Solicitors:
Kay & Hughes (Plaintiffs)
Bird & Bird (Defendants)
Banki Haddock Fiora (Interested Party)
File Number(s): SC 2019/343896
[2]
Judgment
The background to these proceedings is set out in the judgment of Henry J in The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd [1] and in the judgments that I have published in relation to these proceedings since then [2] .
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). The dispute concerns the circumstances of which Mr Morrow and his associated company ceased to be involved in the production of the television series "The Checkout" for the Australian Broadcasting Corporation ("ABC").
For simplicity, I will refer simply to Mr Morrow and Mr Murray.
The proceedings are set down for hearing for eight days commencing 29 November 2021.
Mr Morrow served subpoenas on the ABC on 26 February 2020 and 8 October 2020. Mr Murray served a subpoena on the ABC on 29 June 2020.
I dealt with the ambit of those subpoenas in my judgment of 15 December 2020. [3]
As I said in that judgment, the ABC has been heavily burdened by the need to produce documents in response to these subpoenas and in the context of a bitterly fought dispute in which the ABC has no direct interest. [4]
The ABC has produced 31 packets of documents in response to the subpoenas. During argument on 14 December 2020, I was informed that the ABC had produced over 5,000 documents in response to the subpoenas. I was also informed that, leaving aside the time taken to search for the documents, the ABC has spent some 135 hours reviewing the documents sought and produced them to the Court.
The ABC's position is particularly difficult because it has an ongoing commercial relationship with both Mr Morrow and Mr Murray. Mr Morrow presents a number of programs on the ABC and also produces programs. Mr Murray also produces a number of programs for the ABC. Thus, neither Mr Morrow nor Mr Murray is a commercial stranger to the ABC. Yet their dispute is having a significant impact on the ABC. The ABC's response to the subpoenas needs to be seen in this context.
The ABC has responded to the subpoenas but, in many cases, by producing documents called for by the subpoenas in a redacted form.
Some of those redactions have been upon the basis of an assertion by the ABC that the redacted material is the subject of client legal privilege. To the extent that the ABC has correctly invoked that privilege, there is no controversy about this.
But the ABC has also redacted other documents on the basis that the redacted portions of those documents contain information confidential to the ABC, or to a third party competitor of Mr Morrow or Mr Murray and also contain material that falls outside the scope of the subpoenas.
The ABC took this course without approaching the Court for leave to produce documents in an unredacted form.
Now, by Notice of Motion filed on 8 April 2021, Mr Morrow seeks:
1. declarations that the ABC, without lawful excuse, has failed to comply with the subpoenas by production of documents in redacted form and is thereby in contempt of court; and
2. an order that the ABC provide the documents in unredacted form.
Evidently in response to Mr Morrow's Motion, the ABC, on 3 May 2021, filed a Notice of Motion seeking orders:
1. "confirming" in whole or in part the redactions; and
2. alternatively, that access to "unmasked documents" be restricted to the parties' legal representatives on a confidential basis.
On 8 June 2021, Ms White, who appeared for the ABC, informed me that the ABC had significantly reduced the number of documents in respect of which it maintained a claim for privilege. It is agreed that I should look at those documents and determine whether the claim is justified. I will do that and let the parties know to what extent the claim for privilege is properly made. It is not necessary to say anything further about that matter in these reasons.
So far as concerns the documents redacted for confidentiality and relevance, Ms White informed me that the ABC had reconsidered its redactions and now sought only to justify the redactions in 80 documents. Those documents are included in a folder which I have marked MFI 1.
I directed that the documents in MFI 1 be made available to the legal representatives of Mr Morrow and Mr Murray and that the parties prepare a schedule in the nature of a Scott Schedule in which they set out their competing contentions concerning the redactions, including as to whether Mr Murray has his own objections to Mr Morrow seeing any part of the redacted material. I will deal separately with any issue arising from this latter matter.
That process will, hopefully, enable me to determine to what extent the redactions proposed by the ABC should be "confirmed".
What remains is the very serious question of whether I should declare that the ABC is in contempt of court.
A subpoena is a command from the court. A failure to comply with a subpoena is a contempt. [5]
Where, as here, there is no objection to the subpoena on the ground of oppression or that it is an abuse of process, the documents called by a subpoena must generally be produced by the subpoenaed party, without redaction.
If there is a legally recognised claim to withhold documents, for example, privilege, the allegedly privileged parts may be "withheld" by redaction until that claim is tested. [6]
But where the claim is not that the documents are privileged but the documents are confidential, [7] or not relevant, [8] there is no such right. In those circumstances, the documents should be produced to the court by the subpoenaed party and leave then sought to redact the documents prior to their disclosure to the parties.
In the case of the discovery of documents, it has been held that "[t]here is an established practice whereby inspection is provided of discovered documents with parts of the documents masked", [9] with the merits of the document masking being later debated before the court.
But where, as here, the question of relevance is at play:
"…the court should not countenance a practice of redaction of documents, produced pursuant to its purposes, simply on the basis that some of the material within the document is said to be irrelevant.
Once it can be said that a document answers the court's requirement for production (and I say again that it matter not for present purposes whether the requirement is one arising on discovery, or pursuant to a subpoena or notice to produce), and putting aside questions of privilege and confidentiality, the very fact that the document answers the command is what requires it to be produced. The fact that it may go beyond the command, in the sense that it may contain material extraneous to the purpose that makes production mandatory, does not justify redaction". [10]
Thus, the course adopted by the ABC was not appropriate. The ABC should not have decided unilaterally to redact the documents produced based upon the asserted confidential and irrelevant nature of their redacted portions and should have approached the Court for leave to make the redactions.
The ABC's external solicitor, Ms Katherine Haddock deposed that the ABC is a "sophisticated litigant" that is "regularly" served with subpoenas.
The correct position was drawn to ABC's attention on at least two occasions.
The first was on 15 December 2020 when Mr Morrow's solicitor wrote to the ABC:
"As indicated by that correspondence, to the extent that a redacted version of a document has previously been produced by your clients to our clients pursuant to a separate subpoena, our clients continue to require such documents to be produced. To the extent that the ABC intends to redact a document or withhold it on the basis of privilege, our clients require that such redaction is limited in accordance with the principles articulated in AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1484, that your clients provide a list of the documents such redactions apply to, and the specific basis for each redaction. As detailed in that decision, our clients maintain that where a claim is made of confidentiality falling short of a legal privilege, redaction should not take place except with the leave of the Court, and a party seeking permission to redact should apply to the Court for such leave."
The second was when the matter was before the Court on 27 January 2021, when Senior Deputy Registrar Hedge said:
"I'm not sure why you are redacting documents if there have been no orders".
The ABC's external solicitor, Ms Haddock appeared before the Registrar on that occasion. Ms Haddock said that she explained to the Registrar why the ABC had redacted the documents (although I do not know what explanation was given) and that the Registrar said (correctly) that she did not have power to "deal with that" (that is, make orders permitting redaction).
Thus, Ms Haddock, and through her the ABC, was aware of the need to obtain leave to make any redactions.
Whoever it was at the ABC that decided that redacted documents should be produced in response to the subpoenas, did not offer an explanation for the ABC's conduct. Such explanation, rather, came from Ms Haddock. However, it was not Ms Haddock that made the decision, as her firm was only retained by the ABC in October 2021.
The explanation offered through Ms Haddock is that the ABC understood it was "common practice" to respond to the subpoenas as the ABC did.
As the authorities I have set out show, any such "common practice" must yield to the subpoenaed party's obligation not to withhold from the court parts of documents caught by a subpoena on grounds of confidentiality or relevance, without first complying with the command of the subpoena to produce the documents to the court.
As to whether the ABC's conduct constitutes a contempt of court, it is true that the conduct was wilful, in the sense of deliberate.
It is also true that the ABC had expressed no regret for its conduct, let alone offered an apology to the Court apart from these statements by Ms White:
"…[P]erhaps the criticism is we tried to do this on an informal basis".
"I think if there is any criticism to be levelled at the ABC, then the criticism would be, of course, that we should have brought [the motion seeking 'confirmation' of the redactions] much sooner than we have".
"Certainly, if there is to be any criticism levelled at the ABC, I think the criticism is that we took too long to consider this motion, and I accept that, but certainly never thumbing our nose at the Court's rules or processes".
In fact, the "criticism to be levelled at the ABC" is that it did not at the outset approach the Court for leave to make the redactions and, when on notice of its obligation to do so, did not earlier move for leave.
Instead, many months after producing the documents in redacted form, the ABC belatedly sought retrospective confirmation of its redactions, and then only to a limited extent.
That is not how any party, let alone a Model Litigant such as the ABC, should conduct itself.
It is, however, a very different question whether the ABC is thereby in contempt of court.
This is not a case where a party failed to comply with a subpoena in the sense of failing to produce documents in response to the subpoena. As I understand it, the ABC did produce the documents called for by the subpoena, albeit with redactions.
I accept the submission made by Ms White that the ABC was endeavouring to "move forward in the most cost-effective way". In doing so, the ABC sought to broker a consensual solution to the problem that it saw arising from the subpoenas calling for material that the ABC judged to be confidential to competitors of Mr Morrow and Mr Murray, and to be also irrelevant in the sense of not called for by the subpoenas.
For example, on 10 February 2021, Ms Haddock wrote to the solicitors for Mr Morrow and Mr Murray attaching a schedule of 117 redacted documents and stating, in relation to each document, the basis upon which the redaction was made and details of the redaction.
An example of what was contained in the table is:
"Description of document and basis for claim
Email from [a named person] to [another named person] and attached spreadsheet, which is a version of the 2018/19 Entertainment and Factual Slate Pitch. Redacted commercial in confidence information regarding the ABC budget and other television programs not caught by the Subpoena - dated 4 February 2019.
Details of redactions
Redactions in spreadsheet are budget dollar amounts for entire Entertainment and Factual budget and information regarding other television programs not caught by Subpoena".
Thus, despite the redactions, the ABC was being open about what it had redacted, and why.
On 2 March 2021, Ms Haddock wrote to Mr Morrow's solicitor:
"The ABC has consistently sought to take a practical and transparent approach in its response to the subpoenas issued by your client, which would permit your client access to the subpoenaed materials as soon as possible whilst protecting the ABC's position with respect to irrelevant and commercially sensitive information.
…
Our letter of 10 February 2021 invites you to request particular documents to be unmasked should it require them. Should your clients assert the necessity of the information to be unmasked in order to achieve justice between the parties, our client has always been receptive to that discussion.
We remain willing to discuss the Produced Material to which you wish to have access. However, if your position remains that your clients must have unfettered access to all of the documents in their unredacted form, we anticipate instructions to file a Notice in Motion to confirm the redactions and restricted access."
And on 12 April 2021, Ms Haddock wrote to Mr Morrow's solicitor:
"As noted above, we have previously provided a detailed explanation of the basis on which the redactions have been made, and stated plainly that the redaction of commercially sensitive material is only in respect of subject matter falling squarely outside the scope of the subpoenas. We have invited your clients to identify particular documents where they believe the redactions are of material they are entitled to see. However, your clients' position appears to be that they should have access to the whole of all of the documents produced by the ABC, without limitation even as to access being restricted to legal representatives.
We refer you to our letters of 17 December 2020, 25 January 2021, 10 February 2021, and 2 March 2021. We again note the particular circumstances of this matter, in which the ABC has ongoing commercial relationships with the parties. As we have stated previously, if the documents are to be produced unredacted, we will seek an order that the material currently redacted be kept confidential to external solicitors and counsel for the parties. By producing the documents in a redacted form, the ABC sought to avoid the delay and expense of a motion with respect to confidentiality and restricted access."
Mr Morrow's solicitor replied on 14 April 2021:
"Nevertheless, in an effort to limit the parameters of the dispute, and provide our client with more immediate access to the necessary documents, our client is willing to offer that whilst our client's motion is being determined, the parties agree that:
1. Our clients and their legal representatives enter confidentiality agreements with your client on agreed terms in regard to the material redacted by your client and its representatives;
1. Your client, by no later than 20 April 2021, provides our clients with copies of the full, unredacted material supplied by your client and its representatives pursuant to the subpoenas (excluding only those materials in which your client maintains a claim for legal privilege); …".
The latter proposal involved those parts of the documents that the ABC sought to redact being shown to Mr Morrow. This was not acceptable to the ABC.
As I have set out above, I have now directed that the ABC provide the documents to the legal advisors of Mr Morrow and Mr Murray in order that a determination could be made as to what, if any, redaction should be "confirmed".
In these circumstances, although I have found that the course ABC followed to be ill advised, I do not see it as being contumelious to the Court's process or to otherwise be in contempt of those processes.
Accordingly, and assuming it would ever be appropriate to make a bare declaration that a party is contempt of the court, [11] I do not propose to do so in this case.
In the circumstances before me, the Court's disapprobation of the ABC's conduct would better be expressed by an order for costs, a matter about which I will invite submissions.
The next step is for me to determine to what extent the redactions for which the ABC still contends should be permitted. I will make that determination on the basis of the Schedule that the parties are now preparing.
The question then will be whether Mr Morrow and Mr Murray, and not merely their legal representatives, should have access to the documents in their unredacted form. This is a matter that I will consider, possibly on a document by document basis, once the Schedule is to hand.
[3]
Endnotes
[2020] NSWSC 1238.
The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 2) (Supreme Court (NSW), Stevenson J, 17 September 2020, unrep); The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 3) [2020] NSWSC 1364; The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 4) (Supreme Court (NSW), Stevenson J, 14 October 2020, unrep); The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 5) [2020] NSWSC 1516; The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 6) [2020] NSWSC 1820; The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 7) [2020] NSWSC 1883.
The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 6).
At [18] and [19].
Uniform Civil Procedure Rules 2005 (NSW) r 33.12.
AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2009] NSWSC 1484 at [47] (Brereton J, as his Honour then was), citing amongst others, Telstra Corporation v Australis Media Holdings, Supreme Court (NSW), McLelland CJ in Eq, 10 February 1997, unrep).
AMI Australia Holding Pty Ltd v Fairfax Media Publications Pty Ltd.
Westgate Finance Pty Ltd v May [2012] NSWSC 806 at [25]-[26] (McDougall J).
Gray v Associated Book Publishers (Aust) Pty Ltd [2002] FCA 1045 at [14]; Brereton J following in this Court in NAK Australia Pty Ltd v Starkey Consulting Pty Ltd [2008] NSWSC 1136 at [6].
Westgate Finance Pty Ltd v May (supra) at [25]-[26].
Although it has happened: Transport Secretary (on behalf of the Government of New South Wales) v Srinivasa [2018] NSWSC 1494 (Pembroke J).
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Decision last updated: 16 June 2021