Weston v Publishing and Broadcasting Limited

[2010] NSWSC 1350

CITATION:	Weston v Publishing and Broadcasting Limited [2010] NSWSC 1350 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	15/11/10, 22/11/10
JUDGMENT DATE :	23 November 2010
JURISDICTION:	Equiity Division Corporations List
JUDGMENT OF:	Barrett J
DECISION:	Orders as in paragraph 10.
CATCHWORDS:	PROCEDURE - form of orders to give effect to decision partially relaxing earlier confidentiality orders - no matter of principle
CATEGORY:	Consequential orders
PARTIES:	Paul Gerard Weston as Special Purpose Liquidator of One.Tel Limited - First Plaintiff One.Tel Limited - Second Plaintiff Publishing and Broadcasting Limited (now known as Consolidated Media Holdings Ltd) - First Defendant Consolidated Press Holdings Limited - Second Defendant Robbdoc Pty Limited - Third Defendant Toranaga Pty Limited - Fourth Defendant Cavalane Holdings Pty Limited - Fifth Defendant News Limited - Sixth Defendant Leteno Pty Limited - Seventh Defendant James Douglas Packer - Eighth Defendan Peter William Yates - Ninth Defendantt Lachlan Keith Murdoch - Tenth Defendant Peter John Macourt - Eleventh Defendant
FILE NUMBER(S):	SC 2007/255083
COUNSEL:	Mr A A D'Arcy - Plaintiffs Mr T F Bathurst QC/Mr J Elliotrt/Mr S Nixon - first, second, third, fourth, fifth, eighth Defendants Mr J R Lockhart SC - sixth, seventh, tenth and eleventh Defendants Mr J Williams - ninth Defendant
SOLICITORS:	Lipman Karas - Plaintiffs Minter Ellison Lawyers - first, second, third, fourth, fifth, eighth Defendants Allens Arthur Robinson - Sixth, Seventh, Tenth and Eleventh Defendants Atanaskovic Hartnell - ninth Defendant

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
CORPORATIONS LIST

BARRETT J

TUESDAY 23 NOVEMBER 2010

2007/255083 PAUL GERARD WESTON AS SPECIAL PURPOSE LIQUIDATOR OF ONE.TEL LIMITED & ANOR v PUBLISHING AND BROADCASTING LTD & ORS

JUDGMENT

1 On 5 November 2010, I published reasons ([2010] NSWSC 1288) for my conclusion that subsisting confidentiality constraints affecting four affidavits of Mr Weston and two documents containing counsel’s submissions should be removed, subject to continuation of a confidentiality regime in respect of certain items related to the plaintiffs’ litigation funding which were identified at paragraph [38] of those reasons:

(a) the funding agreements actually concluded;
(b) the steps and negotiations leading up to the making of the final agreements; and
(c) the identity of the funding party.

2 The reasons of 5 November 2010 related to an application made by some only of the defendants (the “News defendants”).

3 After the reasons of 5 November 2010 had been published and before the precise orders to be made in relation to the News defendants’ application had been settled, other defendants (the “CPH defendants”) filed a notice of motion by which they sought an order that the confidentiality orders affecting the four affidavits of Mr Weston and the two documents containing counsel’s submissions be varied to allow full access to those documents by the CPH defendants, their legal representatives and any experts retained by the PBL defendants.

4 The approach taken by the CPH defendants when their application came before me yesterday was that they accepted the conclusions in the reasons of 5 November 2010 as applicable, except regarding the definition of the part of the material that is to remain subject to confidentiality and is dealt with in paragraph [38] of the reasons. On that, the CPH defendants made submissions contending for a regime of continuing confidentiality in respect of a narrower part of the documents.

5 The plaintiffs proposed orders to give effect to the 5 November 2010 reasons affecting the News defendants which continued confidentiality restrictions in relation to only three passages in the relevant documents. They accepted that only those three passages could remain confidential consistently with the 5 November 2010 decision.

6 Having inspected those three passages, I am satisfied that an order as proposed by the plaintiffs will be appropriate to dispose of both motions; and that this will be so whether or not the submissions of the CPH defendants are accepted regarding the matters in paragraph [38]. In other words, the content of the exclusion of the release from confidentiality, as proposed by the plaintiffs, will be the same even if the CPH submissions are accepted.

7 It is therefore not necessary to come to any view whether it is open to the CPH defendants to make submissions at odds with paragraph [38] and, if it is, whether their submissions should be accepted.

8 As to costs, the plaintiffs did not argue against the proposition that they should pay the News defendants’ costs of their notice of motion but there was no agreement on the question of costs as between the plaintiffs and the CPH defendants.

9 Since it appears that it was not until just before yesterday’s hearing that the CPH defendants were put squarely on notice that the funding agreements themselves did not form part of any of the relevant affidavits (so that arguments about access to the agreements addressed a non-issue), it was not appropriate to order (as the plaintiffs sought) that the CPH defendants pay the plaintiffs’ costs of those defendants’ motion filed on 10 November 2010. The appropriate outcome is that there be, in that respect, no order as to costs.

10 In the light of the above, I have today made the following orders in chambers:

“1. The confidentiality orders made in respect of the documents listed in Schedule A be varied to allow full access to those documents to be granted to the parties save that the defendants shall not have access to:
(a) paragraph 27 of Mr Weston’s affidavit sworn 6 November 2009;
(b) the entry in the chronology on page 18 of exhibit PGW-1 to Mr Weston’s affidavit of 29 September 2009; and
(c) the entry in that chronology for 20 October 2009.


2. The plaintiffs provide the defendants by 5 pm on Thursday, 25 November 2010 with copies of the documents referred to in paragraph 1, being copies in which the parts referred to in paragraphs (a), (b) and (c) of order 1 are masked so as not to be legible.

3. The plaintiffs provide the sixth, seventh, tenth and eleventh defendants by 5 pm on Thursday, 25 November 2010 with copies of the documents sought in paragraphs 2 and 3 of the notice to produce served on the plaintiffs on 21 October 2010, being:
(a) all documents provided by the liquidator of the second plaintiff to the first plaintiff recording the funds held by the liquidator in the period from 25 May 2007 to 25 May 2010; and
(b) all estimates of costs prepared by or on behalf of the first plaintiff before 25 May 2010 as to the costs of running these proceedings.


4. The plaintiffs pay the costs of the sixth, seventh, tenth and eleventh defendants in relation to the notice of motion filed on 22 October 2010.

5. There be no order as to costs in relation to the notice of motion filed on 10 November 2010 by the first to fifth and eighth defendants.
6. Any party who opposes the grant of access to the documents in order 1 (subject to the exclusion in paragraphs (a), (b) and (c) of that order) upon application made through the usual channels by any representative of the media seeking to inspect those documents in the court file must so inform my Associate in writing by 5pm on Thursday 25 November 2010.

SCHEDULE A

Documents filed in Supreme Court Proceedings 255083 of 2007 (formerly 2902 of 2007):
(i) Affidavit of Paul Gerard Weston sworn 21 October 2008 (and any Exhibit);
(ii) Affidavit of Paul Gerard Weston sworn 20 April 2009 (and any Exhibit);
(iii) Affidavit of Paul Gerard Weston sworn 6 November 2009 (and any Exhibit);
(iv) Affidavit of Paul Gerard Weston sworn 14 May 2010 (and any Exhibit);
(v) written submissions dated 20 April 2009 or 24 April 2009; and
(vi) written submissions dated 6 November 2009.”

11 The direction in item 6 was not sought by any party but was added by me because of the strong likelihood that, as with other court documents relevant to litigation between these parties, media representatives will, through the appropriate channels, seek access to the documents to which the orders relate. If any such request is made and no notice has been given to my Associate as contemplated by item 6, the plaintiffs will be asked to supply to the court a copy of the documents with the parts still protected masked so that that copy can be placed in the court file for inspection without disturbing the arrangements under which the originals themselves are held.

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23/11/2010 - Defendants added on front sheet - Paragraph(s) Front sheet