Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198

Supreme Court New South Wales

Medium Neutral Citation: Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198 Hearing dates: 24 June 2019 Date of orders: 11 September 2019 Decision date: 11 September 2019 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Grant leave to the plaintiffs to use those documents obtained pursuant to the search orders dated 16 September 2016 copies of which are annexures B1, B2, E1, E2, E3, E4, E5, E6, E7, E8, E9, E10, E12, E13, E14, E15, E16, E17, F1, G1, G2, J1, J2, J3, J4, J5, J6, J7, J8, J9, J10, J11, J12, J13, J14, J15, L1, and M1 to the proposed amended statement of claim exhibited behind Tab 4 of Exhibit ASZ-17 to the affidavit affirmed 7 June 2019 of Amy Siyi Zhang (the Annexed Documents as defined in these reasons) for the purposes of proceedings 2019/00067900 (being the proceedings have been cross-vested to the Supreme Court of the Australian Capital Territory by order made by Robb J on 20 June 2019) (the Cross-Vested Proceedings), and for the purposes of the proceedings that have now been commenced in this Court by leave granted on 15 July 2019 (the Defamation Proceedings). (2) Grant leave to the plaintiffs to use the document comprising the email chain annexed as Annexure A to the affidavit affirmed 17 June 2019 of Amy Siyi Zhang for the purposes of the Defamation Proceedings. (3) Otherwise dismiss each of the amended notice of motion filed 4 July 2018 and the notice of motion filed 17 June 2019 by the plaintiffs in these proceedings. (4) Confirm Order 3(ii) made on 19 October 2018 as to the classes of documents required to be returned and/or destroyed (including, for the avoidance of doubt, the document annexed as Annexure C to the affidavit affirmed 17 June 2019 of Amy Siyi Zhang); extend that order to cover all documents seized pursuant to the search orders made in September 2016 other than documents for which leave to use the documents is here given; and otherwise dismiss the notice of motion filed on 31 October 2018 (and amended on 19 February 2019) by the fourth defendant. (5) Order that the return and/or destruction of the documents referred to in Order 4 above (the Subject Documents) be implemented in accordance with the following regime: 1. Within 14 days, the plaintiffs are to cause the return to the fourth defendant's solicitors of the actual physical documents seized on the night of the search order that are in the possession of the independent solicitor or the independent computer expert. 2. Within 14 days, the plaintiffs are to cause the return to the fourth defendant's solicitors or the destruction by shredding of all hard copies of the Subject Documents (that is, any hard copy of any physical document seized, including any hard copy of any such document generated by computer) which are in the possession of the independent solicitor; the independent computer expert, Mr Michael Doucas of the plaintiffs, or otherwise within the care, custody or control of any of the plaintiffs or the plaintiffs' legal representatives or other advisers or consultants of the plaintiffs. 3. Within seven days, the parties are to agree the identity of an independent computer expert (or, failing agreement, the plaintiffs and the fourth defendant are to provide to my Associate within the said period the names of three proposed independent computer experts (with their respective curriculum vitae)) to be appointed at the plaintiffs' cost to supervise the destruction of all electronic copies of the Subject Documents. 4. The nominated independent computer expert is to be retained jointly by the parties, at the plaintiffs' expense, to take the following steps (each to be completed within 28 days): (i) advise as to the appropriate software to effect the permanent destruction of all electronic copies of the Subject Documents in the possession, custody or control of any one or more of the independent expert, the independent computer expert initially appointed at the time the documents were seized, Mr Doucas, the plaintiffs, the plaintiffs' legal representatives and any other advisers or consultants of the plaintiffs; (ii) prepare a protocol for, and supervise the operation of the said software to implement that protocol in order to effect, the permanent destruction of all such electronic copies of the Subject Documents; (iii) certify the permanent destruction of all electronic copies of the Subject Documents. 5. Within 21 days the plaintiffs are to file and serve an affidavit: deposing to the steps which have been taken to effect the return or destruction of the documents referred to in [1] and [2] above; annexing certification from each person to whom any hard copy of the Subject Documents has been provided to the effect that all hard copies of the Subject Documents held by that person have been returned or destroyed (specifying in each case whether the documents have been returned or destroyed); and, if it is not possible to obtain certification from any such person, deposing to the reasons why that is not possible and to what steps have been taken to ensure that that person is aware of the requirement for the return or deletion of the Subject Documents. 6. Within 35 days the plaintiffs are to file and serve an affidavit: deposing to the steps which have been taken to comply with [3] and [4] above in relation to all electronic copies of the Subject Documents; annexing certification from the independent computer expert retained pursuant to [4] above as to the permanent destruction of all electronic copies of the Subject Documents; and, to the extent that it has not been possible to effect the permanent destruction of all electronic copies of the Subject Documents, explaining why that is the case. 7. Within 14 days the fourth defendant is to file and serve a written undertaking by the fourth defendant's solicitors to the plaintiffs to the effect that the fourth defendants' solicitors will retain a complete copy of all documents filed and served in these proceedings and of the Subject Documents (including the original of the personal notebook defined as the Annexure C document in the Court's reasons for judgment of today's date) until the final disposition of the Cross-Vested Proceedings and the Defamation Proceedings, and any appeal(s) therefrom. 8. To the extent not covered by the above, any storage devices seized on the night of the search order that are in the possession of the independent solicitor or independent computer expert be returned to the fourth defendant's solicitors within 28 days. (6) Order the plaintiffs to pay 80% of the fourth defendant's costs of the plaintiffs' notices of motion and that each party should bear his or its own costs of the fourth defendant's notice of motion filed on 31 October 2016. Catchwords: CIVIL PROCEDURE – Implied undertakings – application for leave to use in other proceedings certain documents obtained in the execution of search orders – whether the Harman undertaking applies – whether, as a matter of discretion and because of special circumstances, there should be a release from the undertaking