Australian Competition and Consumer Commission v Smart Corporation Pty Ltd [2019] FCA 1603

Australian Competition and Consumer Commission v Smart Corporation Pty Ltd [2019] FCA 1603

The respondents had not conducted reasonable searches for relevant emails and computer files. Their affidavits did not adequately explain why deleted records were not retrievable or accessible, their evidence about routine deletion and destruction was unsatisfactory and inconsistent with documents previously produced to the ACCC, no sufficient inquiries had been made of the email service provider, and no searches of Smart Corporation's computers had been undertaken by a suitably qualified IT professional. Given the seriousness and significance of the emails to the ACCC's claims and the absence of evidence that further searches would be onerous or impracticable, it was appropriate to order...

Jurisdiction
Australia
Judgment Date
08 October 2019
Procedural Posture
Regulator and Consumer Protection Proceeding Alleging Misleading or Deceptive Conduct, Unfair Contract Terms and Unconscionable Conduct Under the Australian Consumer Law / Interlocutory Application for Discovery and Further Searches Following Alleged Failure to Comply With Discovery Orders
Outcome
Application successful; further discovery and search orders made substantially in the form sought by the ACCC, with costs to the applicant.
Legal Topics
['standard Discovery' 'reasonable Search for Electronic Documents' 'deleted Emails and Computer Files' 'failure to Comply With Court Orders' 'non Party Discovery' 'unconscionable Conduct Allegations Under the Australian Consumer Law']
['practice and Procedure' 'competition and Consumer Law' 'discovery'] ['standard Discovery' 'reasonable Search for Electronic Documents' 'deleted Emails and Computer Files' 'failure to Comply With Court Orders' 'non Party Discovery' 'unconscionable Conduct Allegations Under the Australian Consumer Law']

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Procedural Posture

Regulator and Consumer Protection Proceeding Alleging Misleading or Deceptive Conduct, Unfair Contract Terms and Unconscionable Conduct Under the Australian Consumer Law / Interlocutory Application for Discovery and Further Searches Following Alleged Failure to Comply With Discovery Orders

Legal Issues

  1. 1 ["Whether the respondents had complied with their obligation to conduct a reasonable search for emails and other documents relevant to the ACCC's unconscionable conduct claim." "Whether the respondents' explanations for deletion, destruction and alleged irretrievability of emails and records were satisfactory." 'Whether specific orders should be made requiring inquiries of email service providers, IT searches and possible non-party discovery from former solicitors.']

Ratio Decidendi

The respondents had not conducted reasonable searches for relevant emails and computer files. Their affidavits did not adequately explain why deleted records were not retrievable or accessible, their evidence about routine deletion and destruction was unsatisfactory and inconsistent with documents previously produced to the ACCC, no sufficient inquiries had been made of the email service provider, and no searches of Smart Corporation's computers had been undertaken by a suitably qualified IT professional. Given the seriousness and significance of the emails to the ACCC's claims and the absence of evidence that further searches would be onerous or impracticable, it was appropriate to order...

Court Disposition

Application successful; further discovery and search orders made substantially in the form sought by the ACCC, with costs to the applicant.

Orders

  • ['Within 7 days from the date of the orders, the respondents must file and serve a list of the documents upon which they intend to rely at trial, and make copies of those documents available to the applicant.' 'A party may not, without leave of the court, rely at trial upon any document which is not listed in a list...