This decision concerned a dispute over the redaction of documents discovered by the defendant in the class action against the wine supplier, Treasury Wine Estates Ltd (Treasury). Broadly, the class action alleges that Treasury breached its continuous disclosure obligations and engaged in misleading or deceptive conduct in making representations to the market about its financial performance.
Pursuant to consent orders, Treasury was permitted to redact parts of documents produced in an initial tranche of discovery, being “parts of the board minutes and papers … that are both confidential and not relevant to the issues raised by the consolidated statement of claim”. The parties disputed whether redactions applied by Treasury were permitted in accordance with the orders. The dispute was crystallised by reference to sample documents that the parties agreed exemplified the contested issues. A significant part of the dispute was determined by a ruling given by Steffensen JR on 5 April 2022. The remaining dispute concerned two sample documents which formed part of board papers and concerned the subject of US distributor inventory.
The primary issue before Nichols J was whether the redacted parts of the two sample documents were relevant to the pleaded case. The plaintiffs submitted that US distributor inventory information is relevant to allegations concerning market conditions which are said to have impacted Treasury’s financial performance in the US wine market, and that the connection between the pleaded market conditions and US distributor inventory are apparent from unredacted parts of the discovered documents themselves. Treasury argued that the subject of distributor inventory was wholly discrete and had no relationship to the alleged market conditions or other facts said to be relevant to Treasury’s financial performance. Nichols J was not persuaded by Treasury’s argument. Her Honour reasoned (at ):
Once attention is paid to the content of the documents, it is apparent that the proposed redactions would detract from a proper understanding of the meaning and significance of the admittedly relevant parts of the document. That is so, notwithstanding that the unredacted parts of the document are by themselves comprehensible. The redacted parts evidently inform the meaning and significance of the redacted parts.
Given that the disputed documents link distributor inventory with components of Treasury’s business that are accepted as relevant to the pleaded case (being shipments and depletions), her Honour found that the redactions were not justified. Her Honour ordered that the sample documents be produced in unredacted form and “like information” be unredacted in documents that had already been discovered.
Supreme Court of Victoria, Nichols J,
18 May 2022
Plaintiffs’ Solicitors: Maurice Blackburn / Slater & Gordon
Defendant’s Solicitors: Herbert Smith Freehills
Plaintiffs’ Funder: N/A
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