Supreme Court New South Wales Medium Neutral Citation: WIN Corporation Pty Ltd v Nine Network Australia Pty Limited [2016] NSWSC 153 Hearing dates: 29 February 2016 Date of orders: 29 February 2016 Decision date: 29 February 2016 Jurisdiction: Equity - Commercial List Before: Meagher JA Decision: 1. Grant leave to Nine to issue a Notice to Produce addressed to WIN requiring the following documents be produced for inspection by Nine by 5pm on Friday 4 March 2016: Reports and other written communications addressed to Mr Andrew Lancaster and/or Ms Shirley Brown and/or the Board of Directors of WIN written or dated between 1 October 2015 and 9 February 2016 and any minutes of directors' meetings of WIN during that period, in either case which refer to the proposed or intended internet streaming by Nine of its programming or programming schedule into areas which include the WIN licence areas. 2. The costs of Nine's application for leave to issue the notice to produce and of WIN's earlier application to vary the orders for suppression made by consent on 11 February 2016 be costs in the cause. Catchwords: PROCEDURE – application for leave to issue notice to produce or order for discovery – where Practice Note No. SQ Eq 11 applies – whether order necessary for just, quick and cheap resolution of real issues in dispute – no question of principle Category: Procedural and other rulings Parties: WIN Corporation Pty Ltd (Plaintiff) Nine Network Aust Pty Limited (Defendant) Representation: Counsel: JR Williams with J Burnett (Plaintiff) E Peden (Defendant) Solicitors: Atanaskovic Hartnell (Plaintiff) Gilbert+ Tobin (Defendant) File Number(s): SC41896 of 2016 Judgment 1. These proceedings concern the interpretation of a Program Supply Agreement between the plaintiff (WIN) and the defendant (Nine). The principal issue is whether, in circumstances in which it is providing a live or near-live internet stream of the content that is also broadcast on its free-to-air television channels, to recipients located in the licence areas covered by the broadcasting licences held by companies in the WIN group, Nine is in breach of an exclusive licence granted to WIN to "broadcast" that content on or in those areas. 2. WIN seeks an interim injunction to restrain Nine from providing that internet stream to recipients in those areas, as well as final declaratory and injunctive relief. The claim for interlocutory relief is set down for hearing on 8 March 2016. The final hearing of the proceedings is to take place on 13 and 14 April 2016. 3. Nine's application is for leave to issue a notice to produce to WIN, and in the alternative for an order for discovery by WIN, of the categories of documents described in its proposed notice to produce, a copy of which as originally proposed is attached to these reasons. 4. It is accepted that the Court should approach this application on the basis that the principles informing Practice Note No. SC Eq 11 apply equally to the application to issue the notice to produce. In other words the orders sought should not be made unless the circumstances sufficiently show that in the interests of achieving the "just, quick and cheap resolution of the real issues in dispute", it is necessary to do so and at this point in the proceedings. 5. The documents sought are said to be relevant to three issues in the proceedings. 6. The first only arises in relation to WIN's interim application. It is whether WIN delayed in making clear to Nine its position that internet streaming of the relevant content into its licence areas would constitute a breach of the Program Supply Agreement. It is Nine's case that from October 2015 WIN knew that Nine intended to stream its programme schedule to recipients across Australia, including in WIN licence areas, and that despite its having that knowledge, it did not before January 2016, respond asserting that it was entitled and would seek to prevent Nine from doing so. 7. The second issue relates to the estoppel defence pleaded by para 18 of Nine's defence. That defence raises a question as to whether WIN has known since at least 15 December 2015 that Nine intended to stream that content to recipients throughout Australia. The third issue is whether "broadcast" as used in the Program Supply Agreement has a special or technical meaning. By para 15 of its defence Nine alleges that the words "broadcast" and "broadcasting" as used in the media and entertainment industry have a particular meaning (which does not include sending by internet streaming), which was adopted by the parties in their agreement. 8. It is convenient to consider first the documents sought in relation to the question of WIN's knowledge of Nine's intention to internet stream content. The starting point would seem to be that Nine should be taken to be in a position to prove what its intention on that subject was from time to time, and how and to what extent that intention was announced or otherwise became publicly knowable. For example, the evidence in support of the application includes reference to an Australian Financial Review article of 26 October 2015, which refers to Nine "unveiling" its plans to stream its television channels live over the internet. Once such evidence is led it might reasonably be inferred in the absence of other evidence that it came to the attention of a broadcaster such as WIN. 9. The documents sought are not limited to those which might establish that the board or senior executives of WIN became aware of Nine's publicly announced intention. As originally sought, they include material referring or relating to a potentially broader subject matter (see para 1(c)(i),(iii) and (v)). They also do so for a period which extends prior to October 2015 (see para 1(a)) when it appears that the relevant intention of Nine was first announced, and are not limited to communications to or from directors or senior executives (cf the references to "officer"). In the course of the argument this last point was acknowledged by the deletion of that reference and the inclusion of specific references to the Chief Executive Officer of WIN and to its Manager, Regulatory and Network Affairs. At the same time it was proposed that the notice be amended to provide for the production of WIN's board papers or minutes of directors' meetings which refer to Nine's relevant intention. 10. In my view the description of the documents sought in the original notice for the purpose of establishing WIN's knowledge was too broad. The matter which Nine seeks to establish is WIN's knowledge of its intention to internet stream its programming content to recipients in WIN licenced areas. Documents specifically directed to establishing that matter should be produced in the interests of the quick and cheap resolution of the issues between these parties. Those documents are sufficiently described as "reports or other written communications addressed to Mr Lancaster and/or Ms Brown and/or WIN's board of directors written or dated between 1 October 2015 and 9 February 2016 and any minutes of directors' meetings of WIN held during that period, in either case which refer to the proposed or intended internet streaming by Nine of its programming or programming schedule to persons with access to the internet, including in the WIN licence areas". 11. The documents sought in relation to the remaining question are directed to the views, opinions or beliefs of Mr Lancaster, Ms Brown or any director of WIN as to the operation or effect of the Program Supply Agreement in relation to the internet streaming of Nine's programming to the extent those views are recorded in documents brought into existence between 1 August 2015 and 9 February 2016. 12. Those documents are not sought to establish the background circumstances in which that agreement was made on 3 June 2013 or varied on 31 December 2015. On the face of it, Nine is able to lead evidence as to those negotiations and the circumstances in which they occurred, to the extent that in either case they establish background facts relevant to the existence of any technical or special meaning of the words "broadcast" or "broadcasting", or that the parties have adopted that meaning of those words in their use in the agreement between them. The documents sought are directed to current or recent opinions of directors and two senior executives of WIN as to how the Program Supply Agreement should be interpreted or understood in circumstances where Nine proposed to stream or was streaming content to internet users in the WIN licence areas. As such they are not likely to be or contain material which is admissible on the question to which they are said to be directed. 13. For these reasons the application should be granted but only in respect of the documents described in order 1 below. 14. I make the following orders: 1. Grant leave to Nine to issue a Notice to Produce addressed to WIN requiring the following documents be produced for inspection by Nine by 5pm on Friday 4 March 2016: Reports and other written communications addressed to Mr Andrew Lancaster and/or Ms Shirley Brown and/or the Board of Directors of WIN written or dated between 1 October 2015 and 9 February 2016 and any minutes of directors' meetings of WIN during that period, in either case which refer to the proposed or intended internet streaming by Nine of its programming or programming schedule into areas which include the WIN licence areas. 2. The costs of Nine's application for leave to issue the notice to produce and of WIN's earlier application to vary the orders for suppression made by consent on 11 February 2016 be costs in the cause. ********** NOTICE TO PRODUCE WIN Corporation Pty Ltd, Plaintiff You are required to produce the following documents or things for inspection by the defendant by 24 February 2016: 1 All documents: (a) which were brought into existence between 1 August 2015 and 9 February 2018; and (b) which: (i) were sent to, from or on behalf of any director or officer of the Plaintiff; or (ii) evidence communications to, from, on behalf of, or with any director or officer of the Plaintiff; or (iii) evidence any consideration or analysis by, or any consideration or analysis produced for, any director or officer of the Plaintiff; and (c) which refer or relate to: (i) 9Now; or (ii) any proposed or actual internet streaming by the Defendant of the Defendant's programming or programming schedule; or (iii) any proposed or actual internet streaming by other free to air commercial television operators; or (iv) any proposed or actual video on demand internet streaming by the Defendant of the Defendant's programming; or (v) the understanding, views, opinion or belief of any director or officer of the Plaintiff as to: (A) the Plaintiff's right to internet stream the Defendant's programming or programming schedule; (B) the Defendant's right to internet stream the Defendant's programming or programming schedule; and (C) the meaning of the word "broadcast" in clause 2.1 of the Program Supply Agreement (as defined in the Summons dated 5 February 2016 in this proceeding). For the purpose of this Notice to Produce, document has the meaning provided under the Evidence Act (1995) NSW. 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: 29 February 2016