Supreme Court New South Wales Medium Neutral Citation: The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 6) [2020] NSWSC 1820 Hearing dates: 14 December 2020 Date of orders: 15 December 2020 Decision date: 15 December 2020 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Orders to be made limiting subpoena recipient's obligation to comply with subpoena Catchwords: CIVIL PROCEDURE – subpoena to produce documents – application by recipient to set aside subpoena Cases Cited: National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd [2020] NSWSC 1238 The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 2) (Supreme Court (NSW), Stevenson J, 17 September 2020, unrep) The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 3) [2020] NSWSC 1364 The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 4) (Supreme Court (NSW), Stevenson J, 14 October 2020, unrep) The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 5) [2020] NSWSC 1516 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) Australian Broadcasting Corporation (Subpoena Recipient) Representation: Counsel: C O'Neill (Plaintiffs) L McGovern (Defendants) R White (Subpoenaed Recipient) Solicitors: Kay & Hughes (Plaintiffs) Bird & Bird (Defendants) Banki Haddock Fiora (Subpoenaed Recipient) File Number(s): SC 2019/343896 Judgment 1. The background to these proceedings is set out in the judgment of Henry J in The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd [1] and in four judgments that I have published in relation to these proceedings since then. [2] 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. A central issue in the proceedings is the relationship between Mr Morrow, Mr Murray, and the Australian Broadcasting Corporation. 6. On 13 October 2020 Mr Morrow caused to be served on the ABC, and six employees of the ABC (to whom I will refer as "the ABC Employees") subpoenas to produce documents. I will call these the "Third Subpoena" and the "Employee Subpoenas" 7. This was the second subpoena Mr Morrow had caused to be served on the ABC. 8. The first was served on 26 February 2020 and, to a large extent, sought production of documents the subject of the subpoena served on 13 October 2020. I will call this "the First Subpoena". 9. Mr Murray has also served a subpoena on the ABC. That subpoena was served on 29 June 2020. I will refer to it as "the Second Subpoena". 10. By notice of motion filed on 27 November 2020, the ABC, and the ABC Employees, seek an order setting aside the Third Subpoena and the Employee Subpoena. 11. Before me, Ms White, who appeared for the ABC and for the ABC Employees, sought, alternatively, orders limiting the response required to those subpoenas. 12. At the outset, Ms White pointed to the fact that the Third Subpoena and the Employee Subpoena seek documents in categories which are the same as categories of discovery sought by Mr Morrow from Mr Murray. 13. Ms White referred to the well known authorities that a subpoena is not able to be used for the purposes of seeking discovery from a third party. [3] 14. I do not see the fact that Mr Morrow has used the same words in the subpoena categories as he used in the discovery categories to itself be reason to set aside the subpoenas. 15. Mr Morrow does not seek general discovery from the ABC but seeks recovery of documents in specified, albeit on occasions broad, categories. 16. I see no alternative but to deal with the ABC's complaints concerning the subpoenas by reference to the particular categories of documents sought. 17. The ABC has already produced a large number of documents in response to the First Subpoena and the Second Subpoena. 18. In relation to the First Subpoena the ABC has produced some 2,100 pages of documents. Leaving aside the time taken to search for the documents, the ABC has spent some 90 hours reviewing the documents sought and producing them to the Court. In relation to the Second Subpoena, the ABC has produced some 3,200 documents and, again leaving aside the time taken to locate the documents, has spent some 45 hours reviewing the documents and producing same to the Court. 19. The ABC has thus been severely burdened by the need to produce documents in these proceedings in relation to a dispute in which it has no direct interest. The Third Subpoena Categories A1 to A3 1. These categories seek the following documents: "A. Any documents held by the ABC and created between the dates 23 March 2018 and 9 April 2019 (inclusive): 1. recording communication between the ABC and either of the Defendants regarding negotiations or discussions concerning the return of The Checkout or other consumer affairs show involving any of Julian Morrow or either of the defendants; 2. relating to or referencing, any of the television program The Checkout or any alternative consumer affairs program the ABC was considering for potential commission with either of the defendants; 3. containing the words CJZ, CJP, Cordell Jigsaw or Nick Murray and relating to the production (or potential production) of any further series of The Checkout or the commissioning (or potential commissioning) of any other consumer affairs show". 1. The ABC's solicitor, Ms Katherine Haddock, has given unchallenged evidence, albeit on information and belief that: a. the ABC was not considering commissioning, or potentially commissioning, any alternative consumer affairs program with either of the defendants during the period 23 March 2018 to 9 April 2019; b. the ABC has no documents to produce for that aspect of categories A1, A2 and A3 of the Third Subpoena; c. the remaining documents caught by categories A1 and A2 were produced by the ABC in response to the Second Subpoena; d. while category A2 of the Second Subpoena did not include specific reference to the words "CJZ, CJP, Cordell Jigsaw or Nick Murray", because it sought (inter alia) all documents held by the ABC relating to or referencing: i. The Checkout; or ii. any alternative consumer affairs program the ABC was considering for potential commission with the plaintiffs, the ABC has produced in response to the Second Subpoena all documents caught by category A3 … 1. In response, Mr Morrow's solicitor, Mr Benjamin Kay, deposed that, from materials produced on discovery by Mr Murray, Mr Morrow is now aware that Mr Murray proposed to "pitch" a consumer affairs television program to the ABC in the period 23 March 2018 to 9 April 2019. 2. That may be so, but it does not cause me to doubt the matters set out in Ms Haddock's affidavit. 3. Mr Morrow also refers to redactions that the ABC had made in relation to some documents produced in response to either the First Subpoena or the Second Subpoena. 4. However, there was no challenge made before me about those redactions and I do not propose to take that matter any further. 5. I propose to order that the ABC be excused from the need to respond to categories A1 to A3. Category A4 1. This category calls for production of documents in the following category: "A. Any documents held by the ABC and created between the dates 23 March 2018 and 9 April 2019 (inclusive): … 4. relating to or referencing any program (or potential program) involving either of the defendants and two or more of the following personnel from The Checkout: Craig Reucassel, Kirsten Drysdale, Alex Lee, Ben Jenkins, Zoe Norton Lodge, Mark Sutton, David Cunningham." 1. In relation to this category, Ms Haddock has deposed, again on information and belief that: a. category A4 of the Third Subpoena will only capture documents relating to the television show called "Reputation Rehab"; b. the ABC has commenced preliminary searches for documents caught by category A4 of the Third Subpoena; c. the ABC "expects" that any documents recording communications between the ABC and the defendants that would otherwise answer category A4 would be produced by the defendants in accordance with the Discovery Orders; and d. the ABC has not been able to ascertain how any documents (including agreements and internal ABC correspondence) recording budgets, licencing or production arrangements for Reputation Rehab (and any related draft documents) are relevant to the proceedings. 1. On the other hand, Mr Kay has deposed that Mr Murray's dealings with the ABC concerning the "Reputation Rehab" show are relevant to the issues in the proceedings, particularly in regard to Mr Murray's employment of key creative staff in respect of that production. 2. I am unable to see upon what basis the ABC could "expect" that such documents in this category as are relevant will be produced by the defendants in accordance with the discovery documents; nor what relevance it is that the ABC has not been able to itself understand how the documents might be relevant to issues in the proceedings. 3. The ABC should therefore respond to the subpoena by producing the documents sought, insofar as they relate to the Reputation Rehab program. Categories B1 to B6 1. These categories seek the following documents. "B. To the extent that they are not already included in category A above, specifically, Documents held by the ABC and created between the dates 23 March 2018 and 9 April 2019 (inclusive): 1. Emails (including attachments) sent to or from any email address on the domain 'cjz.com.au' which: a. contain the words 'The Checkout' or 'Checkout'; or b. refer to the television program The Checkout; or c. contain the words 'Jigsaw Dwarf'; or d. contain the words 'Julian Morrow'; or e. refer to Julian Morrow; or f. contain the words 'Giant Dwarf'; or g. refer to Giant Dwarf. 2. Emails (including attachments) sent to or from any email address associated with Nick Murray, Michael Cordell or Matt Campbell which: a. contain the words 'The Checkout' or 'Checkout'; or b. refer to the television program The Checkout; or c. contain the words 'Jigsaw Dwarf'; or d. contain the words 'Julian Morrow'; or e. refer to Julian Morrow; or f. contain the words 'Giant Dwarf'; or g. refer to Giant Dwarf. 3. Emails (including attachments) sent to or from any email address on the domain 'abc.net.au' which meet any of the criteria set out in paragraphs B. 1 – 2 (a) to (g) above. 4. Any communications set [sic] or received via a software-based messaging platform which meet any of the criteria set out in paragraphs B. 1 – 2 (a) to (g) above. 5. SMS text messages sent to or from either of the defendants (including any employee, officer, shareholder of the Frist Defendant) to any employee or officer of the ABC which: a. contain the words 'The Checkout' or 'Checkout'; or b. refer to the television program The Checkout; or c. contain the words 'Jigsaw Dwarf'; or d. contain the words 'Julian Morrow'; or e. refer to Julian Morrow; or f. contain the words 'Giant Dwarf'; or g. refer to Giant Dwarf. 6. Any documents which meet any of the criteria set out in paragraphs B. 1 – 2 (a) to (g) above." 1. In relation to these categories, Ms Haddock has deposed, again on information and belief: a. the ABC is "confident" that all relevant documents caught by category B of the Third Subpoena were produced in response to the Second Subpoena because the ABC conducted searches for all documents: i. relating to or referencing The Checkout; ii. containing the words Jigsaw Dwarf; iii. referring to the joint venture/company which the plaintiffs and defendants co-owned; iv. referring to the relationship between the plaintiffs and the defendants; v. containing the words Giant Dwarf or Julian Morrow and relating to any further series of The Checkout or any other consumer affairs show; d. given the broad terms of category B of the Third Subpoena, some documents may be caught that contain the Key Words that were not previously produced on the basis of relevance (for example, because those documents contained the word "checkout" but in an unrelated context, or relate to season 6 of the Checkout, which was still being broadcast in March and April 2018); e. further preliminary searches conducted by the ABC indicate that the only documents that remain for categories B1, B2, B3, B4, B5 and B6 of the Third Subpoena either: i. contain the word "Checkout" but does not relate to the television program The Checkout; or ii. relate to season 6 of The Checkout, which was still being broadcast in March and April 2018; … 1. The ABC's response to this category appears to assume that documents relevant to season 6 of "The Checkout" are not relevant to the issue. However, Mr Kay had deposed that the period in which season 6 of The Checkout was being produced is directly relevant and had been traversed in affidavits and pleadings in the proceedings. 2. The ABC should respond to categories B1 to B6 by producing documents of the kind specified that do refer to season 6. Category B7 1. The documents sought in category B7 are any documents held by the ABC "relating to or referencing" communications to two identified telephone numbers (being Mr Murray's direct landline and his mobile number) between 23 March 2018 and 5 December 2019. 2. This category is not limited in any way to communications relevant to the issues in the proceedings. Ms Haddock deposed that: "…in order to comply with this category, the ABC will be required to request information from all employees and officers who may have had social or professional contact with [Mr Murray] in the period 23 March 2018 to 5 December 2019. This task would involve interrogating employee phone records, text messages and other possible webchat programs." 1. Mr O'Neill, who appeared for Mr Morrow on this application, informed me that what was being sought was information concerning telephone calls made by ABC employees to Mr Murray on one of the two telephone numbers identified. 2. Mr O'Neill submitted that the ABC should be able to conduct a "digital search" to at least identify the occasions on which such telephone calls were made. 3. Mr O'Neill also pointed out that the ABC has adduced no evidence of how difficult the task it described might be. 4. However, there is also no evidence before me, and Ms Haddock was not cross-examined to suggest, that the task of searching the ABC employees' telephone calls to ascertain whether any one or more of them made a call during the relevant period to Mr Murray would easily be performed. 5. In any event, the discovery sought by Mr Morrow from Mr Murray is apt to capture any such communications as may be relevant. 6. I do not propose to require the ABC to comply with this category. The ABC Employees' Subpoena 1. The subpoena addressed to the ABC Employees seeks documents which are, in substance, in the same category as the documents sought from the ABC in categories A4 and B1. 2. In relation to those matters Ms Haddock deposed: "The documents sought by the Employee Subpoenas fall within the scope of the documents that were sought by (and produced in answer to) the First Subpoena and the Second Subpoena. The only substantial difference is that the Employee Subpoenas now seek production of documents for an additional date, being 5 December 2019." 1. Each of the employees has written to the Registrar stating that they have no documents dated or relating to 5 December 2019. 2. In those circumstances, I do not see why the ABC Employees should be required to respond further to the ABC Employee Subpoena. Conclusion 1. Mr Morrow and the ABC, by reference to those reasons, may now understand the extent to which I propose to require compliance with the Third Subpoena and the Employee Subpoena. 2. If the parties require formal orders to be made, they should confer and agree upon what those orders should be. 3. I think the ABC was justified in bringing this application and although, for the reasons I have set out, it must to a certain extent comply with the subpoenas, I propose to order that Mr Morrow pay the ABC's costs of the Notice of Motion of 27 November 2020. 4. Mr Morrow must, of course, also pay the ABC's reasonable costs of complying with the subpoenas. ********** Endnotes 1. [2020] NSWSC 1238. 2. The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 2) (Supreme Court (NSW), Stevenson J, 17 September 2020, unrep); The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 3) [2020] NSWSC 1364; The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 4) (Supreme Court (NSW), Stevenson J, 14 October 2020, unrep); The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 5) [2020] NSWSC 1516). 3. For example, National Employers' Mutual General Association Ltd v Waind [1978] 1 NSWLR 372 at 382 (Moffitt P, with whom Hutley and Glass JJA agreed). Amendments 16 June 2021 - Case title and case citations corrected 16 June 2021 - File number format corrected DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 June 2021