Showcase Realty Pty Ltd v Circosta [2022] NSWSC 336

Showcase Realty Pty Ltd v Circosta [2022] NSWSC 336

Leave was granted for the plaintiff to adduce expert evidence, but strictly limited to imaging and analysis of the MyDesktop database previously seized under the Anton Piller orders (now set aside), balancing the deterrent need not to condone lack of ex parte candour, the overriding statutory mandate for efficient and just resolution, and the practical certainty that discovery would otherwise be granted for the same material given its probative value.

Parties
Plaintiff: Showcase Realty Pty Ltd; First Defendant: Nathan Circosta; Second Defendant: Oproperty Pty Ltd
Jurisdiction
Australia
Judgment Date
01 March 2022
Procedural Posture
Civil Proceeding (equity, Procedural Motion) / Interlocutory Application for Leave to Adduce Expert Evidence
Outcome
Application granted subject to limitations
Legal Topics
Expert Evidence, Search Orders (anton Piller Orders), Confidentiality, Discovery, Case Management
Civil Procedure Equity Expert Evidence Search Orders (anton Piller Orders) Confidentiality Discovery Case Management

Case Brief

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Parties

Showcase Realty Pty Ltd

Plaintiff

Nathan Circosta

First Defendant

Oproperty Pty Ltd

Second Defendant

Procedural Posture

Civil Proceeding (equity, Procedural Motion) / Interlocutory Application for Leave to Adduce Expert Evidence

Legal Issues

  1. 1 Whether the plaintiff should be granted leave to adduce expert evidence based on data seized under search orders later set aside ab initio
  2. 2 Whether and to what extent material obtained under search orders set aside can be used in proceedings
  3. 3 The balancing of case management need to resolve issues efficiently against deterrence of failure to disclose on ex parte applications

Ratio Decidendi

Leave was granted for the plaintiff to adduce expert evidence, but strictly limited to imaging and analysis of the MyDesktop database previously seized under the Anton Piller orders (now set aside), balancing the deterrent need not to condone lack of ex parte candour, the overriding statutory mandate for efficient and just resolution, and the practical certainty that discovery would otherwise be granted for the same material given its probative value.

Court Disposition

Application granted subject to limitations

Orders

  • Plaintiff granted leave to adduce expert evidence from Michael Khoury of KPMG as independent digital forensic expert.
  • Defendants' solicitors to deliver to the Expert the hard drive containing the relevant electronic data from search orders within three business days.