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- Unreported Judgment
DISTRICT COURT OF QUEENSLAND
Brisbane Survey Group Pty Ltd v McBurnie & others  QDC 20
BRISBANE SURVEY GROUP PTY LTD
MCBURNIE & OTHERS
6 March 2020
20 February 2020
Byrne QC DCJ
PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCLOSURE – where the appellant sought orders for disclosure and production in nominated formats for the period of the first respondent’s employment with the appellant and by reference to particular file numbers of the respondent – where the appellant sought orders for disclosure and production in nominated formats for the period after the first respondent’s employment with the appellant to the current time and by reference from a particular file number of the respondents to the present time – where the appellant sought disclosure and production of the metadata particulars of the documents the subject of the period of the first respondent’s employment with appellant and the period after the respondent’s employment with the appellant to the current time.
Uniform Civil Procedure Rules, Rule 211
Harvey v Commonwealth Scientific and Industrial Research Organisation  2 Qd.R. 594
Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants and Bars Pty Ltd  1 Qd.R. 276
Peninsula Shipping Lines Pty Ltd v Adsteam Agency Pty Ltd  QSC 317
R. Ivessa for the Appellant
J Marr for the Respondent
Brighthill Lawyers for the Appellant
K&L Gates for the Respondent
- (1)The present application seeks orders for disclosure and production for inspection of certain documents and classes of documents. The precise applications will be addressed below, as will the factual background to the application.
- (2)On 8 June 2018 the plaintiff filed a claim against the three defendants for, inter alia, a taking of accounts and damages. There have been three amended statements of claim and consequent defences, two amended replies and one amended claim filed since that time. A defendant has been added by counterclaim who is currently, and was at relevant times, the sole director and shareholder of the plaintiff.
- (3)The state of the present pleadings needs to be understood. On about 15 April 2016 the plaintiff purchased a pre-existing survey business in which the first defendant had been employed. The first defendant was then employed by the plaintiff between that time and 18 April 2018 as a senior surveyor.
- (4)It is claimed that the first defendant was operating the third defendant as a surveying business, both directly and through his involvement in the second defendant, from a time predating April 2016. The plaintiff claims that, in effect, the first defendant (and through him, the second defendant) used the plaintiff’s surveying equipment, intellectual property and confidential information on a day to day basis to advantage the third defendant in its business dealings in competition with the plaintiff, and that this occurred both during the period of his employment with the plaintiff, and after. The intellectual property and confidential information is said to include, survey plans (including the drafting layers of those plans), drawing templates and various forms of what I will call administrative templates such as contractual terms and conditions, invoices written confirmation of acceptance and letterheads (all “the subject material”).
- (5)It is claimed that in doing so the first defendant breached various contractual, fiduciary and equitable duties. Relief is sought against the first defendant and, separately, against the second defendant, or alternatively the third defendant.
- (6)The defendants by way of defence and counterclaim accept that some surveying work was done during the employment period by the defendants, but say that it was done with the knowledge and concurrence of the defendant added by counterclaim and, it is said, that acquiescence is to be attributed to the plaintiff. They do not admit any use of confidential information during the employment period. The defendants accept that work has been done in competition with the plaintiff in the post-employment period but do not admit any use of the plaintiff’s equipment or confidential information as claimed by the plaintiff.
- (7)On 7 February 2020 the plaintiff filed the present application for orders for disclosure and production for inspection of the subject material, in nominated formats:
- For the period of the first defendant’s employment with the plaintiff and by reference to particular file numbers of the defendants (“the 1(a) application”); and
- For the period after the first defendant’s employment with the plaintiff to the current time and by reference from a particular file number of the defendants to the present time (“the 1(b) application”).
The plaintiff also sought the disclosure and production of “the metadata particulars of the documents the subject of” the 1(a) and the 1(b) applications (“the 1(c) application”).
- (8)For the reasons that follow the plaintiff should succeed on the 1(a) application and some but not all of each of the 1(b) and the 1(c) applications.
History of the Litigation
- (9)It is necessary to look at some of the history of the litigation more closely to understand the context of the current application.
- (10)The plaintiff had compiled a list of names of people who had posted comments on a website about work performed by the third defendant between about 2016 and April 2018. The allegation based on that information formed part of the originally filed claim concerning the employment period.
- (11)The plaintiff and the defendants each filed applications in June 2019. The plaintiffs sought disclosure by the provision of a list of documents from the defendants covering both the employment and post-employment periods, and the defendants sought further and better particulars of the further amended statement of claim.
- (12)The plaintiffs indicated a willingness to provide further and better particulars after the disclosure they sought. Sheridan DCJ considered that course to be appropriate for the records covering the period of the first defendant’s employment by the plaintiff. Her Honour however considered that different considerations applied to the post-employment period:
“The position as regards the period post-employment to the date of commencement of the proceedings is more complicated. The plaintiff has not articulated a factual basis for this complaint. Different legal considerations may also arise. Absent some basis for complaint and some limiting factors, the pleading is so broad as to provide insufficient basis for an order for disclosure for that period at this stage of proceedings.”
- (13)Her Honour made orders for disclosure concerning the employment period and for the provision of further and better particulars, and otherwise adjourned both applications to a date to be fixed. The plaintiff’s application before me is in effect a continuation of that part of the earlier application that was adjourned by her Honour.
- (14)Disclosure of the list of documents was effected on or about 6 August 2019, with copies of the documents contained in that list provided on or about 13 August 2019. The documents were listed according to the third defendant’s file numbers 20011 to 20116. These documents form the subject matter of the 1(a) application before me. The documents have not been disclosed and produced for inspection but I am told that once that occurs that will also satisfy that part of the 1(c) application. There is dispute between the parties as to what was done to achieve disclosure by inspection of these documents previously, and the appropriateness of the steps taken. I need not concern myself with that as the parties are agreed that the disclosure by inspection of the documents the subject of the 1(a) application should occur, although there is some dispute as to the precise terms of any order I should make in terms of the timing of that disclosure.
- (15)On or about 1 August 2019 the plaintiff obtained, by way of a Non-Party Disclosure Notice directed to the Department of Natural Resources, Mines and Energy (“the Land Titles Office”), a list of all survey plan numbers lodged or deposited with the Land Titles Office by the first and third defendants between 22 April 2018 and 3 June 2019. Although not all 125 plan documents have attributed to them, in the material before me, a file number given by the third defendant, most do and the range of those file numbers appears to be between 20117 and 20334 inclusive. This suggests there are at least 92 other files created in the same timeframe.
- (16)The plans related to those provided numbers have been inspected and the defendant by counter-claim has formed the opinion that all 125 of those records appear to be “direct copies of the plaintiff’s deposited survey plans.” All of those plans were registered in the post-employment period.
- (17)On 22 November 2019 the plaintiff filed its Third Amended Statement of Claim (“3ASOC”), and the 125 plan documents inspected from the Land Titles Office have been listed in Schedule 4 to that 3ASOC and refer where possible to the third defendant’s file number. The first to third defendants have jointly filed a Further Amended Defence and Counterclaim (“FADC”). The plaintiff has not yet filed an Amended Reply.
- (18)The nature of the application has been broadly outlined in paragraph 7 herein. As also noted above, the parties agree that disclosure and production for inspection of the subject material relating to each of the 106 files the subject of the 1(a) application should occur. The 1(a) application need not be considered further.
- (19)The 1(b) application is expressed to relate to documents forming part of the defendant’s file numbers 20117 to the present time. In the course of oral submissions, it became apparent that the 1(b) application was in fact referring to two separate sub-groups of documents. The first sub-group relates to the subject material related to the 125 matters listed in Schedule 4 to the 3ASOC, including but not limited to the plan documents inspected by virtue of the Non-Party Disclosure Notice.
- (20)After giving Counsel the opportunity to obtain updated instructions, the plaintiff conceded that an order for disclosure by inspection of all the nominated subject material relating to those 125 matters was appropriate, provided that parts of the 3ASOC were understood in a particular way, which was not conceded. Again, there remains some dispute as to the precise terms of any order I should make (if made at all) concerning that aspect of the 1(b) application, and in particular, whether that disclosure should occur before or after the plaintiff files an Amended Reply, if any.
- (21)The second sub-group is concerned with the subject matter of all of the defendant’s post-employment files up to the present date, other than that relating to the 125 files identified in Schedule 4 of the 3ASOC. The disclosure of this subject matter is in dispute between the parties. The dispute about whether this class of subject material, if ordered to be disclosed, should be disclosed before or after the plaintiff files an Amended Reply and Counterclaim remains extant also.
The Respective Arguments
- (22)The essence of the plaintiff’s argument is that the defendants have a duty to disclose all relevant material on issues put in dispute by the pleadings, and that this class of document falls within the dispute as framed by the 3ASOC and the FADC. It is said that there could be nothing in the Amended Reply which would take the issue out of dispute and given that the duty of disclosure is ongoing, it makes no sense to delay the disclosure until after the plaintiff files an Amended Reply and Counterclaim, if it chooses to do so.
- (23)In response to the defendants’ written submissions concerning what was said to be vagueness in the pleadings, the nature of a claim alleging use of confidential information, and the difficulty that brings in specifying the precise particulars of the claim in the absence of full disclosure from the defendant was emphasised, as was the fact that there was, and never has been an application to strike out the pleadings.
- (24)The plaintiff argued that even if there had previously been an insufficient basis in this part of the claim to order disclosure, as found by Sheridan DCJ, the non-party discovery of the 125 instances in Schedule 4 of the 3ASOC provided a sufficient basis to now order disclosure of all post-employment subject material. That is, it provides a sufficient basis from which it can be inferred that other instances in the post-employment period occurred.
- (25)The plaintiff argues that if disclosure is limited to only that subject material related to the 125 plan documents listed in Schedule 4 of the 3 ASOC, it will be forced to unnecessarily undertake the process of Non-Party Discovery closer to trial.
- (26)Whilst the claim seeks relief for conduct during the post-employment period to the date of trial, the plaintiff accepted that a line has to be drawn at some point.
- (27)For the defendants it was said that the pleadings concerning the post-employment subject material were so vague as to make it impossible to conclude that the subject material was relevant to an issue in dispute. It was said to be speculative to reach any such conclusion, and it was said that the finding by Sheridan DCJ had not been remedied by the filing of the 3ASOC.
- (28)In particular the pleadings at [14A],  and Schedule 4 of the 3ASOC were criticised, it being contended that if they were intended to allege the defendants’ misuse of the plaintiff’s confidential information post-employment, then it was not immediately apparent. The concession to disclose certain subject material was made only if that was in truth the effect of the pleading, and should not be taken as a concession overall. It was submitted that the plaintiff should take the opportunity of refining this point by way of an amended reply before disclosure was required.
Consideration of the 1(b) application
- (29)Rule 211 of the UCPR requires disclosure of each document in the possession or control of a party which is “directly relevant to an allegation in issue in the pleadings”. A document will be directly relevant if the sought after document tends to prove or disprove the truth of the allegation in issue. That necessarily focusses attention on the pleadings in order to ascertain what is put in issue between the parties. However, the application before me is not one requiring detailed dissection of the pleadings, such as an application to strike out or an application for a stay. As has been observed by Daubney J. in a discovery application:
“But the process is not, … , reduced merely to a microscopic examination of each factual averral in a pleading and of the response (if any) to each such factual averral in the relevant responsive pleading. Rather, the process of identifying the ‘allegations in issue’ must be undertaken with a view to implementing the purpose of the UCPR stated in Rule 5(1), namely to facilitate the just and expeditious resolution of the real issues in civil proceedings at a minimum of expense. This, I might note, is consistent with the observations of Pincus JA in Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd  1 Qd R 276 at .”
- (30)Notwithstanding the defendants’ criticism of the pleadings concerning the post-employment period, I am satisfied, for the purposes of the application before me, that they sufficiently allege that the defendants used the plaintiff’s surveying equipment, intellectual property and confidential information on a day to day basis to conduct a business in opposition to the plaintiff, and that Schedule 4 to the 3ASOC identifies 125 instances when that is alleged to have occurred during the post-employment period.
- (31)The allegation remains in issue given the non-admission pleaded by the defendants, but that is not the sole criterion. “Direct” relevance also requires that there “must … be something more than mere suspicion, to justify granting relief to a party complaining of incomplete disclosure.”.
- (32)I am satisfied that the disclosure of the subject material relating to the 125 instance itemised in Schedule 4 of the 3ASOC is directly relevant. Those 125 instances are supported by prima facie evidence to support the allegation concerning post-employment conduct. Given the existence of that prima facie evidence, it is not mere suspicion that the subject material relating to those plan documents will tend to prove or disprove the truth of the allegation in issue. It is reasonable to infer that there will be other documents referred to in the 3ASOC and the application under the same file numbers. It follows that, in my opinion, disclosure and production for inspection should be ordered in respect of that sub-group of the 1(b) application. I am informed without dissent that the production for inspection of the 1(b) application subject material will also result in the inspection of that part of the 1(c) application. The orders will reflect that both occur.
- (33)The second sub-group of the 1(b) application requires further consideration. The larger proceeding is in essence a confidential information case, which brings its own inherent difficulties in the particularisation of the plaintiff’s case. In considering this aspect of the application I am mindful of the observations of Ambrose J in Harvey v Commonwealth Scientific and Industrial Research Organisation  2 Qd.R. 594 at 596  (“Harvey”), which were emphasised by the plaintiff in oral submissions. There his Honour said:
“When facts upon which a plaintiff will ultimately seek to rely are solely within the knowledge of a defendant at the time when particulars are required, or are evidenced by documents in the possession of the defendant of which the plaintiff does not have copies, it is obviously impossible for a plaintiff to give particulars of those facts which will not be known until after discovery of documents has been effected or interrogatories answered. It has been common in such circumstances to postpone the obligation to give particulars until after discovery or interrogation of the other side has been completed so that the person required to provide particulars designed to limit the issues at the trial is aware of the documentary evidence in the possession of the other party or facts within the knowledge of that party upon which reliance will be placed to establish those facts. Once the plaintiff becomes aware of such facts then of course if they are to be relied upon at trial particulars should be given. There are many authorities to support these propositions stretching over more than a century ….”
- (34)Harvey was an application for further and better particulars. Whilst I accept that his Honour’s observations are broadly transportable to an application of the present kind, it remains the case that the different application brings with it a slightly different focus.
- (35)Secondly, in Harvey it is notable that the plaintiffs were unable to provide further and better particulars of two aspects of their claim, each of which relied on discovery of specific documents. There was underlying material which supported other aspects of the related pleadings, and extensive particulars had already been provided where possible. There was a basis to believe that disclosure would provide the information required to plead the further and better particulars.
- (36)I do not understand the cited passage of his Honour’s judgment to stand for the proposition that in all such cases the inability of the party to plead the unknown information will mean that the requirement should be deferred until discovery has occurred. It follows that his Honour’s observations are one of a number of relevant considerations.
- (37)Here the plaintiff is seeking disclosure of all documents from a particular file number (and hence a particular point in time) through to the current time. The plaintiff does not know what those documents are, nor even how many of them exist but does have prima facie evidence to establish that there has been a use of the confidential information during the post-employment period to and including 3 June 2019 in respect of certain file numbers of the third defendant to and including 20334.
- (38)It would, I think, be unreasonable to expect that all files opened by the third defendant would result in a survey plan or the like being lodged with the Land Titles Office. The 3ASOC puts in issue a wider class of documents than only survey plans. I consider that the plaintiff is entitled to discovery of the subject material of the third defendant’s files which are not included in the terms of Schedule 4 to the 3ASOC and which are part of the third defendant’s file numbers 20117 to 20334 inclusive. It follows that that part of the 1(c) application will also be allowed. This order relates to files created in the same timeframe
- (39)That leaves consideration of the sought after discovery of the subject material in the third defendant’s files from 20334 to the file last created in point of time. In respect of this part of the second sub-group, the plaintiff does not know what those documents are, nor even how many of them exist, nor that any actually exist and does not have any, let alone any prima facie evidence to establish that there has been a use of the confidential information during the post-employment period
- (40)That alone might be sufficient to demonstrate that this part of the second sub-group of the 1(b) application is based on mere suspicion that one or more of the sought after documents may afford prima facie evidence of the truth of the allegation concerning the use of confidential information in the post-employment period. However the plaintiff points to the existence of the 125 instances listed in Schedule 4 of the 3ASOC to in effect submit that there is support for the proposition that it is more than mere suspicion that this part of the second sub-group of documents will tend to prove the truth or otherwise of the allegation in issue.
- (41)In my view, that however boils down to the proposition, crudely put, that the defendants have done it on some occasions during the post-employment period so they must have done it on other occasions too. Expressed that way demonstrates that what is being relied on by the plaintiff is mere suspicion. The determination of whether a document or class of document is directly relevant involves an assessment of matters of fact and degree. The plaintiff has improved its position in this regard since the application heard by Sheridan DCJ, but in my view has not progressed far enough to permit the making of the order.
- (42)As to the submission that an order limiting the time of disclosure would result in a later Non-Part Discovery process being undertaken with the resultant filing of another amended statement of claim, that assumes there is other material that will be discovered. For the reasons I have outlined, that is in my view speculative.
- (43)In my view, the plaintiff has failed to demonstrate that the subject material sought in this part of the second sub-group of the 1(b) application is directly relevant to the allegations in issue.
- (44)It follows that I decline to order disclosure by inspection of the subject material relating to the second sub-group of documents the subject of the 1(b) application which are contained in or related to the third defendant’s file number 20335 or any subsequent file number. It necessarily follows that that part of the 1(c) application must also be refused.
Should there be a timetable of steps to be taken prior to and to effect mediation?
- (45)Although not specifically sought in the application, the defendant has suggested that I should make orders that would have the effect of placing the conduct of mooted mediation on a timetable, as well as other filings. The plaintiff opposed that course, primarily on the basis that the impossibility of knowing whether expert evidence would be required and, if it was, what timeframe would be required to obtain it, and the desirability of having it available at the time of any mediation and the filing of any other documents, including a fourth amended statement of claim and any amended defences and replies that may provoke.
- (46)Given the history of this litigation, I think there is much to be said in favour of setting a timetable for the taking of further steps and the benefits of mediation in a dispute such as this are obvious, however I consider that the plaintiff makes a good point. I can’t know what, if anything, will be revealed by disclosure and inspection and what consequential steps will be taken by either party after that disclosure. In those circumstances there is a real risk that any order I make or direction I give as to filing or the conduct of mediation would be rendered redundant. In those circumstances, and bearing in mind no actual application is before me concerning this aspect of the hearing, I decline to make the orders sought concerning timetabling of future steps in the litigation. The parties are able to bring an application in the future if necessary.
- (47)Regardless, I intend to set a timetable for the discovery and production for inspection that has been ordered by these reasons in order to avoid further delay in achieving that step.
- That part of the plaintiff’s application filed 7 February 2020 contained in paragraph 1(a) is allowed.
- That part of the plaintiff’s application filed 7 February 2020 contained in paragraph 1(c) is allowed in so far as it relates to the metadata associated with the documents referred to in paragraph 1(a) of the same application.
- Upon the plaintiff providing seven days’ prior written notice of a nominated date and time in the week commencing 23 March 2020, the defendant’s provide disclosure by production for inspection at the Brisbane office of K + L Gates of the original electronic version of the documents specified in paragraph 1(a) of the plaintiff’s application filed 7 February 2020 and the metadata related to those documents as referred to in paragraph 1(c) of the same application.
- That part of the plaintiff’s application filed 7 February 2020 contained in paragraph 1(b) is allowed in so far as it relates to the documents referred to in orders 6 and 7 herein.
- That part of the plaintiff’s application filed 7 February 2020 contained in paragraph 1(c) is further allowed in so far as it relates to the metadata associated with the documents referred to in orders 6 and 7 herein.
- At the same time and place as the disclosure and inspection occurs for the purposes of order 3 herein, the defendants provide disclosure by production for inspection at the Brisbane office of K + L Gates of the original electronic version of the documents identified in Schedule 4 to the third amended statement of claim and all other documents related to each of those documents mentioned in Schedule 4 to the third amended statement of claim which fall within the class of documents referred to in paragraph 1(b) of the plaintiff’s application filed 7 February 2020 and the metadata related to each of those documents as referred to in paragraph 1(c) of the same application.
- At the same time and place as the disclosure and inspection occurs for the purposes of order 3 herein, the defendants provide disclosure by production for inspection at the Brisbane office of K + L Gates of the original electronic version of the documents in the third defendant’s files numbered 20117 to 20334 inclusive which are not included in the terms of Schedule 4 of the third amended statement of claim and which fall within the class of documents referred to in paragraph 1(b) of the plaintiff’s application filed 7 February 2020, and the metadata related to each of those documents as referred to in paragraph 1(c) of the same application.
- That part of the plaintiff’s application filed 7 February 2020 contained in paragraph 1(b) which is not the subject of any other order herein is refused.
- That part of the plaintiff’s application filed 7 February 2020 contained in paragraph 1(c) which is not the subject of any other order herein is refused.
- I will hear the parties as to costs.
 Brisbane Survey Group Pty Ltd v McBurnie and Ors  QDC 121 at .
 Brisbane Survey Group Pty Ltd v McBurnie and Ors, supra at .
 Brisbane Survey Group Pty Ltd v McBurnie and Ors, supra at .
 Affidavit of Gavin Beard dated 7 February 2020 at paragraphs 7-9.
 Affidavit of Gavin Beard dated 7 February 2020 at paragraph 9.
 All but 9 of the 125 entries.
 Affidavit of Gavin Beard dated 7 February 2020 at paragraph 6 and second affidavit of Gavin Beard dated 20 February 2020 at paragraphs 3 and 4. The plaintiff had been given leave to file the latter affidavit after the oral hearing. The defendants were given the opportunity to cross-examine the deponent, but declined.
 Transcript of oral hearing 1-10.39 and 1-12.1, and second draft order at paragraph 3.
 A non-admission was pleaded by the defendants at paragraph [13A] of the FADC. See paragraph 6 herein.
 Peninsula Shipping Lines Pty Ltd v Adsteam Agency Pty Ltd  QSC 317 at .
 Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurants and Bars Pty Ltd  1 Qd.R. 276 per Pincus JA at 283 .
- Published Case Name:
Brisbane Survey Group Pty Ltd v McBurnie & others
- Shortened Case Name:
Brisbane Survey Group Pty Ltd v McBurnie
 QDC 20
Byrne QC DCJ
06 Mar 2020