Arogen Pty Ltd & Ors v O'Meley & Anor (No 2) [2013] NSWSC 1893

Arogen Pty Ltd & Ors v O'Meley & Anor (No 2) [2013] NSWSC 1893

The defendants' account of how Annexures A and B came into their possession was not accepted because of serious contradictions in the evidence of Mr Ahoy and Mr Field, while Rodney O'Meley's denial was not affected in cross-examination. On the balance of probabilities the documents were obtained by hacking by the defendants or their agents, making them improperly or illegally obtained; the defendants did not show that the desirability of admission outweighed the undesirability under s 138 of the Evidence Act 1995. In any event, the documents were privileged statements given to solicitors in connection with the proceedings and no waiver of privilege was established, so s 118 provided an...

Jurisdiction
Australia
Judgment Date
17 December 2013
Procedural Posture
Interlocutory Applications / Notices of Motion Seeking to Rely on Further Evidence and Seeking Non Admission, Delivery Up and Release From Implied Undertaking
Outcome
Application to reopen dismissed; defendants' Notice of Motion dismissed with indemnity costs; plaintiffs' motion granted in part.
Legal Topics
['fresh Evidence' 'illegally Obtained Evidence' 'client Legal Privilege' 'implied Undertaking' 'hacking' 'indemnity Costs']
['evidence' 'civil Procedure'] ['fresh Evidence' 'illegally Obtained Evidence' 'client Legal Privilege' 'implied Undertaking' 'hacking' 'indemnity Costs']

Case Brief

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Procedural Posture

Interlocutory Applications / Notices of Motion Seeking to Rely on Further Evidence and Seeking Non Admission, Delivery Up and Release From Implied Undertaking

Legal Issues

  1. 1 ['Whether the first and second defendants established how Annexures A and B came into their possession.' 'Whether Annexures A and B were obtained improperly or in contravention of an Australian law and should be excluded under s 138 of the Evidence Act 1995.' 'Whether Annexures A and B were privileged communications and whether privilege had been waived.' 'Whether the plaintiffs should be released from the implied undertaking under Harman v Home Office to provide the documents to an appropriate authority.']

Ratio Decidendi

The defendants' account of how Annexures A and B came into their possession was not accepted because of serious contradictions in the evidence of Mr Ahoy and Mr Field, while Rodney O'Meley's denial was not affected in cross-examination. On the balance of probabilities the documents were obtained by hacking by the defendants or their agents, making them improperly or illegally obtained; the defendants did not show that the desirability of admission outweighed the undesirability under s 138 of the Evidence Act 1995. In any event, the documents were privileged statements given to solicitors in connection with the proceedings and no waiver of privilege was established, so s 118 provided an...

Court Disposition

Application to reopen dismissed; defendants' Notice of Motion dismissed with indemnity costs; plaintiffs' motion granted in part.

Orders

  • ["The defendants' Notice of Motion is dismissed with costs on the indemnity basis." "The defendants are ordered to deliver up to the plaintiffs all copies of the documents Annexures A and B to the affidavit of Ellie Frances O'Meley sworn 5 September 2013, whether in hard copy format or electronic format, that are in...