Cadence Australia Pty Ltd v Chew [2008] NSWSC 1074

New South Wales Supreme Court

CITATION : Cadence Australia Pty Ltd v Chew [2008] NSWSC 1074 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 16 and 19 September 2008

JUDGMENT DATE : 19 September 2008

JURISDICTION : Equity

JUDGMENT OF : Hamilton J

DECISION : Access granted to permit inspection of contents of computer.

CATCHWORDS : PROCEDURE [104] - Supreme Court procedure - Procedure under Rules of Court - Medical examination, inspection of property, etc - Whether denial by party that computer contains any relevant material conclusive.

LEGISLATION CITED : Civil Procedure Act 2005 s 68 Uniform Civil Procedure Rules 2005 r 23.8(1)

CATEGORY : Procedural and other rulings

CASES CITED : Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 520 Sony Music Entertainment (Australia) Ltd v University of Tasmania (2003) 198 ALR 367

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, 19 SEPTEMBER 2008

4524/08 CADENCE AUSTRALIA PTY LIMITED v SIMON CHEW JUDGMENT 1 HIS HONOUR: This is an application under s 68 of the Civil Procedure Act 2005 for the production to the Court of a laptop computer on which the defendant has conducted his business affairs and affairs generally since leaving the plaintiff's employ. The case against him is that he has committed breaches of restraints contained in his employment contract. The plaintiff's case against him, as it appears to date, is very thin. I need not go into the details as to why this is so, but they have been outlined by Mr Dubler, of Senior Counsel for the defendant, in the course of the hearing before me and, in my view, correctly so. The thinness of the case is emphasised by the fact that no interlocutory relief is at present in force in the plaintiff's favour. 2 The plaintiff seeks, upon production of the computer, to have it examined to see whether or not it contains any material that would be relevant to a determination of the questions arising in these proceedings. I express the last proposition in the terms I have because r 23.8(1) of the Uniform Civil Procedure Rules 2005 expresses the purpose for which orders may be made under that rule as follows: "… the purpose of enabling the proper determination of any matter in question in any proceedings." 3 Mr Dubler has earnestly and with considerable citation of authority, suggested that there is some other, or threshold, criterion that an applicant for an order under r 23.8 must satisfy. He puts it in various ways but they are, in general terms, to the effect that it must be established that there is more than a mere possibility of the computer in this case containing documents that are material to the proceedings and he says that the material before me negatives the possibility of the existence of such documents.