The Federal Court held that documents generated by employees of a related corporate entity (SIT) were within the respondent's (Siemens's) 'control' for discovery purposes on two bases: first, SIT acted as Siemens's agent under a Framework Agreement, and the SIT employees worked under Siemens's direction and control, meaning documents created in the course of that work were held for Siemens as principal; second, even if no agency existed under post-June 2014 purchase orders that purported to negate agency, Siemens had an enforceable contractual right to inspect 'significant material' created by SIT employees under cl 21.3 of those terms. The Court also held that a contractual clause labelling the relationship as one of independent contractor did not necessarily negate agency where the substance of the arrangement — employees subject to Siemens's instructions, integrated into its working procedures, performing work Siemens was contracted to deliver — was unchanged. The Court further ordered Siemens to file a director's affidavit detailing its discovery process, given a pattern of piecemeal and inadequate compliance that resulted in nearly 2,800 additional documents being disclosed only after persistent prompting by the applicants' solicitors.
The full text is available to signed-in members.