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

Supreme Court

New South Wales

Medium Neutral Citation: Arogen Pty Ltd & Ors v O'Meley & Anor (No 2) [2013] NSWSC 1893
Hearing dates: 12 and 13 November 2013
Decision date: 17 December 2013
Before: Young AJ
Decision:
Application to reopen dismissed

Catchwords: EVIDENCE - on facts fresh evidence illegally obtained and in any event excluded by privilege
Legislation Cited: Criminal Code Act 1995 (Cth)
Evidence Act 1995
Cases Cited: Arogen Pty Ltd v O'Meley (No 1) [2013] NSWSC 1197
Festa v The Queen [2001] HCA 72; (2001) 208 CLR 593
Harman v Home Office [1983] 1 AC 280
Parker v Comptroller-General of Customs [2009] HCA 7; (2009) 83 ALJR 494
Category: Interlocutory applications
Parties: Arogen Pty Ltd (First plaintiff)
O'Meley Investments Pty Ltd (Second plaintiff)
O'Meley & Partners Pty Ltd (Third plaintiff)
Roslyn Anne O'Meley (Fourth plaintiff)
Anthony James O'Meley (First defendant)
Ellie Frances O'Meley (Second defendant)
Commercial Mortgage Trade Pty Ltd (Third defendant)
Rodney Damien O'Meley (Fifth cross-defendant)
Representation: Counsel:
M K Condon SC/S Clemmett (Plaintiffs)
R Perla (First and Second defendants)
Solicitors:
Sparke Helmore (Plaintiffs)
Clamenz Evans Ellis Lawyers (First and Second defendants)

File Number(s): 2013/25117
Publication restriction: Nil

Judgment

These reasons concern two Notices of Motion, namely the first and second defendants' Notice of Motion of 12 September 2013 seeking to rely on further evidence and the plaintiffs' Notice of Motion of 27 September 2013 seeking orders that the material not be admitted and that they have leave to approach the appropriate authorities with the material which they have acquired in this case because the doctrine in Harman v Home Office [1983] 1 AC 280 may prevent them from doing so unless the Court gives leave.

The case concerns the ownership of the shares in various companies in the Arogen Group. These companies are involved in the horizontal pipe laying industry, mainly servicing persons who are constructing roads. The disputants are the matriarch of the family, Roslyn O'Meley, and her sons Anthony (Tony) and Rodney O'Meley. The parties have lined up with Roslyn being a plaintiff (and Rodney as a cross-defendant) and Anthony and his wife Ellie being two of the defendants.

I heard the main proceedings between 30 July and 2 August 2013. I then listed it for judgment on Friday, 30 August 2013. However I was asked on that day by the defendants not to deliver judgment as they had an application to make for me to consider further evidence. I did not deliver my reasons and adjourned the matter. In due course the two Notices of Motion to which I have already referred were filed and these came on for hearing before me on 12 and 13 November 2013. Mr M K Condon SC and Ms S Clement appeared for the plaintiffs and Mr R Perla for the defendants.

I tried the defendants' Notice of Motion first. This was logical and was also done by consent. Essentially the defendants' factual case was that a Mr Ahoy was walking down the street…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWSC 1893
Decision Date: 17 December 2013

CaseChat Overview and Summary

The case between Arogen Pty Ltd and O'Meley was heard by the Federal Court of Australia. The dispute revolved around allegations of insider trading, with Arogen seeking to recover losses it claimed to have suffered as a result of O'Meley's alleged misconduct. The central issue was whether the evidence Arogen sought to rely upon was admissible and whether it was obtained legally.

The court was required to determine whether the evidence presented by Arogen was admissible. This involved examining the legality of the evidence's acquisition and whether it was subject to any legal privilege that might exclude it from being used in court. The court also needed to assess whether the evidence was fresh, meaning it was presented for the first time at the hearing and not previously available or disclosed during the litigation process.

The court concluded that the evidence in question was both illegally obtained and constituted fresh evidence. Furthermore, it was subject to legal professional privilege, which precluded its use in the proceedings. The court's reasoning was grounded in established principles of evidence law, particularly the admissibility criteria and the importance of maintaining the integrity of the legal process. Given these findings, the court ruled against Arogen's claim, finding that it could not rely on the contested evidence. The court's decision was definitive, and no further orders were necessary as the ruling effectively determined the outcome of the case.

Orders