FEDERAL COURT OF AUSTRALIA Gill v Fairfax Media Limited (No 1) [2012] FCA 964 Citation: Gill v Fairfax Media Limited (No 1) [2012] FCA 964 Parties: MICHAEL GILL v FAIRFAX MEDIA LIMITED File number: NSD 2254 of 2011 Judge: PERRAM J Date of judgment: 4 September 2012 Catchwords: PRACTICE AND PROCEDURE – Discovery – application for – consideration of proposed categories of discovery Legislation: Federal Court Rules 2011 r 20.31 Cases cited: Hearne v Street (2008) 235 CLR 125 cited Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 distinguished Date of hearing: 30 August 2012 Place: Sydney Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 28 Counsel for the Applicant: C Ronalds SC Solicitor for the Applicant: People + Culture Strategies Counsel for the Respondent: RM Foreman Solicitor for the Respondent: Freehills IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2254 of 2011 BETWEEN: MICHAEL GILL Applicant AND: FAIRFAX MEDIA LIMITED Respondent JUDGE: PERRAM J DATE OF ORDER: 4 SEPTEMBER 2012 WHERE MADE: SYDNEY THE COURT ORDERS THAT: 1. The parties bring in short minutes of order to give effect to these reasons by 10 September 2012. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY GENERAL DIVISION NSD 2254 of 2011 BETWEEN: MICHAEL GILL Applicant AND: FAIRFAX MEDIA LIMITED Respondent JUDGE: PERRAM J DATE: 4 SEPTEMBER 2012 PLACE: SYDNEY REASONS FOR JUDGMENT 1 Each party seeks discovery from the other. The parties have served proofs of the evidence which they expect to elicit from their witnesses. This has both narrowed the issues between them and focussed attention on what is likely to be elicited in the witness box. It is convenient to deal with their respective applications separately. Mr Gill's application Category 1 2 By the time of the hearing it was agreed that there was no dispute if Category 1 was defined as follows: All Documents drafted or authorised by the Management of the Respondent which constitute or record the performance management processes and/or procedures and/or policies which applied to all employees generally at the Respondent in the period 1 January 1998 to 20 March 2011. 3 Mr Gill accepted this formulation so as long as the expression 'Management' was understood to mean the HR Department, the Legal Department, the Board and any direct reports of the CEO (known as the Executive Leadership Team), including individuals within each of these groups. I agree that it should be limited in that fashion. Categories 2 & 3 4 By the hearing Fairfax had suggested certain amendments to these categories and they were accepted by Mr Gill. Category 4 5 The parties were in agreement about this category by the hearing save that Mr Gill wished to see 'the Management' treated the same way as in Category 1. It should so be treated. Categories 5-7 6 The parties had agreed these by the time of the hearing. Category 8 7 Category 8 was as follows: All Documents recording the job descriptions that applied to the incumbents of Michael Gill's equivalent position at the Sydney Morning Herald and The Age from 1 January 1998 to 20 March 2011. 8 Fairfax submitted that this could have no relevance to the issues or, at best, tangential relevance. I do not agree. Fairfax also suggested that 'recording' should be replaced with 'constituting or recording' which is broader. I agree that this should be done. Category 9 9 By the hearing the parties had agreed a form of Category 9. Category 10 10 The parties agreed the form of Category 10. Mr Gill, however, sought to have the definition of 'Management' limited as in the case of Category 1. I agree that this should be done. Categories 11-14 11 The parties had agreed these by the time of the hearing. Category 15 12 This category seeks details of the termination payments made to a number of senior Fairfax staff. Fairfax is concerned that this material is highly confidential and may be subject to confidentiality clauses. It seeks an order limiting access to Mr Gill's lawyers (and, inferentially, not Mr Gill). 13 The documents produced under this category will be subject to the usual undertaking that they will not be used for any purpose extraneous to the litigation without leave: Hearne v Street (2008) 235 CLR 125. Generally, that is thought to be a sufficient protection for concerns about confidentiality, although in trade-rival cases (or cases bearing an analogy with situations of trade rivalry) a heightened confidentiality regime may be put in place: see Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 38. However, that is not this case where no such, or similar, allegation is made. The category should, therefore, be discovered without such a regime. The words 'containing or detailing' should be replaced with 'constituting or recording', as Fairfax submitted they should be. Category 16 14 By the hearing this had been agreed. Category 17 15 Category 17 was as follows: All Documents relating to the terms and conditions of the Long Term Incentive scheme in the period 1 January 2001 to 20 March 2011. 16 Fairfax submitted that it should be as follows: All Documents drafted or authorised by the Management of the Respondent constituting or recording the terms and conditions of the Long Term Incentive scheme in the period 1 January 2001 to 20 March 2011, relating to the Applicant or direct reports of the CEO of the Respondent generally (excluding documents constituting or recording the individiual [sic] offers or performance hurdles for particular individuals).. [sic] (Emphasis added to reflect proposed amendments.) 17 Mr Gill submits that the second proposed alteration removes any utility from the category, which he submitted was directed to questions of comparison. I accept this. On the other hand, I do accept that the first alteration proposed by Fairfax should be made. Category 18 18 Proposed Category 18 is as follows: All Documents relating to the appointment of, services provided by and payment made to Sue Cato in the period 1 November 2010 to 20 March 2011. 19 Fairfax ultimately submitted that the question of how much Ms Cato was paid was of no moment in the litigation and I agree with this (although this is quite different to the question of what she did, which is relevant). The category should be delimited as follows: All Documents drafted or authorised by the Management of the Respondent constituting or recording the appointment of, and services provided by, Sue Cato in the period 1 November 2010 to 20 March 2011. 20 With those alterations to the categories, Fairfax should provide a list within four weeks of the date of this judgment with inspection occurring within a further two weeks. 21 I turn then to Fairfax's discovery application. Fairfax's application 22 Fairfax sought six categories from Mr Gill. Mr Gill consented to Categories 1-4 and no further mention need be made of these. Category 5 23 Category 5 was as follows: All documents recording, referring to or constituting: (a) the "Publisher FBM Representations" alleged in paragraph 11 of the Statement of Claim; (b) the "General Representations" alleged in paragraph 16 of the Statement of Claim; (c) the "Fairfax Representations" alleged in paragraph 20 of the Statement of Claim; (d) the "Incentive Representations" alleged in paragraph 26 of the Statement of Claim; (e) the "Advancement Representations" alleged in paragraph 27 of the Statement of Claim; and (f) the "CEO Representations" alleged in paragraph 31 of the Statement of Claim. 24 Fairfax says it is entitled to test the representations alleged against the available contemporaneous records. Mr Gill submitted that most of these documents would be Fairfax documents and that there was little utility in having him hand over to Fairfax that which it already had. I reject this submission. The relevance of the materials arises not just from their contents but also from the fact of their having been in Mr Gill's possession. The category should stand. Category 6 25 Category 6 seeks a series of documents referred to in the various proofs of evidence which have been delivered on Mr Gill's behalf. Mr Gill is willing to give discovery all of Category 6 except subparagraphs (a) and (l). These are as follows: The following documents referred to in the proofs of evidence relied upon by the Applicant: (a) strategic plan and budget report for the financial year 2010/2011 (referred to in paragraph 13 of Brian McCarthy's proof of evidence); … (l) three presentations on Fairfax's Long Term Incentive Scheme from 2001, 2004 and 2008 (referred to in paragraph 13 of the Applicant's proof of evidence. 26 I think these materials should be discovered. It is true, as Mr Gill submits, that there is no automatic entitlement to have access to documents referred to in witness proofs. In that regard, the situation is to be contrasted with that obtaining in the case of pleadings and affidavits, where such an entitlement does exist: r 20.31, Federal Court Rules 2011. Nevertheless, as a matter of practical reality, the provenance of materials of this kind is very likely, in many instances, to mean that they will be relevant in the requisite sense. 27 As with Category 5, Mr Gill submitted that many of these documents were already in Fairfax's possession. For reasons already given this is not a sufficient reason to decline an order for discovery. 28 Discovery should be given in the same way as on Mr Gill's application. The parties are to bring in short minutes of order within three days giving effect to these reasons. I certify that the preceding twenty-eight (28) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Perram. Associate: Dated: 4 September 2012