Supreme Court New South Wales Medium Neutral Citation: The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 7) [2020] NSWSC 1883 Hearing dates: On the papers Date of orders: 21 December 2020 Decision date: 21 December 2020 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Orders to be construed as set out at [11]-[14] Catchwords: JUDGMENTS AND ORDERS – order for discovery made in accordance with plaintiffs' application – proper construction of the order Cases Cited: Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483; [1965] HCA 21 Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213 Radmanovich v Nedeljkovic [2002] NSWSC 212 The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 5) [2020] NSWSC 1516 Texts Cited: P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) 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: S Chrysanthou SC with C O'Neill (Plaintiffs) H Fraser, Solicitor (Defendants) Solicitors: Kay & Hughes (Plaintiffs) Bird & Bird (Defendants) File Number(s): SC 2019/343896 Judgment 1. The background to these proceedings is set out in my earlier judgments. 2. On 30 October 2020 I made orders for discovery. 3. Those orders included that the defendants give discovery of: Documents held by the First Defendant and created between 23 March 2018 and 9 April 2019 (inclusive): 1. Emails (including attachments) sent to or from any email address on the [an identified domain] which [contain certain key words]; 2. Emails (including attachments) sent to or from any email address associated with [three named people] [containing identified key words]. 3. Emails (including attachments) sent to or from any email address on the [an identified domain] which meet any of the [above] criteria… 1. I made those orders following delivery of my judgment of 30 October 2020 [1] dealing with the discovery sought by the plaintiffs. 2. The words of the order are those in the plaintiffs' notice of motion of 6 October 2020. 3. The parties seek guidance as to what those orders require. 4. Court orders are subject to "ordinary rules of construction". [2] The "court construes [the orders] just like any other document. It does not delve into the subjective intention of the judge pronouncing [them]". [3] This is especially so where, as here, I did not compose the words of the order. The words are those the plaintiffs chose to include in their notice of motion for discovery. 5. The task is "one of ascertaining what the words of the order mean". [4] 6. The plaintiffs contend that these orders should be: "… read conjunctively, in that both emails using the relevant terms, attachments to those emails, and attachments using those terms should be produced". 1. The defendants have stated that they "consent" to that construction, by which I understand the defendants to mean that they agree to give discovery on the basis of that construction of the orders. In those circumstances, it is not necessary for me to express any opinion as to whether that construction is correct. 2. Insofar as a key word includes the word "Checkout" or the words "The Checkout", those keys words should be construed as proper nouns, referring to the television show "The Checkout", and not as common nouns referring to a "check out" or as referring or to the colloquial expression meaning settling one's hotel bill before leaving or establishing the truth about or informing oneself about someone or something; or anything similar. 3. The plaintiffs also contend that the orders should be: " … interpreted so that if one email in a thread or part of a document includes the relevant term or falls within the required category, the whole email thread or document is produced, rather than just the component of the relevant document that uses the relevant term or falls within a required category". 1. The orders require production of documents "created" in the identified date range. Those documents are "emails" sent to and from the identified addresses that contain one or other of the key words. The orders also require production of any attachments to such emails: "(including attachments)". As I read the orders, this means any attachments to those emails must be produced in full, whether or not those attachments themselves contain any key words. 2. The orders require production only of emails in the date range containing the key words. The orders do not require production of any other emails which may comprise part of an "email thread" in which the relevant email is contained; unless such other email in the "thread" itself is in the date range and contains a key word. 3. The plaintiffs also contend that the orders should be: "… interpreted so that the Defendants are not entitled to remove, redact or not produce documents that use the relevant terms or fall within a required category without the express leave of the Court (except re: legitimate legally privileged materials)". 1. The defendants state that they also "consent" to this construction and continue: "In respect of any document over which the defendants seek to maintain confidentiality and which cannot be agreed, the defendants are at liberty to apply within 2 days of a refusal by the plaintiff". 1. I take this to mean that the defendants propose to seek liberty to apply about any such matter. 2. I have made no order about redaction. 3. I have said no more than that if commercially sensitive information is contained in the documents to be produced by the defendants, arrangements could be made to protect Mr Murray's legitimate interest by an appropriate commercial confidentiality regime. [5] 4. No application has been made to me about what redaction should be permitted. 5. Absent an order permitting redaction, all documents should be produced subject to any claim for legal professional privilege. 6. If the defendants wish to apply for an order permitting redaction, they should do so in the usual way. 7. The vacation judge should not be troubled with any such application. If there is a genuine concern about the confidentiality of any material, and if it is contended that such concern cannot be accommodated by an agreement that the document be made available only to the plaintiffs' legal advisers, I expect defendants to raise that matter with me immediately, and in any event prior to 5.00pm tomorrow. ********** Endnotes 1. The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 5) [2020] NSWSC 1516. 2. Australian Consolidated Press Ltd v Morgan (1965) 112 CLR 483, 503. 3. Radmanovich v Nedeljkovic [2002] NSWSC 212 at [7] (Young CJ in Eq); see generally P Herzfeld and T Prince, Interpretation (2nd ed, 2020, Thomson Reuters) [36.70]. 4. Katter v Melhem (2015) 90 NSWLR 164; [2015] NSWCA 213 at [63] (JC Campbell AJA; McColl and Leeming JJA agreeing). 5. The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 5) at [16]. Amendments 16 June 2021 - Case title and case citations 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