British American Tobacco Australia Ltd v Peter Gordon & Anor

CATCHWORDS : EVIDENCE - Documents - Subpoenas and Notices to Produce - whether Notice to Produce premature when pleadings have been ordered but not yet filed.

LEGISLATION CITED : Uniform Civil Procedure Rules 2005 (NSW), r 21.10

CASES CITED : Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115 Trade Practices Commission v Arnotts (No 2) (1989) 21 FCR 306

British American Tobacco Australia Limited (plaintiff - 5898/06) British American Tobacco Australia Services Limited (plaintiff 5940/06) PARTIES : Peter Gordon (first defendant 5898/06) Slater & Gordon Pty Ltd (second defendant 5898/06) Slater & Gordon Pty Ltd t/a Slater & Gordon Lawyers (defendant 5940/06)

RM Smith SC w GKJ Rich (plaintiff 5898/06) COUNSEL : GO'L Reynolds SC & MF Wheelahan SC w RS Hollo & MJ O'Meara (plaintiff 5940/06) J Stoljar (defendants)

Baker McKenzie (plaintiff 5898/06) SOLICITORS : Corrs Chambers Westgarth (plaintiff 5940/06) Arnold Bloch Leibler (defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

5898/06 British American Tobacco Australia Limited v Peter Gordon & Anor

5940/06 British American Tobacco Australia Services Limited v Slater & Gordon Pty Limited t/as Slater & Gordon Lawyers JUDGMENT (ex tempore) 1 HIS HONOUR: On 23 November 2006, the plaintiff British American Tobacco Australia Limited served on the first defendant Peter Gordon a Notice to Produce requiring production of the following documents by 10am on 27 November 2006. On the same date, the plaintiff served on the second defendant Slater & Gordon Pty Limited a Notice to Produce requiring production of documents also on 27 November 2006. Each Notice to Produce required production of the following documents or things: 1. All documents recording or evidencing the disclosure of the Confidential Documents (defined below) to any other person. 2. All documents which record the identity of the person: (a) From whom the Confidential Documents were received by the First Defendant;

(b) To whom the Confidential Documents have been disclosed by the First Defendant. 3. All documents which record or evidence communications between the First Defendant, its servants or agents on the one hand and any other person on the other hand referring to: (a) The Confidential documents; (b) Information recorded in the Confidential Documents. 2 The term "confidential documents" was defined in each Notice in the following terms: (a) a "Board Memo" by Mr David Fagan concerning Mr Richard Travers dated June 2002; (b) a letter from Mr David Laidlaw of Maddocks to Mr Fagan, dated 19 June 2002 concerning Mr Travers; (c) a "Board Memorandum" from Mr Fagan dated August 2002 concerning Mr Glen Eggleton; (d) chronology document, page 6 of which was faxed to Dale Bryce by the Australian Financial Review on 31 October 2006; (e) a memorandum from Richard Travers to Board Members dated 19 June 2002; (f) the contents of, or outcome of, any investigation, inquiry or other deliberation conducted on behalf of or by the partners of the law firm known as "Clayton Utz", in relation to legal advice given to the plaintiff by that law firm; (g) any draft or portion of the documents referred to in sub-paragraphs (a) to (f) above. 3 When those Notices were issued and served on 23 November 2006, it was anticipated that there would be an application for interlocutory relief restraining further use, dissemination or disclosure of the confidential documents to be heard on 29 November 2006. The interlocutory application was settled on 29 November 2006 and an order was made by consent in the following terms: 1. The injunction contained in para 1 of the order made on 23 November 2006 be discharged with effect from today. 2. Upon the plaintiff by its counsel giving to the court the usual undertaking as to damages and subject to order 3 below the defendant be restrained from by themselves their servants or agents until further order publishing, disseminating or using the information contained in those parts of the documents identified in Schedule A to the summons filed on 23 Nov 06 ("the information") 3. Order 2 is not intended to & does not preclude the defendants from publishing or disseminating the information for the purpose of defending these proceedings to: a. such of the lawyers who they have retained or who they may retain to act for them in these proceedings who have executed an undertaking to keep the information confidential; b. such other persons as the plaintiffs may in writing agree upon such terms as the plaintiff may stipulate; c. with the leave of the court

4. Liberty to apply is reserved. 4 By Motion filed on 29 November 2006, the defendants each seek orders setting aside the two Notices to Produce. Notwithstanding the compromise of the interlocutory application, the plaintiff presses the Notices. In view of the settlement of the interlocutory application, and without making any findings on the matter, I think it is appropriate that I proceed on the basis that there is a seriously arguable case for final relief, that case being, in short, that the documents described in Annexures A and B to the Summons, which substantially correspond with the confidential documents referred to in the Notice to Produce, were received by the defendants in circumstances which imparted an obligation of confidence, or with notice that they were given to the defendants in breach of such an obligation. 5 Ultimately, there will be significant questions in these proceedings as to the nature of the final relief to be granted. In broad terms what is presently sought is injunctive relief restraining further use, disclosure or dissemination of those documents or the information contained in them. It is conceivable that ultimately further definition of that relief will be required. The extent of such relief may depend on what, if any, use has been made of the confidential information up to the time when the interlocutory relief was first granted. 6 The three categories of documents referred to in the Notice to Produce encapsulate, broadly, the following subject matter: first, the use made by the defendants of the confidential documents; secondly, the circumstances in which the "confidential documents" were received by the defendants; and, thirdly, any discussions or communication to which the defendants have been party, referring to the "confidential documents". 7 The defendants do not contend that the documents, production of which is required by the Notices, have no apparent or potential relevance to issues in the proceedings in the sense in which those terms are used in this context [see Trade Practices Commission v Arnotts (No 2) (1989) 21 FCR 306 (Beaumont J) and Portal Software International Pty Ltd v Bodsworth [2005] NSWSC 1115]. However, the defendants submit that the Notices cannot be supported under Uniform Civil Procedure Rules 2005 (NSW), r 21.10, because what is a fact in issue cannot be identified, when pleadings have been ordered but have not yet been filed. 8 I disagree. Facts in issue in proceedings are not described exclusively by the pleadings. Many cases are conducted on Summons alone and in such a case, the issues are determined by the relief claimed, the law that relates to that relief claimed, and the affidavit or other evidence deployed in support of or against it. In proceedings which are commenced by Summons but continue on pleadings, there are facts in issue as soon as a Summons is filed. They cease to be in issue only when an allegation is abandoned by the plaintiff or admitted by the defendant. They do not cease to be in issue simply because an order is made that the proceedings continue on pleadings. 9 In the present case, it is plain that unless and until there are admissions which remove them from the field of contest, there is an issue as to whether the "confidential documents" were received by the defendants in circumstances which imposed on them obligations of confidence, or with notice of a breach of confidence. There is an issue as to what, if any, and how extensive a use of the documents has been made by the defendants (which I have said will necessarily inform what relief ultimately might be appropriate). It is "on the cards" that the documents, production of which is required, will illuminate those issues. 10 Secondly, it was submitted, in effect, that the defendants needed further time to respond to the Notice to Produce. I accept that in circumstances that the interlocutory application has been resolved, that a longer period than that originally allowed by the Notice is appropriate, and I will extend time for compliance of the notice, but that is not a basis, in the present context, for setting the Notice aside. 11 Thirdly, it was submitted that paragraph 2 of the Notice was too wide, in that by calling for documents recording the identity of the person from whom the confidential documents were received or to whom they have been disposed, it called for documents (including, for example, telephone directories) quite unrelated to the case, which happen to contain the identity of the relevant person. In my view, a modicum of common sense is required in construing a Notice to Produce, and paragraph 2 should be read as having a causal element. Though it perhaps might have been better framed as calling for production of all documents which tend to evidence the identity of the person from whom the documents were received and to whom they have been disclosed, I think a reasonable recipient of the Notice would read it as requiring production of the documents which had a causal connection with the receipt of the confidential documents or the disclosure of the confidential documents. 12 Although I shall hear counsel if they wish, I propose to extend time for compliance with the Notice to 7 December 2006.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.