The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 11) [2021] NSWSC 1477

The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 11) [2021] NSWSC 1477

Mr Morrow was substantially successful because he gained access to most documents previously subject to the ABC's unauthorised redactions and privilege claims, and the ABC's own motion was required because of conduct earlier criticised by the Court. The ABC was therefore ordered to pay the plaintiffs' costs of both motions, including costs of reviewing incomplete or partial subpoena production. However, indemnity costs were refused because the ABC had produced the subpoenaed documents, albeit with unauthorised redactions, and had been endeavouring to proceed cost-effectively; there was also no basis to release Mr Morrow from any requirement to pay the ABC's subpoena compliance costs.

Jurisdiction
Australia
Judgment Date
16 November 2021
Procedural Posture
Equity Commercial List Costs Ruling Concerning Subpoenaed Documents / On the Papers After Notices of Motion Concerning Redacted Subpoena Production
Outcome
ABC ordered to pay the plaintiffs' costs of the motions concerning subpoenaed documents; indemnity costs and release from subpoena compliance cost obligations refused.
Legal Topics
['subpoenas' 'redacted Production' 'client Legal Privilege' 'confidentiality' 'contempt of Court' 'indemnity Costs' 'model Litigant']
['civil Procedure' 'costs' 'equity'] ['subpoenas' 'redacted Production' 'client Legal Privilege' 'confidentiality' 'contempt of Court' 'indemnity Costs' 'model Litigant']

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Procedural Posture

Equity Commercial List Costs Ruling Concerning Subpoenaed Documents / On the Papers After Notices of Motion Concerning Redacted Subpoena Production

Legal Issues

  1. 1 ["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." 'Whether the ABC should pay the costs of both motions after producing subpoenaed documents with unauthorised redactions and after only limited redactions or restricted access were ultimately allowed.' 'Whether the costs should be assessed on an indemnity basis.' "Whether Mr Morrow and Mr Murray should be released from any undertaking or requirement to pay the ABC's costs of complying with the subpoenas."]

Ratio Decidendi

Mr Morrow was substantially successful because he gained access to most documents previously subject to the ABC's unauthorised redactions and privilege claims, and the ABC's own motion was required because of conduct earlier criticised by the Court. The ABC was therefore ordered to pay the plaintiffs' costs of both motions, including costs of reviewing incomplete or partial subpoena production. However, indemnity costs were refused because the ABC had produced the subpoenaed documents, albeit with unauthorised redactions, and had been endeavouring to proceed cost-effectively; there was also no basis to release Mr Morrow from any requirement to pay the ABC's subpoena compliance costs.

Court Disposition

ABC ordered to pay the plaintiffs' costs of the motions concerning subpoenaed documents; indemnity costs and release from subpoena compliance cost obligations refused.

Orders

  • ["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." "Order that those costs include the plaintiffs' costs of reviewing any incomplete or partial production of materials produced on subpoena the subject...