The areas of disupte
31 Ainsworth agrees to produce the documents in categories 1 and 3.
32 As to category 2, the issue between the parties is directed to the question of access and inspection, not production. In oral submissions, Senior Counsel for Aristocrat, Mr Hennessey SC, identified the debate between the parties, as follows:
… documents will be produced under category 2. They will be produced to our solicitors for the use of access by external lawyers but we would propose ultimately, if we think it's necessary, and we think it will be, to retain an independent expert to assist us in looking at the underlying mathematics and source code and the like, to assist in trying to work out whether there's a replication of our underlying material or not, and that's the point at which AGT says it wishes to have a debate with us because, as best we understand its position in their written submissions and in some correspondence, it proposes some regime whereby there would be, effectively, a joint expert which AGT says should come from a particular-one or two testing laboratories that are involved in regulatory approval processes for games.
33 In short, there would be production to Aristocrat's external legal advisers, with the question of access to, and inspection by, any independent expert to await agreement between the parties on that question or, if agreement cannot be reached, subsequent determination by the Court.
34 As regards access to, and inspection by, any independent expert, Mr Hennessey explained that Aristocrat had three objections to Ainsworth's proposal:
One, we don't - we don't submit to the joint retainer of any expert. We - if we need assistance with interpreting the documents produced in category 2, we will retain our own independent expert for that purpose. That's point 1. Point 2, if we seek to embark upon that process we will notify AGT as to who that expert will be, and we will need to in any event, to provide an undertaking. And if AGT wishes to raise any issue with us about our proposal, for example, whether the expert is an appropriate expert, or whether it has an objection because it says that the expert's not independent, or there's a conflict or anything else, then it can do so at that stage, and we will endeavour to resolve it. And the third point is that in answer to AGT's suggestion about a joint expert we say, no, the purpose of this proceeding is for us to get the documents, and for us to make up our mind whether we wish to commence a proceeding against AGT, and, therefore, the expert should be our expert, and we should be able to then use that expert's report if we choose to do so in any subsequent proceeding.
35 Senior Counsel for Ainsworth, Mr Heerey QC, explained his client's position as follows:
Now, as I said there's a dispute as to who that mutual agreed expert should be, but on the orders that my friend has proposed he seeks - he proposes orders to the effect that that agreement can be made subsequently, so we have that opportunity to confer and see if we can resolve any disagreement as to who the appropriate expert might be. So we don't seek a resolution of that by your Honour now. So, to that extent, we can defer that aspect of our disagreements. So I won't go into more detail about why it is we've proposed the particular experts that we have proposed, save that it's set out there in paragraph 1 of our submissions, your Honour.
36 Paragraph 1 of Ainsworth's written submissions states:
Ainsworth is prepared to provide the documents in paragraph 2 of the schedule to Aristocrat's originating application…on a confidential basis, for analysis by a mutually agreed expert from an approved testing facility such as BMM Australia Pty Ltd or QA Labs Pty Ltd. These experts routinely analyse such documents for the purpose of obtaining regulatory approval and are well qualified to provide an independent report, for confidential review by the parties' external lawyers only, identifying the extent of any objective similarity between Ainsworth's documents and Aristocrat's corresponding documents. This proposal is consistent with the proposal in Aristocrat's Outline of Submissions… at [27].
37 The position is clouded somewhat by draft orders prepared by Ainsworth to the effect that the category 2 documents will be produced to a mutually agreed expert from an approved testing facility, subject to the expert providing a confidentiality undertaking in accordance with an existing confidentiality regime. The form of the draft orders suggests that Ainsworth has in mind that production will only be to an agreed expert, and not also to Aristocrat's external legal advisers on a confidential basis. Given that fact, I am left in some doubt as to whether the parties are of one mind as to the ambit of their dispute in respect of the category 2 documents, contrary to what the transcript suggests. In short, it is possible that they are at cross-purposes.
38 In the circumstances, I propose to proceed on the basis that the dispute between the parties in relation to the category 2 documents concerns the identity and nature of the retainer of the expert or experts who might be granted access to, and inspection of, the documents - not whether the documents should be produced to Aristocrat's external legal advisers on a confidential basis. This means that there is no issue in relation to the category 2 documents that presently requires determination (which is what the parties have said). I will determine the question of access to, and inspection of, the documents by experts if and when that question arises. If my understanding of the parties' position in relation to these documents is incorrect, the parties will, no doubt, inform me of that fact and I will revisit category 2.
39 As to category 5, Ainsworth says that production under this category should be satisfied by its production to Aristocrat's external legal advisers of a confidential summary of all orders and expressions of interest in Jackpot Strike from potential purchasers.
40 Production of the category 4(a), 6 and 7 documents remains in dispute.