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 3) [2020] NSWSC 1364

Special circumstances justified releasing the plaintiffs from the implied undertaking because refusing leave was unlikely to avoid possible forced involvement of ABC staff in the proposed defamation proceedings, it appeared likely that the Harman obligation had expired when the email contents were read as evidence, and the subpoena had been issued for the very purpose for which the plaintiffs now sought to use the document, including possible defamation or injurious falsehood claims.

Jurisdiction
Australia
Judgment Date
07 October 2020
Procedural Posture
Procedural Ruling in Equity Commercial List Concerning Release From Implied Harman Undertaking / On the Papers Notice of Motion Filed 11 September 2020 Before Hearing of Proceedings Set Down for 1 February 2021
Outcome
Plaintiffs released from the implied undertaking and permitted to use the specified document for the purpose of the proposed defamation proceedings.
Legal Topics
['harman Undertaking' 'implied Undertaking Concerning Use of Documents' 'subpoenaed Documents' 'use of Documents in Collateral Proceedings' 'special Circumstances' 'defamation Proceedings']
['civil Procedure' 'defamation'] ['harman Undertaking' 'implied Undertaking Concerning Use of Documents' 'subpoenaed Documents' 'use of Documents in Collateral Proceedings' 'special Circumstances' 'defamation Proceedings']

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Procedural Posture

Procedural Ruling in Equity Commercial List Concerning Release From Implied Harman Undertaking / On the Papers Notice of Motion Filed 11 September 2020 Before Hearing of Proceedings Set Down for 1 February 2021

Legal Issues

  1. 1 ['Whether the plaintiffs should be released from the implied Harman undertaking in relation to a document produced by the Australian Broadcasting Corporation in response to subpoena.' 'Whether special circumstances justified permitting use of the subpoenaed email chain in proposed defamation proceedings.' 'Whether the Harman undertaking extended to, or had expired in respect of, the document after its contents were read as part of the evidence in these proceedings.']

Ratio Decidendi

Special circumstances justified releasing the plaintiffs from the implied undertaking because refusing leave was unlikely to avoid possible forced involvement of ABC staff in the proposed defamation proceedings, it appeared likely that the Harman obligation had expired when the email contents were read as evidence, and the subpoena had been issued for the very purpose for which the plaintiffs now sought to use the document, including possible defamation or injurious falsehood claims.

Court Disposition

Plaintiffs released from the implied undertaking and permitted to use the specified document for the purpose of the proposed defamation proceedings.

Orders

  • ["The plaintiffs be released from the implied undertaking that the document attached as Annexure 1, Schedule B to the plaintiffs' notice of motion of 11 September 2020 may only be used for the purpose of these proceedings." "The plaintiffs be permitted to use that document for the purpose of defamation proceedings...