Cadence Australia Pty Ltd v Chew [2008] NSWSC 1076

New South Wales Supreme Court

CITATION : Cadence Australia Pty Ltd v Chew [2008] NSWSC 1076

HEARING DATE(S) : 26 September 2008

JUDGMENT DATE : 26 September 2008

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Ambit of permitted inspection of material in computer defined.

CATCHWORDS : PROCEDURE [104] - Supreme Court procedure - Procedure under Rules of Court - Medical examination, inspection of property, etc - Ambit of material of which inspection should be permitted.

Civil Procedure Act 2005 s 56(1) LEGISLATION CITED : Common Law Procedure Act 1899 Uniform Civil Procedure Rules 2005 r 23.8

CATEGORY : Procedural and other rulings

Azzopardi v Gosford City Council [2001] NSWLEC 49 CASES CITED : Cadence Australia Pty Ltd v Chew [2008] NSWSC 1074 Fletchers International Exports Pty Limited v Hodges [2000] NSWCA 285 Reid v Cross Developments Pty Ltd [1964-5] NSWR 1683

PARTIES : Cadence Australia Pty Limited (P) Simon Chew (D)

FILE NUMBER(S) : SC 4524/08

COUNSEL : M J Moir (P) R E Dubler SC (D)

SOLICITORS : BCP Lawyers & Consultants (P) Hegarty & Elmgreen Lawyers (D)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

HAMILTON J

FRIDAY, 26 SEPTEMBER 2008

4524/08 CADENCE AUSTRALIA PTY LIMITED v SIMON CHEW JUDGMENT 1 HIS HONOUR: This is essentially an application under r 23.8 of the Uniform Civil Procedure Rules 2005 for the examination by an independent expert on a confidential basis of the contents of the defendant's laptop computer. The defendant is prepared to concede that such an examination may be made and, indeed, has nominated an independent expert carry out the examination to do it to see whether, despite the defendant's denials, there is in the computer material that evidences communication or contact between the defendant or Icon Project Management Pty Ltd, a company with which he is associated, and John Boyd Properties, which was a client of the plaintiff. 2 It is conceded that, as well as the organisation John Boyd Properties, it would be appropriate to name two of its representatives, Ian Paver and John Boyd. The plaintiff, however, also asks for a right to have search made for contact with 12 other entities that are named in proposed short minutes that it has put before me. With the exception of Sydney Airport Corporation Ltd, there is no evidence of contact between the defendant and anyone associated with him and the 12 people I have mentioned. However, in relation to that organisation it is conceded that it was not a client of the plaintiff in the last 12 months of the defendant's employment. 3 In relation to the other 11, there is neither any evidence of contact with those persons by the defendant or any associate and, whilst there is evidence that those 11 people have at some time been clients of the plaintiff, there is no evidence that they were clients in the last 12 months of the defendant's employment. 4 The materiality of the last 12 months is as follows. There is not as yet any pleading in this matter, although I shall on request order that proceedings of this nature continue on pleadings. The only definition of what is at issue in the case is therefore to be derived from the prayers in the plaintiff's summons, which was filed on 2 September 2008. The only former client of the plaintiff named in those prayers is John Boyd Properties, as to which, as I have said, the defendant now concedes a right to have an examination of the contents of the computer. The other prayers are all in totally general terms and all relate in terms to contact with persons who were clients of the plaintiff in the last 12 months of the defendant's employment. As I have said, there is no evidence that any of the persons other than John Boyd Properties is in that category. 5 It is not certain at the moment whether or not the plaintiff's case will continue to be limited in that way. Mr Moir, of counsel for the plaintiff, is not able to tell me why the summons was drawn in that form. The clauses sought to be enforced do not contain a limitation of that sort. On the other hand, Mr Dubler, of Senior Counsel for the defendant, suggests that the draftsman of the summons may have limited the prayers in that way in order to ensure that the orders sought were within a restraint that could be considered reasonable. 6 The plaintiff's counsel is not at the moment in a position to enlighten me concerning that. I must determine this matter in relation to the issues in the case as they stand. The opening words of r 23.8 are that the relevant sort of order may be made for "the purpose of enabling the proper determination of any matter in question in the proceedings". 7 I have already expressed the view that the denial by a party of the existence of the relevant type of material should not prevent the making of an order under r 23.8: Cadence Australia Pty Ltd v Chew [2008] NSWSC 1074. In the same place I expressed the view that the sole basis upon which the rule would be enlivened is the establishment of a purpose of enabling the proper determination of any matter in question. 8 Mr Dubler has urged upon me the importance of limiting the use of this intrusive power. He has cited authority in support of this proposition, being the decisions of Manning J in Reid v Cross Developments Pty Ltd [1964-5] NSWR 1683; of the Court of Appeal in Fletchers International Exports Pty Limited v Hodges [2000] NSWCA 285; and of Lloyd J in the Land and Environment Court in Azzopardi v Gosford City Council [2001] NSWLEC 49. 9 I do not really need to turn to any of those authorities to decide this case. The decision of Manning J under a procedural regime that was still governed by the Common Law Procedure Act 1899 appears to me quite stale. Furthermore, the situation stipulated in the opening words of the rule appear to me quite clear. It also appears to me on the material that I have referred to that questions do arise in the proceedings concerning John Boyd Properties, but it cannot be said that questions arise in the proceedings in relation to the other persons named by the plaintiff. 10 On the one hand, it is most desirable that the Court have power to assist it in the just, cheap and quick determination of proceedings, in the words of s 56(1) of the Civil Procedure Act 2005. On the other hand, there must be a proper limit, as Lloyd J observed in the Azzopardi case, on the ambit of provisions that are intrusive into privacy. 11 The correct balance will be maintained in this case if I allow examination of the computer for the purpose of investigating contact with John Boyd Properties, to which, as I have said, the defendant does not now object, but refusing to allow examination in relation to other persons as to whom questions are not shown to arise on the material available.