The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 5)
[2020] NSWSC 1516
•30 October 2020
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 5) [2020] NSWSC 1516 Hearing dates: 30 October 2020 Date of orders: 30 October 2020 Decision date: 30 October 2020 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Defendants to make disclosure as sought in plaintiffs’ notice of motion of 6 October 2020
Catchwords: CIVIL PROCEDURE – disclosure – Practice Note SC Eq 11 – whether disclosure necessary for resolution of real issues in dispute
Legislation Cited: Practice Note SC Eq 11
Cases Cited: Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWSC 393
The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd [2020] NSWSC 1238
Category: Procedural rulings Parties: The Checkout Pty Ltd (First Plaintiff)
Giant Dwarf Pty Ltd (Second Plaintiff)
Julian Francis Xavier Morrow (Third Plaintiff)
Cordell Jigsaw Productions Pty Ltd (First Defendant)
Nicholas Harvey Murray (Second Defendant)Representation: Counsel:
Solicitors:
C O’Neill (Plaintiffs)
B F Katekar SC with L L McGovern (Defendants)
Kay & Hughes (Plaintiffs)
Bird & Bird (Defendants)
File Number(s): SC 2019/343896
Judgment
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The background to these proceedings are set out in the judgment of Henry J in The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd. [1]
1. [2020] NSWSC 1238.
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The dispute is between Mr Julian Morrow and Mr Nicholas Murray, and their associated companies (Giant Dwarf Pty Ltd in the case of Mr Morrow, and Cordell Jigsaw Productions Pty Ltd in the case of Mr Murray) and concerns the circumstances in which Mr Murray and his associated company ceased to be involved in the production of the television series “The Checkout” for the Australian Broadcasting Corporation.
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For simplicity, I will refer simply to Mr Morrow and Mr Murray and not to their corporate manifestations.
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The proceedings are set down for hearing in this list for five days commencing on 1 February 2021.
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The latest dispute between Mr Morrow and Mr Murray concerns the disclosure that Mr Murray should make.
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Earlier today, I made the orders for disclosure sought by Mr Morrow in the Notice of Motion filed on behalf of the plaintiffs on 6 October 2020.
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These are my reasons for making those orders.
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The question is whether the disclosure sought is “necessary for the resolution of the real issues in dispute in the proceedings”. [2]
2. Practice Note SC Eq 11 at [5].
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In his submissions in support of the disclosure sought, Mr O’Neill, who appears for Mr Morrow, emphasised that Mr Murray now alleges, in his cross-claim, that:
between 1 July 2016 and 18 April 2019, Mr Morrow occupied a “special position of advantage” in relation to the relevant joint venture because Mr Morrow conducted the day to day management of the joint venture company, employed key staff and had carriage of all negotiations with the ABC for any further series of “The Checkout”;
conversely, Mr Murray was in a position of vulnerability so far as concerns Mr Morrow in terms of dealings with the ABC; and
it was an implied term of the joint venture arrangements between Mr Morrow and Mr Murray that any opportunity to produce a further series of “The Checkout” or any equivalent or similar consumer affairs program would be directed to the joint venture vehicle between Mr Murray and Mr Morrow.
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Accordingly, Mr O’Neill submitted that Mr Murray has placed into issue the entirety of the business relationship between Mr Morrow and Mr Murray in the relevant period and that Mr Murray’s communications and records regarding “The Checkout” are “now centrally relevant to the determination of what activities [Mr Murray’s company] was engaged in”. I accept that submission.
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There is no dispute about some of the categories of documents sought by Mr Morrow.
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In relation to each of the categories still in contest, Mr Morrow seeks disclosure from Mr Murray and from his company over a specified date range. No separate issue arises from the fact that disclosure is sought from Mr Murray and his company, nor from the date ranges specified.
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Accordingly, again for simplicity, I will refer to the substance of the categories sought in respect of which a dispute still exists.
Category A4
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Mr Morrow seeks documents held by Mr Murray:
“Relating to or referencing any program (or potential program)” involving Mr Murray and any two or more of seven named individuals from The Checkout.
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It is true, as Mr Katekar SC and Ms McGovern pointed out on behalf of Mr Murray, that this category may capture internal communications relating to television programs, and potential programs, unrelated to The Checkout. This may be so, but I think Mr O’Neill is correct to contend that the case Mr Murray now seeks to make out makes relevant the question of engagement of key staff, and the production of rival television programs in the relevant period.
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To the extent that “sensitive pricing information for other television programs” may be involved, arrangements could be made to protect Mr Murray’s legitimate interests by an appropriate commercial confidentiality regime.
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I allow this category.
Category B5
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Next, Mr Morrow seeks SMS messages to and from Mr Murray (and any employee of his company) to any employee or officer of the ABC which contains specified words such as “The Checkout”.
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Mr Katekar and Ms McGovern submitted that this category did not limit “the SMS text messages to those sent or received by a named individual”. However, the category does specify messages sent to or from Mr Murray (or his company) and ABC employees.
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Mr Katekar and Ms McGovern also submitted that Mr Murray “faces a technical problem in that its systems cannot search without identifying the name of a specified individual” and that a manual process of searching would be required. That may be so, but I do not see that as a reason to deny disclosure. In any event as it was submitted that, despite these asserted difficulties, Mr Murray could discover documents if Mr Morrow identified named recipients/senders, it appears the difficulty can be overcome.
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It was also submitted that, to some extent, these documents have already been provided, that Mr Murray has issued a subpoena to the ABC which calls for production of some of these documents and that, accordingly, it was premature to make any order now. Postponing disclosure for this reason is likely only to lead to a further disclosure application by Mr Morrow, thereby increasing the large amount of costs that Mr Morrow and Mr Murray must already have spent on this bitterly fought dispute.
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I allow this category.
Category B6
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Mr Murray’s objections in relation to this category are dealt with under the heading “Categories B1 and B2” below.
Category A2
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For this category, Mr Morrow seeks documents held by Mr Murray relating to or referencing The Checkout or any alternative consumer affairs program the ABC was considering for potential commission with either of the Defendants.
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This category is very broad and, as Mr Katekar and Ms McGovern have pointed out, does not specify the senders or recipients of the communications sought and is “wide enough to capture internal documents of [Mr Murray’s company] where the document simply refers to or relates to ‘The Checkout’”. This may be so, but I accept Mr O’Neill’s submission that the allegations that Mr Murray now makes places into issue the broad nature of circumstances of the relationship between Mr Morrow and Mr Murray during the relevant period.
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I allow this category.
Categories B1 and B2
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Finally, Mr Morrow seeks disclosure of emails sent to or from email addresses on named domains which contain words such as “The Checkout” and other relevant terms.
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Again, it is true this category does not specify the senders or recipients of the communication. However, it does specify the domain from which the emails were sent.
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I accept Mr O’Neill’s submissions that, although this category is broad, in the case that Mr Murray now seeks to make, the documents should be produced.
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In Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [3] Bergin CJ in Eq said[4] that Practice Note SC Eq 11 calls for “a far more disciplined analysis of the need for disclosure by reference to those real issues, compared to the carte blanche gathering in of every document the respective clients have generated in their lengthy relationship”.
3. [2012] NSWSC 393.
4. At [66].
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But that is not what Mr Morrow is seeking to do here. As I have set out above, the categories of documents sought are focused and do not call for the “carte blanche” disclosure against which Bergin CJ in Eq warned.
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It is for these reasons that I made the orders referred to in [6] above.
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Endnotes
Amendments
16 June 2021 - Case title and case citations corrected
16 June 2021 - File number format corrected
Decision last updated: 16 June 2021
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