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[2020] NSWSC 1364

The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd (No 3)

Plaintiffs are released from the implied undertaking not to use the document attached as Annexure 1, Schedule B to the notice of motion and are permitted to use that document for the purpose of the defamation proceedings

Catchwords

CIVIL PROCEDURE – Harman undertaking – implied undertaking concerning use of documents – where applicants propose to commence proceedings in the Defamation List – applicants seek to rely in those proceedings on document produced on subpoena by a third party in these proceedings – where that document had been adduced in evidence in these proceedings – whether Harman undertaking extends to that document – whether special circumstances exist justifying use in the proposed proceedings

Cases cited

  • Crest Homes PLC v Marks [1987] 1 AC 829
  • Forty Two International Pty v Barnes[2010] FCA 397
  • Hearne v Street(2008) 235 CLR 125
  • Home Office v Harman [1983] 1 AC 280
  • Liberty Funding Pty Ltd v Phoenix Capital Limited[2005] FCAFC 3
  • Mann v Medical Defence Union[1997] FCA 45
  • Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217;[1992] FCA 720
  • The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd[2020] NSWSC 1238

Judgment

  1. [1]

    The background to these proceedings as set out in the judgment of Henry J in The Checkout Pty Ltd v Cordell Jigsaw Productions Pty Ltd. [1]

  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) and concerns the circumstances in which Mr Murray and his associated company ceased to be involved in the production of the television series “The Checkout” for the Australian Broadcasting Corporation.

  3. [3]

    The proceedings are set down for hearing in this list for five days commencing on 1 February 2021.

  4. [4]

    On 9 September 2020 I heard the plaintiffs’ motion to amend their List Statement to incorporate a claim by Mr Morrow for defamation against Mr Murray and Cordell Jigsaw.

  5. [5]

    During argument that day, counsel for the plaintiffs accepted that Mr Morrow’s proposed defamation proceedings and an allied application for leave to proceed out of time should be pursued separately in the Defamation List in the Common Law Division.

  6. [6]

    Mr Morrow has now circulated a proposed Statement of Claim to be filed in the Defamation List. He names Cordell Jigsaw and Mr Murray as defendants.

  7. [7]

    Now, by notice of motion filed in these proceedings on 11 September 2020, the plaintiffs, including Mr Morrow, seek to be released from the Harman undertaking [2] impliedly given by them to the Court in relation to a document produced to the Court by the ABC in response to a subpoena issued by the plaintiffs on 26 February 2020.

  8. [8]

    The document comprises an email chain dated 11 and 12 June 2019 between officers of the ABC.

  9. [9]

    In Mr Morrow’s proposed Statement of Claim in the Defamation List Mr Morrow wishes to rely upon what is recorded in an email in that chain to allege that Mr Murray, and thus also Cordell Jigsaw, made comments to an identified ABC officer that were defamatory of him.

  10. [10]

    Mr Morrow contends that the email chain is the only record available to him as to what was said by Mr Murray to the ABC officer and comprises the only basis available to him to advance this aspect of his claim for defamation.

  11. [11]

    As the document was produced by the ABC in response to the Court’s compulsory processes, I made directions to give the ABC an opportunity to be heard.

  12. [12]

    I have now received submissions from the ABC and from the plaintiffs on the question of whether the plaintiffs should be given the leave that is sought.

  13. [13]

    It is common ground that the Court will not release or modify the implied Harman undertaking except in “special circumstances”. [3]

  14. [14]

    It is not necessary that an extraordinary factor bear on the question before the discretion will be exercised but:

  15. [15]

    On behalf of the ABC it was submitted that:

  16. [16]

    The ABC also submitted that:

  17. [17]

    The ABC drew attention to the observations of Ryan J in Mann v Medical Defence Union Limited [5] that:

  18. [18]

    I accept that caution must be exercised in too readily permitting documents compulsorily produced in proceedings to be used for collateral defamation proceedings.

  19. [19]

    As the ABC submits, the prospect of this occurring might tend to discourage full and frank disclosure by officers within any organisation, including an organisation such as the ABC, of matters of vital interest to it. That is especially so where, as here, the dispute now being litigated between Mr Morrow and Mr Murray and their respective companies concerns a matter directly relevant to the ABC; namely, the production of what was one of its flagship television programmes.

  20. [20]

    I do not think it relevant that the plaintiffs’ preferred position was to incorporate Mr Morrow’s defamation claim into these proceedings. Had that occurred, an issue would still arise as to the use that could be made of the document produced by the ABC.

  21. [21]

    Nor do I think that the ABC’s role as a public broadcaster or as a “publicly funded statutory authority” is relevant to my task here.

  22. [22]

    However, there are three factors which persuade me, in the special circumstance of this case, that the plaintiffs should have the leave they seek.

  23. [23]

    First, it seems unlikely that refusing the plaintiffs the leave will make it less likely that there will be a “possible forced involvement of ABC staff” in the defamation proceedings. That is because an email sent by Mr Murray to the ABC officer in question the day after the email the subject of the plaintiffs’ application is also relied upon by Mr Morrow as giving rise to the same defamatory imputations as are said to arise from the subject email.

  24. [24]

    Second, it appears likely that the plaintiffs’ Harman obligation expired when the contents of the email in question were read as part of the evidence before me on 9 September 2020. [6]

  25. [25]

    Third, the basis advanced by the plaintiffs in these proceedings to obtain leave to issue the subpoena in question included the following statement:

  26. [26]

    Thus the emails in question were produced by the ABC in response to a subpoena which was issued for the purpose for which the plaintiffs now seek to be released from the Harman undertaking.

  27. [27]

    In those circumstances, I am persuaded to make the orders the plaintiffs seek.

  28. [28]

    I order that:

    1. (1)

      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;

    2. (2)

      that the plaintiffs be permitted to use that document for the purpose of defamation proceedings as contemplated by the proposed Statement of Claim attached as Annexure 1 to the plaintiffs’ notice of motion of 11 September 2020.

  29. [29]

    My preliminary view is that notwithstanding my conclusion that the plaintiffs be released from the undertaking, they should pay the ABC’s costs of this application. If the plaintiffs wish to contend for a different order, they should send my Associate short submissions by 5pm on 8 October 2020. The ABC may reply by 5pm on 12 October 2020.

Unofficial copy. Source: NSW Caselaw. Refer to the official version for authoritative text.