Supreme Court New South Wales Medium Neutral Citation: The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 11) [2021] NSWSC 1477 Hearing dates: On the papers Date of orders: 16 November 2021 Decision date: 16 November 2021 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: ABC to pay the costs of the motions concerning subpoenaed documents Catchwords: COSTS – where party to which subpoenas directed produced documents with redactions – where Court's authority to make redactions not hitherto sought – where party issuing the subpoenas sought declaration that producing party in contempt – where party producing documents sought orders confirming the redactions – where Court declined to make declaration of contempt but ordered that many such documents be produced without redaction – what costs orders should be made in relation to the applications Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: 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 The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 6) [2020] NSWSC 1820 The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 7) [2020] NSWSC 1883 The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 8) [2021] NSWSC 703 The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 10) (Supreme Court (NSW), Stevenson J, 21 July 2021, unrep) 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 (Interested Party) Representation: Counsel: S Chrysanthou SC with C O'Neill (Plaintiffs) B F Katekar SC (Defendants) R White (Interested Party) Solicitors: Kay & Hughes (Plaintiffs) Bird & Bird (Defendants) Banki Haddock Fiora (Interested Party) File Number(s): 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 the 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). The dispute concerns the circumstances of which Mr Morrow and his associated company ceased to be involved in the production of the television series, "The Checkout", for the Australian Broadcasting Corporation ("ABC"). 3. For simplicity, I will refer simply to Mr Morrow and Mr Murray. 4. The proceedings are set down for hearing for eight days commencing 29 November 2021. 5. Mr Morrow served subpoenas on the ABC on 26 February 2020 and 8 October 2020. Mr Murray served a subpoena on the ABC on 29 June 2020. 6. I dealt with the ambit of those subpoenas in my judgment of 15 December 2020. [3] 7. As I said in that judgment, the ABC has been heavily burdened by the need to produce documents in response to these subpoenas and in the context of a bitterly fought dispute in which the ABC has no direct interest. [4] 8. The ABC has produced 31 packets of documents in response to the subpoenas. During argument on 14 December 2020, I was informed that the ABC had produced over 5,000 documents in response to the subpoenas. I was also informed that, leaving aside the time taken to search for the documents, the ABC has spent some 135 hours reviewing the documents sought and producing them to the Court. 9. The ABC's position is particularly difficult because it has an ongoing commercial relationship with both Mr Morrow and Mr Murray. Mr Morrow presents a number of programs on the ABC and also produces programs. Mr Murray also produces a number of programs for the ABC. Thus, neither Mr Morrow nor Mr Murray is a commercial stranger to the ABC. Yet their dispute is having a significant impact on the ABC. The ABC's response to the subpoenas needs to be seen in this context. 10. The ABC responded to the subpoenas but, in many cases, produced documents called for by the subpoenas in a redacted form. 11. Some of those redactions were upon the basis of an assertion by the ABC that the redacted material is the subject of client legal privilege. 12. The ABC also redacted other documents on the basis that the redacted portions contained information confidential to the ABC, or to a third party competitor of Mr Morrow or Mr Murray, or contained material that falls outside the scope of the subpoenas. 13. The ABC took this course without approaching the Court for leave to produce documents in a redacted form. 14. By Notice of Motion filed on 8 April 2021, Mr Morrow sought: 1. declarations that the ABC, without lawful excuse, failed to comply with the subpoenas by production of documents in redacted form and was thereby in contempt of court; and 2. an order that the ABC provide the documents in unredacted form. 1. By Notice of Motion filed on 3 May 2021, the ABC sought orders: 1. "confirming" in whole or in part the redactions; and 2. alternatively, that access to "unmasked documents" be restricted to the parties' legal representatives on a confidential basis. 1. For the reasons I gave in my decision of 16 June 2021, [5] I: 1. criticised the ABC's conduct in redacting documents called for by the subpoenas without first approaching the court for leave; [6] 2. declined to make the declaration sought by Mr Morrow that the ABC was thereby in contempt of court; [7] 3. said that "the Court's disapprobation of the ABC's conduct would better be expressed by an order for costs, a matter about which I will invite submissions"; [8] and 4. made directions for the preparation of schedules in the nature of Scott Schedules, the object of which was to resolve the questions of what redactions should be permitted and of what documents were properly the subject of the ABC's claim for legal professional privilege. 1. On 21 July 2021, I published a further judgment [9] in which I save my decision concerning redactions and privilege. 2. So far as concerns the redactions the ABC sought, I permitted redactions as to certain dollar amounts and confined the production of some documents to the legal representatives of the parties. As Mr Morrow has now submitted, "only a very limited number of documents was ultimately agreed or held to be subject to any redaction or limited access". 3. I upheld the ABC's claim for privilege in respect of only a minority of the documents in respect of which privilege was sought. 4. I am now dealing with Mr Morrow's and the ABC's submissions as to what costs order should be made in relation to Mr Morrow's Notice of Motion of 8 April 2021 and the ABC's Notice of Motion of 3 May 2021. 5. Mr Murray, by his solicitor, has stated that he wishes to make no submissions on these questions "and will abide by the order of the Court". 6. Mr Morrow seeks: 1. an order that the ABC pay his and Mr Murray's costs of both motions on an indemnity basis, including his and Mr Murray's costs of reviewing any incomplete and partial production of materials produced by subpoena subject of the motions; and 2. an order that he and Mr Murray "be released from any undertaking or requirement to pay the ABC's costs of complying with the subpoenas." 1. As Mr Murray seeks no costs order and has elected to make no submissions on this question, I do not propose to make any costs order in his favour. 2. As to Mr Morrow's motion, although he was not completely successful, in that he did not secure a declaration that the ABC was in contempt, he achieved substantial success in that he gained access to most of the documents that had hitherto been the subject of the ABC's unauthorised redactions, and claim for privilege. 3. As to the ABC's motion, while the ABC achieved some success in maintaining the redactions, the fact that the ABC needed to bring the application at all was because of the conduct the subject of the criticism in my 16 June 2021 judgment. 4. For those reasons, I am persuaded that Mr Morrow should have his costs of both motions. 5. I am not, however, persuaded that I should order that those costs be assessed on an indemnity basis. That is because, while I have criticised the ABC and found that the course they adopted was "not appropriate" [10] and not the way in which "a Model Litigant such as the ABC should conduct itself", [11] I noted that the ABC had not failed to produce the documents called for by the subpoena, [12] and accepted that the ABC was endeavouring to "move forward in the most cost-effective way". [13] 6. I see no basis on which I should order that Mr Morrow be released from any requirement to pay the costs incurred by the ABC in the course of complying with the various subpoenas. 7. In those circumstances, I make these orders: 1. I order that the ABC pay the plaintiffs' costs of and incidental to the plaintiffs' Notice of Motion of 8 April 2021 and the ABC's Notice of Motion of 3 May 2021. 2. Order that those costs include the plaintiffs' costs of reviewing any incomplete or partial production of materials produced on subpoena the subject of the motions. ********** 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; The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 6) [2020] NSWSC 1820; The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 7) [2020] NSWSC 1883. 3. The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 6) [2020] NSWSC 1820. 4. At [18] and [19]. 5. The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 8) [2021] NSWSC 703. 6. At [21]-[41]. 7. At [37]-[54]. 8. At [55]. 9. The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 10) (Supreme Court (NSW), Stevenson J, 21 July 2021, unrep). 10. At [27] of the 16 June 2021 judgment. 11. At [41]. 12. At [43]. 13. At [44]. Amendments 17 November 2021 - Typographical errors at [21], [22(a)], [22(b)], [23] and [29(1)] 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: 17 November 2021