Idoport & Anor v National Australia Bank Limited & 8 Ors; Idoport Pty Limited and Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited "JMG" v National Australia Bank Limited [29] [2001] NSWSC 530

New South Wales Supreme Court

CITATION : Idoport & Anor v National Australia Bank Limited & 8 Ors; Idoport Pty Limited and Market Holdings Pty Limited v Donald Robert Argus; Idoport Pty Limited "JMG" v National Australia Bank Limited [29] [2001] NSWSC 530 FILE NUMBER(S) : SC 50113/98; 50026/99; 3991/00 HEARING DATE(S) : 22/06/2001 JUDGMENT DATE : 22 June 2001

Idoport Pty Limited (Plaintiff) PARTIES : Market Holdings Pty Limited (Plaintiff) National Australia Bank Limited (Defendant) Donald Robert Argus (Defendant) JUDGMENT OF : Einstein J

COUNSEL : Mr M Dicker, Mr R Titterton and Mr R Alkadamani (Plaintiffs) Mr J Sackar QC, Mr John Halley and Ms K Williams (Defendants) SOLICITORS : Withnell Hetherington (Plaintiffs) Freehills (Defendants) CATCHWORDS : Discovery - experts retained to retrieve data deleted from hard drive LEGISLATION CITED : Supreme Court Rules CASES CITED : Ebner v Official Trustee 176 Australian Law Reports 644 DECISION : Defendants' preferred expert excluded from ambit of experts to retrieve data deleted from hard drives.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION - COMMERCIAL LIST

EINSTEIN J

Friday 22 June 2001 ex tempore Revised 27 June 2001

50113/98 IDOPORT PTY LIMITED & ANOR v NATIONAL AUSTRALIA BANK LIMITED & 8 ORS

50026/99 IDOPORT PTY LIMITED & ANOR v DONALD ROBERT ARGUS

3991/00 IDOPORT PTY LIMITED ("JMG") v NATIONAL AUSTRALIA BANK LIMITED

JUDGMENT 1 HIS HONOUR: In proceedings number 50113 of 1998, 50026 of 1999 and 3991 of 2000, a judgment was delivered on 22 May ex tempore and revised on 25 May dealing with amended notice of motion No. 6 filed by the defendants on 2 May 2001, which notice of motion covered several discrete areas. 2 The third section of the amended notice of motion which had been pressed and was the subject of that judgment is to be found referred to in paragraph 23 of the judgment, the defendants having sought an order "pursuant to part 23, rule 4 (or alternatively, part 25, rule 8) of the Supreme Court rules [that] the plaintiffs allow the defendants to inspect the hard drives of the Texas Instrument computer and the Gateway computer referred to in paragraph 4 of part 2 of the plaintiffs' draft further supplementary list of documents." 3 The section of that judgment dealing with paragraph 3 of the notice of motion runs from paragraph 23 through to paragraph 32 and is self-explanatory. 4 Following the delivery of that judgment, an issue has been raised by the plaintiffs concerning the propriety of the proposed orders that the plaintiffs give Mr Henley access to the Texas Instruments computer and the Gateway computer for the purpose of Mr Henley taking an image of the hard disk drive of each of the computers and later providing to the solicitors for the plaintiffs: (a) one or more CD Roms containing any documents and/or data which Mr Henley is able to retrieve from the computers which contain one or more of the search terms contained in a schedule to proposed short minutes of order and/or; (b) a report (the " Henley report ") setting out: (i) the process Mr Henley undertook to retrieve the documents and/or data; (ii) the quantity of material retrieved by Mr Henley and the number of hits for each search term (without disclosing the contents of the material retrieved); (iii) whether it is possible to identify occasions when documents were deleted from the hard drive and if so the circumstances of the deletion including the time at which the deletion occurred. 5 The problem which the plaintiffs have suggested has arisen is identified in an affidavit made by Mr Stuart William Hetherington on 21 June 2001. Annexed to that affidavit as annexure A is a copy of a letter from Withnell Hetherington to Freehills of 28 May 2001 sent some few days after the judgment to which I have referred was delivered. In that letter, Withnell Hetherington advised Freehills that they were instructed to bring to Freehills' attention "the fact that our client does not consider it to be appropriate that PricewaterhouseCoopers be involved in this process in view of the apparent close connection which that firm has with your client. Our client's understanding in that regard comes from the fact that when that firm was approached to provide a statement in these proceedings, our client was advised by a Pricewaterhouse Coopers' partner, Mr Graeme Andrews, that PricewaterhouseCoopers would be unable to do so as it had a conflict of interest across a wide range of matters with the NAB." 6 Mr Hetherington in his affidavit of 21 June 2001 has given evidence to the following effect: "6. Prior to sending the letter which is annexure "A" hereto I was informed by Mr. Maconochie and verily believe that he had had a conversation with Mr. Graeme Andrews of PriceWaterhouseCoopers some months ago in which he had said words to the effect to Mr. Andrews : "Would you be prepared to provide a statement in these proceedings" and Mr. Andrews had responded in words to the effect: "We would not be able to as we have a conflict of interest across a wide range of matters with the NAB". 7. I am further informed by Mr. Maconochie and verily believe that he is concerned, by reason of the conversation with Mr. Andrews to which I have deposed in paragraph 6 above, that PriceWaterhouseCoopers, if asked by the Plaintiffs to conduct a similar task for them on the defendants' computers would decline to accept such a task on account of their actual and potential future commercial relationship with the NAB, and therefore he is concerned that PriceWaterhouseCoopers would not be able to exercise the necessary degree of objectivity and impartiality in carrying out the task requested of them by the Defendants.