PFJV Pty Ltd v Bartter Enterprises Pty Ltd
[2024] QSC 12
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- PFJV Pty Ltd v Bartter Enterprises Pty Ltd[2024] QSC 12
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PFJV Pty Ltd v Bartter Enterprises Pty Ltd[2024] QSC 12
PFJV Pty Ltd v Bartter Enterprises Pty Ltd[2024] QSC 12
SUPREME COURT OF QUEENSLAND
CITATION: | PFJV Pty Limited v Bartter Enterprises Pty Limited [2024] QSC 12 |
PARTIES: | PFJV PTY LIMITED ACN 614 586 444 AS TRUSTEE FOR THE DONNYBROOK RAINBOW UNIT TRUST AND FOR THE DONNYBROOK KUIKENS UNIT TRUST (plaintiff) v BARTTER ENTERPRISES PTY LIMITED ACN 000 451 374 (defendant) |
FILE NO: | 3716 of 2019 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
ORIGINATING COURT: | Supreme Court of Queensland at Brisbane |
DELIVERED ON: | 5 February 2024 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 1 February 2024 |
JUDGE: | Applegarth J |
ORDER: | Terms of Order as to further disclosure to be settled at a review at 2:30 pm on 6 February 2024. |
CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – DISCOVERY OF DOCUMENTS – UNDERTAKINGS AND USE OF DOCUMENTS – where the plaintiff applies for further disclosure close to the trial – where the defendant opposes the application because of its timing; its disruption of the existing agreed disclosure regime; the burden the requested orders would place upon it in reviewing many commercially-sensitive documents and redacting large parts of them; and because the documents requested are unlikely to contain information that is directly relevant to the issues in dispute – where previous orders have been made for a disclosure regime that included the plaintiff’s lawyers accessing for a limited period commercially sensitive documents – whether an order should be made for the plaintiff’s expert to review the same documents in case he forms a different review about their direct relevance to the issues – whether further orders should be made for limited disclosure in response to requested categories in the plaintiff’s amended application Ex parte Fielder Gillespie Limited (1984) Qd R 339, cited Westgate Finance v May [2012] NSWSC 806, cited Grace v Grace (No 8) [2014] NSWSC 419, cited |
COUNSEL: | G A Thompson KC & A G Psaltis for the plaintiff A G Rae & A Smorchevsky for the defendant |
SOLICITORS: | Colin Biggers & Paisley for the plaintiff Prandium Legal for the defendant |
- [1]The plaintiff applies for further disclosure close to the trial of the proceeding that is set to start before the Chief Justice on 25 March.
- [2]The defendant opposes the application because of its timing; its disruption of the existing agreed disclosure regime; the burden the requested orders would place upon it in reviewing many commercially-sensitive documents and redacting large parts of them; and because the documents requested are unlikely to contain information that is directly relevant to the issues in dispute. They may contain large amounts of information about the defendant’s operations and financial performance, but that does not make them directly relevant to a plan or proposal in 2015 or 2016 to close the defendant’s Queensland plant.
- [3]The plaintiff responds that the orders are suitably targeted to disclose documents that are directly relevant to any such proposal and the knowledge of the defendant’s directors and its Queensland Manager of the possibility or probability that the Queensland plant would cease live processing operations in or around 2017.
- [4]One reason for the plaintiff’s delay in seeking orders for further disclosure is that the defendant proposed in mid-2023, and the plaintiff agreed, that further disclosure orders should only be made after the parties exchanged their evidence.
- [5]The application cannot be determined by simply concluding that all of the orders sought should be granted or refused. In this application, the devil is in the detail.
- [6]In general terms, however, each part of the application raises a simple question. What is a fair balance between the confidentiality and other concerns of the defendant and the need of the plaintiff to have access to relevant documents (suitably redacted) to prove its case?
Background
- [7]The plaintiff sues over the purchase in 2016 of a chicken farm and business at Donnybrook. At the time of the purchase, the business had a growing agreement with the defendant. The business grew broiler chickens that were processed at the defendant’s plant near Ipswich. At the time the plaintiff conducted its due diligence in 2016, the grower agreement had an initial five-year term and a further term of another five years. The grower agreement reflected a substantial part of the value of the business that was purchased by the plaintiff.
- [8]As part of its due diligence before purchasing the farm and business and obtaining an assignment of the agreement, the plaintiff’s director, Mr Vorster, had a conversation with the defendant’s Queensland Operations General Manager, Mr Rapa, about acquiring the farm and obtaining an assignment of the grower agreement. The plaintiff alleges that during that conversation in August 2016:
- Mr Rapa told Mr Vorster that the defendant would be unlikely to refuse an assignment of the long-term grower agreement;
- Mr Vorster told Mr Rapa that the plaintiff required a letter of intent or some form of assurance from or on behalf of the defendant confirming its intention to grant the plaintiff a new five-year contract or alternatively assign the existing contract;
- Mr Vorster told Mr Rapa that the plaintiff required that assurance in order to secure funding to purchase the Donnybrook Farm;
- Mr Rapa said words to the effect that he was aware of that sort of requirement and did not see it being a problem;
- Mr Rapa said words to the effect that the defendant’s preference was to assign existing contracts because it was trying to get all of its contract growers on the same terms with all contracts coming to an end on, or close to, the same date but that he did not expect that assigning the existing contract would be a problem because there was an initial term of 5 years and a renewal term which had the effect of extending the contract for a further 5 years; and
- Mr Rapa said words to the effect that the renewal term of 5 years generally occurred automatically, that the defendant had a number of growers on such contracts in South East Queensland which had been growing for the defendant for over 20 years and that, if a grower performed well, there should be no reason why the initial term would not be extended for a further 5 years.
- [9]This conversation is said to have occurred on or about 20 August 2016.
- [10]A critical part of the plaintiff’s case is that by 20 August 2016:
- closure of the Ipswich plant had been the subject of submissions to meetings of the defendant’s Advisory Board; and
- the defendant, and the Baiada Group of which it was part, knew that it was probable that in or about 2017 the defendant: (i) would cease live processing at the Ipswich plant;
- (ii)would cease processing broiler chickens grown at the Donnybrook Farm; and
- (iii)would cease performing obligations under the grower agreement.
- (ii)
- [11]The plaintiff’s case also is that the possible or probable closure of the Ipswich plant was part of an “Expansion and Consolidation Process” that the defendant had been undertaking for some years, which aimed to concentrate its activities in the Griffith and Tamworth regions of New South Wales. By consolidating or partially consolidating the group’s national operations so that it operated principally from New
South Wales, it would gain certain advantages and facilitate the closure of certain live poultry processing plants operated by the defendant, including the Ipswich plant.
- [12]The plaintiff alleges that closure of the Ipswich plant had been the subject of submissions to meetings of the Advisory Board, and the defendant knew it was probable that in or about 2017 the defendant would cease live processing at Ipswich. This allegation is based upon the fact of the expansion and consolidation process and a number of disclosed documents, including reports by the defendant’s managing director and CEO, the fact that the Ipswich plant was not included in facilities that were to be the subject of significant future capital investment, and from statements to the effect that the defendant and the Baiada Group were concerned that the costs of the Ipswich plant were too high and in excess of budgeted cost amounts.
- [13]The plaintiff also relies upon the contents of minutes of a meeting of the Advisory Board held on 6 August 2015 that record its CEO advising of the scheduled closure of a plant at Laverton for March 2016 and “potentially the SEQ plant in 2017”. The “expected synergies” were reported to be about $30 million per annum in savings. Increased capacity at a New South Wales plant after October 2016 would allow the closures.
- [14]The minutes record:
“These closures will generate better scale on our sites.” It also reported that “SEQ is our highest cost plant”.
- [15]The plaintiff’s case is that it was misled by an initial non-disclosure in August 2016, when the defendant did not disclose these matters. It also alleges a further non-disclosure when these matters were not disclosed to the plaintiff in November 2016 when it sought and obtained the defendant’s consent to the assignment of the growing agreement.
The disclosure regime
- [16]The parties developed a disclosure regime. Sensibly, and consistent with Practice Direction 18 of 2018 and case management of large cases such as this, there has been a staged approach to disclosure.
- [17]By consent orders made on 19 August 2020, the parties agreed to be relieved of their duties of disclosure except to the extent of a document plan annexed to those orders, which provided for the exchange of fifty critical documents with redactions for commercially-sensitive information and a description of the searches undertaken, and with a typical procedure for dealing with any supplementary disclosure.
- [18]Since then, the defendant has given disclosure on three occasions: as originally ordered in October 2020, supplementary disclosure in October 2021, and further supplementary disclosure in February 2023.
- [19]The first tranches of disclosure included numerous documents that were heavily redacted to remove certain highly confidential contents which was irrelevant to the matters in issue in this proceeding. The plaintiff complained about the level of redaction. This led, in part, to consent orders made by Kelly J on 6 December 2022 to allow the plaintiff’s lawyers to inspect less-redacted versions of those documents (“Reduced Redaction Documents”) for a limited time.
- [20]The further supplementary disclosure in February 2023 was made pursuant to the orders of Kelly J and consisted of:
- disclosure of specific categories of documents; and
- disclosure of the Reduced Redaction Documents with an agreed confidentiality regime annexed to those orders, which:
- (i)permitted a short period of investigation just by the plaintiff’s legal representatives (clauses 3 and 4); and
- (ii)permitted them to make any requests for the removal of redaction (clause 6).
- (i)
- [21]The plaintiff’s lawyers exercised their right to request the removal of one piece of redaction, pursuant to clause 6 of the agreed regime. The defendant agreed to this and has produced a revised version of that document with the redaction permanently removed.
- [22]Apart from making specific directions and orders, Kelly J otherwise adjourned the plaintiff’s disclosure application to a date to be fixed.
The present application
- [23]Each party brought applications for disclosure that were returnable on 1 February 2024. The defendant’s application was resolved by consent orders that included protection of confidential documents by what is described as “the Fielder Gillespie and Confidentiality Order Protocol”.
- [24]The plaintiff’s second further amended application for disclosure was opposed.
- [25]The application, as amended, has a history, the full details of which I need not recount. The consent order made by Kelly J on 6 December 2022 made specific orders concerning disclosure of certain documents and for certain documents to be the subject of the confidentiality regime set out in Annexure A to the order. As noted, it included a process for solicitors and counsel for the plaintiff to view certain unredacted documents without copying them, and contemplated that if there was a request to the defendant to remove such redactions, the parties would use all reasonable efforts to resolve such issues. After the inspection of the unredacted documents they were to be returned.
- [26]The disclosure requests have been the subject of extensive correspondence and, as noted, both parties brought applications for disclosure.
- [27]The plaintiff responded to concerns raised by the defendant about the breadth of the categories of documents sought in the original application and in its further amended forms. It filed a second further amended application. The plaintiff contends that this has the effect of seeking disclosure of “target categories” of documents specified in subparagraphs (1)(j)-(p) of the application.
- [28]Those documents are said to be directly relevant to the critical issue in the proceeding about the defendant’s proposal or plans to close the Ipswich plant to live processing, as well as Mr Rapa’s and the defendant’s knowledge of a closure proposal.
- [29]A second aspect of the application concerns an application by the plaintiff for the partially unredacted documents that were subject to a Fielder Gillespie regime to be shown to its expert, subject to a Fielder Gillespie regime in relation to his inspection.
The defendant’s opposition
- [30]The defendant opposes both aspects of the application.
- [31]One aspect of its opposition concerns the timing of the application close to the commencement of the trial, and the consequences for it having to be distracted by undertaking extensive searches and redactions. A related aspect is that the plaintiff’s requests for what are said to be “additional broad categories of documents” involves an inappropriate departure from the disclosure regime that was established. In essence, it contends that the regime established by the consent orders made by Kelly J ran its course with the plaintiff raising an objection to only a single redaction, after which the defendant complied with the request and provided the document in a less-redacted form.
The redaction application in respect of the plaintiff’s expert
- [32]The plaintiff’s redaction application that seeks to extend the Fielder Gillespie regime to its expert is said by the plaintiff to be necessary to enable the plaintiff, with the assistance of its expert, to reconsider or re-evaluate the relevance of the redacted parts of the documents. The defendant responds that this is unnecessary, inappropriate and amounts to something of a fishing expedition. The plaintiff’s solicitors carried out the inspection and raised only one objection to the redaction.
- [33]According to the defendant, the plaintiff has not explained what is to be gained by allowing the plaintiff’s expert to repeat an exercise that was undertaken by its solicitors. The possibility that its industry expert witness might take a different view on the issue of relevance to that taken by the solicitors, or find something useful that the solicitors did not detect, is submitted to not justify the risk of confidential and commercially-sensitive information being inadvertently disclosed by the expert.
- [34]The defendant’s General Manager – Legal and Corporate Affairs, Mr Murray, deposes that:
- he has reviewed the documents as originally produced in fully-redacted form (“Initial Redaction Documents”), the documents which have been included in the plaintiff’s and defendant’s proposed confidentiality regime (“Reduced Redaction Documents”) and the completely unredacted copies of those documents (which are not sought by the plaintiff);
- the documents themselves consist of agendas and minutes of the advisory board and strategy meetings, some CEO reports, a PowerPoint slide presentation, and some emails;
- he summarises the information which was redacted in the Initial Redaction Documents (and which is unredacted in the Reduced Redaction Documents) as descriptions and contents of strategic decision-making of the Baiada Group, updates and reports on projects, internal financial information, internal operational information, contracts and other arrangements with third parties, legal, regulatory and compliance issues, and current or potential marketing strategies;
- importantly, he explains that the information in question does not relate to the plaintiff, its farm or its former contract with the defendant, the closure of the Wulkuraka plant, or any alleged “Expansion and Consolidation Process” as pleaded in the sixth amended statement of claim; and
- he goes on to explain why disclosure of the information would be harmful to the defendant and the Baiada Group, due to the risk that it would be used by competitors such as Inghams (with whom the plaintiff currently has an agreement).
- [35]The plaintiff responds that the Court should not assume that the expert will not strictly observe the undertakings that are required to be given under the Fielder Gillespie and Confidentiality Regime.
Relevant principles
- [36]Because of the urgency of deciding the applications I do not propose to essay the relevant principles, rules or Practice Directions. I was assisted by written submissions and a number of authorities. Given the need for a quick decision, I had hoped to deliver ex tempore reasons on the day of the hearing of the applications. However, the factual complexity and the time that would have been occupied by the parties in attending to receive an oral judgment, has disinclined me from giving oral reasons. The need for the expeditious resolution of this application and an adjourned application for additional security for costs means that my reasons on issues of law and fact will be relatively brief.
- [37]Whereas under the rules there is a prima facie entitlement to disclosure of all documents that are directly relevant to the issues in the proceeding, modern commercial litigation and the Court’s Practice Directions favour the development of disclosure regimes. The regime should be designed to assist in the expeditious resolution of the real issues in dispute at a minimum of expense. It must serve the interests of justice in the circumstances of the case in question.
- [38]Depending on the case, the disclosure regime may capture only some of the documents that are directly relevant, or capture some documents that are not directly relevant but which are included in a category or specifically disclosed for some reason.
- [39]A starting point is that documents that a party is required to disclose must be disclosed in full, subject to a recognised claim of privilege. However, over the decades courts have recognised the need to “strike a balance between the right to discovery for the purpose of the litigation and the interest in maintaining confidentiality”.[1]
- [40]The principles governing redaction were stated by McDougall J in Westgate Finance v May.[2] At the risk of simplification, the authorities establish that, except when made as a matter of a claim of privilege, redaction is not a matter of right. It is permitted with the Court’s leave. The Court does not allow redaction of documents produced pursuant to its processes simply on the basis that some of the material within the document is said to be irrelevant. Where a document must be produced, the party entitled to production ordinarily is not deprived from inspection of the whole of the document, unless there is a proper claim of privilege or confidentiality.
- [41]In general, the Court attempts to strike a fair balance between confidentiality concerns and the needs of a litigant to have access to relevant documents. Sometimes that balance is achieved by permitting redactions. In other circumstances it is achieved by making “Fielder Gillespie” or similar orders.
- [42]Justice Kelly’s orders were intended by the parties to strike such a balance. However, those orders did not finally resolve the plaintiff’s application which was adjourned. The parties should be taken to accept that, despite their hopes to resolve disclosure issues by the regime, the application might need to be re-activated to address unanticipated matters or because the regime did not achieve its aim.
The redactions application
- [43]The plaintiff’s application for disclosure of the partially unredacted documents to enable those documents to be shown to its expert witness in their less-redacted form, relies upon the argument that its expert witness may have a different view of relevance to that of the plaintiff’s solicitors. As was said by McDougall J in Westgate Finance v May:[3]
“It is notorious that one person’s view of relevance may not be the same as another’s. It is equally notorious that different people, looking at documents from different perspectives and for different purposes, may have legitimate disagreements about relevance and irrelevance.”
- [44]So much may be accepted.
- [45]The plaintiff argues that the fact that, with one exception, their solicitors, after two days of inspection, could not identify passages in the documents which required redactions to be removed, does not mean that the present application lacks utility. They contend that there is a very real likelihood that their expert witness, approaching the documents from a different perspective, will identify material in a document which he considers to be directly relevant to the issues in dispute in the proceeding. It argues that it should not be deprived of that opportunity, especially in circumstances in which the documents have already been seen in their partially unredacted form by its lawyers.
- [46]I am not persuaded that the possibility of the plaintiff’s expert witness in taking a different view about the relevance of documents to the view taken by the plaintiff’s solicitors warrants the order as sought in all the circumstances. The relevant inquiry does not concern the financial performance of the business or its operations in general. The expert is not being asked to consider documents that would aid in a valuation of the business or to conduct some retrospective analysis of whether, in his opinion, there was merit in closing the Ipswich plant at the relevant time. The focus is whether the partially unredacted documents that were reviewed by the solicitors contain items that are directly relevant to the issues and, in particular, to a proposal or plan to close the Ipswich plant, possibly as part of a broader business plan. Despite being limited to an inspection over two full days, it would be surprising if the plaintiff’s solicitors were unable to identify passages in documents that related to the relevant issue, as distinct from more routine business reports and financial information about the performance of its Queensland and other operations.
- [47]As against the possible benefits of allowing the plaintiff’s expert to undertake a fresh review of the partially unredacted documents and to approach the documents from a different perspective, are considerations of costs, disruption, delay and risk of inadvertent disclosure. I accept that the expert will do his best to comply with the undertaking which would be required to be given. I have regard to the nature of the subject matters canvassed in the relevant documents, as summarised in paragraph 22 of Mr Murray’s affidavit and quoted above. Those matters concern confidential and commercially-sensitive information. Once read, the information cannot be easily forgotten by the plaintiff’s expert who is involved in the industry and consults one of the defendant’s leading competitors.
- [48]On balance, the utility of making the order sought in extending the confidentiality regime of the application has not been demonstrated. I am not persuaded that there is a real likelihood that the expert witness will find in the partially unredacted documents information that is directly relevant to the issues and which has not been disclosed. As a non-lawyer, he may have a different view of relevance to that of the plaintiff’s solicitors. However, that does not mean that his view will be correct. There is a risk that he will apprehend that internal financial information and operational information is relevant to the issues in dispute in the proceeding, in circumstances in which it does little more than report on the defendant’s operations and financial performance. A proliferation of subjective opinions about relevance is not to be encouraged, especially at this late stage.
- [49]I must do my best to strike a fair balance between the defendant’s confidentiality concerns and the need of the plaintiff to have access to documents that are directly relevant to the issues in dispute in the proceeding. In doing so, I take into account that confidentiality concerns may be addressed to a substantial extent by subjecting the expert to the same confidentiality regime as the one to which the plaintiff’s solicitors were subject.
- [50]The confidentiality regime that was worked out by the parties and reflected in Justice Kelly’s orders reflected an appropriate balance. It enabled the plaintiff’s solicitors to undertake an exercise that the plaintiff now wishes its expert to now also undertake. I accept the plaintiff has concerns that its solicitors may have missed something and that, in the circumstances, the interests of justice are served by allowing, as it were, its expert to have a second bite at the cherry. However, its apprehension that the expert may be able to find directly relevant information cannot be equated with a real possibility or even a probability that he will do so. On balance, the plaintiff has not persuaded me that it is in the interests of justice to make the order that is sought at this stage.
Categories of additional disclosure sought
(j) Minutes of Queensland management meetings held between 1 July 2015 and 31 December 2017
- [51]The defendant has disclosed some documents called “Queensland management meeting minutes”, dated 27 September 2016, 17 January 2017, 14 February 2017, 21 March 2017 and 3 April 2017. The existence of minutes for earlier meetings is not disputed. Instead, the defendant’s solicitor, Mr McKeough, gives evidence on information and belief from the defendant’s General Manager – Legal and Corporate Affairs, Mr Murray, that Queensland management meetings occur on a frequent but irregular basis to consider operational matters. It is said that:
“Strategic decisions, including the closure of the Wulkuraka processing plant, are not made in this forum. The Queensland management meetings would not have been the forum for discussion about closure of the Wulkuraka processing plant until after the closure decision had been made.”
- [52]In short, the defendant opposes disclosure on the basis that because the Queensland meetings dealt with operational rather than strategic matters, closure decisions would not have occurred at such meetings. However, this does not mean that the minutes do not contain information that is directly relevant to the issues, particularly the implementation of a national policy to consolidate the group’s operations, the possibility of the Ipswich plant closing and the potential costs and savings associated with such a closure.
- [53]Mr Camilleri’s report to the Board on 6 August 2015, which referred to savings associated with the closure of the “SEQ plant” in 2017, could not have come out of thin air. If it be the case that, as reported, the “SEQ plant” was the defendant’s highest cost plant, then this information must have been sourced from minutes or other documents concerning the Queensland plant’s operation and its costs. It seems improbable that a proposal to close the Queensland plant was taken to the defendant’s Advisory Board without that decision, or the basis for it, being discussed with or by senior management of the defendant’s Queensland branch. The distinct possibility exists that the minutes record the fact that the Queensland operations were under scrutiny and at some risk of closure because of the group’s consolidation process and for the reasons that were explained to the Advisory Board in August 2015.
- [54]Minutes of the Queensland management meetings that have been disclosed reveal that the meetings were attended by Mr Simon Camilleri and others. Mr Rapa was the Queensland Manager and apparently attended those meetings. While the defendant has disclosed Queensland management meetings on the dates that I have noted, it has not disclosed any such documents in relation to meetings that occurred before Mr Rapa’s meeting with Mr Vorster in August 2016. The Queensland management meetings that preceded that conversation are directly relevant to the existence of, and Mr Rapa’s knowledge of, a proposal that, if pursued, would result in live processing ceasing at the Ipswich plant, and that the possible closure of the plant had been the subject of submissions to and consideration by the Advisory Board or at least some members of it.
- [55]Therefore, I consider that there is a reason to order disclosure of the Queensland management meetings during the period between 1 July 2015 and 31 December 2017.
- [56]Any further disclosure will need to be subject to redaction of figures, consistent with the approaches taken in other disclosures. As Mr McKeough explains, the minutes contain dollar amounts, volumes and percentages which are confidential to the defendants and the group of which it is a member, and these figures are commercially-sensitive. Therefore, I direct that the disclosure of the minutes of the Queensland management meetings be subject to the process of redaction that is applied in relation to similar documents.
1(k) Quarterly management meetings for the period from 1 July 2015 to 31 March 2017
- [57]This request was prompted by the disclosure of an email dated 29 September 2016 from Mr Rapa to Mr Simon Camilleri with the subject line “Quarterly management meeting slides – operations”. It attached a PowerPoint document titled “National Savings V 2” that was said to have been a copy of slides that had been presented the previous Friday. Mr McKeough explains that neither the defendant nor the Baiada Group hold quarterly management meetings. Instead, they hold quarterly Advisory Board meetings (the minutes of which have been disclosed). Meetings of national operations managers are held on an ad hoc basis at the request of Simon Camilleri. The minutes and documents relating to those meetings have already been searched as part of the searches carried out and covered by the defendant’s disclosure statement dated 28 October 2020.
- [58]The plaintiff makes the point that the documents relating to those meetings were searched for the purpose of the defendant disclosing its “50 critical documents” in the first round of disclosure. However, I apprehend from paragraph 55 of Mr McKeough’s affidavit that the minutes and documents relating to national operation managers’ meetings were searched to ascertain if they included documents directly relevant to the matters in issue. If those documents were searched and revealed documents that are directly relevant to the issues, then they should be disclosed, whether or not they made what I might describe as the “Top 50 Cut”.
- [59]If the ad hoc national operation managers’ meetings were not subject to the two-stage search process based on search terms, then they should be, or at least subject to agreed searches that are designed to identify documents that are directly relevant and exclude those that probably do not.
- [60]For the moment, I proceed on the basis that the minutes and documents relating to the meetings of the national operations managers were searched and that the searches did not disclose documents that are directly relevant to the issues in dispute. The matter can be clarified, if necessary, by correspondence between the solicitors. If my assumptions are correct, then there is no basis for a further order because the documents have been searched and any directly relevant documents disclosed.
- [61]If my assumption is incorrect, the matter should be the subject of a suitably specific order.
(l) Board packages or packs for the Advisory Board meetings for the period 1 July 2015 to 31 March 2017
- [62]The defendant has disclosed agendas for, and minutes of, certain Advisory Board meetings held on and after 6 August 2015. This is because they are directly relevant and demonstrate that the closure of the Ipswich plant was a matter being considered from at least 6 August 2015.
- [63]This aspect of the plaintiff’s application does not relate, however, to agendas or minutes. It seeks the disclosure of material that was provided to members of the board over a period of nearly two years. That documents, described as “packages” or “board packs”, exist is not in dispute. Documents that have already been disclosed contain references to such packages.
- [64]The defendant resists the orders sought because the board packages are “some of the most commercially-sensitive documents in existence” within the group, being a group of private companies which includes the defendant. Redacted versions of the agenda, CEO report and reports of each Advisory Board meeting in the relevant period have been disclosed. Lightly redacted versions of the same documents have been made available for inspection to the plaintiff’s legal representatives as part of the Reduced Redaction Clean Documents Process. The defendant contends that the plaintiff has not identified any redacted parts of the board packs would be relevant to the issues in dispute.
- [65]The plaintiff contends that statements like those appearing in the 6 August 2015 board meetings “can only be made following planning and analysis by management”. It submits that to understand the possible savings (said to be $30 million per annum) and available capacity, it is reasonable to infer that the speaker was drawing from some analysis to give such a report to the board. The plaintiff’s expert witness gives the opinion that decisions such as the closure of processing facilities and the expansion of processing capacity are decisions which, in its experience, are not taken without reference to detailed planning analyses. I accept that this is so. However, in my view it does not justify an order for the disclosure of all the board packages during the period requested.
- [66]I accept that Mr Simon Camilleri would not have been in a position to advise the board on 6 August 2015 of “expected synergies” of about $30 million per annum in savings, unless this had been the subject of analysis by him and others within the management of the defendant. It remains to be seen whether the $30 million figure that he mentioned was a “back of the envelope” calculation or the subject to a more detailed analysis undertaken by the organisation’s chief financial officer and other employees and consultants. This does not mean, however, that their analysis and calculations, simple or sophisticated, were included in the board pack for the 6 August 2015 board meeting. The minutes do not suggest that they were. For example, the minutes do not refer to supporting figures or any other material in an associated board package. The minutes are consistent with the subject of the potential closure of the Ipswich plant being raised at the Advisory Board for the first time on 6 August 2015.
- [67]If there was any part of the board pack for that meeting or any subsequent meetings for the period up to 31 March 2017 that related specifically to the closure or possible closure of the “SEQ plant”, then those parts of the documents should be disclosed. This is because they relate to the knowledge of relevant individuals who are alleged in paragraph 17A of the plaintiff’s pleading to have actual knowledge of the matters pleaded in paragraph 17. This does not justify, however, the disclosure of all of the board packages for the period from 1 July 2015 to 31 March 2017 (subject to redactions).
- [68]My assumption that the 6 August 2015 board pack did not include material specifically related to the topic of site closures is based upon the contents of the Advisory Board meeting minutes of that date and what I would regard as common experience, namely that a topic may be raised at a meeting of a Board or Advisory Board, and even placed on the agenda for such a meeting, without the matter being the subject of supporting documents that are given in advance to the attendees. Site closures is not a separate topic listed for discussion in the agenda for the 6 August 2015 meeting. A section on site closures forms part of the CEO oral report. The CEO’s written report was “taken as read” at the meeting. If the CEO’s written report referred to site closures, then that part of the report should be disclosed if it has not already been disclosed. The same would apply to CFO reports or other reports and documents at it or subsequent meetings at which the closure or possible closure of the SEQ plant was discussed.
- [69]The plaintiff has not made out a case for disclosure of all of the board packages over the requested period, subject to redaction. The board packages contain confidential and commercially-sensitive information. The process of redaction of multiple board packages cannot be justified because of its cost and inconvenience to the defendant and its legal advisors so close to trial.
- [70]There is a case, however, for the disclosure of those parts of any board packs that referred to possible closure of what is variously referred to as the SEQ plant, the Ipswich plant or the Wulkuraka plant, or more precisely the potential cessation of live processing at that plant. Therefore, any parts of the CEO report provided for the purpose of the 6 August 2015 meeting and any other material in the board package for that meeting that dealt with actual or potential site closures, should be disclosed. The same applies to board packages for any subsequent meetings in the period up to 30 March 2017.
- [71]The precise form of order will need to be refined by the parties and a cost-effective process by which the board packages are searched, if they have not already been searched.
- [72]In summary, disclosure of the board packages over the relevant period, subject to inevitably extensive, time-consuming and expensive redactions, is not justified. It is disproportionate, costly and inconvenient. There is, however, a basis for a targeted order requiring disclosure of the specific parts of any board packs during the requested period that refer to the possible closure of the SEQ plant, possible site closures or what the pleading alleges to be an expansion and consolidation plan that would necessarily have entailed the closure of certain high-cost plants.
(m) and (n) Non-renewal of grower contracts
- [73]The plaintiff seeks disclosure of:
“(m) documents recording correspondence between the defendant and broiler chicken growers with contracts with the defendant or other members of the Baiada Group servicing its South East Queensland operations in respect of the renewal (or non-renewal) of broiler contracts between 1 July 2015 and 31 March 2017;
(n) emails, notes or other documents recording communications between any of the directors of the defendant referred to in paragraph 13(e) of the sixth amended statement of claim and Charles Rapa concerning the renewal of grower contracts in the South East Queensland region for the period from 1 July 2015 to 31 August 2017;”
- [74]The defendant opposes such orders because further searches for such documents would be onerous, costly and time-consuming, requiring searches of archived mailboxes and hard copies in various locations.
- [75]A methodology was adopted to give disclosure of relevant documents in this category. It yielded some correspondence between Mr Rapa and Mr Camilleri in relation to grower agreements in May and October 2016. It yielded emails in which Mr Rapa asked Mr Camilleri about how he should respond to certain growers or prospective growers’ questions. Mr Camilleri’s responses to each of those emails has not been disclosed. At the time the application was being prepared Mr McKeough was seeking instructions and clarification about reply emails. I was told at the hearing on 1 February 2024 that responses had been found. They should be disclosed and the defendant indicated at the hearing that they would be disclosed.
- [76]That is sufficient to address request (m). A further round of searches of correspondence cannot be justified in the present circumstances.
- [77]Request (n) concerns internal communications, particularly emails between Mr Rapa and the directors about the renewal of grower contracts in South East Queensland. This does not involve an onerous request to search or again search a wide variety of sources for correspondence with growers. A reasonable search might be targeted at Mr Rapa’s email inbox and outbox along with a search of the inbox and the outbox of Mr Simon Camilleri’s emails. Such a targeted search should be apt to find communications about the renewal or non-renewal of grower contracts. If Mr Rapa’s and Mr Camilleri’s emails have been searched for contract renewals in South East Queensland, they need not be repeated.
- [78]The plaintiff submits that communications about the renewal or otherwise of contracts in a confined period that straddled the period of the initial non-disclosure and the further non-disclosure is relevant to the issues. It submits that such communications may contain discussions to the effect that the defendant would not be renewing agreements due to the closure of the Ipswich plant, and may also contain communications between Mr Camilleri and Mr Rapa, which shed light on Mr Rapa’s knowledge of a possible closure of the Ipswich plant.
- [79]The defendant responds that Mr Rapa’s knowledge is not pleaded and the discussions about non-renewal of agreements fall short of being directly relevant to the issue of the closure or likely closure of the plant.
- [80]Mr Rapa is not alleged in paragraph 17A of the plaintiff’s pleading to be one of the persons who had knowledge of the matters alleged in paragraph 17. However, this does not alter the fact that communications with him by directors might be reasonably supposed to disclose the existence of a process to close the SEQ plant, and for contracts to be renewed for a certain period or not renewed with a view to a possible, probable or anticipated closure. I accept that there may be many reasons to renew or not renew individual agreements. If a communication with Mr Rapa expressly referred to a possible closure of the plant in the context of consideration about renewal, then it would assist the defendant’s case. If there was an unexplained decision to not renew a grower’s contract, then it also might support, by inference, the plaintiff’s case that the defendant had embarked on a process of closure or at least, be relevant to the probability of such a closure.
- [81]On balance, there should be further disclosure in relation to communications with Mr Rapa about renewal of grower contracts in the relevant period. To avoid excessive and unnecessary searches, disclosure should be completed by an appropriate search of relevant email correspondence between Mr Rapa and the directors. No reason has been given as to why an appropriate electronic search of Mr Rapa’s emails, using appropriate search terms, would not disclose correspondence with directors about the renewals. Therefore, as presently advised, I do not regard the requested search of Mr Rapa’s emails as being too onerous.
- [82]If there is some significant problem with searching his emails for the relevant period with search terms that concern the renewal of grower contracts, then I will reconsider the matter. Otherwise a suitably targeted search and disclosure order should be drafted to address Request (n).
Request (o)
- [83]The plaintiff seeks disclosure of documents recording correspondence between the defendant, or alternatively, other members of the Baiada Group and any member of the M&C Saatchi Group between 1 July 2015 and 31 March 2017 regarding or relating to actual or possible:
- closure of any of the defendant’s processing plants; or
- rationalisation of any of its processing plants or other related operations; or (c) reduction of any of its operations in South East Queensland.
- [84]This request was inspired by the fact that the minutes of the Advisory Board meeting held on 6 August 2015 included the following passage:
“Site closures: John noted that we will require PR management with the closure of two sites. Local headlines will happen. We need to prepare and anticipate how to deal with this. Scott advised that Saatchi PR is meeting with Simon and himself later today.”
- [85]The plaintiff contends that communications between the defendant and what is referred to in the minutes as “Saatchi PR” about providing public relations advice about the closure of the Ipswich plant is relevant. The defendant does not contest the relevance of any such communication, but says that it has nothing to disclose.
- [86]The plaintiff issued a non-party disclosure notice to M & C Saatchi Agency Pty Ltd on 10 August 2023, which advised it had no documents to produce. There may be another business with the name Saatchi & Saatchi that provides public relations services. It is difficult for the plaintiff to ascertain the correct entity to which it should direct inquiries.
- [87]This aspect is best resolved by the provision of an affidavit by a suitably-informed representative of the defendant who can depose whether the defendant or other members of the Baiada Group had communications with any public relations business with Saatchi in its name, between 1 July 2015 and 31 March 2017, regarding or relating to the three matters specified in subparagraphs (o)(i), (ii) and (iii).
- [88]In addition, Mr Simon Camilleri should be required to swear an affidavit concerning any meeting that he held on or about 6 August 2015 with any public relations entity named Saatchi in relation to the same topics. The affidavit should disclose whether any diary entries, file notes, correspondence or other documents relating to such a meeting were brought into existence, and to produce the same if they are in the defendant’s power or possession.
(p) “Project Joshua”
- [89]The plaintiff seeks documents that refer to or use the term “Project Joshua” for the period from 1 July 2015 to 31 March 2017. This request is spurred by a disclosed email from Mr Camilleri to, inter alia, Mr Murray dated 31 January 2017 with the subject line “Project Joshua”. It states that it is “Confidential re SEQ”, refers to a possible decision to “shut the Ipswich plant” and concerns notifying growers.
- [90]The plaintiff submits that it can be inferred from that document that the phrase “Project Joshua” is referrable to the pleaded process implemented by Bartter to close the Ipswich Plant to live processing. Any such documents would therefore be relevant to the allegations in [22A]-[23] of its current pleading.
- [91]Incidentally, the word “Joshua” was used as a search parameter in the electronic searches that were performed to identify the documents for disclosure. Those searches were used to identify 50 critical documents that were disclosed on 9 October 2020, and also additional disclosure made on 13 February 2023.
- [92]The defendant submits that because of that search, the use of “Project Joshua” in any further searches is not likely to result in any different result.
- [93]There is a logic to the defendant’s position if it be assumed that the earlier search only produced one document that referred to “Project Joshua”. Yet, the choice of the search term “Joshua” suggests that the defendant was expecting to find more than one document.
- [94]The matter is best resolved by not requiring the defendant to undertake, at least at this stage, further electronic searches using the search term “Project Joshua”. However, the unexplained use of that term supports the plaintiff’s argument that the term referred to the process relating to the closure of the Ipswich plant to live processing. If that is the case, it seems improbable that only one document would use the term. The possible existence of further relevant documents in relation to “Project Joshua” is best resolved by requiring Mr Simon Camilleri (the author of the relevant email) to swear an affidavit concerning:
- his use of the term “Project Joshua”:
- the origin of the term “Project Joshua” and to what it referred;
- by whom and to whom the term was used;
- the period over which the term was used;
- the documents or categories of documents in which he, or other persons to his knowledge, used the term.
- [95]Mr Camilleri’s affidavit will assist in determining what further orders, if any, should be made in relation to documents which refer to or use the term “Project Joshua”. Conclusion
- [96]These reasons have been prepared in some haste and as an efficient alternative to delivering time-consuming oral reasons. I will direct the parties to confer and agree a suitable form of order that will give effect to these reasons.
- [97]In the case of each matter about which I have indicated there should be further disclosure, the terms of each order and a specific process by which limited further disclosure is to be provided, should be agreed. This may entail suitable electronic searches and agreement about redaction in relation to confidential or commerciallysensitive information, and the possible application of the existing confidentiality regime or a similar process.
- [98]I direct the parties to avoid protracted discussions, correspondence and debates about the terms of specific draft orders. If counsel and solicitors cannot resolve the terms of order quickly, then I will resolve the matter at a review at 2:30 pm tomorrow and the solicitors can give sworn oral evidence before me.
- [99]Because some parts of my order, such as the “Project Joshua” direction, may require future additional orders, it is appropriate that, in addition to specific directions and orders, the plaintiff’s application is otherwise adjourned to a date to be fixed.