C7 Pty Ltd v Foxtel Management Pty Ltd

REASONS FOR RULING (EX TEMPORE) 1 On 21 December 2001 I delivered reasons for judgment on an application for preliminary discovery. The proceeding was stood over to 4 February 2002 to enable short minutes to be brought in to give effect to the judgment. A number of issues have arisen between the parties which have been discussed during the course of the morning. One particular issue which has arisen has required some consideration. The applicant, broadly speaking, seeks orders against the fifth, sixth and seventh respondents ("the Telstra parties") to match orders which are to be made against the first to fourth respondents and the eighth respondent. It is submitted for the Telstra parties that this is precluded by the substance of the decision I gave on 21 December 2001 and that, even if that is not so, it is precluded by the manner in which the proceedings were conducted. It is submitted for the Telstra parties that the order which is made should, so far as subject matter is concerned, be restricted to those documents identified in a schedule to a letter of 31 October 2001 from Mallesons Stephen Jaques to Freehills. 2 The Telstra parties have relied, in particular, upon par 45 of my reasons for judgment, which I need not reproduce. That part of the judgment was expressed with some generality and did not descend to the detail of any order which might be made. In my opinion, it does not constitute any form of estoppel which would prevent further consideration of the proper order to be made, even if to do so would involve looking at some matters of substance which had not been dealt with. It seems to me that the real issue is whether it would be appropriate, in the circumstances, to permit this to be done. 3 It is argued for the Telstra parties that counsel for the applicant, by his opening, narrowed the basis for debate and that the applicant is now bound by that. Because of the nature of the submission, I should set out what counsel said (according to the transcript): "But, more importantly, for your Honours purposes and endeavouring to cut your Honour's workload down a bit, can I broach the topic of the content of the offers. Each group of respondents formulates what documents they are prepared to give us in a slightly different way, and I am leaving aside conditions now, I am just talking about definitions of document categories and aside from I think a couple of outstanding small niggles with one or more of the parties which no doubt will be sorted out reasonably quickly, we are not going to argue before your Honour that the differences between what they've offered and our paragraphs (1) to (3) are such that your Honour would be bothered to examine at length those differences and tease out the question of whether what is left in the gaps between what they've offered and what we've sought in (1) to (3) is important enough to spend any time on. What comes from that is common to each respondent is that although they've offered us documents which we say are reasonably commensurate with what we could have asked for in paragraphs (1) to (3) and I am not suggesting by that that I am narrowing my application, simply that there is no real point in spending too much time examining them. They all, of course, say that (4) is out of the question. It did seem to us and still seems to us, one response is thus to say that what your Honour could do today is to look at what the parties want to do about conditions attaching to that and talk at the end of the day about whether (4) has got any show at all." 4 The exchanges which followed that statement made it clear that each respondent, including each of the Telstra parties, opposed any order being made on the basis that none of the preconditions provided for by the relevant Rule had been satisfied. It was common ground that none of the offers to produce documents had been accepted. Counsel for the Telstra parties, in both written and oral submissions, relied upon the correspondence between the respective solicitors as being an answer to any necessity for an order, as production of appropriate documents had been offered. 5 I do not regard the applicant as being precluded from proposing that the substance of the orders to be made against the other relevant respondents be matched in relation to the orders made against the Telstra parties. The applicant has, at no stage, abandoned its claim to the documents set out in pars (1) to (3) of the application, and no formal concessions were made. There is much to be said for the view that similar obligations should be imposed upon all of the relevant respondents. Notwithstanding some submissions today on behalf of the Telstra parties, the view I took in the judgment was that there were a number of indicia which pointed to the possibility of one or more of the Telstra parties acting in concert with one or more of the other respondents in conduct which might amount to a breach of the law as alleged. 6 However, in my view, the applicant should not be permitted, as against the Telstra parties, to go beyond the last position adopted by it in the correspondence between solicitors prior to the hearing on 1 November 2001. As I read that correspondence, the position of the Telstra parties was put by Mallesons Stephen Jaques by letter of 8 October 2001, 30 October 2001 and 31 October 2001, with the position in response taken by the applicant represented by letter from Freehills of 12 October 2001, 26 October 2001 and 31 October 2001. To the extent that any obligation which would follow from the orders to be made in relation to the other respondents being greater than those envisaged by the correspondence to which I have referred, then that obligation will not be imposed upon the Telstra parties. I will hear further argument as to the consequences of this ruling. I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Ruling herein of the Honourable Justice Gyles.