The Epoch Holding Group Pty Ltd v Katz [2025] FCA 271 | Case summary

PRACTICE AND PROCEDURE - Sabre orders (Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Company [1993] FCA 557; (1993) 46 FCR 428) requiring Australian entity to obtain documents from related overseas entity - whether a Sabre order can be made against a non-party - non-party had engaged with applicant in relation to any production orders - consideration of scope and breadth of s 23 of the Federal Court of Australia Act 1976 (Cth) (FC Act) - whether Sabre or Kraft Foods Group Brands LLC v Bega Cheese Limited (No 4) [2018] FCA 1055 wrongly decided - whether Court is bound to follow only one of those decisions - held that the two decisions are not inconsistent - held that Sabre order may be made against a non-party to the proceedings in the exercise of the Court's jurisdiction under s 23 of the FC Act.

The Epoch Holding Group Pty Ltd v Katz [2025] FCA 271 | Case summary | Zoe

[49]

The Brazilian footballer Pelé once said, "The more difficult the victory, the greater the happiness in winning". He also said, "If you are first you are first. If you are second, you are nothing". These quotes give some illumination to the approach taken by the parties to the two interlocutory applications before the Court, each relating to disclosure of documents. Those applications were initially heard over two days on 2 and 3 October 2024, and judgment reserved. On 1 November 2024, the applicants amended their interlocutory application to seek additional relief. The amended application was heard on 20 December 2024. It is fair to say that the questions of discovery, issue of subpoenas, and leave to invoke the jurisdiction of foreign courts for production of documents were hotly contested. While there was some movement in the position of the parties and reduction of categories by consent, on the whole the material which remained in issue over those three days vastly outweighed the material which had been agreed. Neither side wished, it seemed, to come second, and each was prepared to test its strength for a great and difficult victory.
The applicants, between whom there was no significant differentiation made at the hearing, and who will be globally referred to as "Epoch" unless where differentiation is necessary, conduct a trading firm and hedge fund. The second respondent, Mr David Katz, is a former employee of Epoch. Mr Katz was employed by the third applicant, Epoch Systems, as the head of the Medium Frequency Trading Desk (MFT Desk) from around 2013 until early 2021. He is now employed by Schonfeld Strategic Advisors (Australia) Pty Ltd (Schonfeld AU), a competitor of Epoch. The proceedings arise out of the circumstances of his leaving Epoch, and that of another employee, Mr Toby Carrodus, later leaving Epoch and joining Mr Katz at Schonfeld AU. It is alleged that Mr Katz solicited Mr Carrodus to leave his employment, and that he provided information that was confidential to Epoch to various parties, including Schonfeld AU.
Mr Katz is now the only remaining respondent, the applicants having settled with Mr Carrodus, the first respondent, in circumstances the relevance of which is dealt with below. Accordingly, references in these reasons to "the respondent" is a reference to Mr Katz.
The first interlocutory application, filed by the applicants on 2 August 2024 (Epoch IA), seeks verified discovery of five categories of documents, as well as orders relating to the issuing of subpoenas to Schonfeld AU, two entities incorporated in the United States of America, being Schonfield Strategic Advisors LLC (Schonfeld US) and Millenium Management LLC (Millenium), and one incorporated in the United Kingdom, being Lascaux Partners Limited (Lascaux) on its solicitors in Australia. An amended application was filed on 1 November 2024, which amendment expanded the relief sought to include a Sabre order (see Sabre Corporation Pty Ltd v Russ Kalvin's Hair Care Company [1993] FCA 557; (1993) 46 FCR 428 (at 431-432)) against Schonfeld AU in relation to communications between Mr Katz and Schonfeld Strategic Advisors (UK) LPP (Schonfeld UK), or Schonfeld UK and any other Schonfeld entity, in respect of Mr Carrodus, Mr Katz, and Mr Katz' employment. I will refer to the amended interlocutory application as the Epoch AIA where necessary.
The second interlocutory application, filed by Mr Katz on 9 August 2024 (Katz IA), seeks verified discovery of the documents specified in categories 1 to 36, 38 to 44, and 48 of the Redfern Schedule, Exhibit 1. The Redfern Schedule is a Confidential Exhibit and is subject to a non-publication order of 30 November 2023, as amended by an order of 19 February 2024. Accordingly, it cannot be annexed or parts of it explicitly referred to, and this may result in some opacity in these reasons.
It is alleged in the Amended Statement of Claim (ASOC) that each of Mr Katz and Mr Carrodus breached his employment agreement with Epoch and misused confidential information. The respondent does not accept that all of the information particularised as confidential information is in fact confidential, nor does the respondent agree that Mr Carrodus provided Epoch's confidential information to Mr Katz. Notwithstanding that, material alleged to be confidential to Epoch was referred to in argument, on a "without admissions" basis, as the Confidential Supplementary Particulars (CSP) or as the Epoch Confidential Information (Epoch CI). I have adopted that description as that used by the parties.
Various parts of evidence, both before me and in the substantive proceedings, are subject to confidentiality orders. As a result, some of the descriptions of documents in these reasons are necessarily opaque.
This judgment was initially published pursuant to a non-publication order and the final published version has been the subject of submissions and redactions as required to ensure compliance with that order.

[52]

The ASOC sets out a history of Mr Katz' and Mr Carrodus' employment within Epoch, and the circumstances of each leaving his respective employment. Essentially the applicants plead that Mr Katz commenced employment with Epoch in late 2013, and entered into various agreements as to the terms of his employment which included confidential information clauses and a non-solicitation clause. Mr Carrodus commenced employment with Epoch in early 2018 and his employment agreements included consent to a confidential information regime as well as a restraint on employment after leaving Epoch.
These proceedings arise out of the circumstances of his departure, and that of Mr Carrodus, who was a quantitative analyst in the MFT Desk, and who reported to Mr Katz until his departure in June 2022. Mr Katz' employment contract was initially with Schonfeld UK, a relevant fact dealt with at [25] to [28] below, but later with Schonfeld AU. Mr Carrodus was also, after his departure from Epoch, employed by Schonfeld AU. The applicants plead that prior to his employment at Schonfeld AU, but over a period commencing prior to his departure, Mr Carrodus investigated alternative employment, by way of having discussions with Schonfeld US and Schonfeld AU (including with Mr Katz), Millennium (a competitor to Epoch), and Lascaux (a recruitment firm).
When these proceedings commenced, Mr Carrodus was the only respondent. The applicants obtained urgent ex parte search, disclosure and inspection orders against him on 13 July 2022. Mr Carrodus was, inter alia, required to provide information under oath as to the use of information which Epoch contended, and continues to contend, was confidential. Mr Carrodus provided three affidavits while he was a party respondent to these proceedings, on 19 July 2022, 1 August 2022, and 11 August 2022.
Mr Katz was joined to the proceedings as second respondent on 8 December 2022. He and Mr Carrodus each filed Defences to the Statement of Claim on 8 March 2023. An interlocutory application by Mr Katz for non-publication orders was filed on 5 May 2023.
Justice Cheeseman delivered judgment on 16 August 2022 (The Epoch Holding Group Pty Ltd v Carrodus [2022] FCA 947) in which her Honour made Orders relating to non-publication on the basis of commercially sensitive information.
On 26 May 2023, the applicants and Mr Carrodus signed a Deed of Release, which provided, amongst other things, that he would assist the applicants in their proceedings against Mr Katz by providing full disclosure of his role to the applicants, and by agreeing to make himself available for cross-examination on his affidavits (including an affidavit affirmed by him on 15 August 2023 pursuant to the terms of the Deed of Release - Carrodus 4). This affidavit was filed without some of the annexures which were described as confidential.
Mr Katz filed an interlocutory application which was part-heard by Cheeseman J on 15 June 2023. The applicants sought orders for discovery prior to the filing of evidence in chief, but those orders were not made (Mr Katz not consenting to those orders). Her Honour made further non-publication orders on that day, and on various dates subsequent to that, to which orders I have added some further documents by consent of the parties. An interim confidentiality regime was agreed upon, and the confidential annexures to Mr Carrodus' affidavit were eventually provided to Mr Katz.
On 16 August 2023 Cheeseman J made orders dismissing the Amended Originating Application as against Mr Carrodus on terms, leaving Mr Katz as the only respondent to the proceedings.
What may be described as a flurry of activity then commenced. In the interests of relevance and readability, these reasons need not include all of the detail, but the actions included:

[59]

Cheeseman J made further orders in relation to inter alia confidentiality (The Epoch Holding Group Pty Ltd v Katz [2023] FCA 1468) on 24 November 2023.
As a result of the determination by the Registrar, in February 2024 the applicants filed a Further Amended Originating Application and the ASOC, together with the CSP (which became Ex F24 in the application before me). Mr Katz filed a Defence to the ASOC on 19 April 2024. The CSP appears to be responsive to the conditions set out at [45] of the Registrar's reasons for decision.
The parties' minds then turned, in a more focused way, to thoughts of disclosure (noting that this had been an issue between the parties for some time). I do not need to go through the extensive correspondence, but it is set out, with some degree of commentary, in paragraphs 42-82 of Feltham 6, and 63-79 of Jhinku 5. In summary, the position was that the applicants had filed their evidence, the pleadings had closed, and the respondent had not put on his evidence. Each of those positions was reached after numerous case management conferences, orders, and lengthy inter partes correspondence. That correspondence culminated in the filing of the Epoch IA and the Katz IA, each in early August 2024.
The proceedings had been transferred to my docket in July 2024 and the IAs were listed before me for two days on 2 and 3 October 2024. For reasons that are set out at [25]-[28] below, the matter was relisted for further hearing on 20 December 2024. Over the three days, the applicants relied on Feltham 6 and a further affidavit of Mr Feltham sworn 30 August 2024 (Feltham 7), and the respondent on Jhinku 5 and a further affidavit of Mr Jhinku affirmed 23 August 2024 (Jhinku 6). The applicants also tendered, rather than read, some of the evidence on which they will rely at the hearing, including affidavits of Mr Carrodus (those affidavits being those affirmed on 19 July 2022 (Carrodus 1), 1 August 2022 (Carrodus 2), 11 August 2022 (Carrodus 3) and 15 August 2023 (Carrodus 4)), and affidavits of Darren Mast (being those affirmed on 8 September 2023 (Mast 3) and 25 March 2024 (Mast 4), including Confidential Annexure DLM 4-27). The affidavit in support of the Epoch AIA were those of Mr Feltham sworn 1 November 2024 (referred to as Feltham 8) and 11 December 2024 (referred to as Feltham 9). No deponent was cross-examined.
During the October tranche of the hearing, it became clear that one of the documents that Epoch sought to be produced by the respondent was Mr Katz' contract of employment with the relevant Schonfeld entity. Production of that document was consented to by the respondent. It seemed to me that production of that document should not await the delivery of judgment on the other issues, and so I directed that it should be produced by the respondent to the solicitors for the applicants within two weeks (i.e., 17 October 2024), and if there were any dispute, the matter should be relisted. I made an order to that effect on 3 October 2024 and made confidentiality orders in relation to the contract of employment. The wording of the order for production of the contract of employment was:

[122]

Mr Feltham, for the applicants, in his affidavit Feltham 7 in support of the Epoch IA, sets out what he says is the oppressive nature of the Katz IA discovery categories and the difficulties faced by Epoch in complying with the requests. This part of the affidavit is in response to the requirements of paragraph 10.11 of CPN-1, dealing with burdensome access and discovery. In very brief summary, he says that most of the applicants' documents are found on the Cloud, incorporating some 7 Terabytes of information. That data is stored over several repositories, most of which is Google Workspace but includes other database systems, including messaging via Slack, and collaboration and project management through tools such as Confluence and Jira. Additionally, individual current employees have their own laptops and may store documents on those laptops. The workforce also uses mobile phones for work. There are around 80 employees of the various applicants who are physically located in Australia, the UK, the USA, and Canada.
Mr Feltham says that once documents were produced, the applicants' legal representatives would have to identify responsive documents, and this (like the process of production outlined above) would take some time, including manual review, and could take many weeks. It was submitted that some of the categories were oppressive (in particular, Mr Feltham mentions categories 16 and 24).
A further issue of burden raised in Feltham 7 is the fact that many of the documents sought to be discovered are confidential to the applicants and are core to their business operations. It is noted that Mr Katz still works for Schonfeld AU, a competitor to the applicants, and the applicants are not satisfied by the implied or an express undertaking as to the use of the documents. The categories given ("by way of example only") are 16-19, and 24-27.
Mr Feltham is concerned, if documents are ordered to be produced in the "confidential" category, that there will be further expense incurred in relation to establishing confidentiality regimes. As submitted by Epoch, "Mr Katz [is] a present trade rival of Epoch's [and] is seeking broad ranging production of even more of Epoch's CI" (emphasis in original). Epoch contends that the Katz IA is a fishing expedition. Mr Feltham's estimate of costs of the discovery sought in the Katz IA (given in paragraph 31 of Feltham 7) is "over $250,000 or considerably more".
Mr Jhinku did not put on any evidence in response to these general objections. Mr Katz submitted however that discovery should be granted if it facilitates the just resolution of the proceedings as quickly, inexpensively, and efficiently as possible (see r 20.11 of the FC Rules, and paragraph 10.6(a) of CPN-1). He further submits that the prospect of further disputes about confidentiality do not govern whether a document should be discovered or not, but are proper processes which can take place after discovery has been ordered.
In relation to whether the discovery is oppressive, by reason of breadth of the request or the cost and time of the production, the respondent pointed to proportionality and noted that these proceedings are significant litigation, which have been going on for years at a high level of conflict, and that the costs already expended and ongoing "would easily dwarf the $250,000 that is the highest number Mr Feltham is willing to swear to".

[124]

I set out in this section of my reasons the way in which I intend to apply the above general principles in relation to the discovery applications by each of the two parties, on the basis of the submissions summarised above.
On the Epoch IA, I consider the submission that the formulation relating to discovery on the basis that "further particulars will be provided after discovery" in order to brace provision of discovery beyond the current pleading is one which should, without more, fail. While it may be appropriate to seek further documentation if it be directly relevant to the issues in the pleadings, and it may be appropriate to provide further particulars once that discovery has been provided, it is not appropriate to go beyond the current issues pleaded in order to see what is out there by way of further particulars. That formulation does not do enough to bring in the principle stated by Lindgren J in Trade Practices Commission as set out at [68] above.
Should the applicants succeed on their discovery application, it may well be that they may be able to give further particulars of facts already pleaded. But the fact that they have included the formulation that "further particulars may be provided after discovery ..." does not allow them to broaden the criterion of "material fact" in the sense of an as-yet unascertained fact being "directly relevant to the issues raised by the pleadings".
I have accordingly compared each category to the current pleadings, including (as per [58] above), matters particularised and connected to the pleaded facts, and come to a determination as to whether the documents sought in the category should be provided.
I have also taken into account the respondent's submissions as to what may be sought on discovery, in circumstances where a significant hearing has already been undertaken before the Registrar on an amendment and avoidance of strikeout on the basis of proper particulars being a condition of the repleading of the Statement of Claim. That prior determination, and the specific conditions imposed on the amendment of the pleading (see [32] above), leads me to take a restrained approach in not venturing beyond the particulars as provided in the current ASOC.
The issue of the inferred use by Mr Katz of Epoch CI is one of the matters relevant on the pleadings. Accordingly, while the respondent has complained that it is difficult to assume that because Mr Carrodus did something, Mr Katz also did it, it remains an issue "directly relevant to the issues on the pleadings" (for a further discussion of this, see [91] below). I have not excluded documents sought by Epoch in relation to this pleading on that basis.
In relation to the Katz IA, I have taken the position that, again, while "relevance to issues in the pleadings" can where appropriate be broad enough to include particularised facts, the suggestion that documents should be produced to "shed light" on the truth or confidentiality of pleaded facts is insufficient to bring the request within the proper scope of discovery. That request does not sufficiently reveal "connected circumstances" between the pleadings and the request. Nor are many of the documents sought "very likely to be significantly probative in nature" as required by the FC Rules and CPN-1.

[141]

In relation to the restriction in (a), Epoch says that the limitation would exclude contextual exchanges between Mr Katz and the relevant third party, for example, exchanges which refer to a meeting with Mr Katz of which there may be no other record. It is also contended that the "subject matter restriction" would exclude other purposes for which Mr Katz was using alleged Epoch confidential information, or would exclude metadata of deleted text messages and emails.
The respondent counters that the communications pleaded between Mr Katz and Mr Carrodus are all alleged to be oral, and seeks that discovery be limited to the facts in issue. It is submitted that the proposed reason given by Epoch that it would exclude Mr Katz' use of the confidential information for his own employment, which is not a pleaded part of the applicants' case. Mr Katz makes the point that the Solicitation Case is based on a pleading that Mr Katz lured Mr Carrodus away from Epoch, not that he himself was induced away (see ASOC paragraphs 174AA(a) and 177(a), extracted above at [37]). It is contended that Epoch is in fact "fishing" for further documents.
It is submitted by Mr Katz that the need for a "subject matter restriction" is clearer for categories 2-4, as evidence of mere communication with potential employers or recruiters cannot be as vital to the issues in dispute as those between Mr Carrodus and Mr Katz.
In relation to the date restrictions in (b), Epoch submits that the appropriate end date is 31 July 2022, given that that was when Mr Carrodus accepted the offer to work at Schonfeld. Mr Katz commenced work there in March 2022. Mr Katz agitates for a shorter period, ending (at the latest) when Mr Katz executed his employment agreement with Schonfeld (noting that the applicants had not then, as at the November hearing of the IAs, seen that employment agreement, but the respondents contended that the relevant date was 4 March 2022). In relation to category 2, Mr Katz contends that a longer date will catch an enormous amount of employment material which is not relevant to the issues in dispute, given that Mr Katz was then working for Schonfeld AU. Epoch submits that communications post-March 2022 are relevant to the Solicitation Case, and the alleged use of the confidential information, and that these are clearly relevant to the applicants' case.
The subject-matter restrictions proposed by Mr Katz in (c) and (d) are submitted by Epoch to be too narrow, and would "artificially limit" the documents sought. In their written submissions, Epoch submits that in categories 3 and 4, for example, contacts referring to the provision of information would not be caught were the subject matter to be limited in this way. Mr Katz submits that the question in issue in the pleadings is the provision of the actual information in the red boxes, and limiting discovery to that issue "is not artifice; that is how discovery is supposed to work". The respondent consents to discovery of any information that "relates" to the information that Mr Carrodus gave to either Schonfeld entity, Millennium, and Lascaux.
It was submitted for Epoch that there was no evidence by Mr Katz of any particular burden which the sought categories would impose. Mr Katz submitted that he does not say that the category is oppressive; merely that it should not be granted in terms which are wider than the facts in issue.

[147]

From the above, Epoch alleges that it is an "irresistible inference" that Mr Katz obtained Epoch confidential information from, and from sources other than, Mr Carrodus, and that that confidential information was used by Mr Katz to "demonstrate his worth" to trading firms Schonfeld AU, Schonfeld US, and Millennium, and to the recruitment firm Lascaux. This is the pleading set out above in paragraphs 174AA, 174B, and 174BB of the ASOC. Mr Flynn SC, for Epoch, also noted in oral submissions that the terms of employment offered to Mr Katz at Schonfeld (including a sign-on bonus said in the evidence to be the equivalent of that of a star football player) would give rise to an inference that the provision of confidential information prior to his employment at Schonfeld AU would be a requirement to ground that kind of sign-on bonus. (It should be noted that there was no particular football player identified as the comparator, but the assumption expressed in oral submissions was that the person in question was European or from the UK, and male).
Categories 3 and 4 seek similar documentation to category 2, but in relation to Millennium and Lascaux respectively. Mr Katz submits that the inference pleaded does not work in the context of the two non-Schonfeld firms; it is said that it is difficult to infer that Mr Katz gave to one of those firms the documents that Mr Carrodus gave to the other, for example. In response, Epoch says that the restriction proposed is a way of limiting production to only direct requests, and not to documents which are relevant to the red boxes while not having a "complete coincidence" with them.
Category 5 is (after some disagreement on day 1) now agreed, on the basis that not every single document evidencing each payment ever made by Schonfeld to Mr Katz would need to be produced. As noted at [25] above, during the hearing it was discussed that the contract of employment - about which there was no dispute unless there was a need for confidentiality orders -should be produced by the respondent to the solicitors for the applicants within two weeks (i.e., 17 October 2024), and if there were any dispute, the matter should be relisted. I made an order to that effect on 3 October 2024 and made confidentiality orders in relation to the contract, along with another document apparently within category 5, on 30 October 2024.

[160]

I refer to the table in [78] above. Where I have ordered discovery, the documents produced should be produced in accordance with the requirements of FC Rules r 20.16.
Category 1 seeks documents relating to communications between Mr Katz and Mr Carrodus and goes to the Solicitation Case, as well as the Carrodus Information Case. I am of the view that the pleadings in Part G, in particular the paragraphs leading up to the allegation of solicitation in paragraphs 171L and 171M of the ASOC, make the whole story of the contact between Mr Katz and Mr Carrodus relevant to the issues on the pleadings (and noting the affidavit of Mr Carrodus of 15 August 2023 which demonstrates that he no longer has digital or other records of these meetings).
Mr Katz commenced working for a Schonfeld entity in around March 2022 and then is alleged to have contacted Mr Carrodus in relation to Mr Katz recruiting a team to work at Schonfeld (paragraph 171F of ASOC). The proposal of ending the discovery documents at the time that Mr Katz commenced work at Schonfeld would somewhat defeat the purpose of the category. I am not convinced that the other amendments proposed by the respondent are necessary in order to restrain the production as sought. In particular, the restriction that the documents be restricted to the CSP-1 information or the "red boxes" information would be unnecessarily restrictive given the relevance of the material to the Solicitation Case. These documents should be produced as sought.
Category 2 refers to communications between Mr Katz and Schonfeld. As noted, Mr Katz commenced working for Schonfeld in around March 2022. Production of all communications between Schonfeld AU or Schonfeld US without subject matter restriction would be unduly burdensome and would include a significant amount of material which would need to be reviewed to assess the particular document's relevance. Accordingly, I will order that production be made as per the Epoch proposal with the proposed dates but with the addition:

[164]

The Katz IA seeks discovery in particular categories. Some are agreed and need not be dealt with here (categories 7, 20, 21, 30, 33, 41). Some are not pressed on the basis of alternative production referred to as "the Carrodus Database" (categories 10-14).
Categories 1, 2, 4, 5, 8, and 22 are resisted on the basis that the applicants say that all relevant documents have already been produced. Epoch's submissions (in Part D1, Group 1) sets out a summary of the evidence of Mr Feltham in Feltham 7 as to what has already been produced, and why further discovery may not be helpful in that requests overlap, documents do not exist, or all documents have already been produced. Mr Katz contends that if the categories are relevant, "the fact that there is said to be nothing further to produce is a reason to order discovery". He seeks a verified list in accordance with FC Rules r 20.16.
Category 1 seeks Mr Katz' personnel file for a period of 1 March 2013 to 31 May 2022. The reason given is that Mr Katz seeks the documents "to confirm ... the contractual terms on which he was employed". Epoch says that it does not maintain such a personnel file, and that copies of Mr Katz' employment agreements, confidentiality deed, and termination of employment letter, have been produced in response to a request for particulars.
Category 2 seeks documents "recording the terms of Mr Katz' employment" including those regarding compensation payable to him or the trustee of his family trust, including documents recording any verbal agreements, from 1 March 2013 to 9 March 2021. Epoch says that all documents have been produced over a period from February 2023 to March 2024 and sets out a list of documents which have been produced in paragraphs 40-42 of Feltham 7. Mr Katz submits (as he does in relation to other categories) that "the puzzling resistance to these categories itself indicates a possibility that other documents exist".
Categories 4, 5, and 6 seek documents referring to the Plan Rules and the Katz family trust, in the context of an estoppel and whether the common assumption or Mr Katz' pleaded representation was formed or relied upon. That estoppel is pleaded in paragraphs 21E-21K of the ASOC. Epoch says it has produced the documents in these categories already in the productions referred to in Category 2. There is some significant overlap of categories. In fact, Mr Katz says that if Category 5 (a category which Epoch says has been complied with) is subject to an order for production, then Category 6 need not be.
Category 8 seeks Mr Carrodus' notice of resignation of employment from the Epoch Group. Epoch says this has been produced and nothing further can be produced (and relies on production on 16 February 2023 and an annexure to Ms Russell's affidavit of 12 July 2022 which contains a letter from Mr Humphreys to Mr Carrodus confirming that resignation). Accordingly, it is said that no further discovery is required. Mr Katz takes the position that they are entitled to seek the documentation and to rely upon a verified list.
Category 9 is said by Mr Katz to be significant, and seeks documents from 1 June 2019 recording or referring to Mr Carrodus' reasons for resigning from Epoch. While there appeared originally to be a dispute about the timeframe, in oral submissions it appears that the applicants were prepared to accept a range of 1 October 2021 (prior to his first speaking to recruiters) to 15 August 2023 (the date of his final affidavit).
The parties make a global submission in relation to Categories 15, 16, 17, 18, 19, 23, 24, 25, 26, 27 and 28. The applicants say that Mr Katz has not put forward an affirmative case that the information pleaded in the Carrodus Information Case is in fact confidential. In support of this, Epoch cites the Defence paragraphs 173, 174, 174B, and 175. The pleading that the information was confidential to one or more of the applicants however is found in paragraph 174A, and that assertion is denied. The applicant contends that the mere denial of the confidential nature of the information, without an affirmative defence, is indicative of the respondent "trying to find a defence" and again, rather than deal with a material fact, seeks to "shed light" on whether the pleaded allegations of confidentiality are "true" that the information was "confidential". The respondent however characterises the pleading failure as being the applicants' need to prove "that information is information of the applicants, and that it is information confidential to the applicants".
Categories 15, 16, 17, 18, and 19 are mainly relevant to the Carrodus Information Case (and category 15 to the Solicitation Case). Each category seeks documents which are specified as being confidential information in paragraphs 173 and 174 of the ASOC and is particularised in the CSP. The request in Category 15 seeks that Epoch provide, for example, "MFT Desk employees' (including Mr Carrodus') ... [form of remuneration]" in 2021 and 2022, including complaints regarding that form of remuneration. The question of that kind of remuneration is dealt with in the CSP at sub-paragraphs 1(a)(ii), 3, 4, and 5. It is alleged by the applicants that this was confidential information. Category 16 refers to "documents recording or referring to the financial metrics and profit metrics that it was alleged were disclosed by Mr Carrodus in paragraph 174(a), or the circumstances in which such information was imparted to Mr Carrodus". In relation to this, Epoch points to the confidentiality alleged in relation to this information and the fact that Mr Katz is employed by a competitor. Categories 17, 18, and 19 are in similar terms and refer to other particularised matters in the CSP relating to the pleaded confidential information in paragraph 174.
Category 22 seeks documents referred to in paragraph 23 of Carrodus 4. The respondent says he is clearly entitled to these documents. The applicants say they have been produced (being Slack messages) and that no additional basis to suspect that there are further documents has been provided.
Category 23 is a request for a Google Sheets document referred to by Mr Mast in his affidavit of 9 September 2023, and "any document recording access to that file occurring in the second half of 2021". Epoch contends that this information is highly confidential, and that the date is too broad as the information was sought in late 2021. Finally, the question is in some sense moot; the Google Sheet in question is a "living document" and the evidence of Mr Mast (tendered, not read, in these proceedings) is that the form it was in at a particular point in 2021, or a stretch of time in 2021, no longer exists. Mr Mast's affidavit provides details of those who have had access to the file.
Category 24 refers to confidential information in the form of data which is pleaded at paragraph 174(c) of the ASOC and particularised in A.1(d) of the CSP. It is contended by Epoch to be highly confidential, and that the request - "documents recording or referring to the Epoch Group's trading strategies, '[description] data', trading performance, changes in risk model and portfolio size" that is alleged were disclosed by Mr Carrodus in paragraph 174(c), or the circumstances in which such information was imparted to Mr Carrodus - would require disclosure of a much broader kind that is required for documents directly relevant to the issues raised by the pleadings. In reply, Mr Katz submits that "the applicants have produced no business records evidencing that this information is true or is confidential to the applicants".
Category 25 seeks a range of document categories for documents which "record or refer to any of the following" between 1 July 2021 and 31 March 2022, including "the performance of the Epoch Group's [nominated] strategies" and "the performance of", "the implementation of", the "nature, performance, or [description] testing of" various signals used by the Epoch Group. The applicants submit that this category is much broader than the information that it is alleged that Mr Katz obtained from Mr Carrodus, and are confidential. The respondent says that its case is that the pleadings contend that Mr Carrodus disclosed this information to Mr Katz, and that Mr Katz continues to use that information, and should be enjoined from doing so. The respondent submits that CSP.1(c) (which sets out the matters which Mr Carrodus allegedly informed Mr Katz in February/March 2022) informs the appropriate production in this category. The matters which are included in CSP.1(c) include fairly broad statements such as "Epoch Group's [nominated] strategies had "done pretty well recently", and some more specific comments which identified areas in which prior strategies had not properly captured information and where some problems lay. The particularised comments also identify elements of the then current signals which Mr Carrodus identified as "doing a better job" of particular functions. The respondent seeks production because the categories seeking, in effect, the data behind each of these assertions would "shed light on whether it is true that the information in question was confidential information of the applicants".
I have already noted my concern that the descriptions of the content of the Epoch CI would be opaque; that concern in relation to the paragraphs dealing with categories 24 and 25 is justified.
Category 26 arises out of s 174(c), and CSP.1(d), and seeks "documents recording or referring" to a table of data set out in CSP.1(d). Sub-paragraph 174(c) describes the alleged disclosure as being:

[169]

The allegation is that Mr Katz can be inferred to have used the same information in similar ways. The relevant pleading (paragraph 174B of the ASOC) pleads that it can be inferred from specified paragraphs of the ASOC that Mr Katz "disclosed confidential information (not obtained from Carrodus)". That information is pleaded as being the information contained in the Recruitment Documents, and particularised as being the matters in the CSP. The CSP provides that the alleged confidential information is in the red boxes.
The respondent suggested that the applicants identify "a subset of documents that the applicants say would evidence the truth of the allegations in the ASOC referred to in the [Redfern Schedule]", failing which he presses for discovery, noting that the "breadth of the discovery sought is necessitated by the extraordinary breadth of the allegations made".
The category commences on 1 March 2021 with no end date, and the respondent submits that this is because the applicants do not put an end date on the alleged misuse. The applicants point, in addition to saying that the request is unnecessarily wide, to the burden of the request as set out by Mr Feltham in Feltham 7. It is said that the information in the CSP constitutes "core trading information central to the applicants' trading business", and is highly confidential. The evidence from Mr Feltham is that the process to review each of the red boxes, and search across the applicants' systems in order to "locate, review and produce each and every document that refers to or records the information contained in each of those red boxes would take months". The applicants submit that compliance would require for example production of "every document that refers to the specific crypto-currencies traded by Epoch. Self-evidently this will create a discovery exercise of thousands to millions of documents for a trading firm." They say that the documents likely to be produced do not meet the tests for production as they are not directly relevant or probative.
The final group of categories - Categories 15 (dealt with above), 34, 35, 38, 42, 43, and 48) -is described by the respondent as "regarding multiple cases". The applicants describe them as "miscellaneous and even more speculative categories".
Category 34 seeks documents allegedly requested by Epoch from Mr Katz, another employee (or then prospective employee), in 2013, prior to their commencing employment with Epoch. It is submitted that this is relevant to whether, in effect, Epoch had any:

[171]

The applicants respond by noting that this appears to be a "tit for tat" defence, and is not relevant to Mr Katz' pleaded case. The respondent submits that the applicants' practice of asking for similar information as is shown in the Recruitment Documents in the CSP goes to whether the information has the requisite character of confidentiality, and whether Mr Katz would therefore have appreciated that the information was information confidential to Epoch. In response, the applicants contend that "it is not a valid defence to a breach of confidential information to say that someone else did it ten years earlier in respect of different information".
Category 35 is similar but refers to documents "recording or referring to" the information provided by Mr Carrodus to Epoch, before his employment commenced. Category 36 seeks similar documents in relation to information in the CSP which was requested by Epoch from third parties (noted in the respondent's submissions as being "other employees"). The reach of this request is from 1 March 2013 to the present. The applicants refer to this category as an "exercise in further trawling" and submit that there is no relevance to the current defence. Additionally, the reference to "trading employees", Mr Feltham deposes, reaches to at least 50 employees, over several countries.
Category 38 seeks documents "referring to or recording trading strategies of any member of the [Mr Katz' former employer] Group." The rationale for this is submitted to be similar to category 34, in that it goes to the confidential nature of the information set out in the CSP. The applicants submit that there is nothing in the Defence noting the actual provision of any information to Epoch; it merely pleads a request (in paragraphs 174(b) and 174B). The applicants further say that the category itself is onerous, given that the period sought is over 11 years (1 March 2013 to the present) and will pick up many irrelevant documents. The respondent was prepared to amend the category to narrow it, so that any documents merely speculating about the trading strategies were excluded. The former employer is a third party competitor, to both Epoch and Schonfeld.
Categories 42 and 43 seek, generally, documents relating to the personal trading of one of the applicants' executives, using MFT "desk code", including Mr Carrodus (and the respondent calls in aid Mr Carrodus' Defence at paragraphs 33(e), 33(f), 145A, and 156). They seek:

[174]

I turn now to the determination of each category. Where I have ordered discovery, the documents produced should be produced in accordance with the requirements of FC Rules r 20.16.
The applicants contend that various categories of documents are highly confidential. If they take the view that Mr Katz should not be granted access to documents ordered to be produced as per below, they should file an application for a confidentiality regime which specifies the way in which access to documents can be managed. I note, as I have noted above, that Mr Katz works for a competitor of the applicants, and a number of categories where production is to be ordered may have the unintended effect of providing further confidential material to Mr Katz where I have had misgivings about the breadth of the original requests. I am particularly focused on categories 24, 25, 26, 27, 28, and the documents in category 32 which are eventually produced once the category has been narrowed, but if any other documents fall under this description then the applicants may seek an order for restricted access.
Should such an application be filed, I urge the parties to consider utilising the suggestions in paragraph 10.13 of CPN-1 (as set out in [60] above).
Categories 7, 20, 21, 30, 33, and 41 are agreed between the parties. I order that they be produced in accordance with the requests.
Categories 10, 11, 12, 13 and 14 are not pressed on the basis that the Carrodus Database is agreed to be provided. The Carrodus Database will be provided on an order being made. Accordingly, I will make the order sought in relation to those categories should the Carrodus Database not be provided. The parties have leave to seek such an order by email to my Associate.
Category 1 and Category 2 are, as drafted, too broad. They cover a very long period of time - category 1 is longer than Mr Katz' employment at Epoch - and include documents which are not kept by the applicants ("personnel file"). I will order that in lieu of categories 1 and 2, that Epoch produce (or refer in the r 20.16 list of documents the documents which have already been produced and the date of their production):

[176]

There is no Category 3.
Categories 4, 5, and 6 are appropriate categories. I will order that Epoch produce (or refer in the r 20.16 list of documents the documents which have already been produced and the date of their production) the documents in these categories. As Mr Feltham has already deposed to searches given, I will not require the applicants to undertake further searches for these documents, but of course the applicants will in any event be bound by the verification of the r 20.16 list of documents.
Category 8 is the subject of sworn evidence by Mr Feltham that there is nothing more to produce. Accordingly, similarly to the categories 4, 5, and 6 above, in the interests of reduction of costs, I will not require the applicants to undertake further searches for these documents, but will require category 8 to be the subject of a verified list in accordance with r 20.16 of the FC Rules.
Category 9 documents should be produced in the date range of 1 October 2021 to 15 August 2023.
Categories 15, 16, 17, 18, and 19 relate to facts in issue on the pleadings. The fact that the respondent characterises its wish to have those documents discovered as being to "shed light" on the information allegedly provided to Mr Carrodus does not, I do not think, take away from the fact that the applicants particularise each of the matters in these categories as information confidential to Epoch, and they are sufficiently connected to be matters relevant to issues on the pleadings. However, I do not think that the mere fact that in paragraph 174 of the ASOC reference is made to particular aspects of Epoch's business - such as the form of remuneration made to Mr Carrodus or its financial metrics and profit metrics - requires that all documents recording or referring to those matters should be discovered. That is an extraordinarily broad request. Additionally, I take into account the burden of production and review outlined in Feltham 7, particularly to category 16. Instead of the formulation suggested by the respondent, I will order the following documents be discovered in accordance with r 20.16 of the FC Rules:

[180]

There is no Category 29 or 31.
In relation to Category 32, the respondent submits that the request is precisely as wide as that pleaded against Mr Katz. I do not agree. The red boxes information is indeed broad, but to request all documents "referring to or recording the information identified" would be, on the basis of the evidence of Mr Feltham, impossible.
For the applicants to discover all documents referring to or recording the requested information, over the kind of volume of data disclosed by Mr Feltham in paragraphs 17, 18 and 19 of Feltham 7 (see [62] above), would indeed be an arduous undertaking. Additionally, some significant consideration of each document would be required in order to determine "the circumstances in which it is alleged that such information was imparted to Mr Katz".
The request to produce all documents which refer to or record the information in the red boxes is not so directly relevant to the pleadings, or very likely to be probative, that I would order it, taking into account the evidence from Mr Feltham of its oppressive nature.
Additionally, the request seeks "the circumstances in which it is alleged that such information was imparted to Mr Katz". This aspect is not, in my view, a matter directly arising on the pleadings. What is alleged is that Mr Katz disclosed certain information, and that information was confidential to the applicants. The collection and production by way of a verified list of all the documents referring to that information held by the applicants over an open-ended timeframe is not a proper use of the discovery process, given the disproportionate effort which would be required to satisfy the request, and the slight connection with the pleaded issue.
I decline to order discovery in the form sought. The respondent has leave to identify a "subset" of documents (as he suggested the applicants might do, see [129] above) which he seeks in relation to the first half of the request - that is, allegedly confidential information pleaded in paragraph 174B of the Statement of Claim and the particulars in the CSP.7 - in order to seek production of documents which are properly discoverable in accordance with the principles outlined in these reasons. Where the respondent is seeking disclosure, it should not fall on the shoulders of the applicants to suggest the documents that might be produced.
While I do not wish to encourage further disputes in this matter, as a further alternative, the respondent can issue subpoenas or notices to produce for particular documents. The test for relevance in relation to subpoenas is less stringent than that for discovery and requires only a "legitimate forensic purpose" - Roberts-Smith v Fairfax Media Publications Pty Ltd (No 42) [2023] FCA 750 at [27] where Besanko J said:

[186]

Epoch seeks leave pursuant to FC Rules r 24.2 to issue subpoenas to Schonfeld AU (a company which has its registered office in Sydney) and Lascaux (a company which is based in the United Kingdom but which has consented to accept service in Australia of any subpoena on service of its solicitor, Gilbert + Tobin). The Schonfeld AU subpoena is sought by the Epoch AIA to be amended to the form of the annexure BF8-18 to Feltham 8, to include correspondence between Schonfeld AU, and Mr Katz referring to (inter alia) Schonfeld UK (paragraph 1 to the Schedule), and "any other Schonfeld entity" (paragraph 2 to the Schedule). Those changes were the subject of some objection from the respondent but do not, in my view, significantly change the scope and effect of the subpoena. There is clearly a legitimate forensic purpose in extending the scope to include Schonfeld UK, and the inclusion of "any other Schonfeld entity" is warranted given the lack of disclosure of Mr Katz' original employer. I intend to allow that part of the Epoch AIA which seeks to amend the subpoenas to these entities.
Epoch contends that the subpoenas are each for a legitimate forensic purpose (see Roberts-Smith at [161]).
The Schonfeld AU subpoena (as amended) seeks production of documents referring to Mr Carrodus, to Mr Katz' potential and actual employment, and between Schonfeld AU and other Schonfeld entities, in relation to the respondent's potential and actual employment. The relevance is said to be to the Carrodus Information Case and perhaps to the Solicitation Case, and Mr Feltham cross-references the documents sought to paragraphs in the ASOC and the CSP.
Mr Katz contends that the subpoena is "an overbroad fishing expedition" and should be limited in the way that discovery category 2 of the Epoch IA was contended for by the respondent to be limited. However, I consider that the subpoena does limit the subject matter quite specifically to correspondence between relevant parties, referring to the relevant subject matters, for a sensibly restricted period of time (1 August 2021 to 31 July 2022).
Schonfeld AU will have the opportunity to seek to set aside any part of the subpoena which it considers is not appropriate. I am of the view that the documents "could possibly throw light on the issues" and that the applicants should be granted leave to issue the subpoena as amended by the Epoch AIA.
The Lascaux subpoena seeks a similar set of documents in relation to communications between it and the respondent. However, it is broader in that it refers to Mr Katz' "potential employment or engagement with any trading firm". The respondent contends that this is too broad and goes beyond the facts in issue, and says that the CSP in paragraph 12(a) is limited to a misuse of Epoch confidential information to four named entities, being potential employers or recruiters.
While that analysis of the CSP is correct, it must be relevant to the applicants' case to know how the alleged confidential information was in fact used by Lascaux. In other words, there appears to be a legitimate forensic purpose. I do not, on the test enunciated by Besanko J in Roberts-Smith, view the subpoenas as too broad, and the applicants should be granted leave to issue the subpoena.

[225]

Gordon J did, however, make an order in Walker v Newmont Australia Ltd that CIBC WM produce documents subject to a subpoena, given that it had submitted to the jurisdiction of the Court by appearing. The respondent submitted that her Honour's statement should not be read as opening the door for a "Sabre type order" in these circumstances, as the "best the applicants could hope for", but in any event, given that there was a power to order the production by way of subpoena, the passage was obiter. The applicants on the other hand noted that Gordon J was in a position to make a direct discovery order given that CIBC WM had consented to the jurisdiction, and so a Sabre order was otiose.
The respondent noted that while I am not bound by the decision in Sabre, it being a decision of a single judge of this court, I should follow it, unless it is "plainly wrong" (Takapana Investments Pty Ltd v Teco Information Systems Co Ltd (1998) 82 FCR 25 at 32E-F).
The applicants submitted that the respondent's twelve areas of objection to the making of a Sabre order against Schonfeld AU are, in fact, merely one ground restated twelve times; that the Court does not have power to make an order for production against a non-party. While recognising that Sabre involved orders against a party to proceedings, the applicants contend that Lockhart J "did not hold that a Sabre order could not be made against a non-party - that question did not arise for determination" (emphasis in submissions). Pointing to the broad words of s 23 of the FC Act, the applicants noted that the section is not confined to making orders against parties to litigation. The applicants pointed to a myriad of areas where the Court may exercise jurisdiction over a non-party - for example, pre-trial discovery, including orders against non-parties - FC Rules r 20.23, and, in the context of freezing orders, Cardile v LED Builders Pty Ltd (1999) 198 CLR 380 at 405 [56].
The applicants submit that the respondent has not provided "any process of conventional statutory construction that the power under s 23 is limited by necessary implication in [the manner contended for]". In order for the words of s 23 to be read down to apply only to parties, it was submitted that there would need to be express words authorising that limited reading. As the applicants set out in their written submissions:

[235]

The length of this judgment is of course governed by the issues the parties sought to contest. Each party painted the other as unreasonable and unyielding. As noted in the opening paragraph of these reasons, what was agreed between the parties paled into insignificance against what was not agreed. The hearing took three days, the application book took up 27 tabs of double-sided documents in three folders, the Epoch AIA took up a further two folders, and senior and junior counsel appeared on both sides. While I cannot fault the quality of the advocacy and the attention to detail by each side, it would have been both more efficient and proportionate to have fought these battles either through a mediation process, or through a process or processes before a Registrar, leaving only those matters (if there were any) which required the attention of a Judge to determine them.
In relation to the Epoch IA, the applicants in the main obtained the relief they sought.
In relation to the Katz IA, the respondent was successful to some extent, successful in part to some extent, and unsuccessful in the balance. It is difficult to be any more specific as to proportions However, as a rough estimate, it appears that the respondent was successful to around 40% of the orders sought in the Katz IA.
In relation to the Epoch AIA, the applicants obtained the desired relief. Somewhat oddly, the respondent - who was not by definition a party affected by the orders sought in relation to the Sabre order argued on 20 December 2024 - put himself up as a "sort of amicus contradictor" (Transcript, 20 December 2024, p 31) despite making, as has been seen, substantial submissions on behalf of his current employer.
Each party has had some degree of success, and some degree of failure. Neither party got everything they wanted. However, the approach taken by Epoch was in my view more measured, and took more note of the requirement that discovery categories need to have a direct relationship to issues on the pleadings, and would be likely to be probative of those issues. As can be seen from the discussion of the Katz IA, many categories were narrowed down, or refused, for the failure to grapple with the issues raised on the pleadings.
Costs are of course discretionary. Section 43 of the FC Act confers that wide discretion on the Court. As Perry J said in Australian Society of Otolaryngology Head and Neck Surgery Limited v Australian Health Practitioner Regulation Agency (No 2) [2025] FCA 34 at [13], this discretion:

[237]

In exercising my discretion as to costs, I am mindful of the following factors which I have dealt with above, including the conduct of the parties, the issues which were pursued or not, and the varying degrees of success. On the whole, the applicants pursued issues on which they were likely to succeed. The respondent on the other hand fought strongly on issues which were not appropriate areas for discovery applications. He also sought to engage with processes such as subpoenas and the production by overseas entities which, while they affect his case, were not orders sought against him. I do not agree that the self-described "amicus contradictor" means that there would be no costs consequence of the appearance on 20 December 2024 by the respondent, who was entirely unsuccessful on that day.
The applicants seek indemnity costs in relation to the Epoch AIA. This is based on the contention that the interim employment by Mr Katz by Schonfeld UK should have been disclosed to the applicants well before the two days of hearing in October 2024 or, at the very latest, when the issue was raised by Mr Flynn SC in clear terms on the first day of hearing. The opaque pleading, combined with the failure to disclose the employer until the contract of employment was actually produced, meant that the applicants had to amend the Epoch IA and now may need to amend their pleading, and enter into further discovery processes, in order to include Schonfeld UK.
I also consider in relation to costs that, while there was some reduction of issues by consent, and some agreement as to production (for example, the Carrodus database and the contract of employment), the parties appeared only to give the most cursory of attention to the numerous exhortations to reduce the cost, burden, and formality of discovery applications in CPN-1 (see, for example, paragraphs 10.3, 10.5, 10.7, and 10.13).
This is of course an interlocutory application. The usual position in relation to costs of an interlocutory application is that costs be reserved, and become part of the usual order for costs to the benefit of the successful party in the litigation. The award of costs should, however, "reflect the justice of the situation": O'Keeffe Nominees Pty Ltd v BP Australia Ltd (No 2) [1995] FCA 109; (1995) 55 FCR 591 at 598 (Spender J). In O'Keeffe, Spender J observed (at 598):

[240]

The Court's discretionary power to award costs derives from s 43 of the Federal Court of Australia Act 1976 (Cth) (FCA Act). The usual rule is that an order for costs means costs "as between party and party": r 40.01 of the Rules; see also the definition of "costs" in the Dictionary in Sch 1 of the Rules; Mango Boulevard Pty Ltd v Whitton [2015] FCA 1352 at [12]. A party or person who is entitled to costs may, however, apply for an order that costs be awarded in their favour "other than as between party and party": r 40.02(a) of the Rules. That includes an order that costs be awarded on an indemnity basis.

The discretion to award costs on a basis other than as between party and party, including on an indemnity basis, is "unfettered, save that it must be exercised judicially and not arbitrarily or capriciously": Australian Competition and Consumer Commission v The Construction, Forestry, Mining and Energy Union (No 4) [2018] FCA 684 at [96]. The discretion must also be exercised in light of the requirement that the Court consider any failure by a party to comply with the overarching purpose of the civil practice and procedure provisions to facilitate the just resolution of disputes according to law as quickly, inexpensively and efficiently as possible: see ss 37N(4), 37M(1) of the FCA Act; LFDB v SM (No 2) [2017] FCAFC 207 at [7].

The discretion to depart from an order for party and party costs will not be exercised unless there is some special or unusual feature or the justice of the case so requires: Cirillo v Consolidated Press Property Ltd (formerly known as Citicorp Australia Ltd) (No 2) [2007] FCA 179 at [3]; Seven Network Ltd v News Ltd (2009) 182 FCR 160; [2009] FCAFC 166 at [1102]; Melbourne City Investments Pty Ltd v Treasury Wine Estates Limited (No 2) [2017] FCAFC 116 at [5].

The purpose of a costs order is to compensate the successful party, not to punish the unsuccessful one: King v Yurisich (No 2) [2007] FCAFC 51 at [19], citing Latoudis v Casey [1990] HCA 59; (1990) 170 CLR 534; Seven Network at [1099]. An award of indemnity costs is to "serve the purpose of compensating a party fully for costs incurred, as a normal costs order could not be expected to do, when the court takes the view that it was unreasonable for the party against whom the order is made to have subjected the innocent party to the expenditure of costs": Hamod v New South Wales (2002) 188 ALR 659; [2002] FCAFC 97 at [20]; see also Kazal v Independent Commission Against Corruption and Ors (No 2) [2020] NSWSC 17 at [60]- [62]; Cirillo at [4]-[5]; Melbourne City Investments at [5].

[241]

The applicants' position, that the Epoch AIA would not be necessary had the respondent disclosed to them in the previous two years of the proceedings that Mr Katz had been employed by Schonfeld UK, is one of understandable frustration. The respondent's reliance on its carefully worded pleadings (described by the applicants as "fostering Epoch's misapprehension") is equally frustrating. The submission by the respondent that the use of the phrase "Schonfeld, or any other entity within its corporate group" by the applicants in their discovery schedule (see [78] above) indicated that Epoch actively knew (or had "putative comprehension") of Schonfeld UK's involvement is again, a submission which, in the light of the reaction of Mr Feltham to Schonfeld UK's appearance on the contract of employment, should not be accepted.
In response, the best three arguments available to the respondents are that no particulars were sought in relation to the pleading in paragraph 170B of the defence; that it is only pleaded that Schonfeld AU and Schonfeld US were involved in the misuse of the Epoch CI; and that s 37M of the FC Act does not impose an active duty to correct what could be seen as a misapprehension of another party. The respondents submit that "it is unremarkable that a party might learn new facts through discovery".
In counterpoint to those three factors, where the identity of the employer was raised in oral argument but not engaged with in reply, there was also a failure by the respondent to be open with the Court and with the applicants. This is in addition to the failure to plead the defence in a way which would "define the controversy". Defences are required, by FC Rule 16.02.(1)(d), to give fair notice of the respondent's case.
Epoch submits that it has been put to an extra day of argument by the need to seek a Sabre order against Schonfeld AU. However, it is the case, as noted by the respondent, that Schonfeld AU had not been notified as at the October tranche of hearings, and Epoch would not have succeeded on the application had Schonfeld AU not engaged with the correspondence and agreed to abide by the ruling of this Court.
I have considered how to deal with the gamesmanship in this approach to pleadings by the respondent, but doubtless disappointingly for the applicants, I have determined that the conduct of the respondent which resulted in the Epoch AIA does not reach the level required for an indemnity costs order. The conduct of the respondent is balanced by reason of the applicant's failure to request particulars, as well as the late notice to Schonfeld AU which took place after the first hearing tranche. That late notice would have meant that a third day was required in any event, had the respondent dealt with the identity of the initial employer of Mr Katz during that tranche.
Mr Katz' approach of taking an "amicus contradictor" approach to the proceedings does not excuse him from bearing the costs consequences. If, truly, he had no "dog in this fight", then the applicants could have presented their case for a Sabre order without the extra time taken by considering the submissions, oral and written, of Mr Katz. That is not to say that the submissions were not helpful; they were. But ultimately Mr Katz chose to enter the fray and was not successful; see Australian Society at [14] and the cases cited therein.
Taking all of the above into account, I am of the view that the varying degrees of success of each of the parties on these applications results in the following costs outcomes:

The Epoch Holding Group Pty Ltd v Katz

At a glance

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Judgment (249 paragraphs)

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Legislation Cited (2)

Cases Cited (14)