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 8) [2021] NSWSC 703

The ABC should not have unilaterally produced subpoenaed documents with redactions based on confidentiality and asserted irrelevance, and should have sought leave from the Court before making such redactions. However, although the course taken was deliberate, ill advised and inappropriate, it was not contumelious or otherwise a contempt of the Court's processes because the ABC did produce the subpoenaed documents albeit with redactions, was open about what it had redacted and why, and was attempting to deal with commercially sensitive material in a practical and cost-effective way. The application for a declaration of contempt was therefore refused.

Jurisdiction
Australia
Judgment Date
16 June 2021
Procedural Posture
Equity Commercial List; Procedural Ruling Concerning Subpoenas and Alleged Contempt / Notice of Motion by Mr Morrow for Declarations of Contempt and Unredacted Production; Notice of Motion by the ABC to Confirm Redactions or Restrict Access
Outcome
Application for a declaration that the ABC was in contempt of court refused; further determination of the permissibility of the remaining redactions reserved pending a schedule from the parties.
Legal Topics
['production of Subpoenaed Documents in Redacted Form' 'client Legal Privilege' 'confidentiality and Relevance Redactions' 'leave to Redact Documents' 'restricted Access to Subpoenaed Material']
['civil Procedure' 'subpoenas' 'contempt of Court' 'evidence'] ['production of Subpoenaed Documents in Redacted Form' 'client Legal Privilege' 'confidentiality and Relevance Redactions' 'leave to Redact Documents' 'restricted Access to Subpoenaed Material']

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Procedural Posture

Equity Commercial List; Procedural Ruling Concerning Subpoenas and Alleged Contempt / Notice of Motion by Mr Morrow for Declarations of Contempt and Unredacted Production; Notice of Motion by the ABC to Confirm Redactions or Restrict Access

Legal Issues

  1. 1 ['Whether the ABC failed to comply with subpoenas by producing documents in redacted form without leave.' 'Whether redactions based on confidentiality and asserted irrelevance could be made unilaterally by a subpoenaed party.' 'Whether the ABC should be declared in contempt of court for producing redacted documents in response to subpoenas.' 'Whether documents should be produced in unredacted form or redactions confirmed, and whether access should be restricted to legal representatives.']

Ratio Decidendi

The ABC should not have unilaterally produced subpoenaed documents with redactions based on confidentiality and asserted irrelevance, and should have sought leave from the Court before making such redactions. However, although the course taken was deliberate, ill advised and inappropriate, it was not contumelious or otherwise a contempt of the Court's processes because the ABC did produce the subpoenaed documents albeit with redactions, was open about what it had redacted and why, and was attempting to deal with commercially sensitive material in a practical and cost-effective way. The application for a declaration of contempt was therefore refused.

Court Disposition

Application for a declaration that the ABC was in contempt of court refused; further determination of the permissibility of the remaining redactions reserved pending a schedule from the parties.

Orders

  • ['The documents in MFI 1 are to be made available to the legal representatives of Mr Morrow and Mr Murray.' 'The parties are to prepare a schedule in the nature of a Scott Schedule setting out their competing contentions concerning the redactions, including any objections by Mr Murray to Mr Morrow seeing any part of...