New South Wales Supreme Court CITATION : Lakaev v Denny [2010] NSWSC 136 HEARING DATE(S) : 4 February 2010, 11 February 2010 JUDGMENT DATE : 5 March 2010 JURISDICTION : Common Law JUDGMENT OF : Rothman J The Court made orders on 11 February 2010, to reflect the terms of the orders announced on 4 February 2010, in the following terms: (i) The Court notes the undertaking of the first and second defendants not to take any steps under Order 10 of the orders dated 8 April 2009, until further order of the Court. DECISION : (ii) The plaintiff be granted access to the Report of Mr Robert Atkins dated 1 October 2009, prepared pursuant to Order 4 of the orders dated 8 April 2009, and the material to which the report relates, except for the following paragraphs and appendices: (a) paragraphs 45-48, 51-58, 114-117, 151-152 and 158-161; (b) appendices 2, 3, 5, 6, 7, 8, 36, 37, 53, 55 and 56. (iii) Liberty to re-list the matter on 3 days' notice. CATCHWORDS : PRACTICE AND PROCEDURE – preliminary discovery – orders previously made – question of whether categories are relevant and/or confidential – residual discretion – discretion not exercised – some documents irrelevant for purpose of preliminary discovery – distinction turns on issues of fact LEGISLATION CITED : Uniform Civil Procedure Rules 2005 CATEGORY : Procedural and other rulings CASES CITED : Morton & Ors v Nylex Ltd & Or [2007] NSWSC 562 Papaconstuntinos v Holmes a Court [2006] NSWSC 945 Natasha Lakaev (Plaintiff) PARTIES : Annette Denny (First Defendant) Warren Denny (Second Defendant) FILE NUMBER(S) : SC 20062/2009 COUNSEL : M S White (Plaintiff) R Rasmussen (Defendants) SOLICITORS : Bruce Macdonald Lawyers (Plaintiff) Flower and Hart Lawyers (Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ROTHMAN J 5 MARCH 2010 20062/2009 Natasha Lakaev v Annette Denny & Ors JUDGMENT 1 HIS HONOUR: Natasha Lakaev, the plaintiff, claims that someone has defamed her on the internet. She has produced the allegedly defamatory material to the Court and has, leaving aside available defences, a more than arguable prima facie case for defamation. At the outset, the identity of the person who posted the material on the internet was uncertain. 2 On 8 April 2009, his Honour Justice Adams granted preliminary discovery, requiring the production of certain material, described in general terms. The defendant objects to certain categories as "irrelevant". 3 Relevantly, his Honour's orders were to the following effect: + That the first and second defendants were to provide by way of discovery to the plaintiff all records of communication in the period between 4 April 2006 and 31 July 2008, relating to the publication of the blogs on the websites set out in annexures B, C, F, J and K in the plaintiff's affidavit. + That an expert, to be agreed on by the parties within 14 days, would be appointed who would: o be given access within 21 days to the personal computers in the possession of the first and second defendants for the purpose of the expert obtaining an image of the hard drive of the personal computers; o be provided with any user names or passwords to access the hard drives of the first and second defendants' personal computers; o extract from the hard drives images relating to all records of communications in the period between 4 April 2006 and 31 July 2008 relating to the publication of the blogs on the websites set out in annexures B, C, F, J and K in the plaintiff's affidavit, and prepare a report on that material; and o provide the report to the first and second defendants. + That the first and second defendants would notify the plaintiff and the expert of any objection to disclosure of the report and material based on irrelevance or confidentiality within 7 days of receipt of the report and material. + That if any such objections were made, the parties would relist the proceeding before the Court for determination of the objections. 4 As earlier stated, Adams J issued orders for preliminary discovery to ascertain the identity of potential defendants, and/or to clarify whether to commence against the current defendants, under UCPR 5.2 and 5.3 of the Uniform Civil Procedure Rules 2005 ("UCPR"). Objection is taken by the first and second defendants, on the basis of relevance and confidentiality, to the production of certain documents, which the plaintiff alleges contain defamatory imputations. The documents are contained in, or form appendices to, the report (hereinafter "the Report") of the single expert, Mr Robert Atkins. The Report was prepared pursuant to the orders of Adams J on 8 April 2009. 5 The Report contains extracted records from the first and second defendants' personal computers, relating to the publication of certain blogs on specified Internet sites. The published material related to courses conducted by the plaintiff from 1992 through the companies: Survivor Principles Pty Ltd and Universal Knowledge Pty Ltd at Omaroo (the plaintiff's property in Burringbar), northern New South Wales. Subsequently, the appointed expert, Mr Robert Atkins, provided the Report, dated 1 October 2009, to the first and second defendants. On 21 October 2009, the first and second defendants notified the plaintiff of objections to the Report being made available to the plaintiff. 6 The Report has been provided, after undertakings as to confidentiality, to the legal advisors to Ms Lakaev, but, in order for its contents to be used to obtain instructions from the plaintiff, needs to be available to Ms Lakaev. On 12 November 2009, the plaintiff, Ms Natasha Lakaev, filed a notice of motion, supported by affidavit, seeking determination of the first and second defendants' objections to the discovery of the Report. 7 On 4 February 2010, the application in respect of the objections of the first and second defendants came before the Court. The first and second defendants conceded that Appendices 20 and 25 were discoverable. Otherwise, the objected material is all of the material produced in the Report, by examination of, and extracting material from, the personal computers of the defendants. 8 The first and second defendants made two primary submissions against the discoverability of the objected material. 9 First, it was submitted that the orders of 8 April 2009 were conditional and limited discovery to communications which met the criteria of relevance and non-confidentiality. The onus, it was argued, was on the plaintiff to establish that the documents referred to in the Report were discoverable. 10 The first and second defendants submitted that UCPR 5.3(1) was restricted to discovery of documents relating to a potential claim against the first and second defendants, and not third parties: Morton & Ors v Nylex Ltd & Or [2007] NSWSC 562, [27]; Papaconstuntinos v Holmes a Court [2006] NSWSC 945, at [14], per Simpson J. 11 Second, it was submitted that even if the criteria were met, there is a discretion as to whether discovery should be ordered: Papaconstuntinos, supra, at [18]. In exercising that discretion, the Court, it is submitted, is guided by whether or not the plaintiff has made reasonable enquiries and remains unable to determine whether or not to convene proceedings against the particular defendants, which assessment, it is submitted, should be made at the date of the hearing: Papaconstuntinos, supra, at [27]. 12 The defendant submitted that (with the exception of Appendices 20 and 25) the objected material was not discoverable, as each of the appendices fell outside the scope of the orders of 8 April 2009, because: (a) The material was a publication to Annette Denny rather than by Annette Denny; (b) The material was not a publication to "one of the named websites" specified in order 1 of Adams J; (c) The material is not a "publication", because it is simply a printed copy of a document; and/or (d) The material is confidential. 13 The issue for determination is not whether an order for discovery in respect of the material in the Report ought to be made. His Honour Justice Adams had already made orders to that effect on 8 April 2009. The Court, as presently constituted, was not asked to hear an appeal from his Honour's orders and the Court ought not, in the absence of good reason, reconsider an issue, which has already excited the Court's attention. For these reasons, the decision in Nylex (at [27]), which restricted the capacity of the plaintiffs to seek preliminary discovery from the defendants in order to decide whether to sue third parties under UCPR 5.3, is not directly in issue. 14 Rather, the issue to be decided is whether, notwithstanding the order of preliminary discovery, access to any of the objected material should not be granted because it: + falls into a limited category warranting the Court's discretionary refusal to grant discovery by excluding material from the operation of the orders of 8 April 2009, because, amongst other things, of a failure by the plaintiff to make reasonable enquiries; or + is irrelevant or confidential, in accordance with Order 6 of his Honour's orders of 8 April 2009, or, otherwise, does not fall within the terms of his Honour's orders. 15 The first and second defendants submitted that, notwithstanding the grant of preliminary discovery by his Honour Justice Adams, a discretion existed to exclude evidence otherwise satisfying UCPR 5.2 and 5.3 from discovery. The defendant sought to rely on the decision of her Honour Justice Simpson, in Papaconstuntinos. In Papaconstuntinos, Simpson J stated (at [20]) that the power to grant discovery in UCPR 5.3: "is potentially an extremely demanding task and a considerable imposition upon a defendant … it may require the prospective defendant to make an assessment of the potential relevance of documents or other things to putative proceedings that have not yet been formulated. It may require a very lengthy and detailed examination of documents and records. It is not a power to be exercised lightly. It is, no doubt, for that reason that the power is not to be exercised unless and until the plaintiff has been shown to have made reasonable enquiries otherwise." 16 Even though her Honour, in the foregoing, was concerned with the grant of discovery, the Court accepts, without deciding, that a residual discretion of that kind exists. The circumstances of the first and second defendants, and the nature of the objected material, do not warrant the Court refusing to grant discovery. There was no want of reasonable enquiries on the part of the plaintiff. The nature of the objected material, appearing in the Report and appendices, which have already been prepared, are such that there would be little or no further imposition on the first and second defendants, should discovery be granted. 17 Generally, discovery ought be given to the plaintiff in respect of the Report and the appendices constituting the objected material. On the whole, the evidence contained in the appendices "relates to" the publication of the blogs set out in annexures B, C, F, H and K to the affidavit of Natasha Lakaev, sworn 3 April 2009, on the named Internet sites, as required by Order 1 of 8 April 2009. 18 The appendices relate to the publication of each of the named blogs because they: + evidence the process by which the blog "Close Encounters with Universal Knowledge" was published, who was involved and its publication to other persons (Appendices 4, 9-35, 38, 40-41); + evidence the creation and publication of the blog "The Truth about your Leader", including the second defendant's use of the username "max_burn" (Appendices 39, 42-44, 48-52, 52); or + indicate the first and second defendants were involved in publishing the blog "My Personal Experience with a Cult" to another person and that other person's publication of that blog on the rickross.com website (Appendices 45-47, 57). Such evidence relates to the identity of the proper defendants, because it, of itself, or when combined with other material, directly or indirectly renders more probable the identity of persons who had published, anonymously or under pseudonyms, material that would, in the plaintiff's submissions, lead to a defamatory imputation. 19 A basis for the first and second defendants' objections was that some of the evidence, particularly of email correspondence, was not published by the defendants or alternatively was not published on a named website. The material establishes the involvement of a person in the publication of material and is relevant to determining the identity of the potential defendant (UCPR 5.2(1)), even if the material itself was not published directly onto one of the named websites. 20 Even though some of the evidence contained in the appendices would not, of itself, establish the identity of the publisher, taken together, they show a course of conduct evidencing that the defendants published, or were involved in the publication of, the blogs set out in annexures B, C, F, H and K to the affidavit of Natasha Lakaev, sworn 3 April 2009, and each is therefore within the terms of UCPR 5.2(1). 21 Moreover, there is no requirement in his Honour's orders of 8 April 2009 that the discoverable records of communications were published by the first or second defendant, rather than published to them, so long as the evidence relates to the publication of the blog. 22 However, discovery should not be granted in respect of Appendices 2, 36 and 37. The plaintiff submits that Appendices 2, 36 and 37 indicate that a certain person was responsible for the writing and the publication of the blog "How I Found Universal Knowledge". However, each of these appendices is a copy of an email from various third parties, otherwise unrelated to these proceedings, expressing the opinion, the basis for which is not established, that a certain person (to which previous reference has been made earlier in this paragraph) is the author of the anonymous blogs. 23 The basis on which the third parties express their opinion is, on examination of the emails, speculative, and arises, it seems, from the supposed similarity in the style of the blogs and the alleged author, rather than something actually known to the third party. This does not provide a basis for a reasonable suspicion that the certain person was the author. Such evidence cannot therefore provide a basis for the identity of a potential defendant, as required by UCPR 5.3 (see also Papaconstuntinos, at [25]. 24 For the foregoing reasons, the Court made orders on 11 February 2010, to reflect the terms of the orders announced on 4 February 2010, in the following terms: (i) The Court notes the undertaking of the first and second defendants not to take any steps under Order 10 of the orders dated 8 April 2009, until further order of the Court. (ii) The plaintiff be granted access to the Report of Mr Robert Atkins dated 1 October 2009, prepared pursuant to Order 4 of the orders dated 8 April 2009, and the material to which the report relates, except for the following paragraphs and appendices: (a) paragraphs 45-48, 51-58, 114-117, 151-152 and 158-161; (b) appendices 2, 3, 5, 6, 7, 8, 36, 37, 53, 55 and 56. (iii) Liberty to re-list the matter on 3 days' notice. ********** 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.