Neilson v City of Swan (No 3) [2008] WASC 222

[Bold text denotes emphasis added].

Neilson v City of Swan (No 3) [2008] WASC 222

In this development dispute, a self-represented plaintiff claimed that the defendant, a local government area body (City of Swan), had failed to give proper discovery of "potentially relevant" e-mails.

Discovery Timeline

• July 2002: Plaintiff attempted to use Freedom of Information legislation to obtain e-mails that later formed his discovery request. Due to cost, this was not pursued.
• June 2005: Plaintiff requested "full discovery of all e-mails since 1998". The plaintiff also sent an article to the defendant's solicitors about the discovery of e-mails, and provided case law in apparent support of the use of keyword searches.
• Defendant gave discovery of e-mails generated between 1998-2004. Albeit, those which existed in hard copy form only.
• September 2008: Plaintiff made an informal request to the Court for "further and better discovery using a keyword search of the defendant’s e-mail system".
• Defendant filed affidavits in support of the "difficulty and expense involved in complying" with the plaintiff's initial discovery request.
• October 2008: At trial, the plaintiff appeared to accept the purported burdens for the defendant in complying with the initial discovery request and limited his application to e-mails between 1998-2002.

Relevance

Templeman J at [18]:

[18] I have to consider whether there are reasonable grounds for being fairly certain that there are in existence, in the defendant’s electronic archives, emails which ought to have been disclosed. Clearly, it is impossible to answer that question either affirmatively or negatively: there is simply no evidence on this point.

Proportionality

Templeman J at [19] affirmed the principle of proportionality embraced by Le Miere J:

19 The next question, therefore, is whether the defendant should be put to the trouble and expense of undertaking the search sought by Mr Neilson. That, in turn, depends on the utility of the exercise, having regard to the issues in the case. It depends also on considerations of proportionality: as Le Miere J said in Leighton Contractors Pty Ltd v Public Transport Authority of Western Australia [2007] WASC 65:

"That principle may be generally expressed in terms of requiring the court to deal with cases, so far as practicable, in ways that are proportionate to the importance of the issues involved, to the value of the subject matter involved, to the complexity of the issues, and to the financial position of each party, consistently with the overriding obligation of the court to deal justly with its cases."

Judgment

• Application dismissed with costs.

24 As pleaded, the plaintiffs' case appears to be based on the drawing of inferences from objective facts. Clearly, it would assist the plaintiffs to prove their case if (for example) Mr Richardson had written an email in which he revealed that he had the state of mind the plaintiffs attribute to him. Having regard to the principles applicable here, before acceding to Mr Neilson's application, I would have to be satisfied that there were 'reasonable grounds for being fairly certain that there are other documents' of this nature. However, there is no evidence on which I could reach that degree of persuasion. Furthermore, as I have already noted, the search requested by Mr Neilson does not include the word 'Richardson': and it cannot be said with confidence that emails which had been deleted would be restored

25 In these circumstances, I consider that there is likely to be very little utility in requiring the defendant to search its previous email system. I accept that, having regard to the defendant's resources, the cost would not be prohibitive, although it would no doubt be considerably greater now than it would have been in 2002. However, that is only one of the relevant considerations.

26 In all the circumstances, I do not think the plaintiffs will be denied justice by the order I propose to make, which is that Mr Neilson's application for further discovery be dismissed.