Weston v Publishing and Broadcasting Limited [2010] NSWSC 1288 | Case summary

2007/255083 PAUL GERARD WESTON AS SPECIAL PURPOSE LIQUIDATOR OF ONE.TEL LIMITED & ANOR v PUBLISHING AND BROADCASTING LTD & ORS JUDGMENT 1 I am dealing with an interlocutory application in these pending proceedings which were commenced by statement of claim filed on 25 May 2007. 2 The application is advanced by the sixth, seventh, tenth and eleventh defendants ("the News defendants") by notice of motion filed on 22 October 2010. The plaintiffs are the respondents to the notice of motion. Also before me for consideration is a notice to produce issued by the News defendants and addressed to the first plaintiff. 3 The plaintiffs named in the statement of claim of 25 May 2007 are Mr Weston in his capacity as special purpose liquidator of One.Tel Limited (first plaintiff) and One.Tel Limited itself (second plaintiff). It is not necessary to describe the claims they make against the News defendants in the statement of claim. 4 The issues raised by the notice of motion and the notice to produce now before me concern four affidavits of Mr Weston (being affidavits of 21 October 2008, 20 April 2009, 6 November 2009 and 14 May 2010), plus their exhibits, and two documents (dated 23 April 2009 and 6 November 2009) containing written submissions made by the plaintiffs' then counsel to the court on earlier occasions. 5 The affidavits and submissions were placed before the court by the plaintiffs' then counsel (and relied on) in connection with ex parte applications made by the plaintiffs under rule 1.12 of the Uniform Civil Procedure Rules 2005 for orders extending the time limited by rule 6.2(4)(a) for the service of the statement of claim. Confidentiality orders were, on the plaintiffs' application, made in relation to the affidavits and submissions when the applications under rule 1.12 were heard. There were six such applications. Each resulted in the making of an order extending the time for service of the statement of claim which was eventually served within the time allowed by the sixth extension. 6 The News defendants have, by separate notice of motion (filed on 21 September 2010 and not yet before the court for hearing), sought the following orders: "1. Pursuant to Rule 12.11(1)(e) of the Uniform Civil Procedure Rules 2005, the orders made by this Honourable Court on 15 November 2007, 12 May 2008, 22 October 2008, 24 April 2009, 16 November 2009 and 20 May 2010 extending the time for service of the Statement of Claim be discharged. 2. In the alternative to the above, pursuant to Rule 36.16(2)(b) of the Uniform Civil Procedure Rules 2005, the orders made by this Honourable Court on 15 November 2007, 12 May 2008, 22 October 2008, 24 April 2009, 16 November 2009 and 20 May 2010 extending the time for service of the Statement of Claim be set aside." 7 It will be convenient to refer to the notice of motion filed on 21 September 2010 as "the pending motion" and to the notice of motion filed on 22 October 2010 with which I am now dealing as "the present application". 8 The several orders of 2007, 2008 and 2009 referred to in the claims advanced by the pending motion and set out at paragraph [6] above are the six orders extending the time for service. The News defendants have made it clear, however, that they will press those claims only in respect of the second, third, fourth, fifth and sixth extension orders. 9 The News defendants have articulated three grounds on which they will rely in seeking orders as set out in paragraph [6] above in respect of the second to sixth extensions, namely: (a) that allowing the plaintiffs additional time to obtain litigation funding was not a sufficient reason to extend the time for service; (b) that the News defendants are prejudiced by the delay caused by the extensions; and (c) that the extensions were not warranted in circumstances where it was apparent that the plaintiffs intended to amend the statement of claim. 10 The News defendants say that, in connection with the claims advanced by the pending motion, they are entitled to have full access to the content of the several affidavits of Mr Weston and counsel's submissions placed before the court upon the hearing of the several extension applications; and that the existing confidentiality orders should accordingly be discharged (also that it should be recognised that Mr Weston is bound to comply with the notice to produce as it relates to the affidavits and submissions). 11 Before filing the present application, the News defendants made a request for copies of the documents in question. The response was that the plaintiffs were prepared to allow access to part only of the documents' content. Following the making of consent orders removing the confidentiality embargo in respect of parts of each document, the News defendants were given copies of the documents in which the parts in question were visible but the balance was masked. That, however, proved insufficient for the News defendants who then filed the present application. 12 A question arises as to the relevance of the content of the documents (affidavits and submissions) to which the News defendants now seek access. That question is pertinent whether the present application is regarded as one seeking discharge of the earlier confidentiality orders or as going to compliance with the notice to produce. The relevance question concerns, at this point, not the issues in the substantive proceedings commenced by the statement of claim of 25 May 2007 (I do not accept the submission of counsel for the plaintiffs that those are the pertinent issues) but, rather, the issues raised by the pending motion. It is therefore necessary to explore briefly the nature and substance of the claims advanced by that motion (as set out at paragraph [6] above), noting, as I have said, that those claims are to be pressed only in relation to the second to sixth extensions. 13 It is convenient to begin with the second (and alternative) claim based on rule 36.16(2)(b) of the Uniform Civil Procedure Rules. When that claim comes before the court for determination, it will be approached by reference to the fact (which cannot possibly be controversial) that the News defendants were absent when each of the second to sixth extension orders was made (and the relevant application was heard) and were given no opportunity to be heard on the question whether the order should be made. 14 The fact that an order was made in the absence of a party makes available the discretion created by rule 36.16(2)(b) to set the order aside. An important factor in deciding whether that discretion should be exercised is whether the party had a right to or well-based expectation of an opportunity to be heard, which right or expectation was negated by the court's proceeding to hear the application for the order in the party's absence. 15 In the case of an application for an order extending the time for service of originating process, it is sufficiently established that an unserved defendant named in that originating process has neither a right to be heard nor any well-based expectation of being heard in relation to the application; and that the application may properly proceed ex parte with the unserved defendant left to seek the discharge of the extending order if and when service is eventually effected: Rich v Long [2008] NSWSC 487; Allstate Exploration NL v Ryan [2008] TASSC 79. 16 This is particularly so where the rules make express provision for such a subsequent application by the party in question. Such express provision is made by rule 12.11(1)(e) of the Uniform Civil Procedure Rules. The News defendants rely on that rule in pursuing their primary claim set out at paragraph [6] above. Rule 12.11(1)(e) is as follows: "In any proceedings, the court may make any of the following orders on the application of a defendant: … (e) an order discharging any order extending the validity for service of the originating process." 17 I have previously expressed (and continue to hold) the opinion that the existence of rule 12.11(1)(e) in relation to extension of the time for service of originating process represents an express displacement of the general expectation that affected persons must have an opportunity to be heard before an order is made: Onefone Australia Pty Ltd v One.Tel Ltd [2007] NSWSC 1320 at [12]. It follows that the prospects of the News defendants persuading the court to make order 2 at paragraph [6] above must be regarded as slender indeed. 18 It is nevertheless necessary to consider bases on which the News defendants might contend that, bearing in mind their absence and their inability to participate, each of the second to sixth extension orders should be set aside under rule 36.16(2)(b). As I have said, more must be shown than a party's absence and denial of an opportunity for the party to be heard. Proof of those matters may activate the discretion but will not of itself warrant its exercise. In order to have the extension order set aside, the applicant must also show that it is unjust to allow the order to stand. The matter was put thus by Jordan CJ (Davidson J and Roper J concurring) in Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 at 243-4: "The question is whether, upon the material that has been placed before us, there is a real likelihood that it would be unjust to the defendant to allow the judgment to stand. If so, it should be set aside on such terms as it will minimise the possibility of injustice to the plaintiff. If not, we should not interfere." 19 Given the matters canvassed at paragraphs [15] to [17] above, I cannot see any clear prospect that the court would find any relevant injustice or, in particular, that the issues identified by the News defendants and set out at paragraph [9] above could be pertinent to any inquiry as to whether it was unjust to allow the extension orders to stand. On that footing, I am not persuaded that the content of the affidavits and submissions to which the News defendants wish to have access is relevant to the issues raised by the rule 36.16(2)(b) aspect of the application advanced by the pending motion. 20 I now turn to the primary claim in the pending motion, being the claim advanced by reference to rule 12.11(1)(e). Although rule 12.11(1)(e) was not explicitly mentioned in Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd [2009] NSWCA 104, that decision of the Court of Appeal makes it clear, in my opinion, that a claim under that rule is to be approached on the basis that the party seeking to have the extension order discharged is not required to show that the decision to make that order miscarried or was affected by error; and that the court dealing with the claim must address the question of extension on the basis that all issues are de novo before it. 21 I refer, in particular, to paragraph [14] of the judgment in the Arthur Andersen case and add the observation that, while the extension decision there in issue had been made by a registrar and the Court of Appeal made specific mention of provisions concerning review of decisions of registrars, it seems clear that the Court of Appeal intended to express a principle applicable generally to cases in which discharge is sought of an extension order obtained ex parte. Both Mr Lockhart SC and Mr D'Arcy of counsel, who appeared on the present application, proceeded on that footing. 22 This, it seems to me, brings into play considerations relevant to review, as distinct from appeal, to which reference was made in Tomko v Palasty (No 2) [2007] NSWCA 369; (2007) 71 NSWLR 61. Basten JA there noted (at [52]) that a review, unlike an appeal, "does not require" demonstration of error and "is not restricted" to reconsideration of the material before the primary decision maker; authorities with respect to the conduct of appeals against the exercise of discretionary points, such as House v R [1936] HCA 40; (1936) 55 CLR 499 "do not in terms apply to a review", although "similar policy considerations may arise in relation to a review" to make a court "less inclined to intervene" or "more inclined to intervene"; and, although the court should, on a review, "exercise afresh" the relevant power, it does not follow that the original reasoning should be ignored, or that the court should regard as irrelevant differences between the materials presented when the original decision was made and the evidence adduced in support of the application to have that decision (or, more accurately, the order resulting from it) set aside. 23 In short, an application under rule 12.11(1)(e) seeking to have an extension order discharged is an application for discretionary intervention which, although requiring that all issues be approached de novo, must inevitably pay attention to the basis on which and reasons for which the extension order was made in the first place. Indispensable to that, in my view, is the notion that the court entertaining the request for discretionary intervention must have regard to the reasons that caused the court to make the extension order and the basis on which the decision to make that order was reached. The court asked to discharge the extension order must therefore be able to assess for itself the material that was taken into account in formulating the decision on the extension application. 24 A proposition canvassed in the course of argument is that, because the court asked to discharge the extension order must address the question of extension on the basis that all issues are de novo before it, the plaintiff who obtained the extension and seeks to maintain it is able to make a choice as to how to do so and thereby mark out the territory to be covered upon the hearing of the motion for discharge of the extension order. It follows, so the argument runs, that decisions about what is relevant to the issues upon such a motion can only be made in the light of how the plaintiff actually decides to attempt to retain the benefit of the extension. 25 I do not accept that proposition. The Arthur Andersen case and Tomko v Palasty (No 2) make it clear, in my view, that the territory to be covered upon the hearing of the motion for discharge of the extension order is already largely defined by what happened upon and in consequence of the hearing of the application for the extension order, with the result that the evidence led and submissions made in connection with that application (as well as the decision itself and the reasons for it) are matters that may properly be canvassed on the motion for discharge of the extension order. 26 I therefore do not accept the argument that the material to which the News defendants seek access by means of the present application and the notice to produce they have served is not relevant to any issue arising in relation to the pending motion. 27 It follows that, if the plaintiffs are to retain the benefit of the existing confidentiality orders and to be excused from complying with the notice to produce, it must be seen that some positive basis now exists for continuing the suppression of the relevant documents. 28 The plaintiffs put forward two bases for the proposition that the suppression regime should be continued in relation to the documents in question. One is that their content is subject to legal professional privilege (or client legal privilege) or refers to material that is privileged and that the plaintiffs accordingly have a right to have that part of the content withheld from production. The other is that the content represents commercially sensitive material in respect of which the court may grant leave to mask or redact. These contentions relate to parts of the total material, although a particular part may be covered by both contentions and their combined effect is said to be to afford protection to the whole of the content that remained masked in the copies referred to at paragraph [11] above. 29 In relation to the second contention - as to protection of "commercially sensitive" material - it is said on behalf of the plaintiffs that the court may in an appropriate case grant leave to mask such content. Reference is made to observations of Palmer J in TZ Ltd v ZMS Investments Pty Ltd [2010] NSWSC 138 at [41]. However, his Honour there referred to "material said to be both irrelevant and commercially sensitive" (the emphasis is mine); and it may be accepted that, if compliance with a production requirement would involve production of a whole document part only of which is relevant, masking may be allowed to protect any part of the non-relevant content that is commercially sensitive (the person whose document it is will not need to seek masking of non-relevant material to which no such sensitivity attaches). But it is the lack of relevance of the part in question, not its commercially sensitive character, that will justify masking in such a case. 30 In Ex parte Fielder Gillespie Ltd [1984] 2 Qd R 339, McPherson J said (at 341): "Confidentiality is not itself a valid basis for resisting inspection. Prima facie a party is entitled to production for inspection and copying of documents disclosed in the affidavit of documents unless some recognized claim of privilege is available and taken. Nevertheless, in cases such as this the courts have sought to strike a balance between the right to discovery for the purpose of the litigation and the interest in maintaining confidentiality in secret processes that may be used for purposes of competition." 31 That statement was made in the context of one party's objection to a grant of access to the other party (a trade competitor) in relation to certain documents discovered by the first party. The confidentially asserted related to a trade secret disclosure of which to the competitor would have potentially destroyed the value of the trade secret. An order was made restricting access to legal advisers. 32 In the present case, nothing in the nature of a trade secret is at stake. There is, however, one matter that the plaintiffs obviously consider confidential in a general sense and in respect of which they are, in my view, entitled to maintain confidentiality (even leaving to one side the matter of legal professional privilege). I refer to the litigation funding arrangements to which the plaintiffs have become party for the purposes of the litigation initiated by the statement of claim filed on 25 May 2007. 33 There are several reported instances in which details of a plaintiff's litigation funding arrangements have been kept from the defendant in the funded litigation when, for some collateral reason, the plaintiff has had to put those arrangements into evidence. Reference may be made to the decision of Goldberg J in Re Kingsheath Club of Clubs Ltd [2003] FCA 1034 and to the earlier cases there mentioned, including Re Addstone Pty Ltd (1998) 83 FCR 583, Re Addstone Pty Ltd; Ex parte Macks (unreported, FCA, Mansfield J, 8 December 1998, BC9806604) and Elfic Ltd v Macks [2000] QSC 18. 34 The foundation of this species of protection is that stated by Mansfield J in the decision of 8 December 1998, namely, that the availability of such details to the defendant might provide "some insight into the level of funding or the terms of funding which might be of strategic or tactical significance in the conduct of the defence". As Goldberg J observed, "a litigant is not normally privy to the 'war chest' that the opposing party has available to fund the litigation". His Honour also said (at [33]): " . . . Although the applicants, as creditors, have an interest in the financial commitments and obligations entered into by the liquidator, it would give them an unfair advantage in any litigation brought by the liquidator against them for them to have knowledge of the amount of money available to the liquidator to run the litigation. They would, by virtue of that knowledge, have a tactical and strategic advantage which ought not to be given to them. Although they wish to have regard to, and consider, the commerciality of the liquidator's agreement with IMF (Australia) Ltd, it is necessary to balance against that interest the consequence of knowledge of the amount of funding in the event that litigation against them ensues. There is a real risk that disclosure of the amount of funding available to the liquidator to proposed defendants in proposed litigation would frustrate or impede the purpose of the liquidator's application for the court's approval to enter into a funding agreement. It may enable the proposed defendants to assess and implement the extent to which they could, by way of interlocutory processes, eat up the liquidator's funding before the conclusion of the trial." 35 These observations were made in a context where a liquidator proposed to have the relevant company bring certain proceedings and needed the approval of the court before entering into a litigation funding agreement for the purpose of doing so. The potential defendants in the proposed litigation were (or claimed to be) creditors of the company and, in that capacity, sought leave to be heard on the liquidator's application for approval. That leave was granted but on terms that denied the potential defendants access to the details of the litigation funding. 36 The rationale lies, clearly enough, in the court's duty to administer its own proceedings so as to achieve the ends of justice. In order to perform that duty, it possesses, as part of its inherent jurisdiction, a power to forbid or restrict publication of evidence. Such a prohibition or restriction can properly be made, however, only where its imposition is necessary to secure the proper administration of justice. The test of necessity has been stated on several occasions by the Court of Appeal: see, in particular, John Fairfax Publications Pty Ltd v District Court (NSW) [2004] NSWCA 324; (2004) 61 NSWLR 344; John Fairfax Group Pty Ltd v Local Court (NSW) (1991) 26 NSWLR 131. 37 In the former case, Spigelman CJ noted that the test of necessity, for the purpose of securing the due administration of justice, supports the several accepted categories of suppression order, such as those which protect the identity of a police informer or blackmail victim. Part of the basis for suppression orders in those cases is to protect a flow of information that will promote the cause of justice. 38 So too here, in my opinion, the test of necessity will protect from disclosure to the defendants (and hence from general availability) information about the financial arrangements that allow the plaintiffs to continue the litigation. Having regard to the considerations outlined at paragraph [34] above, the proper administration of justice in the proceedings requires that the defendants be denied access to the funding arrangements. I intend to refer here both to the funding agreements actually concluded and to the steps and negotiations leading up to the making of the final agreements. Those antecedent matters, of their nature, will throw light on the content of the final agreements. I also intend to refer to the identity of the funding party, given that availability of that information would carry with it the potential of distortion in the form of direct approaches to the funder with a view to influencing the funder's conduct in the performance of the agreements. 39 Subject to the very limited qualification just outlined, the plaintiffs' claim to resist the giving of access on the basis of general notions of confidentiality cannot succeed. 40 Finally, however, there arises for consideration the particular form of confidentiality entitlement reflected in principles about legal professional privilege or client legal privilege. 41 The plaintiffs maintain a claim for such privilege in relation to parts of the material in question. The News defendants are in the usual position of difficulty of not being able to make any fully informed submissions on particular parts of documents' content. They do, however, make more broadly based submissions to the effect that, having regard to the way in which the material has been deployed by the plaintiffs, any privilege has been lost. 42 I was given by counsel for the plaintiffs full and unredacted copies of all the contentious documents. I have not, at this point, undertaken a minute comparison of these with the masked copies given by the plaintiffs to the News defendants as outlined at paragraph [11] above. But even a general perusal of the passages in the unredacted copies that have been masked in the copies given to the News defendants makes it plain that they include material which, if sought to be put into evidence, would be excluded by s 118 or s 119 of the Evidence Act 1995. It is therefore necessary to address the contention of the News defendants that the privilege has been lost - in the sense that the plaintiffs have acted in a way that would be inconsistent with the maintenance of an objection to the adducing of evidence of the content (Evidence Act, s 122). 43 The first contention of the News defendants in that connection is that privilege was lost when the plaintiffs chose to put the document in question (whether an affidavit of Mr Weston or an outline of submissions) before the court on the hearing of one or other of the applications for extension of the time for service. The News defendants recognise that this submission faces difficulties because of the decision of the Court of Appeal in Macedonian Orthodox Community Church St Petka Inc v His Eminence Petar [2006] NSWCA 160; (2006) 66 NSWLR 112 where it was held by Beazley JA and Giles JA that an a trustee seeking judicial advice under s 63 of the Trustee Act 1925 did not lose privilege by placing a legal opinion before the court. There were two reasons for this: first (at [45]) the court was not "another person" as contemplated by s 122; and, second (and more broadly), the placing of the opinion before the court on a confidential basis upon an ex parte application was not an action inconsistent with a continuing intention to maintain confidentially. Hodgson JA agreed "in substance" with the second proposition, adding, however, that the result would be different if other parties participated in the hearing at which the opinion was tendered. 44 The material in question was placed before the court by the plaintiffs upon the ex parte hearing of one or other of their applications for extension of the time for service. Given the nature of such an application (see paragraphs [15] to [17] above) and the fact that no person other than the applicants for the extension order had a right or expectation of participation in the hearing of any of those applications (or in fact participated), I am satisfied that, for both the reasons mentioned by Beazley JA and Giles JA, the privilege in the material in question was not lost merely because it was so placed before the court for the purposes of an application of that kind. 45 The News defendants refer, however, to an added dimension. They say that, in the particular circumstances, the material was placed before the court by plaintiffs who knew that the defendants had a right to seek to have any extension order discharged, with the result that any analogy with the Macedonian Orthodox case is destroyed. In other words, deployment in the particular manner was, in an immediate sense, in an ex parte context but the wider landscape was such as to raise a well-founded expectation that the decision based on the material would in due course itself become the subject of an interlocutory proceeding of an adversarial kind. 46 I accept that submission. I have already observed that the content of the documents is relevant to the issues arising on the pending motion; also that the court, when dealing with that motion, must be able to assess for itself the material that was taken into account in formulating the decision to make each extension order discharge of which is sought. Having used the privileged material to obtain the extension order which they knew to be susceptible to an application for discharge by the defendants by way of a motion of the very kind that has now been filed (and to which the observations just mentioned apply) - and being aware that the defendants had agitated strongly but unsuccessfully for an opportunity to be heard on the first extension application (see Onefone Australia Pty Ltd v One.Tel Ltd (above)) and were accordingly very likely to pursue such a motion - the plaintiffs cannot now fairly say that they have an entitlement to the maintenance of confidentiality. Any attempt on their part to do so is inconsistent with the use to which they deliberately chose to make of the material in the context of an extension application to which the above observations apply: Mann v Carnell [1999] HCA 66; (1999) 201 CLR 1. 47 For this reason alone, I am satisfied that the plaintiffs cannot now successfully assert the legal professional privilege they have claimed in the content of the documents in question. 48 It is therefore not necessary for me to address the other bases on which the News defendants say that privilege has been lost. I nevertheless do so briefly. 49 The first additional basis postulated cannot be addressed in any global way. It requires attention to various parts of the documents individually. The relevant parts are not identified in submissions - beyond one singled out for the purposes of illustration. The general proposition is that, where the plaintiffs have left certain parts of the documents' content unmasked in the redacted copies released from the confidentiality regime by consent, the waiver thereby effected extends not only to those parts but also to the portions that are "reasonably necessary to enable a proper understanding" of the unmasked parts. The quoted words are from s 126 of the Evidence Act. 50 This proposition must be accepted. It follows that there is an additional reason for finding that there is likely to have been a waiver of privilege in relation to some portions of the overall content of the documents beyond the unmasked parts in the redacted copies; but in the absence of case-by-case analysis, the extent of that waiver cannot be determined. 51 The second additional basis of waiver for which the News defendants contend is that the plaintiffs, by serving in connection with the pending motion Ms Hall-Carney's affidavit of 5 October 2010 to which the redacted copies are exhibited, have put in issue Mr Weston's state of mind at the time the extension applications were made. In particular, it is said, the plaintiffs have put in issue whether Mr Weston believed there were insufficient funds available in the winding up of One.Tel to prosecute the substantive proceedings without litigation funding, whether, if he had had funding, Mr Weston would have awaited the decision in ASIC v Rich before making a decision whether to serve the statement of claim and Mr Weston's consideration of alternative courses of action available to him. As counsel for the News defendants submits, it is likely that, given the nature of those matters, Mr Weston's state of mind on each of them was influenced by legal advice. That being so, I accept that the plaintiffs cannot fairly assert a claim to continued confidentiality. 52 My overall conclusion is that, subject to the matter mentioned at paragraph [38] above, the existing confidentiality orders in respect of the documents referred to at paragraph [4] above must be terminated and that those documents must be available to be accessed by the News defendants - indeed, that access should be available to all defendants and that the documents should be retained in the court file in accessible form. It will, however, be necessary to frame an order that preserves the existing confidentiality regime in relation to the particular litigation funding aspects warranting continuing suppression. 53 At this stage, therefore, I will do no more than indicate that, when this matter comes before me in the Corporations List in the ordinary course on Monday next, 8 November 2010, I will make directions for the settling of the orders necessary to give effect to these reasons. **********

Weston v Publishing and Broadcasting Limited

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Judgment (12 paragraphs)

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Cases Cited (19)

Cited By (6)