The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 5) [2020] NSWSC 1516

Supreme Court New South Wales

Medium Neutral Citation: The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 5) [2020] NSWSC 1516 Hearing dates: 30 October 2020 Date of orders: 30 October 2020 Decision date: 30 October 2020 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Defendants to make disclosure as sought in plaintiffs' notice of motion of 6 October 2020 Catchwords: CIVIL PROCEDURE – disclosure – Practice Note SC Eq 11 – whether disclosure necessary for resolution of real issues in dispute Legislation Cited: Practice Note SC Eq 11 Cases Cited: Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction Analysts Group Pty Ltd [2012] NSWSC 393 The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd [2020] NSWSC 1238 Category: Procedural rulings Parties: The Checkout Pty Ltd (First Plaintiff) Giant Dwarf Pty Ltd (Second Plaintiff) Julian Francis Xavier Morrow (Third Plaintiff) Cordell Jigsaw Productions Pty Ltd (First Defendant) Nicholas Harvey Murray (Second Defendant) Representation: Counsel: C O'Neill (Plaintiffs) B F Katekar SC with L L McGovern (Defendants)

Solicitors: Kay & Hughes (Plaintiffs) Bird & Bird (Defendants) File Number(s): SC 2019/343896

Judgment 1. The background to these proceedings are set out in the judgment of Henry J in The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd. [1] 2. The dispute is between Mr Julian Morrow and Mr Nicholas Murray, and their associated companies (Giant Dwarf Pty Ltd in the case of Mr Morrow, and Cordell Jigsaw Productions Pty Ltd in the case of Mr Murray) and concerns the circumstances in which Mr Murray and his associated company ceased to be involved in the production of the television series "The Checkout" for the Australian Broadcasting Corporation. 3. For simplicity, I will refer simply to Mr Morrow and Mr Murray and not to their corporate manifestations. 4. The proceedings are set down for hearing in this list for five days commencing on 1 February 2021. 5. The latest dispute between Mr Morrow and Mr Murray concerns the disclosure that Mr Murray should make. 6. Earlier today, I made the orders for disclosure sought by Mr Morrow in the Notice of Motion filed on behalf of the plaintiffs on 6 October 2020. 7. These are my reasons for making those orders. 8. The question is whether the disclosure sought is "necessary for the resolution of the real issues in dispute in the proceedings". [2] 9. In his submissions in support of the disclosure sought, Mr O'Neill, who appears for Mr Morrow, emphasised that Mr Murray now alleges, in his cross-claim, that: 1. between 1 July 2016 and 18 April 2019, Mr Morrow occupied a "special position of advantage" in relation to the relevant joint venture because Mr Morrow conducted the day to day management of the joint venture company, employed key staff and had carriage of all negotiations with the ABC for any further series of "The Checkout"; 2. conversely, Mr Murray was in a position of vulnerability so far as concerns Mr Morrow in terms of dealings with the ABC; and 3. it was an implied term of the joint venture arrangements between Mr Morrow and Mr Murray that any opportunity to produce a further series of "The Checkout" or any equivalent or similar consumer affairs program would be directed to the joint venture vehicle between Mr Murray and Mr Morrow. 1. Accordingly, Mr O'Neill submitted that Mr Murray has placed into issue the entirety of the business relationship between Mr Morrow and Mr Murray in the relevant period and that Mr Murray's communications and records regarding "The Checkout" are "now centrally relevant to the determination of what activities [Mr Murray's company] was engaged in". I accept that submission. 2. There is no dispute about some of the categories of documents sought by Mr Morrow. 3. In relation to each of the categories still in contest, Mr Morrow seeks disclosure from Mr Murray and from his company over a specified date range. No separate issue arises from the fact that disclosure is sought from Mr Murray and his company, nor from the date ranges specified. 4. Accordingly, again for simplicity, I will refer to the substance of the categories sought in respect of which a dispute still exists.