Supreme Court New South Wales

• Medium Neutral Citation: Ho v Fordyce (ex parte) [2014] NSWSC 1404
• Hearing dates: 1 October 2014
• Decision date: 01 October 2014
• Jurisdiction: Equity Division
• Before: Rein J

Decision

Motion granted

• Catchwords: EQUITY - Interlocutory application - Ex parte application - Anton Piller orders - Prospect of concealment or removal of evidence - Where ambit of information sought is narrow - Where the consequences of the orders will cause little or no prejudice to the defendant if there has been no recent creation, and will assist the plaintiff to prove his case if there has.
• Cases Cited: Australia's Residential Builder Pty Ltd v Wiederstein (2014) VSC 430; Halpin v Lumley General Insurance Limited (2009) 78 NSWLR 265; Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1
• Category: Interlocutory applications
• Parties: Robert Ho (Plaintiff); Rhodium NSW Pty Ltd (Second Plaintiff); The Trading House Pty Ltd (Third Plaintiff); Paul Mervyn Fordyce t/as PMF Legal Trading (First Defendant); PMF Legal Limited (Second Defendant); Daniel John Papps (Third Defendant); Daniel Alejandro Cravero (Fourth Defendant)
• Representation: Counsel: J Hyde (Plaintiffs); Solicitors: K&L Gates (Plaintiffs)
• File Number(s): 2014/288128

EX TEMPORE REASONS FOR Judgment

1 This is an ex parte application brought by the plaintiffs in this matter who were clients of the first defendant. Also joined in the present summons are persons connected with that practice which is an incorporated legal practice. I shall refer to the defendants as "the solicitor". What is sought today, in effect, might be described as an Anton Piller order seeking to obtain access to, and the making of copies of, material on the computer of the solicitor.

2 The background of the matter is this: the plaintiffs being clients of the solicitor have received many invoices for significant amounts by way of costs and disbursements from the solicitor. In the absence of payment of some of those costs, the solicitor has sought and made demands for payment, the response to which by the plaintiffs was to require an assessment of costs.

3 The solicitor has commenced two separate proceedings in this Court for the assessment of costs. An issue which has arisen in those proceedings is that the solicitor asserts that there were costs agreements in place between the firm and the clients. The clients dispute that and assert that there were no costs agreements between them and the solicitor.

4 The plaintiffs in support of the contention that the costs agreements are of recent invention rely on the affidavits of Wilson Wong of 1 October 2014, Robert Ho of 1 October 2014 and Mark Webeck, the current solicitor of the plaintiffs, of 29 September 2014. There is exhibited to the affidavit of Mr Wong an exhibit entitled "WW Exhibit".

5 The concern of the plaintiffs is that if discovery was sought in the normal manner from the solicitor, the solicitor may be able to alter or destroy evidence as to the date of creation of these various costs agreements.

6 I indicated some concern about whether or not this falls within the general ambit of an Anton Piller order. I have invited Mr Hyde, counsel for the plaintiffs, to expand his research to see what support can be obtained from cases. I have also referred Mr Hyde to a recent decision of the Court of Appeal in Halpin v Lumley General Insurance Limited (2009) 78 NSWLR 265 confirming the correctness of the approach taken in Markus v Provincial Insurance Co Ltd (1983) 25 NSWCCR 1 ("Markus").

7 Markus supports the proposition that if a party is required to act in accordance with the normal procedures, and that may assist the other party in tailoring his or her or its evidence, it is permissible for the Court to order that the first party act in a way that does not give the other party access. Although the situation here is different, there is, nevertheless, a similarity between forensic advantage and disadvantage and the need for the plaintiffs to at least be able to present the case which they seek to present.

8 Mr Hyde has identified the case of Australia's Residential Builder Pty Ltd v Wiederstein (2014) VSC 430, a recent judgment of McMillan J. That case lends support for the proposition that orders of this kind can be obtained in connection with the proceedings in circumstances where there is a prospect that there may have been concealing or removal of property or books or records of the company.

9 These cases support the proposition that the Court does have an inherent power to grant the orders sought today which, effectively, are in a similar style to an Anton Pillar order and to have an independent person attend at the premises of the solicitor and to obtain access to and to make copies of the computer and other information in storage systems operated by the solicitor.

10 I do not wish to suggest that I am satisfied at this stage that there has been any false creation of documents. Rather there is a contention that it has occurred, and there is some support for that possibility in the evidence which has been presented. If it has occurred it will be difficult to prove and, if the secrecy of this application were not preserved until the point at which someone independent is at the office to obtain copies, the opportunity to establish that there has been recent creation (if that be the fact) will be lost.

11 In other words, for the plaintiff to have to present a normal application for discovery may act to the disadvantage of the plaintiff forensically and, accordingly, in circumstances where (a) the ambit of information which is sought is very narrow and (b) the consequences of the making of these orders will be of very limited effect, if it turns out that there has been no recent creation, weighs in favour of the making of the order.

12 As with normal Anton Piller orders, there is a proposed order which is very specific in its detailing of what is required by recipients of the order. There are undertakings given by the members of the firm of computer forensic experts in accordance with the usual format. At this stage there are four: one of Mr Simon Fullerton, one of Mr Vincent Lo, one of Mr Tony Tseng and one of Mr Ardy Ghorbani. The reason for four such undertakings is because it is not clear which of those four people will be able to attend. There is also a confidentiality undertaking of Seamus John Burke, who is to be the independent solicitor, in accordance with the usual Anton Pillar orders.

13 In these circumstances, I think it is appropriate for the plaintiffs to be granted the relief which they presently seek and that an order in the nature of an Anton Piller order should be made.

14 I will therefore make an order in terms of the order which I shall initial in the top right hand corner and date with today's date.

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Decision last updated: 13 October 2014