mr Vickers had agreed to fund Mr Meyer's defence and keep all communications in respect of the issues arising and legal advice in connection with the proceedings confidential. 3. All of the evidence as to why the documents at [33]-[45] and [46]-[49] of Ms Ford's affidavit were privileged was structured in a similar form in that it provided an overview of the document and then an explanation as to why the document was privileged. For example, [36]-[37] of Ms Ford's affidavit: [36] Document 27 is an email sent by Mr Vickers to the Defendant dated 27 November 2021 which contains comments about factual issues related to these proceedings, and which was sent on a confidential basis for the purpose of the Defendant obtaining legal advice and professional legal services in this litigation. [37] Document 55 is an email sent by the Defendant to Mr Vickers dated 18 April 2022 and documents 56 and 57 are attachments to that email. The email forwards on court documents in these proceedings which were sent for the purpose of keeping Mr Vickers updated as to developments in this litigation as part of the agreement between Mr Vickers and the Defendant in relation to the funding of these proceedings. 1. Mr Davis advanced two submissions in support of this category of documents being privileged: 1. The existence of an agreement between Mr Meyer and Mr Vickers to keep documents and communications between them confidential satisfies the requirements of confidentiality for the purposes of section 117 and 119 of the Evidence Act; and 2. The description of the documents provided by Ms Ford is sufficient to demonstrate that the emails and attachments contained matters which were created for the dominant purpose of being provided with legal services in relation to the proceedings. 1. Mr Davis accepted that Ms Ford's affidavit evidence appears only to assert privilege over the documents. However, Mr Davis submitted that the Court can comfortably draw an inference the documents were created for the dominant purpose of obtaining legal advice for two reasons. First, the fact that Mr Vickers was a litigation funder who was subject to a confidentiality agreement suggests he would be someone who would have an interest in being kept informed as to matters and advice relevant to the proceedings. The existence of a confidentiality agreement was also submitted to strengthen the availability of the inference that the documents being sent were related to the litigation rather than being documents related to a different subject. 2. Mr Zahra SC submitted that the evidence at [41] of the nature of the relationship between Mr Meyer and Mr Vickers goes no higher than to suggest there is a willingness or some agreement on behalf of Mr Vickers to pay Mr Meyer's legal fees and then a conclusionary statement that there is an agreement to keep the documents confidential. This was said to be insufficient to establish that the documents were to be kept confidential by either an express or implied agreement as required by s 117 of the Evidence Act. Mr Zahra SC again submitted that the nature of the funding relationship was something that Mr Meyer should have deposed to and could only have been in his knowledge. 3. The Court is satisfied on the evidence that the contents of the emails and attachments between Mr Meyer and Mr Vickers are privileged because they were created for the dominant purpose of obtaining legal advice for three reasons. 4. First, the Court rejects Mr Zahra SC's submission that only Mr Meyer could provide evidence as to the specifics of the arrangement. [31] of Ms Ford's affidavit indicates that since ABL were retained in May 2022 they have been engaging with or at least aware of Mr Vickers' involvement in the proceedings. This provides some basis for Ms Ford to be able to provide evidence as to the nature of the agreement. For the reason at [42] above, the Court is satisfied that Mr Meyer and Mr Vickers have had an agreement for Mr Vickers to fund Mr Meyer's defence and for the pair to keep communications confidential before and after ABL were retained as Mr Meyer's lawyers. 5. Second, the Court is satisfied that the documents that were shared with Mr Vickers were related to the case. The privilege review process undertaken by ABL as described by Mr Davis at [37] above demonstrates that Ms Ford and other solicitors personally reviewed the documents in dispute. The example at [45] of Ms Ford's evidence demonstrates that the emails contained references to facts in issue in the proceedings and comments which would be the subject of or had been the subject of legal advice. This is information which would plainly be privileged. 6. Third, the Court finds that the communications between Mr Meyer and Mr Vickers were for the dominant purpose of obtaining legal advice. This Court is well familiar with documents being sent by parties to litigation funders. Litigation funders understandably seek to be kept informed of matters related to the progress and outcome of the proceedings. As was noted by Bergin J (as the former Chief Judge in Equity then was) in Rickard Constructions Pty Ltd v Richard Hails Morretti Pty Ltd [2006] NSWSC 234 at [58]-[59], communications which are passed on to litigation funders in relation to the funder's continued support of the proceedings fall within the description of a 'dominant purpose' of the client "being provided" with professional legal services: 58 A different question arises under s 119 of the Act. It is whether the communications were for the dominant purpose of the plaintiff "being provided with professional legal services". I have already decided that the communications were confidential communications. The dominant purpose in the confidential communications was to provide information to the funder so that it would source the continued funding of the litigation. It may be argued, as it was in Global Imaging, that such a purpose is anterior to the dominant purpose of the client "being provided with professional legal services". In Global Imaging Santow J held that the funding agreement in question in "a literal and substantive sense, fulfils the purpose of providing legal services in terms not only of the overall capacity to have them at all, but also their availability at critical junctures in the case" (at [7]). 59 In this case it is the confidential communications rather than the funding agreement that are under consideration. They are not anterior to the dominant purpose, they are inextricably linked to the nature of the professional legal services being provided to the client. Their dominant purpose was to ensure the overall capacity of the plaintiff to have funding and to ensure that such funding would be forthcoming for the continued funding of the litigation. That seems to me to fall within the description of a dominant purpose of the client "being provided" with professional legal services. This description is to be contrasted with the expression "providing professional legal services". The concept of the client "being provided with" something is of broader import and seems to me to encompass the purpose under consideration here. I am satisfied that the documents are also privileged pursuant to s 119 of the Act. Privilege – emails sent by Mr Meyer to himself 1. The second category of disputed documents is emails and attachments sent by Mr Meyer between his own email accounts. The specific documents in dispute were outlined at paragraphs [52], [53], [60], [61], [62], [71], [73], [74], [90], [91], [94] and [100] of Ms Ford's 16 April 2024 affidavit. 2. Paragraph [50] of Ms Ford's affidavit explains why Mr Meyer had a practice of sending documents to himself: [50] I am informed by the Defendant, and believe, that he was requested by his then lawyers, Eakin McCaffery Cox, and by ABL to collate documents and other material that would be relevant to the proceedings for the purpose of obtaining legal advice and being provided with professional legal services in the defence of the proceedings and that as part of this process: A. He used the following email addresses listed in List 5 and 8: i. ianwallymeyer@gmail.com; ii. wmeyer@airaffairs.com.au; and iii. gloabelx@bigpond.net.au; and B. With respect to the documents at paragraph 23b above, he had a practice of emailing himself documents such as: i. documents relevant to the factual issues in the proceedings, including documents relating to his employment with the plaintiff; and ii. documents or emails containing his notes or comments in relation to issues arising in, or relevant to, these proceedings, as a means of collating, securing, copying and /or printing these documents for the purpose of obtaining legal advice in respect of these proceedings, including to send these collated documents to his legal representatives for that purpose. 1. Ms Ford's evidence also contained a description as to the nature of the document and then an explanation as to why the documents were privileged. For example, at paragraphs [52], [53] and [60] Ms Ford deposed: [52] Document 7 is an email from the Defendant from his email address "iwallymeyer@gmail.com" to himself at his email address "wmeyer@airaffairs.com.au" dated 22 April 2022. Documents 8 and 9 are attachments to that email. The email and its attachments contain the Defendant's notes and comments on the Plaintiff's evidence and about factual and legal issues in these proceedings, and were sent to himself on a confidential basis for the purpose of collating and/or printing those documents to obtain legal advice and professional legal services in respect of these proceedings. [53] Document 10 is an email from the Defendant from his email address iwallymeyer@gmail.com to himself at his email address wmeyer@airaffairs.com.au dated 26 April 2022. Documents 11 to 16 are attachments to that email. The email and its attachments contain the Defendant's notes and comments on the Plaintiff's evidence and about factual and legal issues in these proceedings, and were sent to himself on a confidential basis for the purpose of the Defendant collating and/or printing those documents and recording those notes to obtain legal advice and professional legal services in respect of these proceedings. … [60] Document 279 is an email from the Defendant from his email address wmeyer@airaffairs.com.au to himself at his email address wmeyer@airaffairs.com.au dated 26 April 2022. Document 280 is an attachment to that email. The email and its attachment contain the Defendant's notes and comments on the Plaintiff's evidence and about factual and legal issues in these proceedings, and were sent to himself on a confidential basis for the purpose of the Defendant collating and/or printing those documents to obtain legal advice and professional legal services in respect of these proceedings. 1. Mr Davis submitted that the documents were privileged because they fell within s 119(b) of the Evidence Act as documents which contained "the contents of a confidential document (whether delivered or not) that was prepared…" for the dominant purpose of obtaining legal advice in relation to the proceedings. The contents of these emails containing notes and comments about evidence as well as about factual and legal issues in the proceedings were contended to be confidential and were prepared so Mr Meyer could obtain legal advice from his lawyers. 2. Mr Zahra SC submitted the documents were not privileged for two reasons. First, the fact Mr Meyer was sending these documents to himself meant that it could not satisfy the requirement under s 117 that Mr Meyer, as the maker of the document, was under an express or implied obligation not to disclose its contents. In reply, Mr Davis submitted that an individual who has created notes to be used when obtaining legal advice would be under an implied obligation not to disclose this document. 3. Second, Mr Zahra SC submitted that there was also insufficient evidence to establish that Mr Meyer's legal representatives, as the persons for whom the documents were said to be prepared for, were under an express or implied obligation to keep the documents confidential for the purposes of s 117. Mr Zahra SC contended the evidence needed to specify that the documents were created in connection with giving that document to a solicitor and there was not enough evidence available for the Court to infer the notes would be provided to Mr Meyer's lawyers. 4. The Court concludes that the documents in dispute in this second category were effectively Mr Meyer's notes to himself about the litigation and issues arising from that litigation. The Court is also satisfied on the available evidence that these notes were confidential communications for the purposes of obtaining legal advice and therefore privileged for two reasons. First, the evidence at [55] above demonstrates that the notes contained remarks concerning legal and factual issues in connection with the dispute. These issues are directly relevant to the proceedings and this connection to the dispute enables the Court to be comfortably satisfied that they were created so Mr Meyer could obtain legal advice. 5. Furthermore, [50] of Ms Ford's 16 April 2024 affidavit notes that Mr Meyer was requested by his solicitors to collate documents and information relevant to the proceedings for the purposes of Mr Meyer obtaining legal advice. This provides a further basis for the Court to conclude the notes were created for Mr Meyer to obtain legal advice. I reject Mr Zahra SC's submission that Ms Ford's affidavit needed to say explicitly that she told Mr Meyer to create the notes or that Mr Meyer has actually provided the notes to solicitors for the notes to be privileged. If they were created for the purpose of Mr Meyer being provided with professional legal services either at the time of their creation or in the future then this is sufficient for the purposes of s 119 of the Evidence Act for the documents to be privileged. 6. Second, the Court is satisfied that the documents are a confidential document for the purposes of ss 117 and 119 of the Evidence Act. The question before the Court is not whether Mr Meyer had imposed a duty of confidence upon himself but whether the intended recipient of the notes, Mr Meyer's lawyers, were under such an express or implied obligation. As noted at [28]-[29] above, s 117 of the Evidence Act makes clear that if the person for whom a document or to whom a communication was made is under an express or implied obligation not to disclose its contents, then the document or communication will be confidential. Because Mr Meyer's lawyers were undoubtedly under an express or implied obligation to keep such notes confidential on their receipt, this question must be resolved in the affirmative. Privilege – standalone documents 1. The final category of documents comprises a series of standalone documents created by Mr Meyer which are screenshots from his devices relevant to issues in the proceedings. The specific documents in dispute are outlined at [97]-[99] of Ms Ford's 16 April 2024 affidavit. 2. Ms Ford's affidavit at [69] explains the reason why these screenshots were taken: … Collation or copies of documents d. At the request of his lawyers, he collated electronic content (i.e screenshots and images) and documents from his devices relevant to issues in the proceedings and relevant to his defence for the purpose of providing these to his legal representatives and/or obtaining legal advice and professional legal services in this litigation. These documents are relevant to factual issues in the proceedings, including documents relevant to the Plaintiff's claims as to the Defendant's misuse of documents and the Defendant's defence of those claims; e. He collated these documents by: i. saving local copies to his computer devices, including in separate folders labelled with the proceedings name, such as "Skytraders vs IWM" or "Skytraders Vs I W Meyer" or "SKT Vs IWM" or "Docs for ABL" or ii. taking screenshots of certain documents or electronic content and saving them to his mobile devices; f. Because these documents were saved on the computer or mobile devices before being emailed to his lawyers, they have been described as "standalone documents"; g. The documents are all dated 18 April 2021 and 18 August 2022, being after the commencement of these proceedings; and h. In ABL undertaking its review, copies of many of these documents were also located as attachments to emails sent by the Defendant to his solicitors. 1. Ms Ford's 16 April 2024 affidavit again described the documents the subject of the privilege claim and why they were privileged. For example, [97] of her affidavit states: [97] Documents 372 and 433 are screenshots of the Defendant's email application inbox created by the Defendant on 18 April 2021. These documents relate to factual issues in the proceedings, specifically the use of the Defendant's personal email addresses in the course of his employment with the Plaintiff. These documents were created for the purpose of the Defendant obtaining legal advice and professional legal services in these proceedings. 1. Mr Davis submitted that the screenshots relate to and show what Mr Meyer could see or was displayed when he was logged on to search for documents using Skytraders' document management systems. This relates directly to an issue in the proceedings, namely how Skytraders' document management system operated. Mr Davis postulated these screenshots might one day be a piece of evidence, a document that may be provided to a forensic expert or a document that may be used by Mr Meyer to help explain factual issues in the dispute to his lawyers. It was submitted on behalf of Mr Meyer that the screenshots were created for the purpose of obtaining advice and legal services and there was no other conceivable explanation for why the screenshots were created. 2. Mr Zahra SC again repeated his submission that the evidence was insufficient to maintain a claim for privilege because the affidavit from Ms Ford was all based on what Mr Meyer is said to have informed her as to why he created the documents. As such this was only a general attempt to assert that the documents were created for the purposes of obtaining legal advice and was insufficient to satisfy the evidentiary onus described in Hancock. 3. In reply, Mr Davis submitted, and the Court accepts, that Brereton J at [16] was not requiring that an affidavit must always come from the individual who is claiming the privilege but must prove the facts that establish a claim for privilege. This case was submitted to be distinguishable from Hancock, where the absence of an affidavit from Mrs Rinehart who was claiming the privilege was said to be a reason why her evidentiary onus was not satisfied, on the basis that unlike Mrs Rinehart's solicitors, Mr Meyer's solicitors have thoroughly reviewed the documents themselves. 4. The Court concludes that the documents the subject of this category are privileged. Like the emails sent by Mr Meyer to himself, these screenshots are effectively notes Mr Meyer has created for himself. The Court is satisfied they were created for the dominant purpose of obtaining legal advice. Ms Ford's 16 April 2024 affidavit shows the screenshots are directly related to subject matter which is in issue in the proceedings. The Court again rejects any submission that only Mr Meyer could depose to why the screenshots were taken. Ms Ford can provide evidence to why documents were created if that purpose is clear on the face of the document. The example at [97] of her affidavit is a document which relates to an issue in the proceedings being how and why Mr Meyer could have retained any of Skytraders' information. Therefore, this is a document which was created by Mr Meyer to obtain legal advice for the purpose of s 119 of the Evidence Act and the Court is satisfied that was the purpose for which it and the other documents in this category were created. 5. The Court is also satisfied that the documents are confidential for the purposes of section 117 of the Evidence Act. Like the second category, these are documents the Court is satisfied were created for Mr Meyer's legal representatives who would be under an express or implied duty of confidence when provided with the documents. Costs of the error 1. The facts surrounding the dispute concerning who should be responsible for the costs of the error by Mr Meyer's IT expert are not in dispute. Ms Ford's affidavit affirmed on 24 May 2024 outlines that ABL engaged the services of KordaMentha to assist with various aspects of Mr Meyer's discovery process in the proceedings. This included assistance with the application of search terms to create forensic images of Mr Meyer's devices and to produce a set of documents to ABL for their consideration of whether any documents were privileged or confidential prior to the documents being disclosed to Skytraders' solicitors. 2. On 17 April 2024, Ms Ford was informed by KordaMentha that they had inadvertently applied an incorrect set of keyword search terms to the document which was to be considered by ABL under the 4 July 2023 orders (Search Term error) 3. Ms Ford's affidavit also cross-references the affidavit of Mr Roman Barbera, an Executive Director in the Forensic Technology team of KordaMentha, whose evidence was that the effect of using the outdated search terms was: 1. 433,217 pre-resignation documents produced to Skytraders solicitors using the old terms as compared to 413, 102 documents using the new terms. 2. 9, 620 excluded pre-resignation documents produced using the old terms as compared to 7,877 using the new terms. 3. 89, 246 post-resignation documents using the old terms compared to 18, 532 documents using the new terms. 1. Mr Barbera also deposed that once the updated search terms were applied to the data repository, the following extra documents were responsive and produced to Skytraders' solicitors: 1. 127 additional pre-resignation documents were responsive to the new search terms and produced. 2. 65 additional excluded pre-resignation documents were responsive to unique July 2022 Search Terms and produced or added to a List of Claims; and 3. 363 additional post-resignation documents were responsive to Unique July 2022 Search Terms and produced or added to a list of claims. 1. Ms Ford deposes that after ABL were informed about the Search Term error they instructed KordaMentha to prepare a revised lists of claims, prepare the additional pre-resignation documents for production to Skytraders, prepare the additional excluded pre-resignation documents for production and prepare the additional post-resignation documents for ABL's consideration, and where relevant, production to Skytraders. Between 17 April 2024 and 26 April 2024 ABL rectified the Search Term error and produced the additional relevant documents to Skytraders' solicitors. Ms Ford also notes that ABL immediately notified the solicitors for the other parties about the error. ABL also corresponded with the solicitors for the other parties as to the steps taken by ABL to carry out the relevance review required by the 4 July 2023 orders. 2. The parties provided competing short minutes regarding how the costs of the error by Mr Meyer's IT expert should be borne. Skytraders proposed: The Defendant pay the Plaintiff's costs thrown away by reason of the erroneous search terms applied by the Defendant's IT expert as notified by the Defendant's solicitors in their letter to the Plaintiff's solicitors dated 17 April 2024 and in connection with the consequently erroneous lists of documents served by the Defendant, such costs to include: costs incurred in reviewing the erroneous lists; costs incurred in negotiating with the defendant and/or third parties regarding the erroneous lists costs incurred in considering and corresponding with the defendant's solicitors regarding the error once it had been disclosed; costs incurred in connection with hearings that were solely concerned with issues arising from the erroneous lists; and costs incurred in corresponding with third parties regarding the erroneous lists, including where agreement had previously been reached on how documents on the erroneous lists were to be dealt with. 1. Mr Davis submitted on behalf of Mr Meyer that the Court should not make any costs orders following the Search Term error because Skytraders had not demonstrated a sufficient level of prejudice or wasted costs to justify such an order. Mr Davis submitted that a large portion of the document lists created after the erroneous searches were also produced once the error was rectified and as such, there were only minimal costs thrown away. However, Mr Davis accepted there were some wasted costs as a result of the Search Term error. Mr Davis further submitted that their client should not have to bear the costs of a mistake which was the fault of a third party. 2. Mr Zahra SC submitted that Skytraders were entitled to their costs because the error was not caused by them and Skytraders had provided sufficient evidence to demonstrate that they had incurred wasted expenditures. This evidence, which was at a high level of generality, was outlined in the affidavit of Ms Kaushalya Mataraaratchi and was said to be uncontested by Mr Meyer. As a result, Skytraders submitted they were entitled to an order to address any unnecessary costs they have incurred in the proceedings. 3. Mr Zahra SC also submitted that if a costs order is made in favour of Skytraders, Mr Meyer's rights to pursue KordaMentha for any costs remain preserved and it should not fall to Skytraders to join a third party to their motion to recover any losses in relation to an interlocutory process that was part of the proceedings. 4. The Court accepts that Skytraders will have incurred some wasted costs as a result of the error, but makes no finding as to what those costs were. The Court also acknowledges the mistake was not caused by Mr Meyer's solicitors and appropriate steps were taken in a timely way to resolve the issue. Nevertheless, Skytraders is entitled to recoup costs which were wasted as a result of actions taken on behalf of Mr Meyer in relation to interlocutory orders related to these proceedings. 5. However, the Court declines to make costs order referrable to specific categories of wasted costs as proposed by Skytraders. Costs assessors are experienced in identifying wasted costs and this should be a process conducted at the end of the case without any attempt by the Court at this interlocutory stage of the proceedings to identify specific categories of such costs. To do so at this stage may only lead to further dispute in a matter which has already been stalled by several interlocutory disputes and is inconsistent with s 56 of the Civil Procedure Act 2005 (NSW) (CPA). 6. Finally, the motion sought that the costs thrown away be on the indemnity basis, with the ordinary basis as an alternative. No written or oral submission was made in support of the indemnity basis. In my respectful view, that reticence was correct. There is no suggestion that the Search Term error was the fault of Mr Meyer or his solicitors. None of the established categories of conduct which could result in an indemnity costs order are satisfied in this case. Any costs thrown away will be assessed on the ordinary basis. Conclusion 1. For these reasons, the Court will not require Mr Meyer's solicitors to provide Skytraders' solicitors a Legal Forensic Image of documents to which privilege has successfully been claimed, but will require Mr Meyer to pay Skytraders' costs thrown away by reason of the Search Term error. 2. As each party has had a measure of success, the Court proposes that each party's costs be their costs in the cause. The scope of dispute narrowed significantly after extensive negotiation between the parties. It is also not consistent with s 56 of the CPA for the Court to attempt to parse the measure of success that each party has had on the motion. As the procedural history shows, this litigation has been bedevilled by interlocutory disputes and further costs should not, if possible, be incurred in such an exercise. Nevertheless, the parties will be given an opportunity to be heard in relation to costs if they wish. 3. The orders of the Court are: 1. Dismiss the Plaintiff's amended notice of motion filed 27 August 2024. 2. The Defendant pay the Plaintiff's costs thrown away by reason of and incidental to the application of incorrect search terms referred to in the affidavit of Roman Barbera affirmed on 24 May 2024. 3. The costs of the amended motion be costs in the cause. 4. Order 3 be stayed up to and including 6 December 2024 and, if any party notifies the Associate to Kunc J by email on or before that date that they wish to be heard as to costs, until further order of the Court. ********** 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: 29 November 2024